The aff’s invocation of the innovation narrative surrounding patents is a mystification of the bourgeois’ patent regime designed to maintain profit

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

There are incongruous representations of patents circulating today, both in the medium of text and of a pictorial image.1 On the one hand, there is an increase in the popular aestheticization of patent drawings. A patent drawing decontextualizes and simplifies an abstract legal monopoly right into a pictorial representation of an invention. But an isolated patent drawing removed from its original document context has no legal meaning or force in the sense of ascertaining, codifying or even understanding the contours of a patent as an intellectual property right. Patent drawings seem to be valued mainly for the aesthetic pleasure or familiar ‘novelty’ factor that they may generate (as seen in Fig. 3). On the other hand, in contrast to patent drawings’ popularity, efforts towards the full digitization of patent bureaucracy are continuing with networked distribution of patent documentation and examination practice (Kang 2019). Patent law drives and relies upon databases of digital documentation and networks. These have also engendered a tertiary service of information provision. These comprise private providers such as Clarivate, which merged the leading private IP ‘intelligence’ services, such as Derwent and CompuMark, as well as the free, publicly available databases of the World Intellectual Property Organization, European Patent Office, or the US Patents and Trademark Office.2 Such an international network of digital patent ‘information’ is the possibly the largest legal networked bureaucratic information infrastructure, and it remains below the public radar. In contrast to public imagination of patent with geeky inventions depicted in technical drawings, the legal system is not particularly concerned with patent drawings. Its primary mode of representation of an invention is that of a text. The main genre of a patent’s representation is that of a document. The document in turn serves as a medium in the form of an indexical file in the overall system of patents as data management (Kang 2012). Such a wide gap between the cultural representation of patents and their legal form remains underdiagnosed and underexplained. Analyzing IP’s effects on cultural signification and practices, Rosemary Coombe wrote her influential book, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law in the 1990s. The book’s analytical gaze was socio-legal by foregrounding the inquiry on law’s effect on society and culture, and not so much the other way around. The proliferation and adoption of patent drawings as cultural artefacts, however, indicates novel cultural imaginaries of patents, which shape the ways in which patent law is understood and legitimized. Furthermore, the realm of science, associated with patents in modern IP law’s subject matter division between arts and sciences, remained underexamined in Coombe’s treatment, perhaps because it was seen as being separate and/or extraneous to the cultural realm. The stipulated division between arts and sciences in modern intellectual property law runs along the legal divisions of copyright and patent laws. They conceal how sciences occupy a central role in contemporary cultural imaginaries of development and progress (Kim 2017). Sciences are not outside their cultural and social environments.3 University and industrial sciences, financial capitalism, and economic nationalism are closely intertwined with the privatization of sciences (Mirowski 2011). Close links between university technoscience, understood as interrelated scientific, business and cultural practices, and financial speculation underpin the Silicon Valley culture of venture capitalism and its adoption at a national(ist) scale by authorities through their ‘high tech’ and ‘start-up nation’ agendas (Daub 2020; see Stadler, Steuwer, Wulz 2021, for a historical contextualization of university policies and right-wing knowledge politics).4 In such a context of speculative, finance-driven capitalism, patent law has not only acted as techniques of commodification, but also of financial assetization: patents are not only used for raising capital, but also act as capital themselves (Kang 2015, 2020). Glossing over questions of causality, patents are associated with ‘innovation’ and are used as indicators of national ‘innovativeness’ in rankings, such as in the WIPO’s Global Innovation Index. There are many reasons why this is problematic (for an overview, see Biagioli 2019). But the notion of innovation and IP continue to be bundled and associated together. For example, the 2022 European Commission’s ‘A New European Innovation Agenda’ states as its aim ‘deep tech innovation’ and lists ‘cutting edge science, technology and engineering’, large scale venture capital financing, and intellectual property as some of its most necessary ingredients (European Commission 2022). Symptomatic of the conflation of meanings of innovation, patents and science, the Commission’s Agenda lists these three very distinct concepts—originally historical/sociological, legal, and academic—without a deeper understanding of the specificity of their relations. It also disregards the mixed effect of venture capitalist funding on ‘innovation’ (Lee 2022). If innovation was understood as an overall benefit to a notion of a global public, IP rights, especially patents held by biotechnology and pharmaceutical industries, have arguably proven detrimental to it by creating monopoly rights in essential medicines and vaccines, as observed in the context of the TRIPS obligations during the Covid- 19 pandemic (Thambisetty, McMahon, MacDonough, Kang, Dutfield 2022) and the resulting vaccine nationalism (Kang 2021). Despite the 2001 Doha Declaration on TRIPS agreement and Public Health that specified the rights of the WTO member states to take appropriate measures to ‘protect public health’ and to ‘promote access to medicines for all’ (WTO 2001), IP law gives private monopoly rights to pharmaceutical companies not only in the form of the power of capital, but also what Max Weber diagnosed as ‘the purchase of privileges from the political authority’ (quoted in Schwartz 2022) that result in the corporate capture of the ‘public’ institutions and political actors. Weber wrote: ‘Capitalist interests are intent to pursue the continuous extension of the free market up and until some of them succeed, either through the purchase of privileges from the political authority [politischen Gewalt] or exclusively through the power exerted by their capital [kraft ihrer Kapitalmacht], in obtaining a monopoly for the sale of their products or the acquisition of their means of production and in this way close the market for themselves alone’ (1978, p. 108). Indeed, this is the narrative that the pharmaceutical lobby, International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) advanced: ‘the system that built a coronavirus vaccine in record time relies on robust intellectual property protections’ (Cueni 2020). Yet it has been well known that IP rights present significant barriers to vaccine development (Chandrasekharan et al. 2015). Vaccine development was also well-known as an example of ‘market failures’ because of the little monetary incentive that vaccines, especially for neglected tropical diseases, provided for pharmaceutical companies to invest in their research and development (Lezaun and Montgomery 2014). The vaccine makers, especially BioNTech, Pfizer, Moderna and Curevac, mobilized layers of intellectual property rights—patents, trade secret, and copyright—in order to prohibit the sharing of knowledge and know-how related to medicines and regulatory data about the vaccines. At the same time, they argued that the scarcity of vaccines was not caused by intellectual property rights, but by a plethora of other factors, such as supply chain issues and other logistical difficulties. When India and South Africa proposed to a waiver of the TRIPS obligations in Covid-19 related health technologies for the duration of the pandemic in October 2020, the pharmaceutical companies and their national governments, such as Germany, Switzerland, UK, as well as the European Union, pushed back intensely to maintain the status-quo. The battle around the Waiver was not only conducted at the WTO level but at multiple fronts, especially as political lobbying and public relations campaigns. Pfizer, a big lobbying spender and co-producer of BioNTech’s Cominarty Covid vaccine, intensified its lobbying expenditure in 2021 and 2022 against the TRIPS waiver initiative (Brennan 2022; Bragman 2023). Symptomatic of the perversion of meanings that could be observed in in the battle for public opinion around IP’s role in vaccine inequity, Pfizer co-opted the concept of ‘Equity’ and science. The campaign which was published across a full New York Times page is photographed in Fig. 4 and features a trademarked the sentence ‘Science will win™’. Pfizer registered the sentence and was granted the trademark after the outbreak of the Covid-19 pandemic.5 Pfizer’s invocation of ‘Equity.’—Equity with a full stop—resembles an admission of guilt by denial. Whereas the whole page ad does not mention patents or IP, its title, the defensive text, and the prominence of sheer space of a whole page in a leading U.S. national newspaper only gives an intimation of how acutely Pfizer must have been aware of the need to sway public opinion amidst the background of criticism of IP monopoly rights in a pandemic; and it did so by precisely invoking the opposite concept of what it was accused of. Pfizer’s PR campaign suggests that intellectual property, and in particular patents, do not only act as technocratic economic regulatory tools and trade instruments (Bowrey 2005; Sell 2003, 2011) but also as cultural and political hegemonic forms (Gramsci 1971) around which a battle in the court of public opinion is fought. These representations and discourses engender what Raymond Williams called a ‘structure of feeling’ (1958), and they condition and promote a distinct set of affects and beliefs around intellectual property. Some of these feelings and beliefs – rather than legal or economic functions—may be contradictory in their logic, such as the broad brushstroke statements that are the opposite of each other: for example, ‘patents= death’ vs. ‘patents save lives through life science innovation’. In IP law itself, critique and its co-option can be found in the notions of ‘progress of arts and science’, ‘public domain’ as the opposite concepts of private monopoly rights, or most prominently in patent law’s justification of a ‘bargain’ in which private and public interests are supposedly balanced, without not being really clear what exactly is being balanced (Biagioli 2019). These tropes of ‘public’ could be understood as part and parcel of the IP hegemonic form, which absorb such logical and ethical contradictions by incorporating them internally as part of legal doctrine, and thereby have the effect of neutralizing dissent (Laclau & Mouffe 1985). Although hegemonic forms can harbor critical potentials, it remains unclear how much of democratic contestations from civil society would be needed for structural change at the legal and political economic level. The full politics of interplay between the legal technocratic patent form and popular representations and contestations of patents is something to be worked out at a finer level at a different time, but this article hopes to contribute by considering one part of such lattice that has so far been under the radar: patents’ power of affect as aesthetic capitalist forms. From the present vantagepoint after the TRIPS waiver battle of 2020–2, an optimistic reading of the critical debates of the Covid-19 pandemic could be that the TRIPS waiver discussion and the campaigns by the well-organized umbrella coalition of civil society groups, especially The Peoples’ Vaccine Movement or Feminists for Peoples’ Vaccines, introduced a crack in the façade of the hegemonic norms of IP monopoly rights. Another interpretation is that the legal TRIPS waiver discussion shifted the terrain and terms of the discourse by re-politicizing highly technical IP and trade law fields. A more sober reading of the debate, however, is that the overlap of Covid-19 pandemic with the political economy of IP reflected the normally under-the-radar status-quo of the contemporary “intangible economy” (Haskel and Westlake 2017) rather than representing an unprecedented event (Kang 2021). The legal enablement of the monopolistic nature of the material conditions of vaccine production, or more generally of much of pharmaceutical production, was laid bare in these discussions and prompted moral outrage and strategic acknowledgments of this being problematic, such as by the EU Commission. However, the preservation of the IP status-quo, despite the apparent unethical and appalling injustice of the pandemic handling at the level of vaccine distribution, equally demonstrated the stickiness and stability of the hegemonic norms of IP, as well as their ideological power. IP’s hegemonic ideology needs explanation beyond the political liberal deliberation of whether IP is good or bad for the ‘public’ overall.