Alain Pottage

Power as an art of contingency: Luhmann, Deleuze, Foucault

This article recovers the conceptual content of Michel Foucaults model of power as ‘action upon actions’. The principal argument is that the innovations of this model are intelligible only against the background of a broader social-theoretical distinction between ‘substance’ and ‘emergence’. The suggestion is that the idea of bio-power, as distinct from sovereignty, becomes clearer, and more productive, if it is seen as a figure of emergence. More specifically, it is suggested that the logic of acting upon actions, which encapsulates so many of the vital innovations of Foucaults account of power, may be defined as a relation of ‘non-indifferent difference’. In explaining these concepts, the article makes connections between Foucaults project and the work of Niklas Luhmann and Gilles Deleuze. The object of this method is to open Foucaults analyses of power to some particularly illuminating and incisive theoretical complements.

Figures of Invention: A History of Modern Patent Law

Taking the invention as its object of study, this book develops a radical new perspective on the making of modern patent law. It develops the first extended historical and conceptual exploration of the invention in modern patent law. Focussing primarily on the figures that make inventions material, and on how to overcome the intangibility of ideas, this intellectual challenging book makes explicit a dimension of patent law that is not commonly found in traditional commentaries, treatises and cases. The story is told from the perspective of the material media in which the intangible form of the invention is made visible; namely, models, texts, drawings, and biological specimens. This approach brings to light for the first time some essential formative moments in the history of patent law. For example, Figures of Invention describes the central role that scale models played in the making of nineteenth-century patent jurisprudence, the largely mythical character of the nineteenth-century theory that patents texts should function as a means of disclosing inventions, and the profound conceptual changes that emerged from debates as to how to represent and disclose the first biological inventions. At the same time, this historical inquiry also reveals the basic conceptual architecture of modern patent law. The story of how inventions were represented is also the story of the formation of the modern concept of invention, or of the historical processes that shaped the terms in which patent lawyers still apprehend the intangible form of the invention. Although the analysis focuses on the history of patent law in the United States, it develops themes that illuminate the evolution of patent regimes in Europe. In combining close historical analysis with broad thematic reflection, Figures of Invention makes a distinctive contribution both to the field of patent law scholarship and to emerging interdisciplinary debates about the constitution of patent law and of intellectual property in general.

Too Much Ownership: Bio-prospecting in the Age of Synthetic Biology

Taking the example of Craig Venters marine bio-prospecting expedition, this article explores the effects that bioinformatics and sequencing technologies have had upon the process of bio-prospecting. What kind of an aggregate is a collection that spans evolutionary ecologies, database logics and programmable synthetic organisms? And by means of what displacements, translations and topologies are genetic collections ‘made up’ in the age of bioinformatics and synthetic biology?

Law machines: scale models, forensic materiality and the making of modern patent law.

Early US patent law was machine made. Before the Patent Office took on the function of examining patent applications in 1836, questions of novelty and priority were determined in court, within the forum of the infringement action. And at all levels of litigation, from the circuit courts up to the Supreme Court, working models were the media through which doctrine, evidence and argument were made legible, communicated and interpreted. A model could be set on a table, pointed at, picked up, rotated or upended so as to display a point of interest to a particular audience within the courtroom, and, crucially, set in motion to reveal the ‘mode of operation’ of a machine. The immediate object of demonstration was to distinguish the intangible invention from its tangible embodiment, but models also ‘machined’ patent law itself. Demonstrations of patent claims with models articulated and resolved a set of conceptual tensions that still make the definition and apprehension of the invention difficult, even today, but they resolved these tensions in the register of materiality, performativity and visibility, rather than the register of conceptuality. The story of models tells us something about how inventions emerge and subsist within the context of patent litigation and patent doctrine, and it offers a starting point for renewed reflection on the question of how technology becomes property.

Law after Anthropology: Object and Technique in Roman Law

Anthropological scholarship after Marilyn Strathern does something that might surprise lawyers schooled in the tradition of ‘law and society’, or ‘law in context’. Instead of construing law as an instrument of social forces, or as an expression of processes by which society maintains and reproduces itself, a new mode of anthropological enquiry focuses sharply on ‘law itself’, on what Annelise Riles calls the ‘technicalities’ of law. How might the legal scholar be inspired by this approach? In this article, I explore one possible way of approaching law after anthropology, which is to find within law’s own archive a set of resources for an analogous representation of law itself. Drawing on the historical scholarship of Yan Thomas, I suggest that the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations.

How Europe's ethical divide looms over biotech law and patents.

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Ethics in rehearsal

In this essay we explore a rather spare kind of meeting: a conversation between three people with minimal facilitating equipment. The stakes are high because these are meetings in which the barrister in an asylum or immigration case first meets with a client who is at risk of deportation. We focus on two dimensions of these encounters. First, we identify the aesthetic that configures and animates most asylum cases: the aesthetic of inconsistency. The meetings we observed were all about inconsistency; about working out how to respond to actual and anticipated challenges to the coherence of a refugee or migrant’s personal narrative. The logic of inconsistency is so persistent and so corrosive that the exercise of anticipation – ‘rehearsal’ – is essentially open-ended. This leads to the second dimension of our meetings. Barristers who work in this area of law develop a particular style or ethos, which allows them to accompany vulnerable clients through the rehearsal and also to make sense of their own involvement in the machinery of deportation. In these two aspects we find the basic choreographic principles of our meetings: the articulations which shape their material and affective ecology, and which inform the barrister’s interpretation and performance of his or her professional role.

From theory to inquiry

This book recollects an experiment in collaboration.The guiding question was: ‘How should complexassemblages bringing together a broad range of diverseactors be ordered so as to make it more rather thanless likely that flourishing will be enhanced?’ (p. 41).Synthetic biology presented itself as a promising venuefor this reconstructive anthropological and ethicalanalysis because, by creating new beings and elicitingnew competences from life, it contributed to ‘aproblematization of things (ontology) that must betaken up, thought about, and engaged (ethics andanthropology)’ (p. 34). For the enterprise to be trulycollaborative, synthetic biologists would have had toacknowledge their implication in a heterogeneous,complex, and unstable assemblage of practices, and towork with the idea that analytical and ethicalequipment is not given in advance but formed up as a‘problem-space’ unfolds and ramifies, and, crucially, asthe human and the life sciences exchangecompetences. Apparently, these elite biologists werenot engaged by the challenges of contingentencounters; they were retrenched in an instrumentalapproach to the remaking of life, and in anunderstanding of ethical reflection as somethingexternal to science itself. The authors’ invitations tocollaboration were met with indifference,incomprehension, and hostility; their diagnosis is thatthey had experienced an exercise of ‘sovereign power’.Yet, in the mode of what Foucault called ‘

Lexical properties: Trademarks, dictionaries, and the sense of the generic

The third edition of Webster’s International Dictionary, first published in 1961, represented a novel approach to lexicography. It recorded the English language used in everyday life, incorporating colloquial terms that previous grammarians would have considered unfit for any responsible dictionary. Many were scandalized by the new lexicography. Trademark lawyers were not the most prominent of these critics, but the concerns they expressed are significant because they touched on the core structure of the trademark as a form of property in language. In the course of eavesdropping on everyday usage, Merriam-Webster’s lexicographers picked up on the use of trademarks as common nouns: “thermos” as a generic noun for any vacuum flask, “cellophane” as a term for transparent wrapping, and so on. If Webster’s Third were to be taken as sound evidence of the meaning of words, then the danger was that some of the most familiar marks in the USA would be judged “generic” in the legal sense, and would thereby cease to be proprietary. In this article, we explore the implications of this encounter between law and lexicographic technique.