Interdisciplinary Reflections on ‘Patents as Capital’ with Susi Geiger

 

This blog post is the second part in a PASSIM blog series where invited scholars reflect on patents as capital from an interdisciplinary perspective.

Susi Geiger is a Professor of Marketing & Market Studies at University College Dublin and the Principal Investigator on an ERC Consolidator project “MISFIRES” (2018-2023) project. MISFIRES asks how actors can engage with a market’s failures to challenge its organisation and make it more collaborative, more open to civic values and to social or political concerns. More broadly in her research Susi tries to figure out how complex markets are organized, with specific interests in technology and healthcare markets. She has published numerous articles in outlets including Organization Studies, Research Policy, Entrepreneurship Theory and Practice, Business & Society, and Journal of Cultural Economy.

Susi Geiger and MISFIRES are on Twitter: @complexmarkets @MISFIRES_ERC

 

1.why do you study patents?

 

Together with the ERC research group that I’m leading, I am researching ‘concerned markets’, that is markets where multiple actors’ interests, values and concerns clash (Geiger et al. 2014). In healthcare, such concerns include for instance those of patients and their advocacy groups, healthcare providers, civic society, governments, pharmaceutical firms, generics manufacturers, and health insurers, and could revolve around prices of medicines, access to innovative drugs, sustainability of supply and other issues. We are interested in how healthcare markets are organised, and how they could be organised better to take account of these various concerns. Patents are one of the strongest market shaping mechanisms and of central importance in healthcare as they will confer a legal monopoly onto innovative pharmaceutical companies for up to 20 years at a time (and sometimes longer, if we consider patent ‘toolbox’ strategies such as evergreening or the use of supplementary legal safeguards). This will have effects on pricing, on the negotiation strength these firms have vis-à-vis government buyers, on the entry of generic competitors, on innovation elsewhere in the system (through the use of patent ‘thickets’ and defensive patenting). Essentially, pretty much every aspect of the healthcare market is shaped through the patent system, therefore it is vital to understand how exactly it works – and again, if there are any alternatives to it that could make the market work ‘better’ (what ‘better’ is, and if it is indeed required, is of course in the eye of the beholder).

 

2. how do you understand patents as capital?

 

I consider patents in the context of the so-called financialisation of the pharmaceutical industry. According to financialization scholars, biopharmaceutical firms have, for some years now, focused more on a ‘rentiership’ than on an innovation business model. The latter would see vertically integrated pharmaceutical firms investing in a research and development pipeline that leads all the way from fundamental R&D efforts to post-market pharmacological surveillance in the interest of manufacturing innovative medicines to serve the world’s population. The former ‘financialized’ business model describes a strategic stance that can be characterized by six broad practices: First of these is the replacement of in-house R&D with the sourcing of external R&D through acquisitions or alliances with smaller biotech firms, which arguably lessens the risks large pharmaceutical firms need to take (Andersson et al. 2010). Second, pharmaceutical firms have been accused of a focus on what are often seen as modestly innovative but lucrative ‘blockbuster’ drugs that may yield revenues in excess of US$1bn per year, perhaps to the detriment of focusing on less lucrative but more pressing disease categories (Li 2014).  Third, they are increasingly adept at wielding a toolkit for strategic patent management, which for instance includes the so-called evergreening or incremental innovation of branded drugs to elongate their patent protection periods (Finch and Geiger 2011; Geiger and Finch 2016). Fourth is the exploitation of dominant market positions to extract arguably excessive rents in the form of high prices for medications from national and private healthcare payers (Roy and King 2016; Glabau 201; Gabaldon 2018). Fifth, and relatedly, reinvestment of these super-normal profits increasingly takes the form of share buybacks rather than future-driven R&D investments (Lazonick and Tulum 2011; Lazonick et al. 2017). Lastly, pharma has witnessed the emergence of pure ‘rentiers’ or ‘functionless investors’ ( van der Zwan 2014) in the form of so-called patent trolls or ‘Non-Practising Entities’ that buy and sell patents purely for financial gain (see also Kang 2015). In a nutshell, the financialization thesis portrays biopharmaceutical firms as viewing their drug portfolios as assets to be exploited through rent-seeking behaviors rather than instruments through which to ensure and enhance the public good. The patent, in this business model, turns from technological signifier to financial asset – or capital – to be bought and sold, banked and speculated upon, strategized and preempted.

 

3. how does your work relate to this understanding?

 

In our empirical work we observe how activists in the access to medicines space have turned their attention to patents in recent times. Of course, patents have always represented a bone of contention between access activists and innovator firms, particularly in the Global South where patent contestations by activists and governments have a history since the late 1990s AIDS crisis. However, it is only in recent years that activists in high income countries have focally taken on and contested patent decisions for instance by the European Patent Office. Assets can only be assets if and when they are specific, exclusive, and (typically) immutable.  The cases we have traced in our work reveal the gaps left open in the process of enclosure of ‘patents as capital’. These gaps can be grasped not only by rival companies wishing to gain a piece of the market pie, but they can also help other actors – for instance civil society or social scientists – analyse and/or contest the ‘asset condition’ (Muniesa et al. 2017 p. 34) of the biopharmaceutical enterprise. For instance, in one high-profile case of the Hepatits drug Sofosbuvir, since its launch and the associated public outrage its inflated price point caused, the mantle of patent contestant has been taken over from Gilead’s pharmaceutical rivals by civil society. In 2015 and 2017, the NGO Médicins du Monde led a group of activists into two patent oppositions that, interestingly, did not make appeal to the drug’s ethical and moral entanglements but that referred back to potential weaknesses in its patentability by referring chiefly to its lack of novelty –conjuring up its traces in extant HIV and Hepatitis C research much like the earlier patent disputes among private firms did . As an extension of the toolkit wielded by social movements around access to medicines, such patent contestations are becoming an important part of an increasing resistance against biopharmaceutical financialization.

 

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

 

Patents are complex entities (one would even say they are ontologically multiple). They have legal, technical, commercial and social lives, and they perform and are understood differently in each of these networks. In order to study patents-as-capital comprehensively, perspectives including those of law scholars, STS researchers, economic sociologists, institutionalists and technical specialists need to be integrated and connected. In short: to study something that is ontologically multiple requires epistemological multiplicity – though this requires building, to speak with Galison, ‘trading zones’ of interdisciplinary research between such different academic disciplines.

 

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

 

How can we go beyond the statement that ‘patents are capital’ to envisage and enact alternative and perhaps more ‘moral’ conceptions of technical ‘enclosures’? Commons, open science, sharing, license pooling, … ?

As technological signifiers and innovation signposts, patents are a one-size-fits all mechanism. While ‘breaking up’ the patent system – a system that has solidified over centuries into what it is today – is clearly not a realistic goal, what can scholar-activists contribute to nuance what has become a globally uniform and often very blunt instrument?

 

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

Interview with David Pretel

David presenting his paper “On Historicizing Institutional Diversity: Why and How Study Colonial Patent Cultures?” on September 12, 2019.

This week, we were supposed to welcome the participants joining us for our second PASSIM workshop, “Patents as Capital,”. But we’re not.

Awaiting September 7-10, 2021, when we look forward to doing so IRL, I reached out to David Pretel, who gave a presentation at our first workshop in 2019: “Intellectual Property for the Un-disciplined,” and asked him a few questions about the workshop and about his work.

Eva: David, we first met because you sent in a proposal to our inaugural PASSIM workshop, “Intellectual Property for the Un-disciplined,” (September 10-12, 2019). This workshop was deliberately designed to act as a kick-off for the project by exploring both theoretical and methodological questions around intellectual property as a research field, bringing together a group of people interested in the interdisciplinary study of patents in particular. Can you tell us a bit about why PASSIM caught your eye in the first place and what your hopes were for the workshop? And of course, what did you think of the event?

David:  Your call for proposals immediately caught my attention. I had recently finished a book on the history of the Spanish patent system during the 19th century, and by then, I was convinced about the benefits of an interdisciplinary study of patents.  My research lies at the intersection of the history of technology and economic history, but I also build upon the work of legal and STS scholars. I have a particular interest in exploring the international dimension of patent institutions as transnational patenting frequently involves not just the international transfer of rights, and eventually technologies, but also the transmission of ideas, perceptions and information. The examination of institutional diversity and administrative agency are other central issues of my work, particularly the role of intermediaries and lawyers in shaping and mobilizing patent rights, information and knowledge at the national, international and imperial levels.

The workshop was extremely well organized and intellectually challenging, yet friendly and supportive. In the workshop, I talked about the relationships between empires and patent rights. I challenged the standard view of colonial patent regimes as imposed by imperial metropolis in a context of the making of an international patent system. Rather than advancing the idea that the global spread of patent regimes was the result of imperialism, in my presentation, I showed that the processes of empire-building resulted in multicentric and fragmented colonial patent cultures adapted to local conditions in which metropolitan states were distant authorities.  I am very grateful for the incisive comments and suggestions of the PASSIM team and the distinguished invited discussants.

Eva: As the PASSIM-team went through the submissions to the first workshop, we decided that it would be a great idea if we could invite one of the participants to stay on for a bit longer in conjunction with the workshop – and that we would do the same for the two subsequent workshops we were committed to hosting. We felt that this initiative would enable us to benefit from extending the discussions and networking of the workshop. We immediately saw that your particular disciplinary experience from economic history and your competence and interest in patents and colonial history, was a profile complementary what we already had in place. We were spot on, of course! Could you say something about your stay as a PASSIM “special guest” and what you took with you from your time with us in Norrköping and Uppsala – where you gave a talk at the Law Department and, I think, also reconnected with old acquaintances?

David: I was honoured of being the first PASSIM “special guest”, and I see now that the forthcoming guests are prominent scholars who have produced groundbreaking research on patents and technology studies. It was my first time in Sweden, but I felt at home all the time and everything was perfect (except a flight delay, for that, of course, I cannot blame PASSIM!). You and Mattis thought about all details and arranged a very intense tour of events, visits and restaurants!

I gave four talks in two weeks to very different audiences, so I had to adapt my presentations accordingly – difficult but rewarding. In Uppsala UniversityI gave a lecture to Marianne Dahlén’s students in law and a research seminar at the law department which was quite challenging for me as someone initially trained in economic history. I would also like to thank Marianne for her warm reception and for showing me around Uppsala. I especially enjoyed our fun visit to the Museum Gustavianum and its anatomical theatre (thanks for the photos!) All in all, my time as PASSIM guest was very productive as it allowed me to discuss our common research interests – such as the history of the organization of patent information and the backstage bureaucracy – not only at the workshop but in more informal situations.

Eva: This “mini-interview” takes place almost a year after your visit, and things could not be more different. As the Covid-19 pandemic struck during the spring of 2020, the world changed. As far as PASSIM is concerned, we decided to postpone our scheduled workshop, “Patents as Capital,” from September 2020 to September 2021. Of course, at the time of writing we don’t know anything about what Fall 2021 will look like. Fingers crossed that we’re able to pull off our workshop on “Patents as Capital,” in September 2021. This time, we’ll have two special guests: Mario Biagioli (UCLA) and Sarah de Rijcke from Leiden University. Covid-19 has of course caused postponements and cancellations of various academic activities such as conferences and workshops, but also made it difficult to undertake fieldwork as well as archival work. How has it affected you, David? Especially given that you work in Barcelona, a city hard hit by the pandemic?

David: The Covid-19 pandemic has changed everything. The situation in Spain is dramatic as the country is not prepared to face this supervening situation. We are lucky to have excellent health professionals but the budget cuts of the last decade and the previous crisis have left the health system with fewer resources to deal at the same time with the pandemic and other serious illnesses. My impression is that the political response in Spain has been satisfactory, but another prolonged economic crisis will have devastating effects and deep inequalities in Spanish society.

The changes in the way we do our work as academics are much less dramatic – we are somehow privileged as we could keep working from home and teach online. Many events and research exchanges have indeed been disrupted. For instance, I was going to visit Harvard this autumn, but I’ve had to postpone it. The same for academic activities; I was going to present at several conferences this year, such as the AHA annual meeting, but they have been cancelled or postponed. I am sure there will be more opportunities in the future, though, we cannot stop doing plans.

However, for historians, the hardest is to continue writing and publishing without the possibility of carrying archival work at the moment.  I had planned archival research in Mexico and the United States during 2020 and early 2021, and I’ve postponed it, which means that some of my projects and publications are in standby.  The bright side is that we are slowly learning to teach and exchange ideas online. Of course, it is not the same as meeting in person, but non-stop travelling was unsustainable for the environment and for our personal lives.  I hope that when the pandemic is resolved – fingers crossed- we won’t come back to our old harmful habits and try instead to combine the online with the presential, when possible.

Eva: Looking two years into the future might seem a bit premature under today’s circumstances. Yet, PASSIM will come to an end in 2023 and for our final conference (which I think is likely to be something smaller, like a workshop or symposium) we will invite our “special guests” to join us for a discussion on the work that we’ve done in the PASSIM project. David, we hope to see you here in Norrköping for this concluding event, which will open for all sorts of questions on the future and the past of patents, as law, as information system, as documents. If you look ahead to 2023 and reconnecting with the PASSIM team; what are your thoughts on the theme “Patent Futures: A History”?

David: The theme of the final conference is very intriguing. As most historians, I feel more comfortable debating about the distant past and, therefore, I assiduously avoid talking about the future or give policy recommendations. That said, I find PASSIM final conference as an opportunity to learn about innovative approaches and discuss future research. In this regard, I’m interested in presenting my work on the early history of Latin America’s contested integration into the international patent framework between two ubiquitous historical landmarks: the 1883 Paris Convention and the 1994 TRIPS agreement. Another topic that I could discuss at your conference is the case of some early patents on techniques of primary processing of rainforest products and their itineraries from Latin American commodity frontiers to US and European research laboratories and patent offices.

But above all, I am looking forward to coming back to Norrköping and reconnect with the fantastic PASSIM team and its associated scholars and guests.

Eva: Thank you, David, for taking the time to answer my questions. The entire PASSIM team looks forward to meeting you again at the final conference!

Fall 2020 thoughts

 

So, summer is almost over. Fall term has arrived, but in a different shape that what we’re used to. The Covid-19 pandemic completely dominated our lives—private and professional—during the Spring, and will continue to dominate our lives in the forseeable future as well. There is no doubt that our work in PASSIM has been affected. We’ve postponed our second workshop, originally planned for next month – “Patents as Capital” is now rescheduled for September 2021. Five of the PASSIM researchers submitted a panel entitled “Patents as Scientific Information – Four Translations” to the 2020 Annual Meeting of SHOT (Society for the History of Technology). Although we were delighted to be accepted, the conference has been postponed until Fall 2021, when we (José Bellido, Johanna Dahlin, Mattis Karlsson, Isabelle Strömstedt and myself) hope to be able to travel to New Orleans and meet old and new PASSIM acquaintances. Not being able to travel to conferences or hosting them ourselves is one thing, but far more problematic is the fact that fieldwork as well as archival research is now on hold. It really shows how much those desired “outputs” depend on “input” that we’re now unable to access and process in ways that we’ve become completely used to. I’m not sure it’s an altogether bad thing: at least not in terms of realizing how much we can do online in terms of meetings and mining digitized material from our home offices. However, the personal interaction and the stimulus of working in a group such as PASSIM cannot be replicated in any other format than IRL. Having said that, we hope to keep the PASSIM-momentum going during the Fall of 2020. We hope that you’ll follow us trying. And we hope that you’ll stay in touch.

PASSIMer of the month (Isabelle)

I am a Ph.D. candidate with an interest in how the patent office was constructed and presented to the public. My dissertation is part of the PASSIM project and explores the history of the Swedish Patent and Registration office, and how they created and communicated their history. As a Ph.D. candidate it is a privilege to be part of PASSIM and get a chance to learn from, and discuss research with, such established scholars and researchers.

My first article is about the jubilee exhibition of the Swedish Patent and Registration Office in 1941, and what kind of display technologies and narratives that were used to educate the public about the patent office and the patent system. My dissertation will contribute insight into how culture conventions and dominant norms have shaped the construction of the Swedish Patent and Registration Office narrative, and how the history was presented to the public discourse. I have been academically trained as an interdisciplinary researcher with a bachelor- and a master’s degree in culture, society, and media at the Department for Studies of Social Change and Culture at Linköping University.