Science Inside Law: The Making of a New Patent Class in the International Patent Classification

Recent studies of patents have argued that the very materiality and techniques of legal media, such as the written patent document, are vital for the legal construction of a patentable invention. Developing the centrality placed on patent documents further, it becomes important to understand how these documents are ordered and mobilized. Patent classification answers the necessity of making the virtual nature of textual claims practicable by linking written inscription to bureaucracy. Here, the epistemological organization of documents overlaps with the grid of patent administration. How are scientific inventions represented in such a process? If we examine the process of creating a new patent category within the International Patent Classification (IPC), it becomes clear that disagreements about the substance of the novel inventive subject matter have been resolved by computer simulations of patent documents in draft classifications. The practical needs of patent examiners were the most important concerns in the making of a new category. Such a lack of epistemological mediation between the scientific and legal identities of an invention depicts a legal understanding that science is already inside patent law. From an internal legal perspective, the self-referential introduction of the new patent category may make practical sense; however it becomes problematic from a technological and scientific standpoint as the remit of the patent classification also affects other social contexts and practice

Patents as capitalist aesthetic forms

Funding: This research was funded by a grant from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement No. 741095-PASSIM-ERC-2016-AdG).ERC PASSIM 'Patents as Scientific Information' Project, Grant Agreement No. 741095-PASSIM-ERC-2016-Ad

Is There (Should There Be) a Law & Humanities Canon?

This commentary considers the question of whether there is, or should be, a law and humanities canon by exploring the identity and value of the field and querying the concept of canon itself as an authoritative cultural technique of intellectual and social reproduction. I argue that the common trait which binds works in the field of law and humanities together is the connective “and,” which is inimical to the concept of a canon. Thinking with Barbara Hernstein Smith’s work on value and evaluation, Hans Ulrich Gumbrecht’s criticism of canons and classics, and Frantz Fanon’s understanding of personal universality, I show that the notion of an inclusive or “global” canon is an oxymoron and argue that it ought to be resisted

What if all we can see are the parts, and there is not a whole: elements and manifestations of the making of law of 'climate justice'

This essay discusses the meaning of 'climate justice' and the ways in which it is or is not materialised currently in climate change litigation. First I present the immateriality of the abstract concepts that make up this composite term: 'climate' and 'justice'. Yet the placing the words adjacent to one another seems to mobilise them into a novel composite vehicle of legal action. I trace how the idea of 'climate justice' hovers as an elusive idea around the concrete particularities of what can be known about 'climate' specifically in relation to 'justice'. These questions are probed in the setting and context of the Philippine Human Rights Commission's 2018 Inquiry into the Carbon Majors' (Chevron, Exxon, Shell, BP etc.) violation of human rights. The aim here is mainly diagnostic: rather than taking legal doctrines of environmental or international human rights law as analytical materials, I use a legal materialist approach in order to try to make sense of what is concretely happening when an issue of a planetary scale of complexity is addressed and represented in a medium-sized moot court room. It helps to bring into vision the specific modes by which formats, places and media are enlisted as constitutive elements in the becoming and stabilisation of the emerging legal matter of climate justice. My analysis depicts law acting as the medium for upscaling (an idea of human justice) and downscaling (of climate science) different knowledges into other frameworks of reality than their original ones: to that of the human narrative scale

Ghosts of inventions: patent law’s digital mediations

This article examines the shifts in the material ordering of inventions in patent law organization and their effects on the meaning and scope of inventions as intellectual property. Formats and media are constitutive of the establishment and stabilization of inventions as objects of intellectual property. Modern patent law’s materiality had been dominated by paper documents but ever more consists of digital images, files, and networked data. The article traces and analyzes such effects of digital media on the meaning of intellectual/intangible property and argues that inventions increasingly matter as digital data in the legal realm

Addressing vaccine inequity during the COVID-19 pandemic: the TRIPS intellectual property waiver proposal & beyond

This article examines global vaccine inequality during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1995 WTO TRIPS Agreement, and specifically, the role that IP plays in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal offers a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by TRIPS flexibilities. Finally, we reflect on the waiver in the wider context of TRIPS

The TRIPS intellectual property waiver proposal: creating the right incentives in patent law and politics to end the COVID-19 pandemic

The structure of global intellectual property law as incorporated in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is implicated in the current lack of COVID-19 vaccines, medical equipment, medicines and diagnostics (hereafter, ‘health-technologies’), which are needed to combat the pandemic. Although equitable access to vaccines is in the moral, political and economic interests of the global public and requires global solidarity, the phenomenon of COVID-19 ‘vaccine nationalism’ has brought into sharp relief the misalignment of current legal and financial incentives to produce and distribute vaccines equitably. The crisis further demonstrates the failure of high-income countries (HICs) to realise the promise they made at the time of the TRIPS negotiations in 1994, that by agreeing to the terms of TRIPS, lower and middle-income countries (LMICs) would benefit from technology transfer and the building of productive capacity. As such, the current crisis is revealing not only of inadequacies of how to deal with global emergencies, but also of deficiencies within the international ‘patent bargain’ itself. This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal initially put forward by India and South Africa in October 2020, which, as of May 2021, is supported by more than 60 states, and which has received statements of support from the World Health Organisation (WHO). We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance. The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. We make two arguments to this effect: first, the TRIPS waiver is a necessary and proportionate legal measure for clearing intellectual property (IP) barriers in a direct, consistent and efficient fashion, enabling the freedom to operate for more companies to produce COVID-19 vaccines and other health technologies without the fear of infringing another party’s IP rights and the attendant threat of litigation; and second, the TRIPS waiver acts as an important political, moral and economic lever towards encouraging solutions aimed at global equitable access to vaccines, which is in the wider interest of the global public