The patenting of biological material attempts to fix or capture a moment in an organism’s long continuous process of evolutionary change. As the first instance of such fixation, the US Plant Patent Act of 1930 (PPA) guaranteed the intellectual protection of new asexually reproduced plants. In doing so, it heavily relied on visual representations to demarcate both the novelty of the invention and the ingenuity of the inventor. While utility patent applications need to show both ‘novelty’ and the ‘inventive step’, breeders in the early twentieth century could not scientifically explain the process through which they had produced the novelty they sought to protect through a plant patent.
In this paper, I claim that for the PPA, the ability to graft, propagate, and thereby retain the salient novel features of the plant stood in for the inventive step, since, as asexual organisms, these plants required botanical intervention to persist. Consequently, human expertise (rather than inventiveness) becomes an inextricable portion of the patentable invention itself. Taking inventiveness out of the equation, the images of the plants provided proof of their uniqueness, thereby ensuring their patentability based purely on novelty. Images were crucial to the early patents because inventors did not have to show the method of production of the novelty but only describe the novel features, which the pictures did with aplomb.
As the IP protection of plants has changed through the twentieth century, the images that accompany the patent applications have changed too. From colour photographs of the new varieties to images of electrophoresis gels showing specific gene markers that are claimed to explain the phenotypic differences being patented, images have taken on a more explicative role in patent applications. By comparing the visualisations used in early plant patents to those accompanying more recent utility patent applications, and by tracking the changes in the patent illustration with respect to their accompanying text, I demonstrate the shift from pure description to explication of the underlying innovation. I ask: How do patent visuals fit into the longer history of representation in scientific practice? How has the role of the image in the patent changed with respect to innovations in the science of plants, patent law, and technologies of visualization?