Ghosts of inventions: patent law's digital mediations and materialities (original) (raw)

This paper identifies and analyzes the effects of digital mediation into the relationship between form of expression and knowledge in patent law. It starts from the premise that the diversity of and shifts in legal inscriptive practices and media, which often appear as legalistic and minute bureaucratic technicalities, frame and inform the ways in which inventions are understood as epistemic, legal, and cultural artefacts. Taking patent law’s representational techniques as the objects of inquiry requires attention to the specificities of its language and form, which have been predominantly based on textual semiotic logic and formats. The writings in patent documents are not only technical but utmost legal. They underlie specific word choices, style and syntax. Moreover, patent writing is bound and modulated by the relationship of categories within the particular form of the patent document itself. How, if at all, does the meaning of invention - that is, the interpretation of both the inscribed legal concept and its original knowledge practice in science and technology – change with the latest shift in law’s media which dissociates words into digital codes, documents into electronic signs? The figures in this essay illustrate the material change in the way patents are handled: they are electronic pictures or data. I outline practices of patent document’s digitization and explore their implication on the recognition of the inventive object by drawing on studies conducted at the intersection of intellectual property law and history of sciences. The insights are read together with studies of digital material cultures in the humanities and mathematics. In the latter body of scholarship, I have been informed particularly by Matthew Kirschenbaum’s work on textuality and forensic materiality, Johanna Drucker’s work on material semiotics and her concept of diagrammatic writing, as well as Brian Rotman’s analysis of digital computing in relation to semiotics of alphabetic and numeral inscriptions. The insertion of the word ‘ghost’ in the article title is inspired and borrowed from Rotman’s account of distributed human subject formation. The difference here is that the subject who is constituted by digital signs is law. Taken together, these readings identify and raise questions about the ontological changes brought about by the digitization of patents as a legal form in terms of their visibility (relating to search, retrieval and storage), legibility (relating to sensorial perception and experience, as well as reader’s interpretation), and instrumentality (relating to questions about ease of navigation, manoeuvrability, comparison, and translation). These questions are not only relevant not only from the viewpoint of science-law translation and knowledge transmission, but for the overall justification and legitimacy of patent system as whole in its self-understanding as an archive and evolving account of past inventions.