The Patent Perplex

The modern patent system rests on the assumption that the temporary monopolies that patents provide are necessary to encourage invention, and thus produce economic growth and social benefit. But patents, as Stephen J. Miller clearly shows in “What Do Patents Mean?” (Issues, Spring 2019), are far more than simple legal and technical instruments that stimulate innovation and markets. They take on different meaning, he demonstrates, depending on particular business and university strategies, or on the perspectives of individual patent examiners and judges. In making this argument, Miller echoes the findings of a small body of qualitative—and specifically interpretative—social science and humanities research that has shown how patents and innovation are shaped, in fundamental ways, by historical, social, and political context.

Most studies of patents take a quantitative approach, and tend to treat patents as objective indicators. But qualitative scholarship can add analytic depth about how patents and patent systems work, including the values, assumptions, relationships, and social structures that underlie them, along at least four lines of inquiry.

First, it can offer unique insights into the relationship between patents and innovation. This includes investigating the motivations behind innovative activity, the circumstances where patents may stifle innovation, the role of intellectual property in comparison with other incentives for producing innovative and creative work, the similarities and differences in how intellectual property is treated across technical fields and industries, and the differences even within a technical field in terms of how players view and manage patents.

Second, it can help us develop a more nuanced understanding of intellectual property’s broader and sometimes indirect impacts. We tend to focus on how intellectual property rights shape science, technology, and commerce, but they influence politics and society too. For example, citizens are increasingly aware that patents can, in some cases, lead to high drug prices. Qualitative investigation can help us identify the complex circumstances in which patents limit access to technology, and cross-national approaches can help us identify policy levers that might be used to address these problems.

Third, we need to know how political context shapes both patent systems and patents themselves. My own research, for example, has shown that political culture, ideology, and history inform how patent systems understand their social and moral responsibilities and their roles in the governance of innovation more generally.

Finally, the qualitative research tool kit will be particularly useful for investigating the expanding world of alternative intellectual property regimes, including open science initiatives and public-private partnerships for drug development. Detailed ethnographic work and document analysis could identify how new rules for intellectual property and strategies for innovators are developing, from the bottom up. We need to fund this scholarship to enrich our understanding of the real world of intellectual property, and if considered seriously in our laws and policies, it can help ensure that patent and innovation systems fulfill their economic and social promises.

Shobita Parthasarathy