Co-optation DA—the perm gets co-opted towards assuaging critique of patents without changing their capitalist nature

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

The individual submissions for the Architecture Biennale were invited ‘to negate this top-down and closed system. … The Institute of Patent Infringement thus invites submissions from students, industrial designers, architects, urban planners, artists, programmers and the wider public to merge, reimagine, infringe, and hack existing Amazon patents’ (2018). With this proposition, the project aimed to reclaim patents as public information in an original and subversive way, by purposefully disconnecting the invention from its original stated use towards other functions. Somewhat paradoxically, in doing so, the central cultural connector of all these hacked imaginary inventions remains the patent holder or applicant, Amazon, as well as the legal format of patent document. Stewart and Chew were intrigued by the Amazon patents because, distinct from other technology companies, Amazon’s operations involved physical and algorithmic spatial organization and infrastructures. Their call specified: ‘Since 2010, Amazon Technologies Inc. has filed 5,860 patents that range from the seemingly banal to the resolutely absurd. Illustrated by dry line drawings these patents provide a glimpse and representation of the automated future Amazon aim to create’ (2018). The ‘banal’ to ‘the resolutely absurd’ aspects reflect the popular fascination with patents as gimmicks, as the previous section has analyzed. In contrast to the future-making and -restricting power of legal patent documents, the submissions resemble the format of a patent document and aesthetics of the patent drawings, but the lack of specificity and capacity to reproduce to invention (due to lack of technical infrastructure, know-how, financial resource) points to the limitations of the ‘public’ nature and understanding of patent information. Although they are as zany as authentic patent drawings, situated uneasily between play and inventive labor, the mimicry lacks legal materiality (Kang & Kendall 2019) and act as cultural signs. The proposed hacked inventions alternate between gimmick, science fiction, and technoscientific geekery. Their primary difference to the original Amazon patent documents seems to lie in the different political or social function for which the hacked inventions would be employed (Fig. 13 depicts the original Amazon patent drawing on the left, and the reimagined patent drawing on the right side). In that sense, the project was a creative re-enactment of potentiality against technological over-determination). As Covid-19 hit, the idea of a patent hack required inventing around a patent, like Decathlon’s snorkel mask in times when oxygen masks were in short supply in the first year of the pandemic, and people desperately resorted to DIY efforts to make oxygen masks. The tweet below (Fig. 15) engages in its own subversion of the arbitrary European Patent Office’s #patentfact tweets which puts forward a random association between the languages of European patent bureaucracy and ergonomic keyboards (Fig. 14). It suggests that Decathlon’s patent stands in the way of people to modify it, and indeed, it is not the first contestation of the effects of Decathlon’s snorkel mask patent (Fig. 16), which has gone through multiple opposition proceedings at the European Patent Office.12 What is striking here is that none of the depicted patent drawings circulated by the European Patent Office (Figs. 14 and 15) relate to the content of the accompanying text, as if they are exemplary instances of Barthes’ observation that the ‘worn out state of a myth can be recognized by the arbitrariness of its signification’ (1972, p. 127). The Institute of Patent Infringement’s project and motivation are different from the mobilization of patent drawings into an aesthetic, cultural artefact, which I had previously described in the previous section. Even though the aim of the project is subversive, it also has the strange effect of objectifying patent drawings as real inventions through aesthetic reproductions, regardless of how different the hacks may be from the original purpose. The project presumes the accuracy of patent documents and their drawings and does not contest the narrative of futureshaping effect of patents. But many of patented inventions in fact are never realized or used (European Commission 2005). There is often a tendency to overestimate patents for different reasons. Patented inventions are taken as inherently innovative and valuable, as if patent documents, or even applications, signify legal tokens of credit of technological and scientific achievements (Kang 2015). With little scrutiny over inventive substance, patents are overhyped as both incentives and outcomes of innovation in a circular manner. Also there is sometimes an undifferentiated condemnation of patents as creating monopolies, whereas a bulk of patents turn out to be useless and not valuable. There is a lack of distinction between patents as legal monopoly rights and monopoly market structures that they may enable, but do not necessarily always result in. The Institute for Patent Infringement also attributes a central role to patent drawings as if they depict scenarios from a projected future, on the basis of which there is then a creative invitation to subvert them away from the vision of a dominant multinational corporation, such as Amazon. This results in the curious effect that the act of subversion itself results in the solidification of a patent’s speculative legalist potentiality, which raises the question if the act of subversion results in co-option. The threat of the future that the patents depict is imminent, yet also it is highly speculative and fantastical. It is easy to see both the Amazon patents and their hacks as occupying the same place as the patent gimmicks of WIPO’s Weird and Wonderful selection. Yet what if the creative patent hacks could be really made? Would they not be useful, although they would not fulfil the patentability requirement of industrial application? What are the possibilities and limits of reimagining patent drawings as aesthetic, non-industrial, non-commoditized artefacts? The Institute for Patent Infringement project poses valuable questions about the strategic uses of patents by powerful corporations, as well as giving an indication of their imagined futurities for which they think it is worth to go through the patent prosecution process. It reveals an uneasy oscillation between precaution, critique of monopoly rights, and patent speculations by re-imagining patent drawings as aesthetic forms to be hacked.