Biology in Court

Question: When is a plant not a plant? Answer: When it goes to court.

Most people do not think of microscopic bacteria as plants, any more than they think of amebae, clams and sponges as "animals." But practically all biologists class bacteria as plants. Some plants can be patented. Last week Technology Review, M. I. T.'s bouncing monthly magazine, had itself a chuckle as it told of a recent attempt to patent a bacterium.

In 1930 Congress passed a law providing for the patenting of almost "any distinct and new variety of plant." Since then 420 patents have been issued for a variety of plants including roses, nuts, tobacco, a special grass for golf greens.

Cornelius Arzberger, a Commercial Solvents Corp. researcher, cultured from Louisiana cane-field soil a new bacterial species which ferments sugar to produce industrially useful solvents. He gave it the jaw-cracking name of Clostridium saccharo butyl acetonicum liquefaciens. Then he tried to patent it, as a plant. The patent examiner threw out his claim.

To the Court of Customs and Patent Appeals went Researcher Arzberger. He produced drawings to show that his Clostridium had such characteristic plant features as vegetative cells, spores. The court observed that in the one-celled world the line between animals and plants is vague, that bacteria behave rather like animals. Arzberger showed that scientists nevertheless class bacteria as plants. Thereupon the court produced its clincher: the Congressmen who passed the plant patent law were not scientists.

Said the court: "We think that Congress, in the use of the word 'plant,' was speaking in the common language of the people." The court also recalled that the Supreme Court once classed the tomato as a vegetable for tariff purposes, although scientists call it a fruit.

Upshot: no patent on Clostridium saccharo-butyl-acetonicum-liquefaciens.

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