Why didn’t an equivalent to the US Plant Patent Act of 1930 emerge in Britain? – Berris Charnley

This is an old paper that I gave at a workshop last year. I have been looking to work it up for publication and now I have finally got some time. It has been sitting at the bottom of a draw for a while, so I thought I should air it out. Any thoughts or comments welcomed.

In 1906 the Royal Horticultural Society hosted the Third International Conference on Hybridisation and Cross Breeding. The meeting is remembered now as a triumph of the Mendelian school, whose leader, William Bateson, used the occasion to put into public circulation his new term for the science, “genetics.” Less widely remembered is that the meeting also saw a session bringing together plant breeders to discuss another, related, matter: whether they could use the law to protect their intellectual property in the novel varieties that, they reckoned, would surely arise ever more abundantly thanks to the work of the Mendelians. So plant intellectual property was an explicit point of discussion among plant breeders in Britain from the early years of the twentieth century. And yet over the succeeding decades there would never emerge anything comparable to the US Plant Patent Act of 1930. Why not? This paper will offer a preliminary answer, emphasizing the extent to which different paths of agricultural development, and experiences of the Great War, shaped the political and moral contexts of plant breeding in each country.

Introduction

The US Plant Patent Act of 1930 is an almost obligatory passage point in any history of patenting of life. Indeed, there are now several available interpretations of the causes that brought the act into existence.[1] Broadly speaking, there are three chief interpretations on the table for why the PPA came into place when and as it did in the United States.[2] We might call these three causes of the act’s existence the geographic, scientific and social.[3] In the first of these categories are the arguments for plant patents which hinged on the rapid geographical expansion of American plant breeding; from east to west and back east again.[4] Across these widely dispersed and rapidly expanding markets, informal community based chastisement would, it was feared, hold little sway. Accordingly, breeders like Luther Burbank, on the west coast, argued that they needed protection from variety thieves who could smuggle plants over to east coast markets, and vice versa for the breeders on the east coast.[5] A second set of factors that allowed the PPA to be enacted were, arguably, advances in scientific theory, and in particular Mendelism and pure line theory. These new theories were, some thought, capable of clearing up the problem of how to specify a variety in an adequate manner for the specification requirements inherent in modern patent systems.[6] These theories also gave ammunition to those arguing that breeders constructed new varieties, more in the way of mechanics and engineers than butterfly catchers or naturalist collectors. Finally, the people who made these arguments, and the way in which they made them, were important. Paul Stark, of Stark Brothers’ Nurseries, was loud and vociferous in his well-connected campaign to have the PPA enacted, one to which the figures of Luther Burbank and Thomas Edison lent much weight.[7]

One way of developing this lively interpretive debate is to ask, if the PPA was enacted in America, why there but not elsewhere? Posing this question, in the first place, throws light on what was happening in Britain. Secondly, it helps in formulating new questions about the American legislation that was enacted. The absence of intellectual property rights in British plants, prior to the introduction of UPOV, has received little attention.[8] However, this picture is changing; set within a general trend towards focusing on historical areas of patent-free innovation, recent work in the history of economics has suggested that plant variety innovation occurred rapidly across Europe even though plant patents were unavailable.[9] We also know more about the ways in which British plant breeders sought to protect their new varieties when intellectual property rights were unavailable to them.[10] This paper supplements these analyses and develops a new line of enquiry into the history of patenting life by offering an explanation for the absence of plant patents in 1930s Britain.[11]

Viewed from this angle, Britain is an ideal case study of the reasons why plant patents were not enacted. We begin with the views of a group of plant breeders at the Royal Horticultural Society’s Third International Conference on Hybridisation and Cross Breeding. At their session there was mixed enthusiasm for intellectual property rights and even among those who were enthusiastic there was little coherence. The diary of an American breeder touring Britain two years later, in 1908, then gives us a window on to Edwardian British plant breeding. A new part of this scene was publicly funded plant breeding, which, as an aspect of agricultural improvement, was becoming a popular cause. In the next part of the paper we turn, via the British agricultural experience of the Great War, to post war public funding of plant breeding. One indicative highpoint of these plans was the mid-1920s release of Yeoman II; the country’s first fully publicly funded wheat variety, distributed by a new National Institute of Agricultural Botany. By the mid-1920s, just as government seed programs were ending and calls for the PPA were gaining ground in America, publically funded plant breeding monopolised the British context, and the plant breeders at commercial firms were quite openly snubbed. In closing we turn to the lessons for policy that might be drawn from the particular notions of nation, morality and equity invoked by publically funded plant breeders and their supporters.

 

Plant Breeding in Britain before the Great War

‘“Copyright” for the Raisers of Novelties’

The Edwardian period is the subject of a longstanding historical cliché, that these were salad days with an innocence about them which was lost forever during the Great War. This image of Edwardians indulging in “one long garden party” has now been thoroughly debunked.[12] However, there is still much to be said about Edwardians and their attitudes to plants and what was increasingly becoming a food production agro-industry.[13] The Royal Horticultural Society was founded in the 1830s and initially represented the interests of aristocratic gardeners. However, after near bankruptcy in the 1880s the society was set on a new course by Sir Daniel Morris, a man who had made his reputation administering colonial agriculture in the West Indies. To rescue the society he fostered links with commercial plant breeders and academic botanists.[14] By the close of the century the society was a key feature of Edwardian horticultural life. In 1897, William Batson, in his role as secretary for the Royal Society’s evolution committee and attracted by the society’s scientific turn, approached the RHS’s members for records of their breeding activities. Bateson wanted to use these records to analyse heredity.[15] His efforts had mixed results, a stud book of orchids was produced, but many breeders remained silent.[16] One wholly positive upshot of Bateson’s developing relationship with the society was a series of international conferences on plant breeding techniques which started in 1899.[17] The second conference, hosted by the New York Horticultural Society in 1901, was a key moment for Mendelian aspirations, but it is the third conference, held in London and Cambridge in 1906, that is the most well-known of the three events.[18] The proceedings were recorded and published by Reverend W Wilkes, the society’s secretary, in the following year, adopting Bateson’s new word, genetics, for the report’s title.[19]

At the fifth session of the conference, ‘“Copyright” for the Raisers of Novelties,’ Mr George Paul VMH, a commercial rose breeder, held the floor. He wanted to coax the society into officially passing a resolution on the desirability of copyrights for plant breeders. Paul felt some sort of right was necessary as recompense, “for all the risk and labour, added to the observations and experience which have taken the best years of one’s life to amass.”[20] Paul noted the absence of many breeders at the conference and suggested this was because, “these Gentlemen do not like to tell us or to show, what they have done in their experiments, because when once their knowledge becomes public, they have not the slightest chance of receiving any pecuniary reward for their labours.”[21] As a result of this move to secrecy, Paul complained, their “invaluable” knowledge was inaccessible to other breeders, as it had been to Bateson. On Paul’s view, some version of the patent bargain, whereby innovators were rewarded by the state for sharing their new innovation with society, would benefit the plant breeding community.[22]

Where specification was a problem, this wasn’t considered, by at least one member of the discussion, to be a problem of constancy through generations but rather one of identification in the first place. In the discussion that followed Paul’s remarks, the unnamed chairman of the session noted, “surely our discussions to-day show what a very great difficulty there would be in enforcing such law, because we have gentlemen from all parts of the world maintaining that a thing is new, and others, equally capable, maintaining that it is old.”[23] As a result of the proliferation of varieties that had occurred in the previous century it was often difficult to tell what was really new. Sometimes this was the result of an innocent taxonomical mistake, as, “many raisers may be occupied in cultivating the same class of a plant, and two or three of them might get something very similar, at the same moment.”[24] Often though, such confusion was the result of direct piracy of either a varieties’ name, or the variety itself.[25]

Despite the practical problems of deciding what was really new enough to deserve protection it seems there was considerable sympathy for Paul’s suggestion from one German attendee to the session, Professor Wittmack. The professor described how in Germany, “we are protected by the laws of our agricultural society, which is a very great society. A man who has bought a specimen of a novelty from the raiser, dare not himself sell it.” Wittmack continued by wandering that, “surely a society like the RHS could do the same, and they should expel a man who did not do as they wished.” However, some of Paul’s fellow British breeders were rather less sure about the possibility or even the benefits of protection especially to the trade as a whole. Mr James Douglas suggested, “It appears to me that protection would cut both ways… Mr Paul propagates other people’s roses and other people propagate his. It is perfectly fair… We do not want to restrict the sale of plants but increase it.” Finally the chairman concluded that, “the point raised by Mr Paul is a most interesting one, but there are evidently two sides to it, as to most other things, and, unless there were a very decided majority in favour of it, I do not think it would be wise for us to move in the matter.”[26]

The problem in Britain, for those who wanted legislation, was that there was no consistent majority line around which breeders conformed, instead there were a plurality of views on subject. This disarray might be compared to the US situation, where Paul Stark lobbied very effectively for the PPA, with wide support from the American Seed Trade Association and the American Breeders’ Association and, of course, his congressman.[27] As Margaret Llewellyn and Mike Adcock have noted about the genesis of UPOV rights, “the development of the right would not have occurred had it not been for the widespread commitment of the breeding community.”[28] So what sort of shape was the British plant breeding community in? To cast more light on this question we can turn to the diary of George Shull, recorded as he toured British plant breeders in 1908.

 

George Shull’s 1908 Tour of British Plant Breeders

On his visit to the 1908 Dublin meeting of the British Association for the Advancement of Science, George Shull included in his trip a tour of British plant breeders.[29] His choices as to which plant breeders to visit and the work he found being carried out are both instructive. The picture we get of the British plant breeding community from Shull’s diary is of one populated largely by commercial breeders, many of them patriarchal family firms, few of whom seem to have been undertaking high levels of breeding.[30]

Shull’s trip began on August 8th 1908. At the end of the month he visited the Thomas Rivers & Sons Nursery at Sawbridgeworth, near Cambridge. At the nursery he found a great deal of impressive production, achieved through the use of dwarfed fruit trees, “Many tons of apples and other fine fruits are sent to market every year and great quantities of nursery stock are sold.” However, Shull found little evidence of breeding, and that, “[t]he breeding work has been necessarily simply a side issue and has been carried on largely for the sake of advertisement.[31] At Thomas Laxton’s nurseries the picture was pretty much the same, the sons of the great man had, “continued the work, always as an adjunct to an ordinary nursery business.”[32] The exception to this picture amongst the commercial breeders Shull visited was the Suttons’ nurseries. Here, the sons of Arthur Sutton, who like the old man, were close friends of William Bateson, were understandably keen on the new Mendelian breeding.[33]

When Shull finally did get to visit Bateson, arguably the high point of his trip, it was at Grantchester, near Cambridge, at Bateson’s family home, were he was conducting all of his research. Mendelism, despite the high praise of the RHS, still did not have an institutional home in 1908; it was literally a cottage industry. [34] During his trip Shull didn’t visit any public plant breeding stations; there wouldn’t be one in existence in Britain until 1912.[35] In contrast, the commercial nurseries that he visited were flourishing, and we could add to this list Carters, Veitch and Gartons all of which had recently moved into international markets including America and Australia.[36] However, the amount of breeding that was actually conducted, at least on Shull’s sampling, is less than one would have expected. The great British seed houses and nurseries of the nineteenth century, with a few notable exceptions, were increasingly involved in seed dealing rather than plant breeding.[37]

In the same year as Shull’s tour, the fame of another sort of plant breeder was beginning to grow. This new class of academic plant breeders had their own hero; Rowland Biffen.[38] While Shull was making his trip around Britain, Biffen was made chair of Agricultural Botany at the Cambridge University’s agricultural department. Although his chair was initially funded by the Worshipful Company of Drapers, Biffen’s research was increasingly funded by the Board of Agriculture and after 1910, another government body, created by then exchequer, David Lloyd George with the aid of Winston Churchill, to aid rural reconstruction; the Development Commission.[39] The Commission was initially charged with managing a £1million fund, although in subsequent years this money grew substantially. AD Hall, who was at one time a collaborator in research with Biffen, was appointed head of the Commission and his influence shaped its activities over the next seven years.[40] Biffen was personal friends with many of the commission’s members and served on its sub-committees on several occasions.[41]

Biffen’s work became a popular cause for the Edwardian elite concerned with agricultural improvement.[42] Much of his popularity came from a particular image of the man and his work; first and most obviously this image included Biffen’s scientific credentials as a pioneer of the new Mendelian breeding, but it also included more subtle notions about the moral nature of his work. In the eyes of many he was a hero, sacrificing his life for the good of the nation.[43] The following quote from an attendee of one of Biffen’s talks at the Bedfordshire Chamber of Agriculture in roughly 1910 illustrates both of these aspects of Biffen’s public image:

 

Mr E Laxton said he thought the meeting did not recognize the great work that Mr Biffen had been doing for agriculture, but in a few years they would look upon him as one who had added to their incomes. He knew from his own experimental work how immense was the labour and expense of producing new varieties. Mr Biffen was devoting his life and brains to bringing out new wheats that would add to the well-being of the country and of the world. He thought they little knew they were entertaining an angel unawares (laughter). [44]

Of course, there was also plenty of publicly funded agricultural research in America, and much hand wringing about the good of the nation, but there was undoubtedly a different configuration of purpose in the two country’s public research stations. For a measure of this contrast compare American biometrician, Raymond Pearl writing in 1906 to his UCL based mentor, Karl Pearson, on conditions at his new institutional home, the Maine Experimental Station, “I am under no restrictions as to giving the work a practical turn. On the contrary I am expected to work exactly as if I were taking up the study of heredity for my own purely scientific ends,” with Biffen’s reports to Whitehall on his own publically funded research.[45] In 1916 he informed the Board of Agriculture in his report for the year, “A great deal of the work is now of a routine nature, and the results, consisting mainly of records of yields of new varieties, which may or may not be put on the market later, are of too little general interest to publish.”[46] While Biffen might have had more to do with the establishment of his own research institute, than say Pearl, he was at far less liberty than his peers at American institutes, and the majority of his research was concerned with routine practical matters.[47]

 

The Great War and the New Mendelian System

In 1910 Bateson came to be in control of his own research institute, the John Innes Horticultural Research Institute, although the institute did not receive significant public funding.[48] At the same time, using the public funds that he increasingly commanded, as a Whitehall insider, Biffen established a Plant Breeding Institute at Cambridge University. Several students and many plant varieties circulated between Biffen and Bateson’s institutes.[49] However, the institutional system that Biffen and his close friend Bateson, along with several other Cambridge and Whitehall based agricultural improvers were constructing, ostensibly remained inactive for the duration of the war.[50] From 1916, Biffen worked at the Food Production Department; a body formed for the emergency nationalisation of British agriculture.[51] During his time at the unit Biffen further strengthened his connections to government at the same time that the government was strengthening its control over British agriculture.

Britain was largely unprepared for the war and came remarkably close to mass starvation. On the one hand British agriculture, after years of depression, was ill equipped to feed the population, on the other hand German U-boats were cutting off the majority of provisions from the merchant navy. Nationalisation, forced ploughing and government backed fixed wheat prices where all part of a package of measures introduced to increase average calorific intake. The figurehead of these measures, who by his own reckoning played no small part in winning the war, or least not losing it, was Thomas Middleton, former colleague at Cambridge, and now superior of the seconded Biffen at the Food Production Department.[52] With David Lloyd George now Prime Minister, Biffen, Bateson and many other Mendelians were every bit as connected to the legislature, through the Food Production Department, Board of Agriculture and Development Commission, as their American counterparts.

 

The plans for post-war reconstruction

At the close of the Great War, AD Hall, who had left the Development Commission and was now near the top of the Board of Agriculture’s civil service apparatus, wrote to Bateson asking his advice on post-war reconstruction.[53] Bateson’s reply was complex, but it reveals a great deal about Mendelian plans. Bateson was wary of any government funding for his own institute, feeling that the independence of agricultural research from practical aims should be safe guarded.[54] However, he did see a role for government support. First, he suggested that Hall should organise for a “liaison officer” to be employed by the Board of Agriculture as go between for Mendelians and the rest of the plant breeding community. Bateson apparently felt the Mendelians, if they were to aid post-war agricultural reconstruction, needed someone to explain their work and encourage other breeders to make use of it themselves.[55] Secondly he felt that Mendelians needed a way to commercialise their new varieties:

 

2. It is desirable that we should be in close association with an institution able to grow our things on a farm scale. Hitherto our efforts to get this done have been failures… It is unlikely that, except under strong pecuniary inducement, anyone will take the special care which such work demands, when he feels that the chief credit for success will go to someone else. In work of this kind we are in the hands of the grower, and a bad result can always be ascribed to an inherent peculiarity of the material. Perhaps the Cambridge Svalof (sic) Station will cover this want.[56]

Bateson was obviously sceptical about placing the job of multiplying new Mendelian varieties in the hands of the commercial seed trade. He felt that this was a job for government; especially a government which was now emboldened in its desire to intervene in agriculture as a result of its experiences during the war. The Cambridge Svalöf station to which Bateson referred was Rowland Biffen’s Plant Breeding Institute, which Biffen was hoping to expand through a new plan for government-backed and partly nationalised plant breeding.

Biffen joined Bateson in his view that the proper role of government should be as an instrument to promote new Mendelian varieties, although along with Bateson he was by no means prone to socialist thinking.[57] After the war, Biffen began working with Lawrence Weaver, his superior in the wartime Food Production Department, between himself and Middleton, on establishing a National Institute of Agricultural Botany. Biffen’s plan for the new institute drew much from the arrangements at Sweden’s Svalöf station.[58] He envisaged NIAB as being an ancillary unit to his own Plant Breeding Institute, charged with commercialising new Mendelian varieties. Furthermore, he expected NIAB to be financially self-sufficient from the sale of new varieties. In the first ten years of the institute’s operation (1919-1929) Biffen’s plans were largely, if not entirely, realised. Even by 1929, when Biffen’s plans for self-sufficiency failed, and the institute sought to scale back its operations, more government funding was allocated to stabilise the change.[59] Looking at the institute’s foundation and the release of its first Mendelian variety reveals just how much publicly funded plant breeding came to dominate the British context. The history of the institute’s development also reveals much about the moral justification given for seemingly ever increasing public funding for plant breeding and distribution.

In one of his many appearances in the popular press, Biffen put the case for the new institute like this:

 

We have got to tune up farming. The farmer is now alert and receptive. The Board of Agriculture is alive to the possibilities of the future. If only the national spirit gets aroused we may accomplish great things. It is not at all impossible that we may create in England a great rural civilisation. That would be a most beneficent revolution.[60]

The reporter, Edward Harold Begbie, then added his own thoughts on the need to establish the National Institute of Agricultural Botany:

 

No seed merchant can do what this National Institute would undertake. It is unreasonable to expect the seed merchant to conduct experiments over eight or ten years, subject each step in his process to milling and baking tests, corresponding with men of science all over the world, even in Tibet, as Professor Biffen does, when at the end of it all there is nothing patentable. A seed once on the market is everybody’s property. The seedsman has done good and patriotic work but we must not expect too much of him.[61]

These popular views suggested that Biffen was working under a patriotic sense of duty to the nation. In this context, the idea that he, or anyone, could claim personal monopoly rights over new varieties would have been very difficult to promote.

The Government’s reconstruction commission, the Selborne Committee, which reported in 1918, and on which AD Hall was a commissioner, broadly shared these views.[62] Biffen appeared before the committee to give evidence as an expert on the state of the wheat growing industry in Britain and around the world. In this international context, the committee’s conclusions made obvious the need, they felt, for personal sacrifice to maintain national security. At the heart of their recommendations was the notion that, “The State must, in short, take every means in its power to give confidence and a sense of stability to landowner farmers and agricultural labourers. It must then tell those classes exactly what is expected of them, and appeal to their highest instincts of patriotism to put personal predilections aside and unite to carry out a policy, on the success of which the safety of their nation may someday depend.”[63] The grandeur of these national plans, which included powers to requisition and repurpose land used frivolously for “game or games,” meant that attempts to secure personal rights, even to one’s literal property, could be tantamount to treason.

 

Figure 1. The impressive new buildings of the National Institute of Agricultural Botany, opened by the King and Queen in 1921. Image reproduced courtesy of the National Institute of Agricultural Botany.

 
In 1921, the National Institute of Agricultural Botany officially opened the doors of its purpose-built research station with a visit from the King and Queen, see figure 1.[64] The station was located on the opposite side of the Huntingdon Road from Biffen’s Plant Breeding Institute on the outskirts of Cambridge; both were five minutes’ walk from Biffen’s home at no. 138. David Lloyd George, now at the end of his second coalition term as Prime Minister, enthusiastically supported the institute and its developing plans for releasing commercial varieties. In 1922 he wrote an open letter to the Times, addressed to Lawrence Weaver:

 

Dear Sir Lawrence. – I have been following with great interest the rapid progress of the National Institute of Agricultural Botany, and congratulate you and your colleagues on the serious and useful work the Institute is already doing for the farming community… I gladly show my appreciation of what you are doing by asking to be enrolled as one of the first Life Fellows of the Institute.[65]

Other notable Life Fellows of the institute, a body set up to attract prestige, funds and support, included William Bateson and Wilhelm Johansson, the Danish scientist responsible for developing pure-line theory. The records of books deposited with the institute’s library by NIAB’s early staff, show that Mendelism and pure line theory were also part of the institute and its staff’s pride in being at the forefront of scientific developments.[66]

 

Yeoman II: the first publically funded wheat variety

In 1924, the same year that free seed programs were ending in US, Biffen and the National Institute of Agricultural Botany were preparing their first release of a Mendelian variety, Yeoman II.[67] This high profile moment for publically funded schemes stands in marked contrast to the increasing dominance of commercial firms in American plant breeding.[68] To promote his new publically-funded wheat Biffen began a tour of the country’s farmers’ clubs. At perhaps the most influential of these clubs, the London Farmers’ Club, Biffen was greeted by a warm introduction. The speechmaker was Sir H. Trustram Eve:

 

And now I have to introduce our old friend Professor Biffen … no one can deny that the scientific man is the most unselfish man in the world. We practical business men, if we have an idea, try to make money out of it; it is human nature, but the scientific man is always working for others without advantage to himself. It is a great lesson to us. There is no patent, there is no copyright in seeds, and yet our scientific friends are spending the whole of their lives in seeing how they can help the farmers of this country.[69]

The scientific man, on Trustram Eve’s reckoning, was a class apart from mere business men, and furthermore, an exemplar of morality.

In autumn that year Yeoman II was officially made available for sale. The variety was produced by Biffen at the PBI and multiplied and distributed by NIAB. Announcements were made in the Journal of the Board of Agriculture, the agricultural press and even in the Times and popular press, see figure 2.[70] Seeds were available, at a fixed price, in sealed sacks, directly from NIAB, who were keen to point out in a catalogue they produced for the release, “none but this will be genuine.”[71] In the following year several reports of the success of the release (rather than the variety) also appeared.[72] As to the success of the new institutes at which Biffen worked, the Prince of Wales voiced this approval in his 1926 presidential address to the British Association for the Advancement of Science, “At the plant-breeding institute at Cambridge, Sir Rowland Biffen has provided several new wheats, of which two are generally grown throughout the country; the extra yield and value of these wheats must already have more than repaid the whole expenditure on agricultural research since the institute was founded.”[73] The Prince obviously felt that the expense of public breeding was more than justified by the benefits brought to the nation. The fact that NIAB was actually struggling to realize self-sufficiency at this point shouldn’t detract from the importance of perceptions of its success promoted by, amongst others, the Prince of Wales and the Prime Minister.[74] In their time and place Biffen and his work were quite as famous and influential as Paul Stark, if not Luther Burbank. But unlike either of these figures Biffen was almost entirely reliant on public funds for research income.

 

Figure 2: Newspaper cuttings from the release of Yeoman II. Extracts from Newspapers on Wheat Research of Professor Sir Rowland Biffen MA FRS, Cambridge University, Rowland Biffen Papers, John Innes Archives courtesy of the John Innes Foundation.

Figure 2. Newspaper cuttings from the release of Yeoman II. Extracts from Newspapers on Wheat Research of Professor Sir Rowland Biffen MA FRS, Cambridge University, Rowland Biffen Papers, John Innes Archives courtesy of the John Innes Foundation.

 
Relations between public and commercial plant breeders

During the rise of publicly funded plant breeding where were the seed houses and nurseries toured by Shull in 1908? It would be fair to say that in the main, despite Weaver’s promises to include them in his plan’s, they were being side lined. During the establishment of NIAB the commercial seed trade had sought representation on the institute’s executive committees. Although they did eventually gain representation, in the end it was through far fewer committee members than they had hoped for.[75] Adding to this discord, Biffen seemed to feel personally aggrieved by the seed trade’s attempts to improve his varieties through their own non-Mendelian breeding methods. Carters, for example, began selling an “Ennobled” Yeoman Master variety and their own strain of Little Joss very quickly after their first appearances. This irked Biffen greatly and even with the new NIAB maintained system of pricing and distribution in place there was little he could do to counter such piracy. Biffen even resorted to the odd bit of veiled sniping, as in 1926, when he complained, “Wheat selection, however, is still practised, or said to be practised by the seed trade, but it is improbable that their efforts will lead to any improvement in the crop if the story of one of the most recent “pedigreed” wheats, A’s “X.Y.Z,” is typical of the modern methods of selection.” [76] ‘A’s “X.Y.Z.”’ was, of course, Biffen’s Yeoman, (the predecessor to Yeoman II, released to Biffen friends in 1916) sold by Carters as Ennobled Yeoman Master.

Relations between publicly funded research institutes and the commercial seed trade were unfriendly for much of the 1920s. In 1919, Carters, now located within a stone throw of Bateson’s John Innes Horticultural Research Institute, launched a complaint about NIAB’s plans to register a trademark. The nub of the firm’s complaint was with the inclusion of the word ‘national’ in NIAB’s trademark. Carters had been using the same word in their trademark since the previous year and felt NIAB’s use of the word would overstate the importance of NIAB’s seeds, implying that they were the only government sanctioned alternative for seed, or worse, causing people to confuse NIAB’s seeds for Carters’. The case rumbled on for several years, and in the end neither NIAB nor Carters used the word national in their trademarks, probably at least in part because, “The view of the President of the Board of Agriculture and Fisheries that he strongly deprecates any individual firm of English seed merchants obtaining a monopoly of the word ‘National’ in connection with the seeds sold by them has already been communicated to the patents office.”[77] In contrast to the American picture then, British plant breeders were struggling to even secure trademarks from an unsympathetic legislature at the time of the PPA’s passing and relations between commercial and public plant breeders were increasingly strained.[78]

 

Concluding reflections

If we return to the three comparative categories suggested at the start of this paper; geographic, scientific and social, it should now be obvious that the third category contains the most contrasts between the two contexts. British plant breeders also faced threats brought by expanding markets, in Europe, and internationally, and the advances in science which seem to have been important in America, if only sociologically, were just as important in Britain. Looking to the institutional position of star breeders, the relative mixture of commercial and public breeding and the nature of public breeding undertaken, the discrepancies between the two contexts become more marked. British seed dealers were in disarray and few practiced their own breeding, and when they did it arguably had little effect other than for show. The stars of British plant breeding were almost exclusively situated in publicly funded contexts and shared little sympathy for commercial plant breeders. At just the point when commercial seed firms were on the ascendency in America the opposite was true in Britain where commercial firms were increasingly competing with publicly funded breeding. These developments made it highly unlikely that anything like the PPA would be on the British legislative table; in this moral climate there was no one with the means or the desire to put it there until well after the Second World War. Ironically, when calls for this sort of legislation were made, they came while Winston Churchill was in his second term as Prime Minister. Churchill, who had done much to aid Lloyd George in shaping publicly funded plant breeding, was, in 1954, head of a government that sought to encourage commercial breeders, for the good of the nation. While it is true that historically both private and public enterprise has been called on to serve the nation, in Britain in the 1930s, plant breeding was seen as an activity to be conducted by the state, one too important to be the subject of individual profit.[79]

This assessment of the lack of plant patents in Britain poses interesting questions for the American case. What role did morality, linked with patriotism, play for proponents and opponents of the PPA? At first glance it would seem that the rights of the individual were set at a higher value than those of the state for American plant breeders and legislators. Hopefully, this paper will inspire further reflection on the way in which arguments about the relative rights of state and individual, as moral issues, were constructed and deployed by American plant breeders and their contemporaries elsewhere. It is highly likely that in Europe, for example, where publicly funded breeding has historically been less important, a different configuration of these rights to either Britain or America was in place. Consideration of what we might call the moral economy of plant breeding, as a special case of political economy, can only add to the increasingly rich picture we have of the history of intellectual property in plants and animals.[80]

Focusing on the moral dimension of this history also gives pause for thought on the policy decisions that might be derived from these historical developments. The “turn to innovation” in academia, whether academics like it or not, is often a political move. This can be seen directly in the British government’s own recent commission into innovation, the Hargreaves report, and in the overtures to policy intervention now routinely made by many STS academics.[81] There is often a normative element to such enquiries, one aimed at improving the quantity or quality of innovation. This paper has suggested that the bare empirical fact that innovation occurred amongst plant breeders in this patent free place is less interesting than the historical reasons why their patent bargain (all state, no individual) came to be set at its particular pitch.

 

Bibliography



[1] On the PPA, the key articles are probably Kevles 2008a, Kevles 2007, Kevles and Bugos 1992, and Fowler 2000, however, for the general historical context of American plant breeding see Fitzgerald 1990 and 1991 and Kloppenberg 1988 on the seed industry and experimental research stations; Kimmelman 1983 and 2006 and Kimmelman and Paul 1988 on research stations and genetics; and more recently Pauly 2007 on the cultural history of American agricultural and horticultural development and Olmstead and Rhodes 2008 on the economic history of American agricultural development.

[2] See Moser and Rhode 2011 for a revisionist account of the PPA’s economic impact on rose breeding.

[3] This list is intended to be used instrumentally in looking at the British case rather than as a comprehensive diagnosis of the American case or its historiography. The key sources given above on the PPA rely on a sophisticated analysis of the combination and interplay between these factors.

[4] On the westward expansion of American agriculture see Olmstead and Rhodes 2008: chapters 2 and 3, and on this and the circulation of plant varieties back to the east coast see Pauly 2007: especially chapters 5, 6 and 7.

[5] Kevles 2007: 326, Fowler 2000: 623.

[6] The problem of specification was twofold; in the first place what could one enter into a patent record to define a new variety and in the second place how could any specification deal with the inevitable differences between generations? The old interpretation of the influence of science (one deployed in the period and since) is that advances in Mendelism were translated swiftly into advances in breeding and better scientific descriptions, which in turn demanded changes in legislation, Fowler 2000: 624, 626, is at pains to dismiss this view, pointing out that Mendelism had little to do with plant breeding before the 1930s. The idea that early Mendelism had little to offer plant breeders draws heavily from Mayr 1982. The new interpretation of the influence of science suggests that Mendelism and pure line theory had a more subtle didactic and sociological role to play in arguments put forward by the pro-patent lobby, see Fowler 2000 and Kevles 2008a: 208-209; 2007: 325. On purity, pure lines and the production of industrial products see Bouneuil 2008, and on the importance of specification to modern patent systems, Biagioli 2006.

[7] See Fowler 2000: 634 and Moser and Rhodes 2011: 3.

[8] There is a small amount of work on this subject, a passage or two from historian of science Palladino 1996: 130-131, 1990: 449-450, another small section in the more strictly legal history from Llewellyn and Adcock 2006: 141-143, an unpublished PhD thesis, Rangnekar 2000, and a short paper from agricultural economist, Berlan 2001.

[9] For more on areas of innovation without patents, see Nuvolari 2004. On rates of patent-free innovation see Boldrin and Levine 2008: 57-61.

[10] On plant breeders’ alternative strategies to patenting, see Charnley and Radick 2010, Charnley 2011a.

[11] On the history of patenting life see Kevles 2008b and Dutfield 2003.

[12] For a way in to these revisions see Olby 1991: 509 and cultural historian Samuel Hynes 1968. Historians of science and technology are also now problematizing the Edwardian notion of ‘pure’ science, see Clarke 2010, Shapin 2010, Gooday and Arapostathis 2011, Radick and Christine Macleod 2012. On the development of the notion of pure science by late nineteenth century scientists see Roy Macleod on Nature and the X-Club, Macleod 1971.

[13] For synthetic accounts of the development of British agriculture in this period see Collins and Thirsk 1967-2000 and FML Thompson 1963. Both agriculture and horticulture were becoming increasingly industrialised in Britain at the turn of the century as a result of several factors; the increasing urban populations, the market garden and allotment movements, and the reduced prices of glass and transport. However, on a standard account, the last of these factors, reduced transport costs, coupled with better storage technologies had resulted in increased competition from abroad. Unable to match prices in the first decade of the century, many producers, while expanding operations, paradoxically, sought to reduce expenditure on inputs. This trend was vocalised in the farmers’ slogans “up corn, down horn” and vice versa. In the 1880s and 90s corn was cheap to produce and so farmers focused on arable farming, at the turn of the century the opposite was true and cereal production, “high farming,” was steadily declining. See Hall 1936: 381 and 394.

[14] See Morris’s speech on the history of the society in Wilks 1907: 56. Morris became an enthusiastic Mendelian, using the theory in his sugar cane work which he was demonstrating at the conference that year.

[15] For a recent biography of Bateson see Cock and Forsdyke 2009. On Bateson’s early career see Olby 1989b, see also, Kevles 1980.

[16] See Hurst 1949: 380-381.

[17] On Bateson’s relationship with the RHS see Punnett 1950, Hurst 1949 and two short articles, both timed to celebrate the Mendelian ‘rediscovery,’ from Olby 2000a and 2000b.

[18] See Radick 2012 for a detailed exegesis of Bateson’s paper and his audience’s early responses to Mendelism in New York.

[19] Wilks 1907.

[20] Wilks 1907: 474.

[21] Wilks 1907: 474.

[22] Professor Hansen, possibly Emil Chr. Hansen, Head of the Department of Physiology at the Danish Carlsberg Laboratory, 1879-1909, summarised the group wisdom that, “in law, a seedling is regarded as the gift of God, and it would be hard to patent that.” However, Hansen shared Paul’s desire for “some law fashioned … [to] give a bonus to the man who does such skilled and valuable work.” Wilks 1907: 474

[23] Wilks 1907: 475.

[24] Wilks 1907: 475.

[25] Charnley and Radick 2010 discuss one case of variety appropriation in the 19th century and the continuing problems this caused for Mendelian breeders concerned with protecting the reputations of their varieties. On the total number of new varieties in the 19th and 20th centuries, there are several collections of seed trade catalogues at the Museum of English Rural Life and the National Institute of Agricultural Botany’s archives. A quantitative analysis of these records might shed useful light on rates and weight of innovation amongst British plant breeders.

[26] Wilks 1907: 475.

[27] Indeed, support from the ASTA continued even after the restriction to asexual plants, and not those reproduced by seed, was self-imposed on the campaign by Stark, see Fowler 2000: 635.

[28] Llewellyn and Adcock 2006: 143.

[29] For more on Shull, who was an important part of the hybrid maize story and the American reception of pure line theory, see Bonneuil 2008. Shull was very impressed by the Rev. Wilks’s report of the RHS’s conference and state of the art Mendelism in Britain, the report was reviewed by Shull for the Botanical Gazette, see Shull 1908.

[30] For more on the firms that did breed see Olby 2000a and 2000b

[31] George Shull, “Notes on European trip of Geo. H. Shull | Aug. 12, 1908 to Dec. 1908,” p. 27. George Harrison Shull Papers. American Philosophical Society, Mss. B Sh92. Many thanks to Marsha Richmond for lending me her transcript of this document.

[32] Ibid p.44 Thomas Laxton, like Thomas Rivers and Arthur Sutton were great fans of, and sometime correspondents with Charles Darwin, who courted them much as Bateson courted the RHS; for their experimental results.

[33] Bateson shared his new varieties with the family in return for raw materials and breeding data, see the long-running correspondence between the Suttons and Bateson in the Bateson Letters Collection at the John Innes Centre Archive.

[34] On Mendelism as a cottage industry see Richmond, and on the early years of Mendelism at Cambridge, see Richmond 2001 and 2006 and Olby 1989b.

[35] Compare Shull’s tour of British plant breeding with later trips by wheat breeder to the New Zealand government, Otto Frankel, which focused almost exclusively on public stations. See Frankel, “Frankel’s Tour” in Reports of the Wheat Research Institute 1935-36, volume IV, New Zealand Archives, Wellington. Series: 20502, p. 139-186.

[36] See Carters’ advert in the front of the Journal of the Board of Agriculture from 1906-1910.

[37] This mixture of breeding and dealing echoes Fowler’s view of the American case, see Fowler 2000.

[38] See Engledow 1950 for a fairly revealing obituary. Notices also appeared in Nature, Engledow 1949, and the Times, “Obituary: Sir Rowland Biffen: Pioneer of Agricultural Botany,” The Times, 15 July 1949: 9d. See also Palladino 2002: 81-92 for biography. For more salacious background detail, including Biffen’s marriage to the younger sister of his first love; and his in-laws and wife Mary’s prize winning sweet pea breeding work, see Taylor, Judith M. and Simon Wilkinson [2008?], “Miss Evelyn Hemus,” Horthistoria, <http://horthistoria.com/?p=217> (accessed 14 May 2011) and Taylor, Judith M. and Simon Wilkinson and Keith Hammett [2009?], “Miss Hilda Hemus”, Horthistoria, <http://horthistoria.com/?p=219> (accessed 14 May 2011).

[39] For more on the Development Commission, its foundation and aims see Olby 1990 and 1991. For more on the Drapers’ Society see Gooday 1998. Winston Churchill enjoyed at least three political careers; he was Prime Minister twice and switched parties three times. In 1909, along with DLG, he was a young liberal MP, very much involved in social reform.

[40] Biffen and Hall collaborated from roughly 1900-1906 through a group called the Home Grown Wheat Committee, sponsored in turn by the National Association of British and Irish Millers see Biffen and Humphries 1907 and “Home-Grown Wheat Committee,” The Times, 28 August 1911: 4a, see also Dale 1956 for a biography of Hall.

[41] For Biffen’s work on the Advisory Committee on Agricultural Science to the Development Commission see Development Commission 1918: 2.

[42] For example, Sir Daniel Morris of the RHS was a keen supporter of Biffen’s work and stressed its national importance, see Morris 1920: 311. Biffen’s work had even more general appeal too, such that in 1920, Biffen was awarded the Royal Society’s prestigious Darwin award, “Medals of the Royal Society” 1920. Even Bateson was taken aback by the odd way in which this scientific award was given to Biffen for his practical success see “William Bateson to W. B. Hardy, Sec. of the Royal Society, 12 July 1922,” William Bateson Letters Collection. John Innes Centre Archives. Mss 1001.

[43] On the inventor as national hero see Macleod 2007, see also the bronze statue of Biffen at the current day Biffen Laboratory at the John Innes Centre.

[44] “Bedfordshire Chamber of Agriculture,” in Extracts from Newspapers on Wheat Research of Professor Sir Rowland Biffen MA FRS, Cambridge University, p. 2. Rowland Biffen Papers, John Innes Centre Archives.

[45] Raymond Pearl to Karl Pearson 9 December 1906 Pearson Papers, Pearl file, quoted in Kevles 1980: 452.

[46] Board of Agriculture 1916: 59.

[47] On the subtle configurations of research at American institutes see Kimmelman 2006.

[48] The John Innes Horticultural Research Institute of which Bateson became director owed more in the form of its foundation to the benefactor grants of the previous century which had established the Rothamsted station and Royal Agricultural College. See Olby 1989a, 1990 and 1991.

[49] See, for example, “Rowland Biffen to William Bateson, 27 November 1912,” William Bateson Letters, John Innes Centre Archives, Mss 2224.

[50] For more on the systematic ambitions of this group see Charnley 2011b.

[51] See Engledow 1950 for a brief account of Biffen’s time at the department.

[52] See Middleton 1923, and for a history of technology oriented revision of this account see Dewey 1980 and 1989, who emphasizes women in the agricultural labor force, new technologies and a range of other factors than Middleton’s interventions. See also Biffen’s obituary of Middleton, Biffen 1943.

[53] For more on Hall’s plans for post-war reconstruction see Hall 1916.

[54] Bateson’s view on the danger of public funding was based on his perception of American land grant university research stations. He believed near sightedness had made the work they conducted “trivial and unfruitful,” see “William Bateson to AD Hall, 23rd February 1918,” William Bateson Letters, John Innes Centre Archives, Mss 2148, p. 2. See also Bateson’s criticisms of American research stations at the Portsmouth meeting of the agricultural subsection of the British Association for the Advancement of Science, Bateson 1912: 588-589. For a detailed analysis of Bateson’s views on the complex alignment of pure and practical research that should be held as ideal, and the divergent historiogrpahic traditions of representing those views see Radick 2012.

[55] Bateson’s suggestion that Mendelism was complicated enough to need explaining fits with Fitzgerald’s views on the increasing complexity of Mendelian plant breeding Fitzgerald 1991. However, it is interesting that this is not the only view Bateson held on the subject. Like Biffen, he also often extolled the simplicity of the theory and its self-evident application to plant breeding, see for example Bateson 1902: 208. It seems what Bateson was more interested in was a publicity officer. His choice of candidate supports this second view. He put forward WO Backhouse, an academic breeder from a longstanding and respected family of commercial daffodil breeders.

[56] “William Bateson to AD Hall, 23rd February 1918,” William Bateson Letters, John Innes Centre Archives, Mss 2148, p. 3.

[57] Although there was undoubtedly a socialist element in these circles; Sydney Webb, the renowned Fabian and socialist thinker, was a member of the Development Commission for the first three years in which it ran, see Development Commission 1911 for a list of committee members and the first in a series of yearly reports. See also Hynes 1968 and Hale 2010 on the disparate nature of British socialists during the revival of the 1880s and afterwards.

[58] See the eight-page plan for the new institute from Biffen, “Rowland Biffen to Lawrence Weaver, 3 December 1917.” Correspondence 1916-1918. Archives of the National Institute of Agricultural Botany, and the copious material on Svalöf and the several trips made there by NIAB staff in the institute’s board room library.

[59] This realignment was largely orchestrated by Edwy Sloper Beaven, see “Memorandum on Future “Crop Improvement” Policy of the N.I.A.B.” Council Paper no. 65. Archives of the National Institute of Agricultural Botany and Palladino 1994 for biographical details. On Beaven’s view, realised from around 1928, the institute should maintain its monopoly on the innovation of new varieties but let the seed trade take up the task of multiplication. Despite Bateson’s hopes, the institute drew back from its own commercial production.

[60] “H.B.: Professor Biffen: The Idea of a Rural Civilisation,” in Extracts from Newspapers on Wheat Research of Professor Sir Rowland Biffen MA FRS, Cambridge University, Rowland Biffen Papers, John Innes Centre Archives, p. 1. Judging from the cuttings in the rest of the collection, Biffen and his work were regular features in the Daily News, Daily Mail and Telegraph; all papers that were, in comparison to the Times, the popular press of the day. Biffen also wrote several articles and letters that appeared in the Times, see, for example, “Breeds of Wheat: Professor Biffen’s Experiments at Cambridge,” The Times, 7 October 1912: 3e, Rowland Biffen, ”British Wheat: Improved Methods of Cultivation: Increased Home Supply,” The Times, 8 June 1914: 16b-c, “The Quality of British Wheat: Professor Biffen’s Researches,” The Times, 3 November 1923: 7e and “Future of Wheat Growing in Kenya: Professor R. Biffen’s Report,” The Times, 22 January 1927: 11f.

[61] “H.B.: Professor Biffen: The Idea of a Rural Civilisation,” in Extracts from Newspapers on Wheat Research of Professor Sir Rowland Biffen MA FRS, Cambridge University, Rowland Biffen Papers, John Innes Centre Archives, p. 1.

[62] The Selborne Commission was instigated by the Board of Agriculture and Fisheries under the terms, “To consider and report on the methods of effecting an increase in the home production of food supplies, having regard to the need of such an increase in the interests of national security.” See Board of Agriculture and Fisheries 1918: 1.

[63] Board of Agriculture and Fisheries 1918: 16. Biffen and NIAB received more direct praise and enthusiasm, with less grandeur in 1923 when the Linlithgow Commission, appointed as a successor to the Selborne Commission, under the re-named Board of Agriculture, reported on the wheat industry. See Ministry of Agricultural and Fisheries 1923: 86-98.

[64] Half of the money for the institute came from the Development Commission and the other from private donations. However over the next decade public funds came to account for more and more of the institute’s running costs. See Wellington and Silvey 1997.

[65] “Letters to the Editor,” The Times, 16 January 1922: 4c.

[66] For example, the institute’s first chairman, Wilfred Parker, who was taught by Biffen at Cambridge, deposited an entire set of Bateson’s work in 1935. See “Library Catalogue,” Archives of the National Institute of Agricultural Botany.

[67] On the end of American free seed programs see Fowler 2000: 632. On the release of Yeoman II see Biffen 1924b and Parker 1923.

[68] As well as Fitzgerald and Kloppenberg, cited in footnote no.1, see Lewontin, Levins and Burlan, whose work on this subject, in a series of Monthly Review articles and elsewhere, can be located from the bibliography of Lewontin’s work given in Singh 2001: 583-589.

[69] Biffen 1924a: 2. Trustram Eve was a planning consultant and agricultural reformer, who, as it happened, also attended the Bedfordshire Chamber of Agriculture meeting 14 or so years earlier.

[70] “New English Wheat Yeoman II Available for Sowing,” The Times, 28 July 1924: 18b.

[71] “Yeoman II,” Papers of AD Hall, John Innes Centre Archives. Mss 188-8-66.

[72] See for instance, “Yeoman II Seed Wheat: 2480 Quarters Marketed,” The Times, 6 January 1925: 8e.

[73] The contents of this presidential address were (as in most years) republished in Science, no doubt increasing Biffen’s fame internationally. See, “The Presidential Address” 1926: 146.

[74] Biffen was knighted in the New Year’s honours roll in 1925, receiving, as Middleton and Hall had previously, a K.B.E.

[75] See “Lawrence Weaver to Mr Sutton, 18 July 1918,” Correspondence 1916-1918. Archives of the National Institute of Agricultural Botany, and SW Farmer’s concerns about the seed trade’s influence, “SW Farmer to R. E. Prothero, 27 December 1918,” Correspondence 1916-1918. Archives of the National Institute of Agricultural Botany.

[76] Biffen and Engledow 1926: 9.

[77] “National Institute of Agricultural Botany. Registration of the Word National: Counter Statement,” Trade Mark Case. Archives of the National Institute of Agricultural Botany.

[78] See also the Wuesthoffs failed attempts to patent plants in mid-1930s Britain, Llewellyn and Adcock 2006: 138

[79] In the 1950s when Churchill and his conservative government were trying to stimulate private enterprise the Engholm Commission on Plant Breeders’ Rights, they instituted, concluded that intellectual property rights of some sort, for breeders, were exactly the right tool for this job. Interestingly, they were unconcerned about questions of specification or the particular type of plant breeding method used, they were untroubled by the notion that plant breeders were inventors and held no qualms about gifts of God. See “Plant Breeders’ Rights” 1960, see also Llewellyn and Adcock 2006: 141-142

[80] On the moral economy see EP Thompson 1971, for a programmatic discussion of the moral economy of plant breeding, see Charnley 2011a.

[81] See Webster 2007 for analysis of STS and its role in policy advice. For the Hargreaves report see http://www.ipo.gov.uk/ipreview-finalreport.pdf.

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