The Construction of Legitimacy in European Patent Law

Abstract

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