PATENT POLITICS – Aoun Review

Vol. 9 No. 1 (February 2019) pp. 1-5 

PATENT POLITICS: LIFE FORMS, MARKETS, AND THE PUBLIC INTEREST IN THE UNITED STATES AND EUROPE by Shobita Parthasarathy.
The University of Chicago Press, 2017, 304 pp., Hardcover, $25.00 

Reviewed by Wissam Aoun 
University of Detroit Mercy School of Law 
aounwj@udmercy.edu 

At first blush, Shobita Parthasarathy’s PATENT POLITICS appears to be an historical and geographic journey documenting the expanding scope of patentable subject matter to cover a growing number of life-forms and biotechnological discoveries. Parthasarathy comprehensively details the history of expanding subject matter eligibility and its effect on access to medicines, traditional farming practices, and long-standing academic research norms. Parthasarathy highlights how representatives from each of these groups as well as civil liberties organizations have struggled to voice their grievances before an audience of legislators, patent offices, and courts, and how the U.S. and Europe have taken divergent paths towards addressing such public interest concerns. In that sense, one may view Parthasarathy’s intervention as a comparative case study in public interest mechanisms between the U.S. and European patent systems, along with their relative successes and failures. 

However, PATENT POLITICS touches on something far more fundamental. The book provides a sophisticated case study in the boundary work exercised by key patent stakeholders, resulting in a Kafka-esque expertise barrier separating the patent system from the public it is meant to serve. Many of us have encountered the work of boundary agents in one context or another, along with attempts to reinforce domains of expertise, distinguish their craft and knowledge from that of others and reserve protected spaces for themselves. Yet few have previously engaged in the level of rigorous analysis surrounding the extent and depth of boundary work in the patent system as Parthasarathy has in PATENT POLITICS. 

Partharsarathy begins her analysis by tracing historical concerns surrounding the expanding scope of patentable subject matter in the U.S. Some of the earliest debates regarding patenting and pharmaceutical products, such as the Oldfield Hearings of the early 20th century, raised relatively modest suggestions that patents could, in some circumstances, stifle innovation and hurt the availability of health products (p. 31). The response from industry was swift and vigorous, summarily dismissing any such concerns as being extraneous to the workings of the patent system. Parthasarathy points out that the vast majority of the witnesses to testify before Congress during the Oldfield Hearings were patent lawyers, thereby “establish[ing] industrialists and their legal representatives as the appropriate experts because they brought direct experience with the patent system” (p. 31). As such, from the days of these early debates, an ‘expertise’ wall began to form dividing the patent system between an inside and an outside. 

This trend not only continued over the course of the 20th century, but also increased in intensity. In one hearing after another, public interest groups were continuously disregarded. According to Parthasarathy, patent insiders, such as patent attorneys and patent bureaucrats, have long employed rhetorical resources to shut out any such public interest concerns. These rhetorical mechanisms are the antithesis of debate, as patent insiders refuse to even acknowledge interest group perspectives, perspectives which the insiders proclaim do not belong within the patent system. 

Even economists, law professors and senior scientists could all be dismissed and disregarded with little effort as outsiders without any real direct experience of the patent system (pp. 36-37, 133, 71, 31). If these individuals, with their extensive credentials and many years of research experience could easily be disregarded, then civil society groups attempting to introduce moral and ethical considerations into the patent system would not stand a chance (pp. 113-114). To the patent insiders, only those with experience in the art of patent practice can truly understand the realities of this system (pp. 36-37). Only those who have been directly involved in the drafting, prosecution, or litigation of patents are qualified to participate in the patent discourse, and all other issues, including the ethics of patenting in the life sciences, are entirely extraneous to this discourse. As Parthasarathy points out, rather than receiving and adapting to public feedback, over the course of these 20th century public interest conflicts, “the definition of the patent evolved, in other words, to gain the acceptance of system stakeholders,” those stakeholders being the large corporate patent filers, patent bureaucrats, and patent lawyers (pp. 27-28). 

Apart from the legislative context, the USPTO and the courts provided little additional recourse for public interest concerns, given that rules regarding public interest standing “[asserted] certain legal boundaries that restricted who could participate in the patent system” (p. 90). Jeremy Rifkin’s battle against Diamond v. Chakarbarty’s “anything under the sun that is made by man” crashed and burned. Public interest groups were denied standing to challenge the patentability of the Oncomouse (p. 90). While the “chimera” test cases did “stimulate new organizational forms within the PTO” such as the Sensitive Application Warning System (SAWS) program designed to flag patent applications that might generate public interest concerns (p. 95), such programs “never really had a chance because both the patent-system institutions and their organized interests held so tightly to the idea that patents, and therefore patent governance, was techno-legal and therefore amoral” (p. 97). Even with respect to recent successes such as Myriad, public interest groups “had to thread the eye of a narrow legal needle that could address their immediate concerns only indirectly” (p. 171). 

Some may ask how this differs from any other political domain. Is it not the case that in many socioeconomic areas, interest groups dominate political discourse, capture legislators and regulators, and twist their political will away from that of the greater public good towards special interests? How is the patent system more of an exercise of “boundary work” than any other discourse? In the typical collision of political interests, the voices of public interest are often drowned out by powerful and well-resourced special interests. However, as Parthasarathy demonstrates, in the case of the patent system’s expertise barrier, public interest voices are disqualified from participation altogether, thus making the patent system’s disconnect from the public quite drastic compared to other issues (pp. 36-37). 

The effects of boundary work and the expertise barrier in the patent system are of a different and more pronounced nature then typical interest group dynamics and the nature of boundary work within the patent system is unique amongst disciplines. This exceptionalism traces its roots back to the earliest days of the Industrial Revolution. As historical sociologist Dirk Van Zyl Smit has pointed out, patent office practice itself has historically been unique amongst professions. Many professions are born and develop as agents of certain dominant classes, developing their own professional identity and interests through this representational symbiosis. However, the early English patent agents of the Industrial Revolution era created and deployed their own “ideological resources,” authoring their own patent discourse “through their conceptive work in the legal sphere.”¹ As they authored “sophisticated ideological justifications” for the patent system, they also authored the discourse of their own professional identity alongside developing the institutions of the patent system itself. Thus the disconnect between the public and the patent system is in many ways inherent in the origins of our modern patent institutions.

According to Parthasarathy, the ideological aim of patent institutions has thus become the narrow goal of certifying inventions (p. 78), and to many of the insiders, procedural objectivity, efficiency, and inventors’ interests are sufficient to guarantee satisfaction of the public’s interest (pp. 17, 61). Any alternative understandings of the roles and responsibilities of our patent institutions, regardless of how modest, are swiftly rejected by patent insiders (p. 35). This disconnect between the patent system and the public has created dual patent insider/outsider narratives which have drastically diverged over time, generating social myths that may not accurately reflect the realities of the patent system. This disconnect between public perception of what the patent system is and what actually happens in reality may be far more stark and pronounced than most, if not all, other areas of law.² Given the many social perceptions that have, over time, developed regarding what the patent system is and should be, we should be apprehensive about wholeheartedly accepting that a more democratic patent system is necessarily a better patent system. 

As an excellent example of these potentially confused social myths, one can look to those who spoke on behalf of the independent inventors’ community during passage of the AIA and their fight against transitioning to a “first-to-file” system. Their argument was that a first-to-file system would prejudice independent inventors and small-to-medium enterprises who would see their hard, inventive work stolen by well-resourced, foreign multi-nationals who are better equipped to play the “first-to-file” game. This assertion of independent inventors being robbed by large corporations is tenuous at best,³ and likely based on long-standing social myths surrounding the plight of “heroic inventors”.⁴ 

Accordingly, democratizing the patent system may not necessarily lead to a better patent system if the system only becomes a reflection of these pervasive social myths. Furthermore, democratizing the patent system should not be taken to mean that the practitioners and experts who have worked in this system for many years do not possess valuable insights regarding best practices which the public may lack. 

Parthasarathy is careful to avoid jumping to such normative conclusions. Here she points to the EPO’s nuanced approach to the democratization of the patent system in the face of growing public interest concerns. The EPO has recognized that “whether or not the patenting system is at fault… is immaterial. Blame is laid at the door of the IP system by many forces in society” (p. 184). As Partharsarathy puts it, “it [doesn’t matter] whether or not the patent system had these distributional effects. The public believed it did, and therefore the patent system and the EPO believed it and had to act accordingly” (p. 184). Recognizing this disconnect, the EPO has taken steps – some more successful than others – to slowly develop institutional initiatives directed to facilitating greater public interest participation within the patent system dialogue (p. 196). 

The foregoing highlights the key issues at play in this scenario. How has this expertise barrier become so pronounced, preventing effective dialogue between those insiders within the system and those outside of it? How and why have such inaccurate understandings, on both sides of the insider/outsider divide, developed regarding the functioning of the patent system along with its socioeconomic effects? How do we build new systems to support effective communication across this barrier? Regardless of who is ‘right’ or ‘wrong’ in any of these public interest debates, this lack of dialogue across the patent expertise barrier threatens the public legitimacy of the patent system.⁵ 

Parthasarathy provides some conclusions on how to promote dialogue across the expertise barrier between the inventive community and the patent experts, such as developing new innovation governance frameworks incorporating broader representation (p. 197) and robust patent office public interest participation mechanisms (p. 196). However, Parthasarathy acknowledges that her work in this regard is not yet complete (p. 197). The hope is that this book will spark a much needed conversation on how to begin chipping away at the wall that separates the patent system and the public, and Parthasarathy has put forth an impressive effort at getting the ball rolling through her brilliant case study on the fight for democratic legitimacy within the context of patenting in the life sciences. 

PATENT POLITICS is a brilliant account of how the patent system’s “expertise barrier” has created an institutional rift between the patent system and the public it is meant to serve. Viewed in this light, Parthasarathy’s book is truly a unique contribution to patent scholarship. Patent scholars continue to rehash age old debates within standard philosophical frameworks while continuing to overlook the sociology of patenting.⁶ While patent scholarship’s regulatory turn hit full stride several years ago,⁷ perhaps what patent law scholarship needs now is a sociological turn. PATENT POLITICS may go a long way to ushering in this much-needed new sociological patent law perspective.

Suggested Citation: 9 The IP Law Book Review 1 (2019).

© 2019 Wissam Aoun 

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1. Dirk Van Zyl Smit, “Professional’ Patent Agents and the Development of the English Patent System 13 International Journal of the Sociology of Law 79, 101 (1985).
2. Mark D. Janis, Timothy R. Holbrook, Patent Law’s Audience, 97 Minn. L. Rev. 72, at 122-3 (2012).
3. See Mark A. Lemley, Colleen V. Chien, Are the U.S. Patent Priority Rules Really Necessary, 54 Hastings L.J. 1299 (2002).
4. See Mark D. Janis, Patent Abolitionism, 17 Berkeley Tech. L.J. 899, at 904-922 for an excellent discussion of the impact of the myth of the “heroic inventor” on patent reform (2002).
5. See David Vaver, Does the Public Understand Intellectual Property Law? Do Lawyers?, Working Paper No 23/2006 University of Oxford Faculty of Law Legal Studies Research Paper Series (2006), online: https://digitalcommons.osgoode.yorku.ca/all_papers/37.
6. Dan L Burk, On the Sociology of Patenting, 101 Minn L Rev 421 (2016).
7. See for example Mark A. Lemley, Taking the Regulatory Nature of IP Seriously, 92 Tex. L. Rev. See Also 107 (2013); Jonathan S. Masur, Regulating Patents, 2010 Sup. Ct. Rev. 275 (2010); Mark A. Lemley, The Regulatory Turn in IP, 36 Harv. J.L. & Pub. Pol’y 109 (2013).