Between Knowledge And Technology: Patenting Methods, Rethinking Materiality

Abstract

How does the law construe certain things and activities as knowledge that can become the object of intellectual property? When we look at the quantitative trends in recent patenting activities—more people patenting many more things—we tend to view that, in part, as an effect of the law's ability to construe new kinds of innovation (software, genetic sequences, etc.) in ways that conform to established legal concepts of patentable invention. The assumption is that what changes is not the shape of the box called invention, but the objects that are made to fit that box. But in fact while new technologies produce new innovations, the very concept of invention has not just expanded but undergone substantial qualitative change. The wave of inventive activity associated with the industrial revolution led to an unprecedented reliance on patenting, but as the law articulated ways to protect those inventions, it also took their emblematic form—the machine—as the template for the legal concept of invention. Analogously, the recent reinterpretations of patent law to enable the protection of living organism and biological entities have challenged and modified the traditional machine-inspired concept of invention, initiating a trend toward a more developmental one. The information-based inventions discussed here may elicit a reconceptualization of invention in yet another way.