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Mario Biagioli Patent Republic: Representing Inventions, Constructing Rights and Authors COMPARED TO CASTING A VOTE, APPLYING FOR A PATENT IS SLOW, costly, and tedious. Still, both practices play out in different ways w hat it m eans to operate in a regim e of political representation. In colo­ nial America (as well as in early m odem France, England, Spain, Italy, Germany, and Russia), patents were gifts the sovereigns could either grant or withhold from their subjects. Today, instead, we have the right to claim intellectual property in our inventions, and to have it recog­ nized upon fulfilling certain requirem ents about the invention’s subject matter, novelty, utility, nonobviousness, and adequate disclosure. The transition from patents as privileges to patents as intellectual property rights parallels the demise of political absolutism, the development of liberal economies, and the emergence of the m odem political subject. In France, patents were declared one of the droits de l’homme less than two years after the revolution, and the US Constitution was the first, in 1787, to include a clause about the authors and inventors “exclusive rights to their respective writings and discoveries” (Loi Relative, 1791).1 Today’s discussions about the pros and cons of intellectual prop­ erty are essentially political in nature, hinging on different views on the right balance between w hat should be or rem ain public and what should be allowed to become private (and for how long) so as to provide social research Vol 73 : No 4 : W inter 200 6 1129 incentives to innovation. My goal here is to look at the same balance at a m ore microscopic level—to move it from the level o f broad politi­ cal and cultural debates to the m undane details of patent applications. Far from depoliticizing the debate over intellectual property by shift­ ing it into the grey, technical realm of patent bureaucracy, I w ant to show that one can sketch out an “archaeology of democracy” from a very m undane but key step in the patent application: the disclosure of the invention. Required by m odern patent law in the United States and virtually every country in the world, this is the section of the applica­ tion where the inventor describes (in words and images) the invention in sufficient detail to enable a third party to repeat it. It is the specification requirem ent that makes the patent system defensible in political term s. The m ost famous of US patent officials, Thomas Jefferson, took patents to be private monopolies—monopolies he disliked and tried to lim it (Bickford et al., 2004:1412). Even those who do not share Jefferson’s views still acknowledge the tension between the image of equality and free com petition democracies put so m uch effort in polishing and the tem porary monopolies those same democra­ cies are happy to grant to a great num ber of inventors.2 Debates over the relationship between patents and monopolies have a long history. Jacobean England tried to distinguish unacceptable monopolies (many of which were banned in 1624) from acceptable ones (exemplified by patents of invention). Because the latter were limited to new inventions only, they were seen as taking nothing away from the public that it had before (Loosey, 1849:117).3Used throughout the nineteenth century in Europe to defend the patent system from serious and occasionally fatal attacks, the argum ent is still alive today—often w ith the additional spin that w ithout patent protection m any inventors would be likely to w ith­ hold or take their discoveries to the grave w ith them (Dutton, 1984: 22-23; MacLeod, 1996:137-153; Schiff, 1971). The real enemies of public knowledge, we are told, are not patents but trade secrets. W hile bearing conceptual family resemblances, defenses of the patent system display a distinct shift in emphasis as we move toward the present. The 1624 English Statute of Monopolies stated that patents 1130 social research of inventions were harmless and therefore allowable because they did not take anything away from the public, but it is now not uncom m on to hear that patents are good—that they should be...

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Additional Information

ISSN
1944-768X
Print ISSN
0037-783X
Pages
pp. 1129-1172
Launched on MUSE
2014-04-30
Open Access
No
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