Brad Sherman

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.

Appropriating the Postmodern: Copyright and the Challenge of the New

UCH ACADEMIC energy has been dissipated in chronicling the various changes that have occurred in copyright law. Indeed, one of V1 the most common forms of writing within this area focuses upon the problems that new subject matter poses for the law. Commentators have recently reminded us, for example, that copyright law is unable to accommodate ’new’ forms of cultural creation such as Aboriginal art, databases and digital sampling in music, film and video (Sutton, 1988; Hayward, 1991; Wallis, 1984). While the theme of the challenge of the new continues to dominate in the literature, there has, in recent years, been a change in the way copyright law has been presented. Instead of merely outlining the problems posed by a particular new technology

What Is a Copyright Work

The work, which came into its own with the emergence of modern copyright law at the turn of the twentieth century, occupies a pivotal (but largely unexplored) position in copyright law. Focusing on the question of how copyright decides whether part of a work should be treated as a separate and distinct object, this Article looks at some of the techniques that copyright law uses to decide both what is a work and when a new work comes into being. The Article shows that in spite of the central role that the work plays in copyright doctrine the law is not well equipped to explain when a new work has come into being.

Law, Accounting and the Emergent Positivity of Intangible Property

HAT DOES it mean when our judges look beyond their legal B ~ heritage, beyond the cases that they so jealously revere and through which their authority is reproduced? What are we to make of it when these same judges reject legal definitions of such a fundamental and frequently used term as ’goodwill’, implying that its meaning should be determined not in the field of law but in the commercial world of accountancy? Do lawyers and accountants mean such different things when they appeal to concepts of intangible property? In this essay we approach these questions on three levels. First, we consider the nature of legal and accounting work and the way in which their respective fields interact. Secondly, we draw upon this picture of law and accountancy to examine the manner in which intangible property is recognized and made real within legal and accounting practices. In particular we compare developments in UK trademark law in the 1930s with recent changes in brand accounting. We argue that the emergence of new conceptions of intangible property within legal and quasi-legal frameworks reflects processes which are both constitutive of their reality, and also shape a volatile jurisdiction of expert definitions and strategies within a multi-disciplinary field. Thirdly, although we highlight the different ways in which the intangible is constituted in law and

Intangible machines: Patent protection for software in the United States

Intellectual property law has been interacting with software for over sixty years. Despite this, the law in this area remains confused and uncertain: this is particularly evident in patent law. Focusing on U.S. patent law from the 1960s through to the mid-1970s, this article argues that a key reason for this confusion relates to the particular way that the subject matter was construed. While the early discussions about subject matter eligibility were framed in terms of the question “is software patentable?”, what was really at stake in these debates was the preliminary ontological question: what is software? Building on work that highlights the competing ways that software was construed by different parts of the information technology industry at the time, the article looks at the particular way that the law responded to these competing interpretations and how in so doing it laid the foundation for the confusion that characterizes the area. When engaging with new types of subject matter, patent law has consistently relied on the relevant techno-scientific communities not only to provide the law with a relatively clear understanding of the nature of the subject matter being considered; they have also provided the means to allow the law to describe, demarcate, and identify that new subject matter. The inherently divided nature of the nascent information technology industry meant that this was not possible. As a result, the law was forced to develop its own way of dealing with the would-be subject matter.

From Terroir to Pangkarra: geographical indications of origin and traditional knowledge

There has been a marked increase over the last few decades or so in the number of countries which recognise and protect Geographical Indications of origin (GIs). There has also been a steady expansion in the types of things that are protected. While this is not that surprising given the growing interest in slow food and traditional products, what is more surprising, at least at first glance, is the increased attention that has been given to the potential use of GIs to support and promote Indigenous interests. GIs have been associated with Indigenous traditional knowledge in two ways. Firstly, it has been suggested that they could be used as a mechanism to protect and sustain Indigenous interests. This is because, as the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore noted, some traditional cultural expressions may qualify as goods which could be protected by geographical indications. Secondly, and more ambitiously, it has also been suggested that the regimes used to regulate GIs might be used as a template on which sui generis schemes to protect Indigenous knowledge might be modelled.

Facilitating access to information: understanding the role of technology in copyright law

Copyright law is, and has always been, a creature ofteclmology. From tbe printing press, tbe telegraph and tbe camera, through to tbe phonogram, tbe photocopier, tbe tape recorder, tbe personal computer and tbe Internet, technological developments have always driven and shaped copyright law. As well as creating new types of potential subject-matter, technology is also deeply implicated in tbe definition of the subject-matter of copyright (a subject-matter d1at has constantly been renegotiated in response, in part, to technological change). Technology also provides new ways to reproduce, distribute and consume copyright works. Botb hero and villain, creator of opportunities and problems, generator of solutions as well as the means to counteract or circumvent those solutions: the role of technology in copyright law is complex, changing and contradictory. The aim of tbis chapter is to explore tbe role tbat technology plays in facilitating access to information and creative outputs. To do this we will focus on tbe 1956 British Copyright Act tbat was, in part, introduced in response to a ·variety of technological changes tbat had occurred since tbe 1911 Copyright Act was passed. More specifically we wish to look at tbe way tbat copyright law reacted and responded to two of tbese technologies: namely, television and photocopying. As well as being important topics of study in tbeir own right, tbese studies also offer insights into some of tbe problems and issues currendy confronting copyright law and policy. In part, tbis is because we are still using many of tbe legal techniques tbat were developed or modified in response to tbose technologies. They are also important because tbey can help us to assess some of tbe historical claims tbat underpin contemporary arguments and debates. Historical arguments take many forms; one of tbe most common being tbe comparative claim about how different a particular new problem is from what has gone before. For example, many claims have been made about how fundamentally different tbe problems