A Tale of Two Histories: The 'Invention' and Its Incentive Theory

In Jessica C. Lai and Antoinette Maget Dominicé (eds), Intellectual Property and Access to Im/material Goods (Cheltenham, UK: Edward Elgar) 94-120 (2016)

Posted: 16 Oct 2017

See all articles by Jessica C. Lai

Jessica C. Lai

Victoria University of Wellington

Date Written: 2016

Abstract

The first thing we learn about patent law as students is that patents protect ideas. More specifically, they protect ideas that have utility or industrial application; in other words, not abstract ideas, but the applied. Implicit from the fact that patents are a type of intellectual property, they protect something immaterial; we are told to think in the abstract and forget about the material artefact in which it is embodied. This is because an idea can be embodied in different ways and we should see the invention as “an immaterial design or principle that shapes the external form and functionality of the material embodiment”. Yet, the line between the immaterial/material and the idea/embodiment have not always been so clear cut. In the least, the delineation has never truly been settled, but rather fluxes and fades or intensifies with changes in technology, society, and legal or economic theory or policy. Or more extreme, one could even argue that the demarcation, wherever it may be set, is nothing more than a legal fiction.

This Chapter highlights the interwoven nature of the “invention” and its physical embodiment or, in some cases, physical effects by relaying two histories. The first history concerns the development of patent law theory and policy. The second history addresses the progression of the understanding of the patentable “invention”. More concretely, Section 2 of this Chapter discusses how changes and developments in patent-law reasoning and policy show the importance of the tangible and intangible aspects of inventions. This is followed by Section 3, which looks at the terms “invention” and “manner of new manufacture” and how their judicial interpretation over the years has developed away from, but not quite shaken-off, the connection to the physical. Though the early history is naturally focussed on the English experience, it behoves us to broaden our exploration into the colonies when looking at more recent history and reference is also made to the US, Australia and New Zealand.

Keywords: patent law, theory, history, invention

JEL Classification: K11, K33, K39

Suggested Citation

Lai, Jessica C., A Tale of Two Histories: The 'Invention' and Its Incentive Theory (2016). In Jessica C. Lai and Antoinette Maget Dominicé (eds), Intellectual Property and Access to Im/material Goods (Cheltenham, UK: Edward Elgar) 94-120 (2016), Available at SSRN: https://ssrn.com/abstract=3053100

Jessica C. Lai (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
Wellington
New Zealand

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