immediately as
to who was the real discoverer. Undoubtedly the man who tramped
constantly around in the neighborhood of a fine nut or fruit tree and
actually saw the tree but did not recognize its value, is like the man
the poet describes when he said:

"A primrose by the river's brim,
A primrose only was to him,
And nothing more."

This man could not be said to be a discoverer under the terms of this
law; but on the other hand the plowman who might be plodding his weary
way homeward and see a fruit or nut tree bearing something unusual and
who would recognize its unusual and distinct differences would be the
real discoverer, but unless he could prove the fact that he had called
it to the attention of others in some manner he would have difficulty in
complying with the patent law and making a proper showing of originality
as required by that law. But he would also, in addition to being the
discoverer, have to asexually reproduce it and this he might not be able
to do on account of his lack of knowledge of propagating methods.

The language of the law presents some very interesting problems to those
of us who have tramped the fields and valleys in search of nut trees
producing better nuts than those already propagated, and it incidently
brings into the patent practice a brand new requirement. The ablest
patent lawyer in America might not know the difference between a bud and
a graft, a layer or cross-pollination. I have frequently had some very
able lawyers who visited my farm and had their attention called to a
pecan tree grafted onto a hickory, ask what kind of nuts it would bear.
Of course when they ask such questions as that I promptly change the
subject and begin to talk about the weather or something else; I
certainly do not try to educate them in the fundamentals of tree
propagation. It will also require specialists in the patent office who
likewise know something of horticulture and reproduction methods of
plants.

It will also be noted that the law excludes tuber-propagated plants. The
Committee report states that:

"The bill excepts from the right to a patent the invention or
discovery of a distinct and new variety of a tuber-propagated
plant. The term "tuber" is used in its narrow horticultural sense
as meaning a short, thickened portion of an underground branch. It
does not cover, for instance, bulbs, corms, stolons, and rhizomes.
Substantially, the only plants cove