To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Present patent laws apply to—
any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof. —
It will be noted that the laws apply both to the acts of inventing and discovery and this alternative application has been true of the patent laws from their beginning. See, for instance, the patent act of 1790 (1 Stat. 109). The amendment proposed by the pending bill to care for plant patents likewise applies to "any person who has invented or discovered" the particular variety of plant.
There can be no doubt that the grant of plant patents constitutes a promotion of the "progress of science and useful arts" withui the meaning of the constitutional provision. The only question is, Is the new variety a discovery and is the inventor or discoverer an inventor?
There is a clear and logical distinction between the discovery of a new variety of plant and of certain inanimate things, such, for exampie, as a new and useful natural mineral. The mineral is created wholly by nature unassisted by man and is likely to be discovered in various parts of t.ie country; and being the property of all those on whose land it may be found, its free use by the respective owners should of course be permitted. On the other hand, a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man and such discoveries can only be made available to the public by encouraging those who own the single specimen to reproduce ït asexually and thus create an adequate supply. , , . ,
It is obvious that nature originally creates plants but it can not be deniea that man often controls and directs the natural processes and produces a desired result. In such cases the part played by nature and man can not be completely separated or weighed or credited to one or the other. Nature in such instances, unaided by man does not reproduce the new variety true
to type. . .
Furthermore, there is no apparent difference for instance, between tne part played by the plant originator in the development of new plants ana the part played by the chemist in the development of new compositions of matter which are patentable under existing law. Obviously, these new compositions of matter do not come into being solely by act of man. Ihe chemist who invents the composition of matter must avail himself oi the physical and chemical qualities inherent in the material used and of tne natural principles applicable to matter. Whether or not he is aware of these principles does not affect the question of patentability. The inventor oi tne composition of matter may have definitely in mind the new product and definitely worked toward it. On the other hand as is true of many ottnc most important inventions, he may accidentally discover the product, perhaps in the course of the regular routine of his work. He does not have to show for instance, that he mixed the elements and expected them to produce the particular composition of matter. He may simply find the resulting product and have the foresight and ability to see and appreciate lts po^sibilities and to take steps to preserve its existence.
The same considerations are true of the plant breeder. He avails nimseit of the natural principles of genetics and of seed and bud variations. He