Interdisciplinary Reflections on ‘Patents as Capital’ with Vitor Henrique Pinto Ido

 

Vitor Henrique Pinto Ido is a phd candidate at University of São Paulo, Brazil. This blog post is the first part in a PASSIM blog series where invited scholars reflect on patents as capital from an interdisciplinary perspective.

Vitor Ido is on twitter: @vitor_ido

 

 

1.why do you study patents?

 

It started almost as a coincidence. Back home, at the University of São Paulo, a course on “intellectual property and access to knowledge” became mandatory right after I became a student in 2009. The issue of how patents may curb access to medicines was a hot topic as Brazil had just issued a compulsory licensing for the patent of Efavirenz, a medicine for the treatment HIV/AIDS,, after failed negotiations to lower prices. The country – in its paradoxical position in world affairs and in the global economy – had actively defended the interests of developing countries in intellectual property issues at multilateral arenas (for instance, during the negotiations of the TRIPS Agreement), but had also approved relatively stringent domestic industrial property and copyright laws that created many obstacles for access. This was an easily identifiable problem: for instance, given the uncertainty on a copyrights’ exception or limitation for educational purposes, we actually could not share the course texts that would precisely discuss the role of intellectual property. So, in a sense, I study patents (and intellectual property) to reflect on how they affect the issue of access more generally understood: to essential medicines, to cultural goods, to scientific knowledge, to diverse information. And how this seems even more relevant in societies such as Brazil, marked by long histories of exclusion and inequality. Whether we want it or not, this is often overlooked in the Western IP scholarship, unless it is dealing directly with developing countries as case studies. Patents felt like a particularly contested field in legal discussions that almost unavoidably leads to discussion of political economy and history. As such, in countries where law is often portrayed as “neutral” and “formal” by academics, but which contrasts drastically with the reality of how legal techniques concretely take place, patents are a starting point for these broader discussions on law and legal practices. Finally, a broader understanding of the functioning and logic of the patent system enables concrete interventions in reality: for example, supporting efforts to legally challenge an unmerited patent for a certain pharmaceutical, which can reduce prices and lead to increased access to medicines.

 

 2. how do you understand patents as capital? 

 

There is one commonly referred to paradox in the patent system: because it refers to “intangible goods”, information that circulates beyond borders and easily, the patent system constantly needs to deal with the international sphere; however, it is a system designed and still based on territoriality, which means that patents need to be granted or not by each different country. This framing is limited in terms of how the system really operates, and dismisses the material implications of patents (their documents and applications, the buildings constructed, etc.), but it is still interesting to draw a parallel with similar narratives on the transnationalization of capital flows, the general financialization of global capitalism, and the increasing commodification of “things” (i.e. that may be turned into commodities/assets and therefore traded in markets). Patents are part of this contemporary system, operating as new forms of generation of capital in the strong, conventional sense (perhaps in the Marxian sense even), which have raised the attention for already a long time on the risks of “new enclosures of the commons”, i.e. the privatization of information. It would be hard not to acknowledge the ties between patents and capital in this economic sense, and perhaps it is the backbone of the whole discussion. But there are often overlooked dimensions related to other forms of capitalization through patents, which for instance are identifiable in the arguments that associate patents with innovation. If more patents are a good proxy for “innovation” (which empirically is not), then patents are, at least partly, a sign of prestige for a certain scientific and economic community, but also a form of personal entitlement. This is basically a sense of prestige (sometimes remunerated by institutions and employers) for having created an “invention” that was worth receiving a patent. The problem is that this is a self-referred system: you are worthy because you have a patent and a patent is supposed to be granted to worthy applications.

 

One dimension that particularly interests me is how patents are related to notions of nationalism and modernity. In a sense, a patent that was granted by the USPTO or by the EPO has a different legitimacy and signaling mechanism to peers and markets as compared to one granted, for instance, by the Brazilian INPI or the Chinese CNIPA. In other words, market players often use the fact they have a patent in the United States or European Union as a sign of validity of its “asset” (the technology but also the patent), but will probably won’t do so for most other countries.  Why? I feel that at least part of the answer is in the entanglements with what the post/decolonial scholarship insists on: there may be a formal equality in the global order, but intrinsically the existing system of states is unequal. In this sense, a patent may be associated to other forms of capital, perhaps even a “national capital” so to say? This is only an intuition, but I would like to investigate this more.

 

3. how does your work relate to this understanding?

 

My PhD thesis deals with the political economy of a specific vernacular expression in China, the idea that the country is creating a intellectual property system “with Chinese characteristics”. This is formally adopted in high-level government and judicial authorities’ speeches, and evokes the idea of socialism “with Chinese characteristics”. China has recently become the biggest international applicant of patents, trademarks and designs, drawing attention for how this relates to the huge transformation of the Chinese economy, which can be simplified as a form of imperfect transition from “copy” to “innovation”. It also draws criticism that question the quality of the patents and other rights granted in China, as well as specifically from the USA the narrative of a continued forced technology transfer and “theft” of “American intellectual property”. In dialogue with what I could perhaps call a critical scholarship on patents and/as capital, I tend to argue that the numeric expansion of IP, also followed by a robust institutional development of specialized IP courts in China, reflects an association between patents and innovation (a always imperfect, if not misleading, association), but moreover an association between patents and modernity. This is particularly relevant as the scholarship on China has for a long time focused on the idea of a “cultural” clash between Confucianist values that are embedded in contemporary China (and used by the central government) and the protection of IP; in parallel, the changes in the global economy that have led China to a prominent political field are a fruitful channel to discuss what changes this shift has in the ways patents are valued in China. In a typical anthropological way of thinking, in my research, I decide to take the expression “IP with Chinese characteristics” not as purely State ideology or market rhetoric, but as something that has a functional role for Chinese policymakers and innovator companies – as well as unintended consequences. Perhaps, if it is true that there is this indirect association between valuing patents as a sign of modernity, my interest is then on how this leads to impacts on notions of what it means to be a “modern” or “developed” Nation (i.e. in this case modern means a country that fully respects IP, but also that has a lot of national IP). Subsequently, how this may or not impact even the way certain Chinese people perceive themselves in their network of social interactions.

 

4. what do you think are the benefits and drawbacks of studying patents from an interdisciplinary perspective?

 

For those personally fascinated about patents and their “myths” interdisciplinary perspectives on patents literally open descriptions and analyses that are often completely ignored. Some of them can be broad and make us think philosophically on how something that seems to be so “technical” and specific such as a patent may be, as noted before, perhaps an entry point to understand Western cosmologies. But some may also be very grounded and contextualized. Although the objective of research certainly does not need to aim a pragmatic/concrete intervention in the world, I feel that an important benefit stemming from an interdisciplinary perspective in patents is the possibility to provide new insights on real world issues related to patents. For instance, the impacts of artificial intelligence for the patent system: both if countries should grant patents for “AI-generated” and “AI-assisted” inventions and the impacts for the use of AI in patent application processes (for example, conducting a novelty and inventive step search – two basic requirements for a patent to be granted – with AI tools may be more rigorous, but also reinforce certain biases). Another example is on what falls under the scope of “non-patentable subject matter”, and which therefore do not receive patent protection. This has become more and more relevant in discussions about genomic therapies, patenting of living organisms and their laboratory modified versions, among others. It also refreshes notions that are long ascertained, such as the figure of the “individual inventor”, something that indigenous traditional knowledges for instance may present a counterpoint. Of course, all of this brings additional difficulties to create engagements with people from different backgrounds (e.g. a patent attorney, an inventor, an industry representative, a policymaker, academics from other areas, including in law). In some cases, an “interdisciplinary” perspective is confounded with a reduced application of one “discipline” to another: this is the case of the “law and economics” literature that applies microeconomic orthodox tools to understand patents as “incentives” that reduce a “market failure”. Differentiating interdisciplinary work that aims at integrating different aspects, including not understanding law as a monolithic body of knowledge and not dissociated from material practices, is very important. Finally, because of so many strong economic interests involved in the protection of patents, interdisciplinary views may be often unjustly criticized if they propose a critical view – this is an instance where, in my view, academics struggle with the impact of economic interests.

 

5. your questions to others in the workshop group (if there is anything you’d like others to comment or discuss)?

 

Really looking forward to learning more from this amazing group. Perhaps one general issue I would have in mind is how the scholarship relates – implicitly or explicitly – with practitioners in the IP field (including negotiators in international organizations and scientists in laboratories), who may be not necessarily very welcoming of attempts to somehow challenge the foundations of the system they are so accustomed to.

 

Would you like to comment on Vitor Ido’s reflections? Please do so below or on twitter. @passimproject

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