Influence of patent office procedures

Einsteins Implicit Theory of Relativity - of Cognitive Property? Unexamined influence of patent office procedures (Part #4)

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There is therefore a case for exploring the extent to which it was the discipline required of a patent clerk that -- to some degree at least -- moulded or predisposed Einstein's thinking to the formulation of the theory of relativity. Although his responsibility was evaluating patent applications for electromagnetic devices, and this is recognized as having influenced his subsequent interest (as argued by Peter Galison), the possibility as yet to be explored is that it was the mindset involved in considering the essentials of a valid patent application that influenced the generalization which is considered the mark of his own originality.

In the light of the legal concepts of patenting (see United States Patent and Trademark Office, Glossary), consider some of the potential or suggestive parallels to the status of "property" (and its "properties") in the most generic sense:

• an invention, understood as intellectual property and recognized and defined by some form of patent, can be understood as an invariant frame of reference (from the perspective of a particular observer or claimant). It is a particular pattern or configuration of elements, perhaps fruitfully to be seen through the perspectives of a constructivist or enactivist epistemology through which the process of "invention" occurs.
• a patent application must typically include one or more claims defining the invention. The pattern may therefore be partly composed of other patterns or frames of reference defined within it. Such an application may therefore be considered a form of request for recognition, or registration, of a particular frame of reference or perspective.
• the application, to be accepted, must comply with the requirements of the relevant patent law, and is examined for such compliance by a patent office. Generically this raises the question of the "law" arbitrating the relationship between distinct frames of reference and the nature of the authority empowered to recognize such distinctions and enable their enforcement
• in the application (and in exchange for the protection of rights) the invention must be sufficiently disclosed, in a clear and complete manner, to enable a person skilled in the art to carry out the invention
• to be patentable, namely acceptable as valid intellectual property worthy of protection by patent, the invention must have the characteristics of
  • patentable subject matter
  • novelty (in US patent law)
  • non-obviousness (in US patent law) or involve an inventive step (in European patent law)
  • utility (in US patent law) or industrial applicability (in European patent law)
• a patent is then a set of exclusive rights granted by an authority (typically a state) to the inventor or patentee. Generically this highlights questions about the nature of the authority empowered to grant rights sustaining such exclusive distinctions.
• these rights typically prevent or exclude others from making, using, selling, offering to sell or importing the patented invention. It gives the patent owner the right to exclude others from infringing the patent. Generically these can of course be seen as being at the root of (mis)understanding regarding the relationship between distinct belief systems and claims made with respect to them by the "patentees" -- especially when the granting authority is held to be divine.
• a patent enables the owner of the property to seek redress for patent infringement through civil litigation, typically the only means of enforcement. Generically frameworks are effectively empowered in some way to act in relation to one another but must seek arbitration regarding differences within a framework of laws.
• an important limitation on the ability of a patent owner to successfully assert patent rights in civil litigation is the accused infringer's right to challenge the validity of that patent. Civil courts hearing patent cases can and often do declare patents invalid.
• typically, rather than seek legal judgement, the patent owner will seek monetary compensation for past infringement, and will seek an injunction prohibiting the defendant from engaging in such infringement in future. Generically such compensation may be reframed as some form of energy transaction..
• the patent is granted for a fixed period of time, the patent term.

Given the dynamics of patenting strategies over time (as noted in Patenting strategies and avoidance of responsibility), notably in relation to the complex relationship between patents in partially related areas, it is intriguing to note the recognition of "patent space" (eg Gavin Clarkson, Patent Informatics for Patent Thicket Detection: a network analytic approach for measuring the density of patent space, 2005) as a a degree of formalization of "knowledge space".

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