Patents are tools of aesthetic control under capitalism—they are a glorified PR game played by the rich

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

In contrast to the promotion of IP as an ingredient of knowledge economy by governments, what has been interesting to observe is that much of popular cultural interest in patents does not seem to relate much to the political and economic effects of the legal monopoly right of a patent, but rather to the weirdness of patented inventions, especially the patent drawings. There are not many, if not any, other legal documents or formats that enjoy as much geeky popular appeal and are reproduced as decorative posters (Fig. 6 below).9 Such visual representations of ‘patents’ revolve around the images of inventions in the format of patent drawings, and they appear to be based on an aesthetic affect than legal relevance. The drawings are easy on the eye; they are orderly and uniform due to the exacting detailed drawing requirement which require draughtsmanship expertise. The enjoyment of patent drawings does not require special training for searching and reading the patent document as a diagrammatic text (Kang 2019). The aesthetic form of patents as images is impervious to the complex legal textual mediation and the digital infrastructure that I outlined in the previous section. This section explores the relations between the erasure of the patent text, the decontextualization of patent drawing from its documentary context, and the aesthetic forms of patents circulating in non-legal specialist discourses today. I think with Sianne Ngai’s work on capitalism and aesthetic theory, especially the aesthetic categories of ‘zany’ (2012) and a ‘gimmick’ (2020), which afford an analysis of patents as images and as particular capitalist aesthetic forms. The discrepancy between the digital format and information infrastructure sustaining patents and the stylization of patent drawings in what seem to be mostly nostalgic reproductions points to a particular entanglement of patents’ legal and economic functions in the broader context of post-industrial cultural economies. The popularization of analog, historical patent drawings as icons evoke technological nostalgia for analog times, such as the once-technological novelty of familiar household items like the Bialetti Mokka maker. Considering that patents as intellectual property rights were intimately connected to the rise of industrial mass production, these images embrace both the fetishization of technological, inventive essence as authentic, as well as the industrial mass commodification of authentic technicity.10 It is particularly in light of these parallel realities—analog technicity reproduced on paper as aesthetic objects in contrast to the reality of digitized patent practice— that the patent offices’ choice of what to promote in their public relations is interesting. Throughout the Covid-19 pandemic, official patent office communications avoided addressing, or even acknowledging the raging TRIPS waiver debate, as well as the human and social cost of pharmaceutical patents which have been at the center of patent policy debates for the last twenty years (Fig. 7). Choosing to ignore the elephant in the room, the patent offices jarringly continued to promote the narrative of patents as rewards for inventors and being indispensable incentives for ‘innovation’ (see Fig. 2: WIPO’s promotion ‘#NoTimeToDieForGlobalInnovators’). Many of their publicity (‘education’) campaigns stipulated an undefined association between the history of innovation and patents (for a detailed historical refutation, see Moser 2012). Symptomatic of the broad brush-stroke association of intellectual property with entrepreneurship, the UK Intellectual Property Office continued to publish its blog about the BBC reality TV show, Dragon’s Den, a variation of the UK and US television shows, The Apprentice, on its official gov. uk website. ‘Dragon’s Den: the Intellectual Property blog’ (Fig. 8) associates a patent grant with a start-up’s success, but does not spell out the fact that the patent is no guarantee for commercial success. During the pandemic years in which the lethal effects of patents were debated, patent offices also continued to promote historical patent drawings, which admittedly provided entertaining novelty factor from the past, as well as a light relief from having to engage with arguments that ‘patents kill people’ (Fig. 7). The annual list of WIPO’s ‘Patent Picks—Weird and Wonderful’ engages in the celebration of past wacky inventions and cajoles: ‘[i]f ever proof were needed that innovation knows no bounds, look no further than our list of out-of-the-ordinary patents’ (2021). I have found it difficult to describe the sensation of seeing silly patent drawing being reproduced into a poster or social media posts (Fig. 8) during the pandemic years, but Sianne Ngai’s categorization of zaniness as a post-Fordist aesthetic category comes closest to describing it. Ngai’s work on the specificity and transformation of aesthetic experience in modern and post-modern capitalism combines Marxist cultural and economic theory with aesthetic theory. By linking modern and post-modern aesthetic categories to the specific types of labor and methods of production in late capitalist political economy, her work allows us to reflect on the role of intellectual property law in contemporary capitalism. For example, zaniness, the feeling that the Dragon’s Den UK IP Office blog invoked, she defines as ‘an aesthetic [which is, my insertion] more explicitly about the politically ambiguous convergence of cultural and occupational performing under what Luc Boltanski and Eve Chiapello call the new “connexionist” spirit of capitalism: the dominant ideology of a capitalism that has absorbed and adjusted to the “artistic critique” of the 1960s … there is something strained, desperate, and precarious about the zany that immediately activates spectator’s desire for distance.’ (Ngai 2012, pp. 7-8). An example of a zany film is Charlie Chaplin’s Modern Times. A contemporary example of the ambiguous zany person would be Clive Sinclair, or maybe also Elon Musk: ‘the zany object or person is one we can only enjoy—If we do in fact enjoy it or her—at a safe or comfortable distance.’ (Ngai 2012, p. 9). Similarly, many strange patent drawings invoke the feeling of fascination and unease because of their subsequent failure that we know about with hindsight, or because they are useless inventions that someone must have thought is useful, or at least interesting, to expend labor on it and undertake the effort of applying for a patent. Many inventions simply try too hard. As the above invention depicted from the WIPO’s ‘Patent Picks—Weird and Wonderful’ (Fig. 9) curated collection, patent drawings combine aspects of painstaking labor (technical draughtsmanship and inventive labor) with a doomed aspiration to a technical function (industrial application or utility). This combination precisely invokes a zany affect, a ‘performative aesthetics,’ which denotes the increasing blurring boundary between labor and play. It suggests a comical ability to flip between work to play, from seriousness to light heartedness. No matter how serious or silly the depicted invention may be, the aesthetic form of the patent drawing stays the same. The tightly regulated form of patent drawings highlights the mechanical nature of the depicted inventions according to highly normed aesthetic standards. In other words, the aesthetic quality of zaniness arises in the context of WIPO’s chosen patent drawings because the form is serious, but the contents are ridiculous. From a sociological point of view, patent drawings appeal to a geeky sensibility, with its appeal to technicity rather than artistic aesthetics. Both in their sociological and aesthetic forms, patent drawings provide a record of uniform, mechanical past—a sense of futurity in retrospect—in today’s networked, reversible, digital times. Despite the entertainment value that they provide, it is not clear why patent offices deploy zany patent drawings as examples of innovation. They are not exactly the socially important innovations that it claims to promote and be indispensable for. A patent drawing, especially if the invention depicted in it is comically useless, makes an intriguing gimmick (Fig. 10). This is perhaps because it is severed and alienated from its very textual context, when there are arguably very few other legal artefacts that are as formally and textually coded and its contents far removed from everyday language as a patent document. Reflective of contemporary capitalism in which paradoxes like planned obsolescence and routinized innovation exist simultaneously, Ngai defines a gimmick as a ‘temporally sensitive and fundamentally unstable form’ (2020, p. 6): ‘We call things gimmicks when it becomes radically uncertain if they are working too hard or too little, if they are historically backward or just as problematically advanced, if they are wonders or tricks’ (2020, p. 49). Whereas zany objects work too much and seem contrived, gimmicks exert a more ambiguous aesthetic effect. They hover between being ‘too easy’ and ‘too difficult’ (2020, p. 48). Gimmicks are examples of capitalist disenchantment equivalent of revealing magic’s know-how. Relatedly, patents as gimmicks are instances of capitalist disenchantment rather than enchantment. As Ngai points out, they are ‘a conjunction of transparency and opacity’ (2020, p. 84). In my analysis, I ought to be careful to distinguish gimmicky inventions (the object of patent right) from the transformation of the very legal form of patent into a gimmick. Many patented inventions fit the definition of gimmicks, but this is not a novel insight. The focus of the analysis has been rather on the cultural meaning of patents as aesthetic and cultural forms. The pressing question is then what the representation of legal monopoly rights - the very legal aesthetic form as gimmicks - effects. The discussion in the previous sections presented a constellation in which the textual and the image-based forms of patents yield a proliferation of contradictory meanings. The focus on images facilitates the dissemination of a technical field of law concerned with technology into popular culture. But the banality of patents as images keeps out of view the modes of production, the material and immaterial labor that produced the inventions, and as well as patent law’s complex digital network that enact legality. It distracts from patent’s legal force as an abstract monopoly right. It blends out the reality of patents as formal, stratified documents written in a highly legal internalist language that requires know-how of drafting and interpretation. Rather the patent drawings—which actually depict inventions rather than patents – have the effect of isolating patents as wacky artefacts of zany or gimmicky aesthetic qualities. They elicit fascination and uneasy sympathy for erroneous directions and valiant failures in the long road to progress. In sharp contrast to present political and legal debates that have fulminated over intellectual property rights and the monopolies that they enable, as cultural signs, patents circulate as playful gimmicks: ‘At the #USPTO, we think #patent protection is the cat’s meow’ (Fig. 11).