The Nebulous 'Invention': From 'Idea and Embodiment' to 'Idea/Embodiment and Observable Physical Effects'?
In Jessica C. Lai and Antoinette Maget Dominicé (eds), Intellectual Property and Access to Im/material Goods (Cheltenham, UK: Edward Elgar) 121-145 (2016)
Posted: 16 Oct 2017
Date Written: 2016
A core tenet of patent law is that it protects ideas or intangible “inventions” and not their physical embodiments. Indeed, modern patent law theory grounded around the the “quid pro quo” or “social contract” holds that we need patents in order to ensure that inventors disclose their inventions. As a society, we are interest in having the idea or “invention”, or store of knowledge, and it is the invention as described in words in a patent specification that is protected. Patent law does not protect particular embodiments of the invention and we do not theorise patent law around public access to those embodiments. Yet, despite patent law being “intellectual” property, history shows that it has never protected the fully abstract. Some tie to physical materiality has always been required. This chapter shows that this continues to be the situation today. Focusing on information-based technologies, it looks at the different ways that Europe, the US and Australasia have recently dealt with software, business methods, biotechnology and methods of diagnosis.
Keywords: patent law, invention, materiality, physical effect, embodiment
JEL Classification: K11, K33, K39
Suggested Citation: Suggested Citation