Patents are not neutral objects, but tools of capital that limit scientific information

Kang, associate professor @ Warwick. “Patents as Capitalist Aesthetic Forms.” Law and Critique (2024) 35:281–311 AS

Patents have acquired meanings that have little to do with their legal functions.6 One way of tracing how this may occur is by considering a patent’s form and its circulation. Forms act both as the substance and the vehicle of significance. Such an approach raises questions, such as, are patents text or an image? What kind of ‘images’ of patents circulate in different contexts? In this section, I focus on two aspects of patents as legal forms: first, the meaning and function of the patent document that is constituted by a rigid legal form; and second, the practice of circulation and administration of the patent document in a digitally mediated network. The analysis will help to contrast a patent’s legal mode of existence and non-legal ones. First, with respect to the substance of a patent document, its content is primarily legal and contains limited scientific information, when compared to a scientific journal article. Although Ouelette’s empirical analysis indicates that scientists do read them (2017), it is not entirely clear if her analysis distinguishes between different motivations and definitions of reading, such as whether scientists consult patent documents for legal reasons rather than scientific ones, and what the practice of reading entails in detail. It is well-known that a patent document contains unverified scientific and ‘prophetic’ inventive information which may not exist in physical reality.7 As many scholars have analyzed and observed, the quality of disclosure of inventive information in the written description section of the patent document is poor (Fromer 2009; Rai et al. 2009). The requirement that the specifications (the sections of written description and claims in a patent document) must enable a person skilled in the arts to make and use the claimed invention is notoriously lax in practice. A patent can be granted without the applicant having reduced the invention to practice (for a recent prominent example, see patents granted to Theranos: Carreyrou 2018). When scientists consult patent documents today, it may be for commercial and legal reason to see who has filed for an application and received grant, as well as to check for freedom to operate without infringing others’ patent rights, rather than for the purpose of seeking scientific information contained in the document. The rise of scientist-entrepreneurs in the non-commercial research and university settings makes it more difficult to separate scientific from legal and commercial motivations for reading a patent. In its original legal context, a patent document is not only a record of a property title, a deed, but also the central technique through which the property right itself arises. It is important to recognize the constitutive relationship between the peculiar form of the patent document and a patent’s substantive meaning. That is why a scientist had trouble recognizing his own invention in the patent document (Myers 1995). To know what is owned, the patent document outlines the object of the property right, the invention. The invention for which a patent is sought must be first described and then claimed as the property object. As in the rhetorical meaning of inventio as the capacity or material to create an argument, from a legal point of view, the patented invention comes into being through textual claims, a separate section within a patent document. Whilst it is understandable that the most accessible part of a patent document for a patent novice is the patent drawing, it does not form part of the property object. A patent document underlies rigid format and drafting requirements, and thus it needs to be read in a diagrammatic manner (Drucker 2013; Kang 2019). One cannot interpret and understand a patent without knowing the meaning and functions of the different documentary parts, as well as the specific legal-internal writing conventions. Second, the documentary function of patent documents is primarily for patent bureaucracy and administration. There is much historical evidence for the mundane bureaucratic and practical motivations that shaped the ways in which a patent document was designed and drafted (Pottage and Sherman 2010), administered once it arrived at the patent office, and finally filed for storage and retrieval (Kang 2012). The rigidity of the form that I’ve described above is connected to patent law’s substantive rationale and workings: its rationale is to ascertain priority of novelty now claimed against the background of novelties past. And in order to do so the patent documents need to be uniform in order to be comparable. In this specific context, the patent document functions as a Peircean icon of the patented invention, which becomes significant as an indexical representation in classificatory structures. The identification of a patent document’s primary legal administrative function does not mean that there aren’t other ones. Beyond its existence as a legal file, other kinds of para- (technological, economic, historical) or meta-information (commercial, second-order data analytics) can be extracted, isolated, and recombined from it. Such a large-scale datafication and the field of ‘patent information’ have become more possible since the digitization drive of patent offices since approximately 2000, and the development of a network between major patent offices’ bureaucracies. It is arguably through the recombinatory potential of patent documents’ data that the documents have started to resemble some sort of scientific information. Patent professionals primarily use the private providers’ databases, such as Derwent World Patent Index, in their work, but for a free overview of the patent offices’ internal filings and patent status, the Five IP Offices’ Global Dossier digital file wrappers are also useful.8 Patent drawings matter little in the daily workings of patent practice, and in the increasingly monetized patent analytics business, particularly because they cannot be easily analyzed and recombined as data and yield no meta data. Eva Hemmungs-Wirtén has interpreted the history of patent documents from the viewpoint of history of documentation and analyzed how the practices and knowledge of documentation have shaped the current understanding of patent as documents (2019). Such a non-legal focus on patents as documentation points to the differences and convergences between patent forms (textual and/or pictorial), their substantive contents (property right, indexical information, and/or data), and their aesthetics (bureaucratic, legalese, or retro-technofuturistic). The act of documentation makes information contained in a document mobile, but arguably it is not concerned with the substantive contents or quality of the documents (as seen in the making of a new patent class, Kang 2012). Such a difference in the explanatory function of what at first sight appears to be the same object—a patent—reflects diverse analytical perspectives and raises questions about what an analysis explains and why it would matter. Different contexts and uses of the same object may yield the conclusion that the resulting identity, or the substance of the analyzed object, may be not the same, despite sharing the same name and form. For example, from an epistemological point of view, a patent as a medium of documentation is a different object than a patent defined as a legal property right, or as a cultural sign, as I will discuss later on. It is not clear whether one talks about the same object, as the analyzed identities will vary considerably, depending on the contexts, practices of interpretation, and usage. Another way of interpreting such diverse levels of analysis would be to assign multiple identities to one object whilst asserting a core identity. Star and Griesemer’s concept of a boundary object (1989) posits that the substance of objects remains stable despite their different uses. Stipulating such a central stable identity to an object like a patent may be plausible if one took a material approach, but as a contemporary patent is abstract in triple sense (it is an abstract legal property right in intangibles, now immaterial in the sense of its physicality as a digital file), understanding patents as boundary objects may only make much sense if one adopted a definition of patent that is physicalist-materialist or historical materialist. Whatever the vantage point of analysis one may take, one should clarify one’s own understanding of patents as either fundamentally plural alterities or as boundary objects. In the analysis here, I would contend that the concept of the boundary object is stretched to a limit through patents’ circulating plural meanings. Understanding patents as malleable, multiple, or pluralistic objects may itself be a hegemonic ideological conceit.