Abstract

This paper explores the legitimacy of patent law. It presents two detailed case studies to demonstrate how the European Patent Office’s practice Examination Guidelines transform contested inventive matter and methods into arguable patent claims. The analysis makes the broader conceptual point that patent law standards are shaped by a version of ‘textualisation’ free from normative or purposive meaning, relying instead on peculiar linguistic and rhetorical structures to cumulatively set up and entrench credible meanings for technolegal objects. The Guidelines are institutionally embedded, intermediary texts with ambiguous legal status, that drives legitimate expectations in the patent community. Using a social constructivist notion of legitimacy as endowment, textualisation explains the EPO’s ascendancy in the regulatory sphere; as well as the incongruent ways in which different constituents speak of the rules and aims of the patent system.

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