Patent as credit

When intellectual property becomes speculative

RP 194 () / Article, Dossier, Property, Power, Law

Intellectual properties, the various kinds of which are known as patents, copyright and trademarks, could be regarded as central techniques of accumulation in contemporary capitalism, if immaterial knowledge is indeed what now crucially drives accumulation in a ‘knowledge economy’ or ‘creative industries’. [1] In such a process of value generation and accumulation, it is precisely the law of intellectual property that allows certain kinds of knowledge to be repackaged and transformed into units of appropriation, transfer and commodification. But how exactly does this process occur?

The conversion of knowledge into an object of property right, sometimes also portrayed as forming part of an ‘intellectual commons’, requires several steps of legal abstraction and socio-economic associations to make it into something that is believed to be of value, to be desired and accumulated. It would not therefore be accurate to talk of a straightforward appropriation of creativity, knowledge or inventions through intellectual property law. It is not possible to patent common knowledge, creativity or tradition. But if these can be incorporated and transformed into particular techno-scientific singularities, then the patent law can transmute them into market commodities. What can be legally appropriated is not, for example, ‘common sense’ or the discovery of chewing peppermint for fresh breath, but a specific form and material embodiment of that knowledge and usage. The discovery of peppermint leaves could not be patented, but the molecular forms of the peppermint essence and its synthetic chemical copies, which can then be used (in legal parlance, ‘materially embodied’) in chewing gums and pastilles, would count as patentable inventions. [2] Legal doctrines and technicalities make that transformation from a ‘common sense’ invention into a proprietary invention possible. That is why the internal legal mechanisms deserve better scrutiny.

Critical accounts of intellectual property regimes often conflate these different senses of what constitutes an obvious invention or common knowledge in contrast to a patentable invention or copyrightable original work. However, their strengths are in witnessing the anomalies and injustices caused by the patent system, concerning such issues as biopiracy and access to knowledge. [3] They also include analyses of the international political economy of intellectual property, which is inequitably skewed by disproportionately pushing singular national and commercial interests at the expense of others. [4] These accounts can be characterized as critiques of the social effects of intellectual property law; they are necessary and valuable. But my analytical focus here is different. In this article I want to understand why intellectual property is being pushed so strongly as ‘rights’ by certain interests, and what makes it valuable, particularly when so many of the patents turn out to be useless. The obvious simplistic answer to the question is that intellectual property rights are akin to property rights in things that can be owned, traded and enforced. They are commodities and that is what makes them valuable. However, I suspect that the more complete answer lies in the exact mechanisms of intellectual property valorization because the value of intangible properties relates to processes of their materialization, perhaps much more so than in the case of real property, such as land. A different kind of critique needs to include a better explanation of the linkage of intangible properties to the process of accumulation and capitalization within the so-called ‘knowledge economy’ through abstract quantification and material market practices.

A good number of mainly quantitative analyses of intellectual property rights (particularly of patents) exist in mainstream economics and law and economics scholarship, as well as in economic history. They mainly examine the effect of patent monopolies on venture capital financing, knowledge diffusion, rate of innovation and competition. [5] The more quantitative analyses also include studies on patent pricing and on the modelling of their value for the overall economy based on different yardsticks of measurement. [6] One common characteristic uniting mainstream law and economics scholars and some of the most trenchant critics of intellectual property is that they seem to understand law with a capital ‘L’: law is portrayed as a given factum and blackboxed as something immutable. In contrast, there …