Patents In Action

In this paper I consider the construction of patents as social practices. The goal is to observe patents in action, that is, to catch patents in the act of becoming patents. This method of “following the action” is well established in the scientific arena, where the processes that lead from controversy to acceptance of stabilized scientific facts has been extensively explored. Given that patents share much of their form and language with technical literature, we might expect that patents also share many of the same mechanisms for semantic closure and stabilization. Indeed, much of the scholarship critiquing current patent practice implicitly assumes that the patent functions as a form of technical document.Careful consideration of the artifices by which a new patent is staged reveals parallels to the known staging of technical papers, including as the recruitment of rhetorical allies, semantic fortification against subsequent challenges, and trials of cognitive strength. In each situation, assertions about, respectively, science or innovation become coherent facts only if subsequent recipients are induced to accept them as such. But patents in action depart in significant respects from science in action. Patent formation employs its own decidedly non-scientific strategies for settling controversies and reaching closure. In particular, the patent is formed in a process that largely sidesteps the sociotechnical mechanisms of peer review and material experimentation, substituting instead a set of legal and procedural affordances intended to facilitate closure. Thus, following the action from which the stabilized patent is fabricated reveals the patent as a uniquely legal, rather than technical, social object