Making Patents and Intellectual Property Work

Abstract

Patents are a performance , in both their creation and subsequent enactions. They require skill, tacit/embodied knowledge, and practice if they are to be successfully enacted. Western intellectual property law, however, is blind to the performative aspect of patents. This sociolegal reality has helped to create significant asymmetries between nations, particularly after the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) exported Western patent law to all corners of the globe. The article begins by reviewing the philosophical underpinnings of Western patent law, focusing specifically on those aspects that locate intellectual property within the disembodied subject. Next, attention turns to detailing the formation and implementation of TRIPS. Two asymmetries created by TRIPS are then discussed, which take place at the front and back ends of the patenting process. When taken together, these asymmetries work to further lock in global inequalities. The article concludes with suggestions about how these global inequalities might be reduced in light of this argument.