Technical Speech: Patents, Expert Knowledge and the First Amendment
70 Pages Posted: 18 Mar 2015 Last revised: 21 Mar 2016
Date Written: 2015
Patent law, in its simplest abstraction, is the study of what inventors say. History notes the documentation of the inventor’s speech as a revolutionary departure in the representation of inventions that focused on material embodiment like working models. The patent specification textualized the invention paving the path for the development of the modern patent system that concerned itself chiefly with the ways in which these documents were drafted, registered and interpreted. Patent specifications articulated and codified the technical speech of inventors who were usually experts in their fields. The Patent Office performed the task of verifying such speech by checking the validity of the patent for its novelty and adequacy of disclosure. By doing so it acquired the new function of certifying expert knowledge. The First Amendment through the value of democratic competence preserves the disciplinary practices that create and certify expert knowledge. It protects the peer review of expert knowledge from the intervention of the state. Peer review of patents is critical especially when the state performs the role of certifying such knowledge through the Patent Office. The absence of ex ante peer review in the patent system undermines the process of certifying expert knowledge. The value of democratic competence is potentially at risk when the state compromises the transmission of expert knowledge.
Keywords: patent specification, working models, novelty , adequacy of disclosure, expert knowledge, First Amendment
JEL Classification: O31, O34
Suggested Citation: Suggested Citation