The Patent Medium: Toward a Network Paradigm of the Patent System

Abstract

The modern patent system is conceived of as an information platform. The notion of patents as facilitating dissemination of information is evident in the common description of the patent system as a quid-pro-quo bargain: Society grants exclusive rights in exchange for information published by a patentee. But is there more to the patent system than merely informing others? Does the patent system also serve as a communication (and not only information) platform, namely, as a medium? Based on analysis of the patent system’s structure and features through the lenses of communication studies, this Article suggests that it does. The patent medium is characterized by specific features, enabling players to use the patent system for various ends, much beyond the trivial goal of incentivizing innovation or disseminating legal and technological knowledge. The Article strives to characterize the patent medium, as well as to examine the implications of portraying the patent space as a medium. By closely observing the patent system, the Article reveals an existing, somewhat implicit communication paradigm of the patent system as a medium. Although tacit and unofficial, this paradigm is evident through a critical reading of patent scholarship and case law. The extant, unspoken communication paradigm resembles that of a bulletin board: it is a linear, straightforward, and public channel, focusing on the informative value of communication. However, this bulletin-board paradigm does not reflect the actual nature of the communication that transpires within the patent medium. After rethinking the patent space—the rules, structure, participants, and practices within the patent system—the Article offers an alternative, more comprehensive paradigm of the patent medium—the network paradigm. A network, as opposed to a bulletin board, is a connected, multi-directional, multi-player platform, which allows both public and private communication, for various ends (including, but not limited to, informing). Instead of a static view of the patent medium as a whereabouts of informative announcements, the network paradigm suggests a dynamic perspective, considering the patent medium to be enabling a discourse. Beyond its theoretical contribution, the network paradigm serves as a powerful explanatory tool, offering profound implications for patent law. Approaching the patent space through the network paradigm prism resolves current oddities in the patent system. For instance, the network paradigm provides new understandings regarding phenomena such as patent pledging, early publication, and the first-to-file rule—incidents commonly considered enigmatic or only partially understood.