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Are Patents Property? Depends on what you mean…

By Gordon Hull

The Supreme Court issued a landmark patent ruling yesterday in Oil States v. Greene.  The most recent major revision to the Patent statute specifies that the validity of patents – in terms of whether they meet conditions of patentability (utility, non-obviousness and novelty - the opinion does not directly specify whether questions about patentable subject matters are included here, but it cites §101, so I think that’s probably covered too)  – can be challenged and resolved through an administrative inter partes review.  This review process has a number of procedural requirements, but at the end of the day the decision reached can result in a patent revocation and is conducted entirely within the administrative apparatus of the PTO.  The question posed is therefore whether the government can revoke a patent without going through the courts.  The answer delivered in a 7-2 opinion by Justice Thomas, is yes.  I haven’t digested the opinion fully, and there was another, somewhat related case yesterday that I haven’t even started on.  That said, Oil States is a very interesting decision, including the dissent authored by Justice Gorsuch.  Here’s some initial reflections on it (I did some context-setting earlier: see here).  I’ll first talk about the opinion, and then end with a thought about the underlying policy problem, for which inter partes review is basically a band-aid solution.

The basic argument of the opinion is that patents aren’t private property so much as they are a public franchise, and as such aren’t the sort of thing the Constitution is talking about when it says property claims have to run through the judicial branch.  As Thomas argues, “the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise” (op. slip, 7, his emphasis).  As 19c case law establishes, a patent “take[s] from the public rights of immense value, and bestow[s] them upon the patentee” (op slip, 8), by granting a right of exclusion (traditionally the core of property).  It does so to incentivize invention.  It then follows logically that the decision to remove a patent is also a matter of public franchise.  Thomas cites a 1966 ruling that administrative review covers the “issuance of patents whose effects are to remove existent knowledge from the public domain” (8-9).  In other words, if the patent doesn’t cover something novel, it takes knowledge that was available to the public and privatizes it.

The ruling strikes me as exemplifying what I call “public biopolitics,” which is basically the pre-neoliberal version that Foucault identifies (especially in Security, Territory, Population and Birth of Biopolitics) with classic liberalism.  They don’t quote Mill, but the opinion is the sort of thing that the Mill of the Principles of Political Economy could get on board with. For example, Mill justifies the departure from laissez faire on the grounds that inventions are of tremendous public value, but require nurturing by the state. Similar instances of justified state intervention include public funding of things like universities (p. 968).  He also explains what happens in terms of a publicly-granted patent license: “this is not making the commodity dear for [the inventor’s] benefit, but merely postponing a part of the increased cheapness which the public owe to the inventor, in order to compensate and reward him for the service” (p. 928). Thus, even in the case of patents, Mill conceives of the production of knowledge as the production of something that benefits the public generally, and which the application of laissez-faire will not supply. The point is not to internalize externalities for the sake of the inventor.  This sense of knowledge as a public good is specific to modern liberalism.  As Foucault puts is, “activity that may go beyond this pure and simple subsistence will in fact be produced, distributed, divided up, and put in circulation in such a way that the state really can draw its strength from it” (STP 326).

Facebook and the Dispossession of Preferences

By Gordon Hull

A little more than a year ago, I floated a version of the thesis that Big Data functions as a form of capitalist accumulation by dispossession.  “Accumulation by Dispossession” is David Harvey’s term for what Marx called “primitive accumulation,” and the basic idea is that capital has to extract value from individuals in a way that pushes them into its system of value extraction.  It does that by depriving them of other sources of value.  For example, the enclosure laws in 16^th-Century England served to dispossess commoners and small-scale farmers of the ability to subsist off the land, and so thrust them, “free” into the urban labor pool.  Absent this initial dispossession, the formation of the urban market in “free labor” would have been impossible.  My argument focused on the dispossession of preferences, and was that data analytics function to deprive us of the capacity to form and express preferences outside of the logic of capitalist markets.  That is significant because the more our “preferences” are restricted to those things that we can buy, the more our lives are determined by market logic – and the more things that exceed market logic become invisible.  We are dispossessed of the ability to imagine life differently.

So.  Back to Facebook.  A recent piece by Sam Biddle in the Intercept, based on a leaked internal FB document, suggests that Facebook is deeply engaged in exactly this process.  According to Biddle: