Constructing the “pure” inventor: individual, collective, and corporate authorship within patent law

Abstract

This paper details how patent law purifies “the” inventing subject of big science while simultaneously disqualifying others from patent eligibility for practicing a similar form of collective authorship. The author begins by detailing what is known as the romantic author trope – the assumption within (Western) patent law that invention is the product of one (versus many). The romantic author trope, however, runs counter to the (collective) inventive process in developing countries. Yet this raises the question: are not the inventions of global capital collective in nature? To understand how the collective nature of invention becomes masked by patent law I introduce the idea of corporate authorship. The paper concludes by making visible the inventive assemblages that make the patentable artifacts of big science possible.

Keywords:

• Latour
• actor network theory
• political economy
• biotechnology
• patent law
• author

Introduction

Contrary to the assumptions of legal theory, law is not otherworldly. The philosophical principles of law are not self-evident, universal, and objectively given. Rather, law – and, as detailed shortly, patent law – is very much of this world (Bourdieu 1986). In patent law, nowhere is this more evident than in understanding who brings inventions forth into this world.

This paper details how patent law purifies “the” inventing subject of big science while simultaneously disqualifying others from patent eligibility for practicing a similar form of collective authorship. Western conceptions of invention rest upon the idea of the isolated genius. As embedded within patent law, this legal fiction is often referred to as the romantic author trope (Aoki 1996). Accordingly, patent law has a difficult time recognizing the collective efforts that go into invention. The right of what is known in patent law as “the original inventor” dates back to the English Statute of Monopolies, which required the monarch to bestow patents on to only the first and true inventor (Fisk 1998, p. 1139). The absence of this specificity, it is believed, makes the task of patent enforcement unduly high (Merges 2000).

On its face, this point may appear inconsequential: an idiosyncrasy of Western thought limited to the Western world. Recent international agreements that essentially export Western patent law to all corners of the globe, however, make the romantic author trope of significant (global) consequence. When one recognizes that indigenous knowledge/practices are the product of many (and not of one) then the implications of the romantic author trope become apparent. The romantic author trope runs counter to the inventive processes found in developing countries, where generations of collective knowledge are applied to the natural world. Claims for granting co-inventor rights to indigenous peoples have been rejected on the grounds that such knowledge is part of the public domain – versus the private, subjective domain of the autonomous, free-thinking individual – and as such cannot be considered “novel” (a key provision in Western patent law). This, in turn, has allowed individuals from other countries to patent (and profit from) indigenous knowledge – what has been famously called “biopiracy” (Shiva 1997).

This raises the question: are not inventions from Big Pharma and the Monsantos of this world also collective in their nature? Do they not also presuppose a host of assemblages to people, spaces and things? Of course they do (see e.g., Haraway 1991, Strathern 1996, Glasner 2002). How, then, does patent law manage to ignore the obvious fact that Western inventions too are collective in their nature? Enter the concept of corporate authorship.

In 1885, only 12% of patents were issued to corporations (Noble 1977). By 1998, only 12.5% of patents were issued to independent inventors (Merges 2000). Corporate authorship emerged, in part, as a judicial response to the collective nature of twentieth-century research, invention, and development (Fisk 1998). Yet this move has allowed corporations to have it both ways: they can deny the collective nature of their inventions while simultaneously emphasizing the heterogeneous assemblages that constitute the inventive process in other parts of the world.

In sum, the goal of this paper is not to argue for one view of authorship over another. Rather, my intent is to muddy the category of (Western) authorship that patent law has worked so hard to make appear ontologically pure. It is the double standard of patent law that I wish to reveal, whereby some forms of collective invention are acceptable (and thus result in an artifact that can be patented) while other forms result in denied patent applications. For, as detailed, this double standard does not benefit all equally.

Purifying authorship

The romantic author trope is deeply embedded in Anglo-North American patent law. With roots within the Lockean “I-made-it, it's-mine” justification, this legal fiction has a long legal history (Gordon 1993). Individual authorship rights have also been linked to early Enlightenment thought, where we first find the idea of a rights-bearing, morally autonomous individual (Aoki 1996). Such thinking is “romantic” in that it rests upon the idea of an isolated genius struggling to tame an otherwise unwieldy nature.

There is not the space to discuss whether invention can ever be as isolated of an activity as the romantic author trope assumes (even Newton's famous “standing on the shoulders of giants” adage speaks to the collective nature of creativity). What matters is that the courts during the nineteenth century found little problem in ascribing authorship to, as required by the 1836 US Patent Act, “the original and first inventor” (quoted in Fisk 1998, p. 1139). Previous to the twentieth century, few companies made attempts to develop inventions collectively (Thomas Edison's laboratory in Menlo Park being an exception) (Noble 1977). During this time, inventors tended to be generalists who lacked specialized training (Khan and Sokoloff 1993). This eclectic background suited inventors well, particularly before the emergence of well-funded research laboratories that brought together individuals with specialized skill sets.

This began to change with the rise of the corporation and the vast amounts of capital it was able to direct at research and development (R&D). Corporate R&D brought multiple hands explicitly into the invention process. The complexity of many twentieth-century inventions too helped feed the need for increased collaboration. The courts thus faced a dilemma: how can one trace authorship back to “the original and first inventor” when the inventing process had become so obviously collective in nature? The purity of the inventor implied by the romantic author trope was in serious jeopardy.

In using the term “purity” I am speaking specifically of the work of Bruno Latour (1993) and his attack of the Great Divide between nature and society. Latour argues that the “modern constitution” is built upon a socially constructed separation of powers between “the natural” and “the artificial”. This separation is the result of a two-part asymmetrical epistemological process. On the one hand is the visible and self-evident process he calls “purification”, whereby elements are organized and arranged into a set of dichotomies: human/machine, nature/society, natural/artificial, and the like. Concurrent with purification is the process of “hybridization”. Unlike the visible “pure” categories of, say, natural/artificial, hybridization refers to those invisible networks and connections that lie under the discursive surface. Thus, whereas purification operates through socially constructed qualitative distinctions, hybridization involves the heterogeneous networks that connect elements together but which often remain masked.

The aforementioned rise of corporate R&D made it difficult to keep hidden the previously invisible assemblages linked to the inventive process. (For example, while one might be able to steal the idea of, say, the cotton gin and claim it as one's own it is hard to hide a vast laboratory filled with specialists.) Yet the 1836 Patent Act was clear: patents could only be granted to “the original and first inventor”. Even the US Constitution speaks of the right of the inventor (Article I, § 8, cl 8). So how did the courts manage to make invisible from patent law those networks and connections that threatened to disqualify the “big science” inventions of the twentieth century (and beyond) from patent protections?1 Answer: they created the “corporate subject”.

Creating the corporate “individual”

Western legal reasoning conceives of human “subjects” as essentially disembodied (Conklin 1996). Liberal thought assumes that to be universal (which would allow law to speak of Truth versus truths) legal reasoning must be blind to particularities. Legal theory thus subtly presupposes the same ancient dualistic divisions that have plagued Western thought for millennia (Murphy 1997). The unitary subject in liberal legal theory builds on these binaries to achieve an abstract, socially decontextualized, hyper-rational individual stripped of all particularities, complexities and materialities (Grear 2007).

A consequence of this legal disembodiment is that equivalence is created within the cognitive structure of law between the human subject and the corporate subject. Indeed, one could argue that the corporation best person-ifies the liberal legal “person”, given its lack of a natural body (e.g., a corporation can “live” forever) and its tendencies toward hyper-rational behavior (as famously detailed by Ritzer (2000)). This leads Neocleous (2004, p. 164) to conclude that law “works in a way which is far more accommodating to corporate persons than human ones”. Or in the words of Grear (2007, p. 524): “the acquisitive, rational, narcissistic, will-driven, self-interested possessive, quasi-disembodied individual is an almost precise match for the corporation as the acquisitive persona of capital.”

Nevertheless, the idea that corporations could actually be an inventing subject did not occur over night. During the early nineteenth century, the courts ruled that employees (save for a few exceptions) owned all the rights to their invention. By the late nineteenth century, patent law had changed in that while employees still owned the rights to their invention employers also had a right to have a license to use the technology (called a “shop right”). Finally, by the early decades of the twentieth century patent law began to grant ownership rights to the employers rather than to the employees (see Fisk (1998) for a detailed discussion how specifically this change unfolded).

A host of reasons have been given to explain this transformation: e.g., the changing cultural image of the nature of invention (Horwitz 1977); the growing complexity of inventions (Fisk 1998); and a shift in judicial opinions that began to favor corporate interests (Noble 1977, Merges 2000). Moreover, the 1886 US Supreme Court case of County of Santa Clara v. Southern Pacific Railroad (118 U.S. 394 [1886]) helped give birth to the modern corporate subject. It did this by reinforcing the until-then unstated idea that corporations are persons under the 14th amendment and therefore worthy of constitutional protection. The socio-legal construction of corporate authorship marks an important (though often ignored) point in the history of today's political economy. Without this legally constituted identity, corporations would have far less interest in exporting (Western) patent law to all corners of the globe. As it stands, however, patent law goes a long way in guaranteeing the private interests of firms. As one critic protested in 1949: “Today it would be more correct to say that the patent system adds another instrument of control to the well-stocked arsenal of monopoly interests […] [because] it is the corporations, not their scientists, that are the beneficiaries of patent privileges” (quoted in Fisk 1998, p. 1129).

With the invention of the corporate subject there is no longer any discrepancy between the type of invention assumed by the romantic author trope and corporate authorship. Both speak of a legal subject that is “the original and first inventor”. Yet, while the interests of global capital appear to be preserved by this legal maneuver, the collective efforts of others continue to be used as justification to disqualify those in the developing world from being granted co-inventor rights.

The politics and power of authorship

Until recently, in addition to being significantly larger (Boyle 2003), the global commons was also more balanced in terms of serving the interests of both developed and developing nations (May 2002). On the one hand, actors in developed countries could draw upon the foundational materials found in less developed states to create patentable and thus commodifiable artifacts. At the same time, because of weak international property laws, actors within developing nations could draw upon the patentable artifacts coming out of the West to reproduce less expensive generic versions for domestic markets (recognizing that most in the developing world could not afford brand name products coming out of the West) (May and Sell 2006). Admittedly, developed countries have long sought to minimize unauthorized copying, such as through the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886. Yet these conventions were poorly enforced. Most nations simply had more to gain from not upholding their obligations to these systems of protection.

Take the case of the US, which is without question today's most ardent supporter of international patent harmonization. For many years the US denied protection for foreign technology, such as by ignoring foreign copyrights until 1891 and maintained a manufacturing clause in its copyright law until 1986 that limited foreign copyright holders' rights for products produced within the US (Alford 1994). And the arguments used to justify these policies sound remarkably similar to those coming out of developing countries today.

For instance, reprinting text by popular British authors in the mid-1800s was a thriving industry in the US, much to the chagrin of British authors and publishing houses (a 1843 US copy of Charles Dickens' A Christmas Carol, for example, cost six cents, while the British edition cost the equivalent of $2.50) (Hesse 2002, p. 41). The justification used by US publishers at the time played upon beliefs tied to the maximization of the public good. In the words of one prominent publishing house at the time:

All the riches of English literature are ours. English authorship comes to us free as the vital air, untaxed, unhindered, even by the necessity of translation, in the country; and the question is, shall we tax it, and thus impose a barrier to the circulation of intellectual and moral light? Shall we build a dam to obstruct the flow of the rivers of knowledge? (May and Sell 2006, p. 114)

Yet, by the 1880s large US publishers were beginning to have a change of heart. At that time, small companies (referred to as “penny presses”) in the Midwest began to capture a greater share of the market, taking profits away from the older publishing houses located on the East Coast (May and Sell 2006). Realizing they would be far better positioned than the smaller penny presses to sign exclusive copyright agreements with authors from other countries, elite publishing houses began to lobby Congress for copyright reform (Hesse 2002). The American Copyright League was formed in 1884 to represent such elite US publishing firms as Putnam, Scribner, and Harper. And by 1891, these reforms were realized (May and Sell 2006).

The international patent landscape began to change dramatically in the 1980s. Serious concerns emerged during this decade within the US business community and government regarding lost revenues from the piracy of US technologies overseas. According to a 1987 survey conducted by the US International Trade Commission, US firms were losing approximately US$50 billion a year from a lack of overseas intellectual property protection (Adede 2003). What was needed, it was argued, was a uniform adoption of strict intellectual property rights by all members of the international community. This code of uniform global standards as they apply to patent law was first defined with the ratification of the Convention on Biological Diversity in 1992, followed shortly thereafter by the General Agreement on Tariffs and Trade's (GATT) Trade-Related Aspects of Intellectual Property Rights (TRIPSs) in 1994. TRIPs currently falls under the auspices of the World Trade Organization (WTO), covering patents, copyrights, trademarks, micro-organisms, and other aspects of intellectual property. By joining the WTO, a country agrees to enact domestic legislation to support intellectual property rights that fall in line with that prescribed under TRIPs. And given that over 140 nations have joined the WTO, and have thus agreed to harmonize their patent systems to conform to its minimum standards, it is fair to say that the influence of TRIPs is felt around the world.

With TRIPs, the global commons of intellectual property has become completely transformed (Chander and Sunder 2004). Whereas before TRIPs developing countries could reproduce cheaper versions of brand name Western technologies with little fear (much like the US did for decades when it was still a fledgling state), now such actions come with significant economic consequences (e.g., a loss of trade privileges). Yet these ownership privileges are not equally distributed. Even after TRIPs, the developed world continues to exploit the efforts and resources of less developed countries. The inequalities between states are only widening.

The issue of authorship is playing a role in these expanding global asymmetries between the so-called developed and developing worlds. As mentioned earlier, the knowledge and practices found in developing countries cannot be traced back to any individual author. They are part of a collective authorship (which in some instances stretches over the millennia). As a result, they are unpatentable under Western patent law – the very law that TRIPs seeks to export across the international landscape. Thus, while international patent law masks the heterogeneous assemblages that constitute “big science” (e.g., biotechnology), it concomitantly draws attention to the alliances that underpin traditional knowledge and practices in developing countries. This has created a tremendous spatial asymmetry in flows between the developed and developing worlds. While materials flowing into developing countries from the developed world are now protected by intellectual property rights the same cannot be said of materials flowing in the opposite direction. As James Boyle (1996, p. 125) argues, while “curare, batik, myths, and the dance ‘lambada’ flow out of developed countries [as unprotected forms of intellectual property] […] Prozac, Levis, Grisham, and the movie Lambada! flow in [with all the protections afforded under Western patent law].”

Some examples: In 1998, the residents of Sub-Saharan Africa (not including South Africa) received 35 patents, while non-resident foreigners received 741 (Chander and Sunder 2004, p. 1347). The top five countries for international patent filings in 2005 were from the developed world: US, Japan, Germany, France and the United Kingdom (with the US accounting for 33.6% of all international patent filings and 34.6% coming from the countries party to the European Patent Convention) (Recharger Magazine 2006). Finally, in 1999, developing nations paid approximately $7.5 billion more in royalties and license fees than what they received via royalties and license fees. Conversely, the US experienced an $8 billion increase in its surplus of royalties and frees, tied mainly to increases in intellectual property transactions between 1991 and 2001 (Chander and Sunder 2004, p. 1354).

The power of the romantic author trope resides in its ability to mask. The idea of a tireless inventing genius makes the playing field appear even. Uneven invention (as detailed in the preceding paragraph), then, becomes an artifact of uneven desire – an uneven creative spirit – across a global population, where everyone began the race to invent “Technology X” from the same starting line. What would happen, however, were this narrative to become short-circuited? What if invention was understood as less a product of heroic genius and more an effect of forming successful alliances within a socio-material space that nurtures such inventive assemblages? This would certainly make problematic those calls for stronger international intellectual property standards (as required by TRIPs) without accompanying structural changes. Perhaps some empirical examples will help us see beyond the atomistic view of authorship as it is applied to recent “big science” inventions.

A recent study by the Harvard Business School Life Sciences Project, for instance, documents the number of downloads from the US genetic repository known as GenBank (Martinez et al. 2003). Rather than being equally utilized by the nations of the world, access to this information has been unevenly distributed, with 50.5% of all data downloads occurring on computers located in the US (followed by Japan (17.5%), UK (10.2%), Germany (3.8 %), Canada (2.8%), France (2.6%), and Belgium (1.3%)). Even within the US, notable spatial asymmetries were present in terms of not only having the resources to access this information but then being able to do something with it for commercial ends. For example, not only do the top five biotech patent-producing states account for 57% of all such patents in the US, but such concentrations can be mapped at the zip code level: 92121 (San Diego County, California), 94080 (South San Francisco, California), 20850 (Rockville, Maryland), and 02139 (Cambridge, Massachusetts). This leads the authors to conclude the following:

It turns out a new world hierarchy is developing, one that separates those nations and regions that are bioliterate from those that are bio-illiterate. This is the world of DNA space, populated by a self-selecting few who have chosen to participate in the new technology revolution. The price of admission: the ability to produce, read, or translates DNA. This means that even as biodata begins to drive industries from agribusiness to computing, cosmetics to chemical manufacturing, few nations have the skills required to develop, access, and use it. (Martinez et al. 2003, p. 160)

This conclusion is similar to a reality known all too well by those in developing parts of the world. As Director of the International Institute of Tropical Agriculture in Ibadan, Nigeria, Paul Keese knows that inventive genius is but a small ingredient to being competitive in today's bioeconomy. As he explains:

Here in west and central Africa we inhabit a communication wasteland, with only fragmentary evidence of the electronic capacity of the twenty-first century. Faced with computer scarcity, limited bandwidth connectivity to the Internet, and a few skilled educators to explain molecular biology, access to the human genome sequence is not free. … Africa came away from the green revolution empty handed; the biotechnology revolution has all but passed us by. If Africa is to exploit the new-found knowledge of the human genome and to participate effectively in the biotechnology revolution, the bottlenecks must be removed. (Keese 2001, p. 1021)

Consequences for the romantic author trope: invention in today's digital age is arguably more a product of being able to form stable alliances between people, spaces and things than it is an artifact of one person's inspiration and perspiration (playing upon Thomas Edison's famous adage that genius is 1% inspiration, 99% perspiration). The romantic author trope blinds us to the structural/network realities that make invention possible. In doing this, it creates a spatially smooth view of the world, where ideas, digital information, and the like can be utilized equally by all nations. All of which, in turn, leaves unproblematic those calls for stronger international intellectual property standards without accompanying structural changes (e.g., a redistribution of resources to bring parts of the world into the digital age).

Take the case of Myriad Genetics and their BRACAnalysis (a commercial genetic susceptibility test for hereditary breast cancer). Myriad Genetics holds broad patents on the BRCA1 and BRCA2 genes (genetic testing for hereditary breast cancer involves the analysis of these two genes) (Williams-Jones and Graham 2003). Yet the “invention” of these genes followed a trajectory far removed from the romantic ideal of an individual inventor attempting to construct something out of nothing. As Williams-Jones and Graham (2003, p. 282) explain,

In the hunt for the BRCA genes, hundreds of scientists from across the United States, Europe, Japan and Canada were involved in more than a decade of research. Importantly, this work would not have been possible without the participation of many thousands of individuals and families at risk for hereditary breast and ovarian cancer who donated blood samples and familiar histories. Financial support came from both national agencies such as the US National Institutes of Health (NIH) … as well as from investors from the private sector. Commercial interests in this research [also motivated those involved, which] arise because of laws, regulations, and government policy, such as the 1980 US “Bayh-Dole Act”, and a shift in university science research cultures from focusing on “knowledge production” to “technology transfer” and “economic growth”.

In truth, then, the BRCA genes are an artifact of alliances. The most heroic of geniuses would never have invented the BRACAnalysis without these collective associations (see also Glasner 2002). Hundreds of scientists from around the world, thousands of blood donors, millions of taxpayers, fully equipped labs supported by well-functioning infrastructures: all such contributing “actors” forgotten. We see, rather, what the romantic author trope wants us to see: those heroic few whose names are on the patent application.

Conclusion

The purpose of this paper has been to show how patent “law is a moral topography, a mapping of the social world which normalizes its preferred contours – and, equally important, suppresses or at best marginalizes other ways of seeing and being” (Corrigan and Sayer 1981, p. 48). One way that patent law normalizes is in its ability to mask the assemblages linked to global capital and big science. Were these connections made visible the patentability of modern technological artifacts would be threatened, for their collective nature would make it impossible to link invention to “the original and first inventor”.

Not surprisingly, global capital works diligently to keep such assemblages out of view. For example: In March 2001, the South African Government found itself pitted against a 39-company alliance in a court of law to settle the legality of recent Acts passed by its politicians to allow the substitution of generic drugs and thus provide cheaper medicines for its people (namely, in an attempt to provide inexpensive drugs to those afflicted with HIV and AIDS) (Ostergard 1999). While this corporate alliance possessed deeper pockets than the South African Government they withdrew their challenge after reviewing documents filed by “friends of the court” on behalf of South Africa. The documents revealed not only the tremendous profits made by these companies on the drugs but also how many of them were originally developed with the help of public funds paid for by US taxpayers (May 2002). Out of fear that some of the abovementioned heterogeneous assemblages might be made visible – by revealing, for example, how US taxpayers were also authors in the creation of these artifacts – this corporate alliance decided that a compromise might be in their best interests (to avoid making those documents public).

Movements are already underway to make visible the abovementioned assemblages that patent law works so hard to hide. Ad campaigns, which reveal the level of taxpayer monies that go into supporting the research and development of private firms (Rajan 2003); the shareware movement, which emphasizes the ultimately non-reductionist nature of invention (Valentine 2000); and place-based movements, which speak toward the contextual character of the inventive process (Heller 2001): all work to remove the purifying veil that patent law has placed over an invention's origin. The ontological critique offered by these movements is certainly warranted. As detailed above, the romantic author trope is more than just a curiosity of Western thought. Its significance – especially in a TRIPs world – can be measured the world over.

Notes

This is not to say that the assemblages (e.g., research labs and teams of scientists) were made literally invisible. These assemblages were, however, rendered non-existent in the eyes of patent law, which brought this form of invention in line with that ascribed by the romantic author trope.