A Politics of Patent Law

Crafting the Participatory Patent Bargain

Kali Murray

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136225529
• Edition: 1
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

There has been much written on the impact of international treaties like the Trade Related Aspects on Intellectual Property (TRIPS), which laments the failure of patent systems to respond to the interests of a diverse set of non-profit, public interest, and non-corporate entities. This book examines how patent law can accommodate what James Boyle terms a "politics", that is, "a conceptual map of issues, a rough working model of costs and benefits, and a functioning coalition-politics of groups unified by common interests perceived in apparently diverse situations".

A Politics of Patent Law provides a substantive account of the ways in which various types of participatory mechanisms currently operate in patent law, and examines how these participatory mechanisms can be further developed, particularly within a regional and international context. In exploring this, Murray highlights the emergence of constitutional law in international intellectual property law as being at the centre of the patent bargain and goes so far as to argue that the constitutional tradition in intellectual property law is as important as TRIPS. Ultimately, the book sets forth a "tool-box" of participatory mechanisms which would allow for, and foster third party participation in the patent process. This book will be of particular interest to academics, students and practitioners in the field of IP Law.

1The participatory patent bargain

This chapter seeks to outline the contours of the participatory patent bargain. This chapter will first examine three current models of politics in patent law: politics as state, politics as regulation, and politics as governance. This chapter suggests that while each model has their strengths and weaknesses, the participatory patent bargain offers a better account of a politics in patent law because it explains the normative basis for how publics can participate in the internal formation of patent law. In doing so, this chapter re-reads the normative assumptions of the classical patent bargain, which summarizes the relationship between the patentee and the government as the quid pro quo to receive the patent.

Politics has become a vital part of discourse over intellectual property law if we are to judge simply by an increase in book and article titles (a trend of which this book happily takes part).¹ Despite its recent popularity, the use of the term “politics” in patent law has been accompanied by a certain amount of imprecision. In my early thinking on this subject, I preferred a definition originated by James Boyle in 1997. Boyle claimed that copyright activism needed an organizational strategy similar to that of the environmental movement of the 1960s in the United States. The environmental movement, contended Boyle, consisted

1 The subject of a “politics” in intellectual property works is quite diverse and incorporates a significant inter-disciplinary content. Important works include The Politics of Intellectual Property: Contestation over the Ownership, Use, and Control of Knowledge and Information (Sebastian Haunss and Kenneth C. Shadlen eds., 2010) (collecting a range of articles related to the emergence of political models within the context of knowledge information); Rosemary Coombe, “The Expanding Purview of Cultural Properties and Their Politics,” 5 Ann. L. Rev. Law. Soc. Sci. 396 (2009) (contending that proliferating claims related to cultural property may indicate changing political relationships of indigenous peoples to national, regional and international authorities); Amy Kapczynski, “The Access to Knowledge Mobilization and the New Politics of Intellectual Propery,” 117 Yale L. J. 804 (2008) (employing the Access to Medicine mobilization as a key explanatory moment in the framing of intellectual property discourse); Michael P. Ryan, Knowledge Diplomacy: Global Competition and the Politics of Intellectual Property (1998) (analyzing the negotiations, associated with TRIPS, utilizing the complex-interdependence model common to international relations).

of three primary elements: (1) functioning coalitions of groups unified by a common interest perceived in apparently diverse situations; (2) a conceptual map of the issues that have an impact on policy decisions within a given area; and (3) a rough working model of the costs and benefits of that policy decision within a given area.² Boyle’s model, however, reflected the dynamics of copyright policymaking where the barriers to entry are lower than for patent law, since participation in patent law depends on epistemic knowledge that is crucial within the institutional and doctrinal content of patent law.

Boyle’s prescient definition has prefigured a remarkable renaissance in the academic treatment of the politics of intellectual property, generally, and patent law, specifically. This chapter initially examines the dominant models of politics within patent law: politics as state, politics as regulation, and politics as governance. In my treatment of each, I trace how these models seek to construct the relationship of state and non-state actors within patent law. I ultimately claim that an even richer account of politics—politics as public—can be utilized within patent law. Specifically, I contend that the doctrinal content of patent law suggests a governing commitment towards two publics, the citizen public, and the epistemic-public. Thus, framing politics as public achieves a key result because its account of politics is grounded within the normative assumptions of patent law. I then examine how embodying these publics within patent law is accomplished through a series of legal mechanisms that are constituted in the doctrinal content of patent law. I call this collection of normative and descriptive assumptions the participatory patent bargain; it is the subject of this book.

1 The politics of patent law: three models

1.1 Politics as the state

The first model of “politics” in patent law is a framework that posits that the capacity of the state and its respective institutions to govern the intellectual property resource is the formative inquiry in patent law. Walton Hamilton, rather grandly, characterized this model of politics as a politics in the “Aristotelian sense as an overall term for the usages and traditions, for the arrangements and policies through which men are governed and through which men—usurping the function of the gods—attempt to shape destiny.”³

2 James Boyle, “A Politics of Intellectual Property,” 47 Duke L.J. 87, 89 (1997).

3 Walton Hamilton, The Politics of Industry 6 (1957); see also Constantine Vaitsos, “Patents Revisited: Their Function in Developing Countries,” 9 Journal of Development Countries 71–97 (1972) (analyzing economic effects of patent protection on economic systems); A. Samuel Oddi, “The International Patent System and Third World Development, Reality or Myth,” 1987 Duke L. J. 831, 833 (1987) (assessing the difficulties of incorporating developing countries’ concerns into international patent regimes); Ruth Odediji, “Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement,” 17 Emory Int’l L. Rev. 819, 825 (2003) (analyzing the relationship between the developing and developed countries within the framework of state).

This tradition emphasized a comparative politics that attempted to assess how different political conceptions of state shaped the politics of patent law.

This model of politics has focused on an analytical inquiry into the state as the primary factor in assessing the politics of patent law. The first variant is concerned with the impact of state formation on the rates of innovation, typically comparing decentralized innovation regimes with centralized innovation regimes.⁴ The second variant of this model has emphasized a relational approach to the development of legal structures within the international intellectual property regime. This model emphasizes that politics in patent law resulted from the strategic relationships between state actors. The relational model was dominant during World War II and the Cold War as intellectual property scholars struggled with articulation of the relationship of patents to the varying models of property ownership.⁵ This particular model of politics as state was grounded in the then emerging field of international relations;⁶ and so, scholarship in this area sought to adopt the claim that public international treaties did not recognize non-state actors within its basic conceptualization.⁷

4 Compare Daniel Drezner, “State Structure, Technological Leadership and the Maintenance of Hegemony,” 27 Rev. of Intern’l Stud. 4 (2001) (contending that the governance structure of nation-states is crucial for determining rates of national innovation) with Mark Zachary Taylor, “Political Decentralization and Technological Innovation: Testing the Innovative Advantage of Decentralized States,” 27 Rev. of Intern’l Studies 231, 232 (2007) (contending that decentralized state structure does not enjoy an advantage within the context of national innovation policies). Recently, Zorina Khan has offered an innovative assessment of the state formation model that emphasizes the ideological function of the selected regulatory forms. See, e.g., B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920 (2005) (contending that the examination system of the United States led to more widespread economic innovation in the nineteenth century). This state formation model has been dominant within international relations and institutional economics.

5 P.J. Frederico, “Soviet Law on Inventions and Patents,” 42 J. Pat. Off. Soc’y 5 (1961) (assessment of procedural and doctrinal components of the treatment within the Soviet system); Herschel Cleanser, “Additional Aspects of Proprietary Rights and East—West Trade,” 9 IDEA 183 (1965) (assessment of Soviet conceptualizations of trade relationship between the United States and Turkey); E.H. Ruf, “U.S. Patent Concepts v. U.S.S.R. Concepts and Inventor’s Certificates: A Comparison of Public Policies and Social Objectives,” 49 J. Pat. Off. Soc’y 15 (1967) (assessing social objectives of state systems of intellectual property).

6 Martti Koskenniemi, The Gentle Civilizer of Nations, The Rise and Fall of International Law 1870–1960 419 (2001) (assessing the emergence of international relations as a scholarly field from the 1930s until the 1950s).

7 Jordan J. Paust, “Nonstate Actor Participation in International Law and the Pretense of Exclusion,” 5 Va. J. of Intern! Law 977, 985 (2011) (critique of classical international law model of international law) (citing Lassa Oppenheim, International Law: A Treatise 341–344, §§ 289–290 (1st ed., 1905) (“[T]he Law of Nations is a law between States only and exclusively, States only and exclusively are subjects of the Law of Nations … individuals are not subjects. …” There is a “personal supremacy of every State over its subjects … [and] these individuals appear just as much objects … as the territory of the States.”).

This resistance to recognition of non-states actors, however, proved to be difficult within analyses of the international intellectual regime. Public international treaties in this area necessarily depended on an inquiry into the establishment of individualized ownership rights in a patent.⁸ In many respects, then, the international intellectual property regime was seen to be a failure. For example, a classic study of the international intellectual property system, authored by Heinrich Kronstein and Irene Till, “A Re-evaluation of the International Patent Convention”⁹ analyzed the relations between state actors to the initial passage of the Paris Convention. Kronstein and Till determined that its failure because “[i]n effect, the various governments, by international agreement abdicated control of patents in the national system to private patentees; and the latter were quick to institute a private system of control through international patent agreements.”¹⁰ Kronstein and Till’s critique of the international intellectual property order, then, is suggestive of the ways in which the international intellectual property order deviated from the classic model of relations within international relations and international law.

Thus, it could be claimed that the public international intellectual property order was innovative in its destabilization of the model of state exclusion of non-state actors. On the other hand, its treatment of non-state actors was a type of selective bias towards one category of actors—patentees—at the cost of potentially interested parties. This exclusion allowed maximalist accounts of individual property rights to be permitted within the international intellectual property order, which were to be fully exploited in the Post—Cold War era during the negotiations in relation to the passage of TRIPS. On the other hand, Kronstein and Till’s account suggests the ways in which TRIPS was disruptive to the classic international intellectual property order insofar as TRIPS embodied a paradigm that emphasized state control over the regulation of intellectual property rights rather than the potentiality for private control that was embodied in existing treaty frameworks within international law. Indeed, TRIPS can be said to complicate a model of state control based

8 This difficulty in ignoring non-state actors points to the anomalous nature of property rights in the international order, which is consequential to the extent that the patent right is is classified as a property right. For instance, Article VII of the Outer Space Treaty permits avenues for claiming property in chattels, which has served to justify state regulation of international intellectual property in chattels. Article VII, in particular, refers to liability assessed to one state party if the launching of a registered space object causes damage to another state party; this requires the registration of these chattels. See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, January 27, 1969, 610 UNTS 207. This treatment of property objects necessarily suggests the importance of articulating and recognizing the rights of property owners—and thus the subsequent recognition of them—in public international treaties.

9 Heinrich Kronstein and Irene Till, “A Re-Evaluation of the International Patent Convention,” 12 Law & Contemporary Probs. 765, 785 (1947).

10 Id. at 784.

on its characterization of state control through a differentiated ac...

Table of contents

• Cover
• Half Title
• Routledge Research in Intellectual Property Available
• Full Title
• Copyright
• Dedication
• Contents
• Preface
• Introduction
• 1 The participatory patent bargain
• 2 The participatory toolbox
• 3 The participatory context
• 4 Crafting the participatory patent bargain
• Conclusion
• Selected bibliography
• Index