The Construction of Legitimacy in European Patent Law

2017(3) Intellectual Property Quarterly 221-244

57 Pages Posted: 14 Oct 2016 Last revised: 26 Jul 2018

See all articles by Siva Thambisetty

Siva Thambisetty

London School of Economics and Political Science

Date Written: February 1, 2017


Different elements in the patent community speak of inventions and the criteria through which property rights may be granted or withheld from them in ways that are often incongruent. In large part this is due to disagreements about the functional, if not normative legitimacy, of many patentability standards. This paper examines how the European Patent Office’s (EPO) practice Examination Guidelines designed to be a prosaic guide to legal standards, transforms contested inventive matter and methods into patent claims. In doing so these Guidelines manage and manipulate the legitimate expectations of the patent community. The analysis makes the broader conceptual point that patent law standards are shaped by a version of ‘textualisation’ that relies on linguistic and rhetorical structures to cumulatively entrench meanings, and manage the acceptance of the EPO’s legal positions by those who are governed by them. The scale of textualised outcomes in patent law is a threat to coherence but also explains the EPO’s ascendancy in the regulatory sphere.

Keywords: Legitimacy, Patent Office, Examination Guidelines, Textualisation, Diagnostic Methods, Swiss-use Claims, Patentability

JEL Classification: K1, K2

Suggested Citation

Thambisetty, Siva, The Construction of Legitimacy in European Patent Law (February 1, 2017). 2017(3) Intellectual Property Quarterly 221-244, Available at SSRN: or

Siva Thambisetty (Contact Author)

London School of Economics and Political Science ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom


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