How to Trademark a Fruit

To protect the fruits of their labor and thwart “plant thieves,” early American growers enlisted artists

Before there were fruit patents, there were pictures. Shown here is The Red Astrachan apple. (Massachusetts Horticultural Society)
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Yet neither the registration scheme nor any other method protected the fruit men’s rights as originators. Then, in 1930, after years of their lobbying, Congress passed the Plant Patent Act. The act authorized a patent to anyone who “has invented or discovered and asexually reproduced any distinct and new variety of plant.” It covered most fruit trees and vines as well as clonable flowers such as roses. It excluded tuber-propagated plants such as potatoes, probably to satisfy objections to patenting a staple of the American diet.

The act, the first statute anywhere that extended patent coverage to living organisms, laid the foundation for the extension, a half century later, of intellectual property protection to all organisms other than ourselves. But if it anticipated the future, the act also paid homage to the past by requiring would-be plant patentees, like other applicants, to submit drawings of their products. Law thus became a stimulus to art, closing the circle between colored illustrations of fruits and the intellectual property they embodied.

Daniel J. Kevles, a historian at Yale University, is writing a book about intellectual property and living things.


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