This is a transcript of the Gastropod episode Meet the Most Famous American You’ve Never Heard Of: His Legacy is Excellent French Fries and Monsanto, first released on April 30, 2024. It is provided as a courtesy and may contain errors.

VOICEOVER: In many areas, he became a figure of reverence, bordering on worship. His portrait became as familiar as that of any American president. He was the subject of inspired sermons in churches throughout the land.

NICOLA TWILLEY: I’m sorry, who are we talking about here?

VOICEOVER: In the city of Santa Rosa, California, there is a beautiful garden that has become a national historic monument. To many who come from all over the world to visit here, it is also something of a shrine. For it perpetuates the memory of a most remarkable man, Luther Burbank. It was here that he lived and worked the horticultural wonders that astounded the world of his time. And earned him the name, The Plant Wizard.

CYNTHIA GRABER: Yep, nope, still had no idea who this Luther Burbank was, AKA the Plant Wizard, until we started making this episode! We of course are Gastropod, the podcast that looks at food through the lens of science and history, I’m Cynthia Graber—

TWILLEY: And I’m Nicola Twilley, and this episode, we’ve got the story of a forgotten hero whose creative genius lies behind many of your favorite fruits and vegetables, including every French fry you’ve ever eaten. He was literally one of the most famous Americans of his time, and his claim to fame was plants.

GRABER: But what’s also important about Luther Burbank is he was a plant inventor who couldn’t patent his inventions. And his frustration with that led to a world in which Monsanto can patent the very seeds farmers need to grow food and sue the farmers who grow it by accident.

TWILLEY: This episode, we explore what it means to patent life, not just pizza—and how it shapes the food we eat, for better and for worse.

GRABER: This episode is sponsored in part by the Alfred P. Sloan Foundation for the Public Understanding of Science, Technology, and Economics. Gastropod is part of the Vox Media Podcast Network, in partnership with Eater.

[MUSIC]

JANE SMITH: He lived in Santa Rosa, north of San Francisco and was called the Wizard of Santa Rosa. He was visited by famous people, from opera stars to movie stars to… Thomas Edison, and Henry Ford.

TWILLEY: This is Jane Smith, she’s the author of a genuinely lovely book called The Garden of Invention: Luther Burbank and the Business of Breeding Plants.

GRABER: Thomas Edison and Henry Ford are certainly incredibly famous inventors, they were like THE most famous inventors of their time. And they saw this one man, who bred and invented new plants, Luther Burbank—they saw him as their equal.

TWILLEY: But Thomas Edison received more than a thousand US patents in his lifetime, which is the most ever awarded to anyone. Burbank got a grand total of zero.

GRABER: And this has to do with whether you can patent a plant. You might remember that a few episodes ago, we talked about whether you could patent a pizza. And it turns out that you can.

TWILLEY: But Luther Burbank, the man who eventually came to breed not only the most consumed potato in the world, but also more than 800 other commercial varieties of fruits and nuts and vegetables and flowers—he couldn’t patent a single one of them.

SMITH: You can’t patent air, you can’t patent water, you can’t patent potatoes.

DANIEL KEVLES: You couldn’t patent any living thing, including a fruit And this was, probably this idea was or policy, was handed down by the commissioner of the patent office in 1889, that you couldn’t patent any living thing. He called it a product of nature rather than of human beings.

GRABER: Daniel Kevles is an emeritus law professor at Yale and he’s writing a book on the history of innovation and intellectual property protection for living things. Now you might be thinking: of course you can patent living things, Monsanto patents their seeds! But that wasn’t always the case.

TWILLEY: Plants only became patentable in 1930, when Congress passed the Plant Patent Act.

DAVID KARP: Since then, there have been 35,728, as of this morning, plants protected by plant patents in the United States.

GRABER: David Karp is a researcher with the Department of Botany and Plant Sciences at the University of California, Riverside, and when we spoke to him he was in Morocco at the world’s largest meeting of plant patent obsessives.

TWILLEY: Our invitation must have got lost in the mail. But anyway, David took some time out from the plant patent chat to tell us that yes, once upon a time, a plant breeder couldn’t patent their fabulous new potato, and now they can. And the thing that changed is really Luther Burbank, the Wizard of Santa Rosa, the Edison of the Garden, the most famous gardener on the planet…

KARP: Well, he’s often regarded as the greatest fruit breeder who ever lived.

SMITH: He was an enormously popular public figure as well as a very influential agriculturalist, and that’s not a usual thing.

TWILLEY: Let’s be real, they’re not usually household names. I may be underestimating my fellow citizens, but I think 99.9 percent of Americans would struggle to name a single plant breeder.

GRABER: Though he became the most famous American gardener maybe ever, it wasn’t obvious from little Luther’s earliest childhood days that this was what his future held—he didn’t start off getting his hands dirty on the family farm.

SMITH: Burbank grew up in a family of school teachers and writers and brickmakers. That was the family’s main business when he was growing up in Massachusetts, at a time when Massachusetts was the most industrialized state in the country. So he was hardly a yeoman farmer when he was a child.

TWILLEY: His defining characteristic as a kid was that he was super shy. Jane says he did a deal to do extra school work so he didn’t have to speak out loud in class, and he would skip dinner and go hungry rather than have to talk to a stranger. But he was also into inventing. Burbank was born in 1849, and when he was little, inventing new stuff was all the rage.

SMITH: Luther Burbank grew up in the period, the second half of the 19th century when the world in general and the United States in particular was mad about new inventions. It was an era of enormous technological expansion, geographic expansion, population expansion, and the search for new machines was matched by the search for new food to feed everybody. It was a time when the inventor, if not king, could easily imagine being king.

GRABER: As a kid, Burbank spent a lot of time in the equivalent of the family garage building things. He built a steam whistle from an old tea kettle to call in workers. He figured out a better way to load bricks onto wagons to drive them into town.

TWILLEY: And then a trip to the local library set Burbank’s inventive genius moving in a plant-ward direction.

SMITH: The big influence on his career was when he read Darwin. Not The Origin of Species, but the book called The Variation of Animals and Plants Under Domestication. And realized that living organisms do vary—of course, he knew that. Everybody knew that. But that you can force that kind of variation.

GRABER: Burbank later said that this book quote opened a new world to me. Darwin showed Burbank that plants could be changed, you could make that change happen, and those changes could be permanent. Burbank said he doubted that it was possible to make anyone realize what this book meant to him.

TWILLEY: For context, to understand how truly novel this idea you could intentionally and deliberately improve berries and apple trees and potatoes and other plants really was—you have to understand that plant breeding wasn’t a thing before Burbank.

GRABER: Farmers did select seeds from plants they liked, and crops gradually improved, but they didn’t have the scientific knowledge to try to deliberately choose the traits they wanted crops to have and breed for those traits.

KEVLES: So what people relied on was breeding by the birds, the bees, and the wind.

TWILLEY: And increasingly, that wasn’t good enough. It seems weird, but American crops just weren’t that great in the 1800s. They weren’t as juicy and crunchy and yummy, but more importantly from the point of view of growers, they weren’t as high yielding and long lasting.

GRABER: This was enough of an issue that the US government literally sent people around the world to find better crops, crops that were sweeter, or ones that grew well in different climates or at different seasons. We made a whole episode about one of these food explorers named David Fairchild.

TWILLEY: And this was especially important because in the second half of the 1800s, when Burbank was born and Fairchild was exploring, the population of America was booming. And there were lots more mouths to feed.

SMITH: People were looking for greater variety in what they could grow, in what they could eat, to extend the range of the food supply.

TWILLEY: So for Burbank, who loved inventing, who was inspired by Darwin, the idea of being the person who figured out how to create new and improved crops — it seemed like that might be the way forward. Especially after he had to give up on his college dreams.

SMITH: After his father died, his hopes of going to higher education dissolved because there wasn’t any money. He bought a plot of land and started out as a market gardener, but always tinkering with what he was finding in the garden.

GRABER: One of the crops that Burbank grew for sale was the potato. Now, potatoes usually grow out of other potatoes as a clone, they don’t need to mate with other potato plants to have new little potato babies. But potatoes do create flowers and berries that can reproduce and create a genetically different potato. Those berries show up in the form of a sort of rare ball of seeds.

SMITH: And he discovered a seed ball on one of his potato plants. And decided to see what these seeds would do if he, if he planted them.

TWILLEY: Most people would have ignored the seeds. Like Cynthia said, growers don’t use them to grow new potato plants. But Burbank remembered his Darwin, and he thought that these little seeds might contain exciting new future potato varieties.

GRABER: He watched his potato plant and waited for a while for that ball of seeds to ripen. One day it fell onto the dirt without him noticing, and he spent three days looking around for the tiny little thing—it was only about the size of a blueberry.

TWILLEY: But fortunately for our story and for America’s potato eaters, he found it, he saved the 23 tiny little seeds inside, and he planted them next spring.

GRABER: Twenty-one of these brand new potato varieties were crap, one was fine, but the final one was extraordinary.

SMITH: He got this really pretty fabulous potato, which has gone down in history as the Burbank potato. There’s a variation on it called the Russet Burbank, which is probably more familiar now. And I would say this is, last time I checked, the most grown potato on earth, now. Over 150 years later. And that’s quite extraordinary. And it’s a mighty fine potato. It tastes good, it, it keeps well, it doesn’t rot. But it’s great attraction is something Burbank could never have imagined, which is that it freezes really well and fries really well. So when you go to McDonald’s or any of the other kinds of companies, or buy an Ore-Ida potato in the frozen food aisle, it’s probably a Burbank potato because it is so amenable to that kind of storage and production.

TWILLEY: Bingo! First time out of the gate, and our hero has a winner. Next up, fame and fortune, am I right?

GRABER: Well, as we said, he couldn’t patent his new discovery.

SMITH: It was the product of nature, you can’t patent something that is naturally occurring.

KARP: Which some people at the time thought was the way that it should be. This was nature and it should be free and open to all.

TWILLEY: To be honest, even if Burbank had argued, well, this potato wasn’t exactly a product of nature. Sure, nature created the seed ball, but I discovered the seeds and I planted them and I selected the best one—this potato wouldn’t exist without me and I should be able to patent it—there was another problem.

SMITH: The requirement of patent law is that before you get a patent, you have to disclose how you have made whatever it is that you’re patenting. How do you disclose how you make a plant? Very difficult.

GRABER: Especially at this point in history. Because even though Gregor Mendel had published his famous experiments with pea plants about a decade earlier in 1865, where he demonstrated that traits were inherited by plants and you could breed plants to keep specific traits—most of the world ignored him. And it would take another couple decades for him to be rediscovered, and even longer for people to really understand the mechanics of plant breeding.

TWILLEY: So Burbank couldn’t possibly have explained how a particular plant was made. And judges still considered his potato a product of nature anyway. Which, basically, no dice. Burbank couldn’t patent this excellent new potato.

GRABER: But without the ability to patent his potato, anyone could rip Burbank off. The problem was bigger than potatoes. Anyone who had a new tree fruit or tuber was in a similar boat.

TWILLEY: Because you don’t grow tree fruits or nuts or potatoes from seed, you grow them by grafting a cutting with buds onto rootstock, in the case of fruit and nuts, or by planting a potato with eyes in the case of potatoes—and the new plant is a clone of the parent.

KEVLES: Which gets you the identical fruit. But, for the innovator, that poses a hazard. The innovator can reproduce, say the trees, can propagate them as they say, and have a lot of fruits to sell. But they can also be easily ripped off. Someone may come in and, in the dead of night and you’re into your orchard and take cuttings of your fruit. And reproduce them identically, and then go into competition with you.

TWILLEY: This sucked for Burbank. He wanted to make bank off this wonder spud, but he didn’t have a lot of good options.

GRABER: He could have just sold them, but that would mean scaling up his crop sales and becoming a major potato farmer himself, which he didn’t want to do. And he also wasn’t at the time known as a nurseryman, who other farmers would come to for seed stock. So he took the only other option available.

SMITH: He sold the rights to his potato to a seed producer who had the capacity to put it in his catalogs and sell it in bulk. And took the $300, which is what he made for it, and bought a ticket to California.

TWILLEY: That wasn’t a lot of money, even then, but the nurseryman he sold his potato to, one James Gregory of Marblehead, Massachusetts, generously agreed to name it the Burbank. It caught on right away, which helped our young hero make his name.

SMITH: He got to California in the 1870s in a period of huge economic expansion there, and was picked up by the California boosters as one of the people who’s going to promote agriculture. And promote California as something it was not yet, which was the cornucopia of the world.

GRABER: There weren’t a huge amount of farms and fruit trees like there are in California today. California wasn’t yet the center of the American fruit and vegetable universe. But Burbank saw opportunity. He wrote letters back to Massachusetts and gushed about the flowers and he foraged for wild edible plants, and of course he saw that the long days of warmth and sunshine would be perfect for growing crops.

TWILLEY: Burbank set himself up with an experimental garden in Santa Rosa, which is in Sonoma county. And he got going in earnest on his quest to come up with new crops for Americans to eat. His first experiment was with walnuts.

SMITH: He’s in Northern California, and the Napa Valley before it was known for wine was known for its walnuts. And people were looking for new varieties, ways that they could have a sturdier plant, and a more prolific fruit. I could talk at great length about the problems with growing walnuts. The basic problem is if you have a tree that’s sturdy, you have a fruit that you need really vigorous equipment to get it out of its shell, it’s very difficult to work with.

GRABER: Burbank thought he could breed a walnut tree with nuts that tasted good but were hard to get out of the shell, together with one whose nuts were easy to get out but weren’t so tasty. And he crossed the two by using his fingers to smear the pollen of one tree into another tree’s blossoms.

TWILLEY: It took a while, but eventually he got another winner—two, actually. One, which he called the Paradox Walnut, grew really fast which made it super useful as a source of hardwood, and the other, the Royal Walnut, had lots and lots of tasty nuts that were larger and easier to shell.

GRABER: Another fruit that Burbank had huge success with was the plum, which at the time was maybe surprisingly to us today a really important fruit to tinker with.

SMITH: The reason people were very interested in plums was this was the era before refrigeration, and prunes were a major part of the winter diet of a lot of people in the United States and around the world. And a prune, of course, is just a dried plum. So people were very interested in getting into the plum growing business. And Burbank used his skill and knowledge of how to graft plum buds onto faster-growing almond rootstock.

TWILLEY: Everyone loves a fast-growing plum, but this ingenious little trick also meant that Burbank could figure out which of his crosses was the best, and which to toss, faster than ever before. And so within a few years, Burbank had come up with all kinds of plum goodness. If you’ve bought a plum at the farmers market, you’ve probably tasted one of Burbank’s plums.

KARP: He basically, if not invented, he came up with what for many decades was the standard plum of commerce grown in the United States. It was highly flavorful. But it’s both tart next to the skin and next to the stone, highly aromatic, and highly productive. Unfortunately, it’s also rather soft by modern standards, which demand something with the ship-ability and storage life of a tennis ball, if not a potato. So it’s basically faded from, from being the most important plum several decades ago. It’s mostly just grown in backyards and for farmer’s markets at this point.

GRABER: But at the time it was a huge hit, and Burbank continued on inventing new fruit. He made a white blackberry. He came up with a variety of rhubarb called Crimson Winter also known as the mortgage lifter, because it was so productive. But really stone fruits are one of the major places he left his mark.

SMITH: One of Burbank’s oddities that he developed was, stone fruit, peaches and plums, without the stones. Or with tiny little stones.

GRABER: His stone fruit inventiveness went beyond removing the pits, he got pretty creative in his crosses.

SMITH: You still see the plumcot and the pluot, as two hybrid fruits that are very weird looking, but sell a lot because of their attractive weirdness.

TWILLEY: I like a pluot, to be honest. All hail Luther Burbank, inventor of pretty awesome fruit.

GRABER: We’re making it sound like Burbank just wandered around his gardens doing a little smearing of pollen from one tree to another, and hey presto, he’d invent the next most popular fruit in America. But it really wasn’t easy, and it also took a really long time.

TWILLEY: The potato was a fluke, but even with the fast-growing rootstock trick, fruit trees take a long time to grow. And Burbank had to make a lot of crosses to get a winner. He later claimed to throw away as many as 20 million dud plants for every successful creation. And each generation of fruits and nuts had to grow for several years before he could even tell if it was heading in the right direction or not.

GRABER: Burbank’s garden was filled with his crosses, and nearly all of them would just end up burned in a bonfire. So while he might have been exaggerating when he said it took 20 million duds for every winner, it is true that it took a lot of knowledge and experimentation and time to do the work he did and develop new varieties that were different and better than the ones that were available.

TWILLEY: So how could Burbank bankroll all this fruit R&D? How was he paying the bills while he worked to develop these new varieties? Because getting a few hundred bucks as a one time payment for a brand new variety is not a great rate of return.

GRABER: And remember, anyone who got hold of a cutting could just grow his new variety, no permission or license fee necessary. And then Burbank’s fabulous new prune wouldn’t be exclusively his anymore.

TWILLEY: So what could Burbank do to both protect and monetize his inventions and keep up the good work of giving Americans all the brand new plums and peaches and berries they could dream of? That’s coming up, after the break.

[BREAK]

GRABER: As we said, Burbank didn’t have a lot of options when it came to making money off his inventions, but he just knew that what he was doing was unusual and novel and valuable. And so he went to great lengths to keep all his work a tightly held secret.

SMITH: When he had an experimental farm, and before that, when he had experimental plots behind his house, he kept very coded, secretive charts of what he was doing. He didn’t tell people what he was doing.

TWILLEY: Without the ability to patent his new creations, Burbank had to do whatever he could to prevent his hard work from being ripped off. And part of that involved writing in code.

SMITH: His notebooks are maddeningly inscrutable. It’s impossible to know what he was recording. He used a system of check marks and cross hatches, but there were no keys to his code. So it’s not possible to really know what he was recording there in his record books.

GRABER: Burbank might have hidden his notes on the traits of any particular plant that he liked and what the parent plants were, but he did need help, so he had to let some people in the gardens. But they had to turn out their pockets every day before they left. He really didn’t trust anyone.

SMITH: He had many people who helped him in the garden, but none of them were his second-in-command. And when people came to write down his secrets and write books about him, including people who considered themselves reputable scientists. He wouldn’t really tell them what he was doing. He would say, it’s an intuition. It’s a gift. I see a difference. And I think in large part that’s true, but also he just was not telling what he was doing.

TWILLEY: Like we said, Burbank also developed ways to speed up his new variety discovery process, like growing his experimental plums on almond rootstock. One of his ingenious techniques for accelerating fruit development also helped build his brand.

SMITH: One of his parlor tricks, if you can call something you do out in the garden a parlor trick, is that he would graft dozens of varieties onto a single tree. So you would have a tree that was blooming with seven different kinds of plums and eight different kinds of peaches, all at once. He did this initially so that he could be seeing which of these fruits would be the most desirable. But then of course, it became a huge tourist attraction.

GRABER: I certainly would have paid to go see something like that. But that wild multi-species tree wasn’t what made him a rock star. What really put his name on the map and brought him fame and fortune was a catalog.

SMITH: He issued a catalog called New Creations in Plant Life.

TWILLEY: This catalog was basically a guide to the eighty or so new varieties Burbank had developed—some new plums, a couple of tomatoes, his walnuts, a peach or two, a bunch of berries. What it also was was a major hype machine. Burbank may have been shy as a kid, but he did not hold back in this catalog. He said that his new fruits represented, quote, “in all respects the greatest advance ever made.”

GRABER: Of blackberries and raspberries, he said that nobody would question the claim that “he had made more and greater improvements during the last fourteen years than had otherwise been made during all the past 18 centuries.” He was selling himself, and hard.

TWILLEY: And his magical new creations were priced accordingly. The cheapest thing in the catalog sold for the equivalent of four thousand dollars today, some cost twenty times that, and for the new walnuts, he didn’t even list the price—you had to ask. Which you know means you can’t afford it.

SMITH: And, the price was justified by the fact that whoever bought it was going to be able to propagate it and publicize it, not only as a fabulous new plant, but as a fabulous new plant from the great plant wizard and inventor, Luther Burbank.

GRABER: They even got to NAME the new plant. He basically sold all the rights to that one plant to whoever was fortunate enough, and had enough cash around, to be able to take advantage of it.

SMITH: Burbank had to charge a lot at the beginning. He had to convince his buyers that they, in essence, would have that first mover advantage of having exclusive rights to the plant until other people could grow it out. And so there’s this very interesting dance of creativity and cunning and self-promotion that’s going on.

TWILLEY: Burbank’s target audience for the most part was nurserymen. For some of them, it made sense to buy exclusivity to an entire variety and then use it as the basis for their own breeding.

GRABER: And for others, his varieties were a windfall as-is. A nursery called Stark Brothers in Missouri was one of the biggest in the 1800s, and they’re still in business today. They’d been hammered by a financial crash, and they almost failed entirely. To rev their business back up, they paid Burbank thousands of dollars for three plums and a quince, and that rescue scheme worked.

TWILLEY: The Stark Brothers changed the name of one of the plums from Golden, which was its skin color, to Gold, to make it seem ritzier. They took out a big ad in Harper’s Weekly to pimp it, where they described it as “a jewel of purest ray serene.” Which wow, those plums must be quite something because that’s not even English.

GRABER: It’s hard to imagine that a catalog could be the breakthrough that offered Burbank the recognition he craved, but it was. And he was able to make a solid amount of money charging those truly exorbitant prices.

SMITH: He was certainly able to make a good living. He was not fabulously rich.

TWILLEY: But he was a household name. He had turned himself into a celebrity and his garden into the ultimate destination. Helen Keller came to visit him, Jack London, the Prince of Belgium.

GRABER: Poets and actors and opera stars all came calling. A European aristocrat begged to meet him, calling Burbank “the most prominent man of the world in the improvement of flowers and fruit.”

SMITH: Thomas Edison and Henry Ford came out to Northern California for the Panama-Pacific Exposition. And while they were there, they went to visit Luther Burbank. He did not come to them. They went to him. They wanted to meet this genius of the garden. They wanted to see his gardens, which were a huge attraction, luring people to Santa Rosa.

TWILLEY: But for all his success and celebrity buddies, Burbank was always a little miffed. He wasn’t struggling anymore, but he didn’t feel like he’d got his due.

SMITH: He was a person of frugal tastes and temperament, but also like anybody else, capable of being envious. He was friends with Henry Ford, Henry Ford was fabulously rich. Luther Burbank was not.

GRABER: He saw himself as the equal of Ford and Edison, but unlike them, he couldn’t patent his inventions. And he didn’t think that was fair.

SMITH: He saw himself as inventing— new ‘creations’ was the word he used. He called himself a quote unquote “evoluter,” because he was very inspired by Darwin. He wanted to accelerate evolution. And he saw that as human intervention into the natural world that was a product of his own unique ingenuity. So yes, he very much saw himself as an inventor. As it happened, he was not coming up with a railroad or a cotton gin or a steam engine, but he was still an inventor.

TWILLEY: Burbank wasn’t alone in this frustration. Remember the Stark Brothers of Missouri, the ones who bought Burbank’s plum? They ran into this problem all the time. Back in the early days, when Burbank found his potato, a farmer in Iowa discovered a very tasty red and yellow striped apple growing in his orchard, and the Stark brothers bought the rights to it.

GRABER: They renamed it the Delicious. And they put it in their catalog. Which Dan says was a big deal.

KEVLES: Everybody knew about stark brothers. It was a Sears Roebuck of fruits. And everybody got their catalogs.

TWILLEY: They were a big deal, but they had exactly the same dilemma that Burbank had: they had to figure out how to protect something that they couldn’t patent and that anyone could grow just from a cutting.

GRABER: The whole situation was super annoying to the Stark Brothers, just like it had been to Burbank. They could see that people would buy a tree like the Delicious that they had rights to and just start to sell the same awesome new fruit under a totally different name. The Stark Brothers wouldn’t get money or credit.

TWILLEY: So like Burbank, they did the best they could. They tried to protect their investment by any means available.

KEVLES: And what they did in order to protect it, was to put a small kind of ribbon, you know, a furled ribbon, in the picture—in the catalog, saying: red delicious apple, trademark 18. Which was basically to warn off people who saw the catalog and people bought the apple, warn you off from trying to sell it in competition. That is, propagate it and sell it in competition with Stark Brothers. They were misleading completely. Because you could not claim intellectual property in the fruit itself just by trademarking it.

TWILLEY: Trademark, which we talked about in our pizza patenting episode, just protects the name, not the thing itself.

KEVLES: And they, further intensified their exercise in misleadingness, if you will, by saying “trademark U. S. patent office.” To imply or give the impression that it was patented, which it wasn’t.

GRABER: The Stark Brothers took these misleading protection practices even further when it came to their next apple hit. A guy in West Virginia found a great yellow apple, he wrote to the Stark brothers about it.

KEVLES: And one of the Stark brothers, Paul Stark, I think, went out to see it in 1917. He liked what he saw, and he bought the tree and all the rights to it, propagation rights, marketing rights and so on, for $5,000. Which was quite a bit of money in 1917. And in order to propagate it, he took cuttings from it to take back to Missouri. But he also, before he left, established a chain link cage around it, so no one else could take any cuttings from it.

TWILLEY: The Stark brothers named this apple the Golden Delicious, and then renamed the Delicious, the Red Delicious.

GRABER: There’s absolutely no relationship between those two apples other than the fact that they’re both apples, which until now I was a little confused about. But now you know.

TWILLEY: The “delicious” name was all just part of the sales hype. And once again, the Stark Brothers went all in to try to protect their rights to this new apple. As well as the chain link fence, they made anyone who bought a seedling sign a pledge to never give away or sell or propagate the tree or its buds.

KEVLES: Then when they shipped it, the seedlings—which are not very big, you know, they’re two or three feet— they attached a tag to it, by a piece of wire. Tags about three, four inches by two inches. And on one side is a summary of a contract. And on the other side, it says that any violators of the terms of the contract, would be subject to legal action and at least a fine of a hundred dollars, a fine of at least a hundred dollars. Every single seedling went out with that. So they intimidated people. But to be sure that the intimidation worked, they hired a detective agency.

GRABER: It was called the Pinkerton Detective agency, which honestly sounds like something out of a novel. Basically what would happen is the Stark Brothers would get wind of someone maybe growing a contraband Golden Delicious, they’d have their lawyers write up a cease and desist.

KEVLES: And sometimes they’d get a letter back saying, Oh, I’m sorry. I didn’t know you own the rights to this tree. And, what would you like us to do with them? And the Stark brothers would write back: we’d like you to destroy them. This was usually from people who had bought the land with the trees on it and didn’t know that there was a contract covering it.

TWILLEY: Then the Stark Brothers would send in the Pinkerton Detectives to make sure the trees had indeed been destroyed.

KEVLES: But sometimes they would get a letter from a rebellious nursery person and say, yes, I have this tree. So what?

GRABER: Then they’d send the Pinkerton Detectives out to try to intimidate these rebellious fruit tree growers, but that didn’t always work.

KEVLES: there was a guy named Schultz who owned the Golden Eagle nursery across the Mississippi in Illinois. He was illiterate, but very smart. And he offered these arguments back to Stark, none of your business, this contract doesn’t count, et cetera. And Stark would threaten to sue him, but they never did.

TWILLEY: And that’s undoubtedly because they knew they’d lose. They didn’t actually have the legal right to stop anyone else from growing their apples.

KEVLES: And if they lost in one state court, then, that would raise problems for the legitimacy and enforceability of the contract everywhere. So they never sued.

GRABER: The Starks, like Burbank, were obviously not happy with this situation, they too wanted to be able to protect—and patent—their plants. In fact, this issue with Schultz and the contraband Golden Delicious prompted them to get real about patent protection.

KEVLES: So they were very well known and connected politically in Missouri. So they went to the Congress. The Senator then was Champ Clark from Missouri, very, very influential guy. And he introduced the Plant Patent Act.

TWILLEY: This wasn’t the first time that nurserymen had lobbied for Congress to do something to protect their rights. Burbank himself had testified in support of one attempt in the 1890s, he said that plant pirates were driving him out of business and he would have to abandon plant breeding if he couldn’t protect his inventions.

GRABER: Like many things Burbank said, that was a bit of an exaggeration. And it didn’t work, Congress was pretty steadfast in their belief that you couldn’t patent life.

TWILLEY: But this time was different. It was the late 1920s, and Burbank was dead already, but his widow testified. Thomas Edison sent a telegram supporting the new legislation. And the Stark brothers lobbied hard.

KEVLES: Citing for example, poor Luther Burbank, claiming that he had died in penury and so on, which wasn’t true, because people kept ripping them off.

SMITH: The person who objected most, and I find this fascinating, was a young congressman named Fiorello LaGuardia, who would soon leave Washington to become mayor of New York City.

GRABER: Future mayor and eventual name to be bestowed upon an airport! But in any case, La Guardia represented a district in Manhattan that didn’t have many nurserymen—they were eaters, not growers.

SMITH: So he wasn’t being pressured the same way. And he raised a lot of the problems and questions that continue to haunt the debate about patenting plants. He said, well, if you patent a plant and then somebody else accidentally grows it, what happens to them? If you patent a plant and people really need this food stuff, are you creating monopoly on the food supply? What are some of the ramifications for farmers, for consumers, of patenting plants? But nobody else really cared about it. And the legislation went through.

TWILLEY: The Plant Patent Act passed in 1930. And it was the first legislation anywhere in the world that treated living things as intellectual property.

GRABER: This new act didn’t protect all kinds of crops, it only protected ones you could basically clone, which were tree fruits and nuts, and also some flowers. It didn’t protect things you grow from seed, like vegetables, and like grains. Jane says the original act didn’t include grains, in part because they’re so critical to feeding humanity.

TWILLEY: So yeah, this legislation didn’t cover all food, but it was a big deal—and it completely changed what you see at the supermarket today. That story, after a quick word from our sponsors.

[BREAK]

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GRABER: Today, if you walk into the grocery store, you can see fruit with all sorts of fun, memorable names, like those Cutie oranges and the Cosmic Crisp apples. And for a lot of them, the breeders HAVE gotten protection for their intellectual property.

LELA NARGI: They’re apples that have names like Honeycrisp, Cotton Candy Grapes are suddenly all over the place out there. Cuties are a trademarked fruit name—so it’s a brand. This is fruit as a brand.

TWILLEY: Lela Nargi is a journalist who covers food and agriculture. And she told us that’s the situation today. Most fruit has some kind of IP attached. But these cute names—they’re trademarks, not patents. David told us that, even after the Plant Protection Act was passed in 1930, patenting fruit was slow to catch on.

KARP: It took a while for people to realize what they had to do and how they could benefit. There were just a few hundred fruits, at least, patented in the following decade.

GRABER: As plant patenting gradually picked up, a lot of the early patents were filed by university breeders. In the 1800s, most new varieties were developed by chance—Luther Burbank was the exception. But with his successes at improving America’s fruits and nuts as an example, in the 1900s, the federal government picked up the baton. Breeding new and improved varieties of crops was a priority at the USDA, and especially at the new land grant universities. A big part of their mission was to focus on agriculture.

TWILLEY: Different schools focused on breeding crop varieties that were useful for the farmers near them, so say University of Minnesota focused on apples and came out with the Honeycrisp. A lot of these varieties developed at land-grant universities with federal funding are what we eat today. Strawberries bred at UC-Davis in California make up 60 percent of all strawberries grown in the world.

KARP: Up until like the 1980s, more often than not, these were public varieties. That is, you didn’t have to pay a royalty for planting the trees if you were a grower.

GRABER: Like we said, the universities did get patents for these fruits, but the fruits were meant to be for the public good. One of the legal restrictions on universities was that they couldn’t own the patents if the money came from a government research grant. The federal government owned those patents, and the fruit was available to anyone to grow, with a nonexclusive license.

TWILLEY: But by the 1980s, thanks to political shifts—yay Reagan—government research grants for land grant universities started to dry up.

NARGI: The federal government didn’t want to pay for that anymore, which is how we got to, like, more and more people needing more and more money to keep doing the research that they were doing, and bringing fruit to market.

GRABER: And so two senators at the time, Evan Bayh and Bob Dole, they sponsored the, yes, Bayh-Dole Act. And this gave universities ways to make more money. One of the ways was that they would own these types of patents, so they could fund their fruit breeding programs by selling the rights to grow the strawberries and peaches and apples those programs had created.

NARGI: The universities were losing federal dollars, and so the federal government was like, well, here is this thing. Now you can own your inventions basically, and you have the right to license them and to make money off of them.

TWILLEY: OK, fine, new revenue source. But there was another problem—and this was something Luther Burbank dealt with too. It can easily take decades to develop a new variety. And then it often takes just as long to become popular. The Honeycrisp? That was patented in 1988. The first harvest hit the shelves in 1991. But it didn’t really catch on with apple eaters until nearly twenty years later, in 2007. And then the patent ran out the next year!

KARP: The crucial thing is that you don’t want to invest millions of dollars, having a successful variety. And then just as you’re really getting going, your patent expires and you can’t continue to benefit from it.

GRABER: So plant breeders came up with a solution to this problem. These days, breeders patent their creations under odd names that are just kind of a jumble, not actual words.

KARP: More often than not, they are alphanumeric codes, up to 10 letters or numbers, like APF hyphen 2 3 6, hyphen 4, 8, 1 6. Deliberately as off-putting as possible.

TWILLEY: Or sometimes they’re just these weird corporate names. Like the Jazz apple, which you’ll probably have seen at the store, it was patented as the SciFresh.

NARGI: Which I don’t think anybody would be running into the supermarket with, like, that in mind, that they wanted to buy that.

TWILLEY: But it’s sold as a Jazz, which is a much more appealing and also trademarked name.

GRABER: So you might be thinking: Why on Earth? Why would fruit breeders do this weird name thing, where they patent it as one thing and trademark it as something else?

TWILLEY: It’s basically a sneaky way of getting around the original intent of the plant patent act. Remember the point of a patent is to encourage innovation—for the good of the inventor, who can make money, and also for the good of the public, who can benefit from it. So there’s a reason patents eventually run out.

GRABER: But if you patent a weird number letter combo, but then trademark the name it’s sold under, you’ve expanded your protection of that fruit for as long as it’s popular, because a trademark never expires.

TWILLEY: Even after the patent on the SciFresh apple has run out, I couldn’t grow those apples and sell them as Jazz apples. I’d have to come up with a different name. Which means I can’t benefit from the work the breeders have done to make Jazz into a brand.

KARP: They’ve paid to promote a brand and you haven’t. So why do you get to benefit?

TWILLEY: Tough break. But what it boils down to, is that with this one-two punch of patent and trademark, plant breeders have found a way to kind of extend their rights forever. Which you might think, boo hiss that’s bad. But what breeders today argue is that they need that, because the world is different, and getting your fruit into people’s hands and making them fall in love with it costs a lot of money.

NARGI: And so what you’re doing is you’ve got this permanent protection for this thing that you’ve created, but there are also a lot more people involved. So a lot more salaries to pay, a lot of marketing to get people to be like when they go into the supermarket, oh my God, there’s like, a Honeycrisp. That’s it. That’s what I’m buying.

GRABER: Another challenge that breeders face if they don’t have good control over their product, another reason they might want to use this trademark trick to extend their protection longer than two decades, is something called dilution. If everyone can grow a fruit, they might do a bad job and ruin its reputation. David says that’s what happened to the red delicious apple, that it went into a death spiral.

KARP: Growers received a premium for the reddest possible apple And so of course they grew the reddest possible apple selecting sports that were redder but less delicious.

TWILLEY: Anyone could grow the Red Delicious, everyone did—there were no protections and as a result now the Red Delicious is the opposite of delicious. Today, though, with their trademark protection, breeders can make sure that anyone who grows their fruit keeps it delicious. Take the Pink Lady apple. That’s patented as the Cripps Pink and trademarked as the Pink Lady.

KARP: Well, in that case, and this is another aspect of trademarks, there’s an organization that actually controls the Pink Lady name in the United States and other countries around the world. And they insist that if you’re going to market the Cripps pink variety as Pink Lady, you have to adhere to certain quality standards. Which in this case is for the benefit of the consumer.

GRABER: Growers pay extra money for the right to be able to grow the Cripps pink according to these standards and sell it under the brand name Pink Lady. So buyers who find the Pink Lady in the grocery store can be sure that it will theoretically be just as crisp and tart and sweet as it’s supposed to be.

TWILLEY: That’s one way the world of food IP has changed since Luther Burbank’s day. These days a fabulous new fruit isn’t just patentable, it’s a brand, and that’s big business. The other big thing that’s happened is that the original Plant Protection Act—in 1970, it was extended to cover seed-grown crops, like corn, and wheat and soybeans, too.

GRABER: And yes, this is where we get to the patent seed story you’ve all heard before, and that’s the one about Monsanto.

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TWILLEY: The thing about commodity crops, like corn and wheat—they’re a much bigger market than fruit. We’re talking about serious money and seriously big corporations. And since the 1990s, these mega corporations, like Monsanto and Syngenta, they’ve been selling patented, trademarked genetically engineered seeds. And they are serious about protecting their inventions.

KEVLES: They have developed a complicated and pervasive system of protecting their plants. They have an entire system, a network, if you will, of surveillance, throughout the Midwest area where hey sell these seeds, which are patented and resistant to the herbicides or pesticides. And they encourage different farmers to rat on people who are cheating. They have a kind of, a voluntary Pinkerton Detective Agency, so to speak. An army of farmers who—or if not farmers, people who wander around in these areas and pick up information about who might be growing Monsanto seeds, without having bought them and paid the royalty on the seeds.

GRABER: So they have a surveillance network like the Stark Brothers. But unlike the Stark Brothers and the Pinkerton Detective Agency, Monsanto does have the law on their side. And they use it, they sue all the time. They’ve been part of a particularly famous lawsuit against a farmer named Hugh Bowman who bought grain at a grain elevator, just general grain, much cheaper than the Monsanto version. He thought it might have some Monsanto seed in it, and it did.

TWILLEY: He also thought he’d get away with it—he could just buy it from the grain elevator, not bother with Monsanto’s high prices, and reap the benefits without Monsanto knowing or caring.

GRABER: NPR reported on this in 2013.

RENEE MONTAGNE: The Supreme Court tomorrow will take up what seems like a classic case of the little guy taking on the big one. That would be the agribusiness giant Monsanto on one side, a 75 year old farmer on the other.

DAVID SNIFELY: He wanted to use our technology without paying for it.

DAN CHARLES: David Snifely is Monsanto’s general counsel. Monsanto took Bowman to court and the court ordered Bowman to pay $84,000 for infringing Monsanto’s patent. Bowman appealed.

HUGH BOWMAN: And I’m not going to give in. Because I think I’ve done nothing wrong.

TWILLEY: Sorry, Mr Bowman. The Supreme Court disagreed.

NINA TOTENBERG: Today, the Supreme Court said unanimously that Bowman’s actions amounted to illegal copying of a patented product. Without this protection from Monsanto, said Kagan, the company would get scant benefit from its invention, and Bowman and other farmers would reap great rewards from the resistant seed without paying for it.

GRABER: So today, we’re pretty far away from what the people who signed the Plant Protection Act a century ago imagined. In fact, we’re kind of in the world that La Guardia had feared would come to pass: a world where people are sued if seeds are blown into their fields, and just a few companies have a huge amount of control over the foods we eat.

TWILLEY: That said, nobody we spoke to felt that a return to the patent-less days of Luther Burbank was a great idea. Being able to patent new crops has real benefits.

KARP: Probably the single most important thing is that if it helps breeders come up with more and better varieties. Then I think that’s great. And fundamentally I think that’s the most important thing.

GRABER: At the same time, David says there is a downside when it comes to fruit in particular, a system like the patent-trademark double whammy we have today pushes smaller growers out of the game.

KARP: Why is that? Because the rights managers need to surveil production if they’re charging not only a tree royalty, but a fee for each box of fruit. They need to keep track of that and make sure that the producers are not cheating.

GRABER: We mentioned that if you sell a Cripps pink as a Pink Lady you have to pay extra money, that’s the tree royalties and the fees for the boxes of fruit. And that’s all managed by one company.

KARP: And they don’t want to look after some producer who has five trees, do they?

TWILLEY: Because who wants to have to police a thousand little farms when you could just check that one large one is in compliance. And so the smaller growers sometimes can’t even get a license to grow the Pink Lady.

KEVLES: But more important, you might say, is that the process of plant innovation is increasingly a feature of a very corporatized and powerfully corporatized world.

TWILLEY: This tendency to favor the big guys with deep pockets—it’s always an issue once you get the law involved.

SMITH: It’s very difficult to enforce a patent, and particularly with a living organism. Thomas Edison, I think, is often credited with the line that a patent is a license to have a lawsuit. And the legal difficulties of sustaining a patent are one of the reasons why, now, large corporations with gigantic legal departments have such an advantage. It’s not only that they can develop so many more plants, but they can go out into the field and enforce their patents.

GRABER: This is a problem with all patents, as Jane points out, but food really is in its own category.

KEVLES: If you have IP in a tinker toy, I don’t think that’s a grave consequence. Although other tinker toy manufacturers might take a different point of view. Not essential to life and health. But foods are essential to life and health. They are kind of, you might say, public goods, and we have an obligation as a society to protect the vitality and availability of public goods, including foods.

TWILLEY: Because as eaters, we’ll all lose out. Remember at the start of this episode, we told you that American crops were basically kind of rubbish before Burbank got started? There just wasn’t a lot of choice and innovation. We don’t want to go back there, but the risk of our current IP situation is that we actually might.

SMITH: What’s happened ironically now, with patent laws, is that we’re getting back to a contraction of varieties. Patented seeds particularly are so dominant that there’s a great danger of going back to the kind of monoculture that led to things like the Irish potato famine. So I think people sometimes worry about genetic engineering in terms of creating Frankenfood. But the real danger is not that you’ll be eating something dangerous, but rather that we will become a planet of monoculture and very few people will own, literally, the seeds of our entire food supply. And that’s a dangerous situation.

GRABER: If there’s a monoculture of one crop, that makes it more susceptible to pests and diseases that could wipe out that crop. It puts food at risk.

TWILLEY: The other problem with giving control over the handful of crops we rely on to feed the world to an even smaller handful of companies is that we’re at their mercy if say, they decide to raise prices or, as they have done, conceal important science on the human side-effects and environmental impact of their products.

GRABER: We made an episode about this, about Monsanto, called Monsanto or MonSatan. But the point is that concentrating the power over the foods we eat every day is risky.

TWILLEY: We still want new varieties which means we want new generations of plant wizards to create them. And there’s a good argument to say we need patents to encourage them.

KEVLES: So that’s where I am on this. IP is a good thing, but untrammeled, unregulated, exploitative IP in essential goods is not.

[MUSIC]

TWILLEY: Happy birthday to Gastropod supporter Perry! Hope it’s a good one!

GRABER: Thanks this episode to Jane Smith, David Karp, Lela Nargi, and Dan Kevles, we have links to their books, articles, and research on our website, gastropod.com. For our supporters who help make the show possible, We’ve saved the story of how before patents, people—mostly women—would paint absolutely gorgeous, very detailed images of fruits and vegetables so that breeders could try to claim ownership over them. We’ll also have some of the incredible images in the newsletter! Gastropod.com/support.

TWILLEY: Thanks as always to our superstar producer Claudia Geib, and we’ll be back in two weeks with another brand new episode for your listening delight.