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Sunday - August 01, 2010

From: Waco, TX
Region: Southwest
Topic: Trees
Title: Registered/patented pecan by Foster W. Fort
Answered by: Nan Hampton

QUESTION:

Hello, we own a historic house museum once owned by the Fort family of Waco, and have learned that Foster W. Fort developed a type of pecan tree and had an orchard somewhere here around Waco (possibly in Downsville), and that these pecans are/were grown no where else. That is all the information from the family history that we can find. I am guessing he developed the tree/hybrid? around 1890-1920. He patented a nut cracker around 1907-1914. Do you know how we can find out if this species was registered/patented? I am currently researching where the original Fort family land was located outside of Waco, and hoping to find some trees. I just have no idea of where to start looking for registered(?) breeds of pecans. Thank you.

ANSWER:

After a bit of research, I learned that prior to the Plant Patent Act of 1930 it was not possible to patent a plant variety. This act, under 35 U.S.C. § 161, reads: “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.” Then, in 1970 the Plant Variety Protection Certificate (rather than a patent) was created for sexually produced plants. The code (7 U.S.C. § 2402(a) reads: “[t]he breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety … shall be entitled to plant variety protection for the variety, subject to the conditions and requirements of this chapter, if the variety is” new, distinct, uniform, and stable. You can read more about the Plant Variety Protection: An Alternative to Patents.

What this means for you is that Foster W. Fort could not have had a patent on his particular type of pecan tree in the late 1800s or early 1900s.

You might try contacting pecan growers organizations to see if they have any knowledge of this particular pecan variety. Here are a few possibilities for such contact: Texas Pecan Growers Association, National Pecan Shellers Association (NPSA), Pecan Kernel from Texas Cooperative Extension/Texas A&M University System. The Handbook of Texas Online has an article about the pecan industry in Texas with a bibliography that might be helpful to you.