The 1AC mythologizes patents as both the source and evidence of innovation—this sign obscures the material reality of patents

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

Stuart Hall wrote that ‘[o]ne always begins to grapple with and analyze difficult political situations using one’s experiences and understandings. But one draws upon theories to break into experience, to open to investigation the problematic nature that such political situations present to us to better understand what is going on and how to respond’ (2016, Preface). My intention when starting this paper was to find out what makes patents fascinating or even likeable to people who have little understanding of patent law.13 I was puzzled by the mythical power that the association of patents, or IP generally, with ‘innovation’ seemed to hold in the minds of people who could not see a problem with pharmaceutical monopolies that were exacerbating vaccine hoarding, inequitable distribution, and thus causing over a million deaths as a result of vaccine nationalism (Ledford 2022). Such a willingness to sacrifice present lives for an abstract, ill-defined idea of innovation for which IP rights are allegedly essential is what one might appropriately define as ‘IP fundamentalism’ (Dutfield 2006). Understanding how patents circulate as cultural signs via legally irrelevant images provides a beginning for a cultural economic analysis of patents. It gives clues about why the trope of ‘innovation’ persists so much and how ‘innovation theology’ (Godin 2019a, b) has mutated into IP fundamentalism and its acceptance by what seems to be broad parts of the public. For example, the proponents of an IP maximalist regime, such as the pharmaceutical lobby and their political and legal supporters (the European Commission and other national governments) have repeatedly invoked the under-defined concept of ‘innovation’ against attempts to limit IP rights for the duration of the pandemic (IFPMA 2022). They accused opponents of an IP maximalist legal regime and TRIPS waiver supporters of making an ‘ideological’ argument, thus effectively perverting the Marxist meaning of ideology which is grounded in material relations. Such mutations and fluid positions of ideology/ counter-ideology, even amounting to the invocation of ideology itself as a derogatory term, reveal patents not only as capitalist aesthetic forms, but as contemporary hegemonic forms (Laclau and Mouffe 1985; Hall 1988) which blur the boundaries between legal, economic, and cultural spheres of signification. But how can such hegemonic discursive power co-exist with the circulation of patents as aesthetic forms that are represented as wacky gimmicks? Are they not too zany to be taken seriously? The analysis showed the contradictory dynamics of simultaneously understanding patents as both too legal-technical textual forms and also as aesthetically zany forms of techno-nostalgic, or dystopian projections. Patents appear to operate in two overlapping and ambiguous temporal modes: a linear future perfect in claims that associate ‘innovation’ with patents and the past of linear future perfects in depictions of patents as gimmicks. Although patents drawings as aesthetic artefacts have no legal force and are insignificant in the context of the legal form of patents, they circulate as both zany (the examples of patent office PR) and also threatening (the example of the Institute of Patent Infringement project) cultural signs. These contradictory meanings are figured by patents’ different aesthetic forms (image or text) and they reflects Toscano and Kinkle’s observation on the limits of observing capitalist society: ‘[a] social theory of capitalism as a totality, and the imaginations and aesthetics that strive toward it, could only be marked by an excess of coherence—as its opponents see it—to the extent that it papered over the incoherence (or contradictoriness, difference, unevenness) in its object’ (2015, quoted in Ngai 2020, p. 33). The political economic reality of patents as both monopoly rights and sources of monopoly profit exists side by side with circulation of patents as gimmicks, which give the viewer a pleasure of re-immersing into harmless, retro-modernist futures. Patents as cultural aesthetic forms signify ‘gimmicks’—commodities about which we are not certain ‘if they are working too hard or too little, if they are historically backwards or just as problematically advanced, if they are wonders or tricks’ (Ngai 2020, p. 49). But as legal signs, patents do not function as gimmicks, at all; they are legally sanctioned monopoly rights. Such a discrepancy between the substance of patent as a legal property and the cultural signification of patents as gimmicks as capitalist aesthetic forms points to a process which Guy Debord called as ‘the image as the final form of commodity reification’ (Jameson 1991, p. 277). This particular process of commodification differs from the recognition that a patent turns an invention (or knowledge) into a private or market commodity, which is the mainstream liberal critique of patent law. What Debord describes, in the context of this analysis, is that the abstract ‘patent’ itself has become a commodity through its re-materialization into an image.14 Such a shift in a patent’s aesthetic form and substance—from technical text to a zany image— transmutes patents into a myth. And as Benjamin wrote, a myth is ‘the objective character of the alienated commodity itself’ (Adorno, Benjamin 1935/2020, p. 125). As signs in contemporary capitalist economy, a patent has become an image of itself.