Case 1: common knowledge
The duty (a duty owed to progress and prosperity) to share information is already inscribed in the patent.2 This is a prime example of an external ethical principle that has been thoroughly internalised.
It is so taken for granted as one of the axiomatic conditions of patent holding (it is of course formally impossible to acquire patent rights without fully publishing information related to the invention in question) that it is generally flagged as at once a justification for and the prime benefit of the patenting system. The principle is constantly evoked in the new public agora (Nowotny et al. 2001) attuned to the increasing visibility of patent regimes in both business and the life sciences. For the principle retains its external status as an effect or outcome of the patenting system that belongs to the realm of general contributions to the public good, and is not part of the negotiations that ordinarily take firms to the Patent Office.3However, there is a further outcome of this internalisation, the desirability of publishing technoscientific information, which produces the obverse effect and projects internal motivations outwards. It derives from routine assumptions about behaviour: information is a desirable insofar as people expect to act on it. Such an expectation has the effect of speeding up the extent to which people then act with others in mind; they take anticipatory action precisely because they can predict - or imagine they can - what effect the information will have on these others, namely that they will desire to use it. Andrew Barry (2000: 64) comments on one kind of anticipation, and I shall develop his example.
As a cumulative effect of patenting under conditions of rapid technological change, ‘Patents are acquired in order that others may not acquire them’, with the consequence that ‘Invention by others has to be stifled, or anticipated in advance, for rapid technical change to occur in the present.’ Barry continues: ‘Moving things rapidly may increase a general state of inertia; fixing things in place before alternatives have the chance of developing’ (2000: 64), that is, framing becomes a blocking device.
It contributes to what he calls the anti-inventive logics of industrial development: technical change that allows no pause thereby guards against the unpredictable. Under technical changes we may subsume business techniques.4 Competitors are kept out of the market by pre-emptive patents. In the US, after the prevention of copying ‘the prevention of rivals from patenting related inventions, which we call patent pre-emption or blocking, [is shown] to be the most pervasive motive for patenting’ (Cohen et al. 2000: 21).5Patent blocking takes one of two forms. First, the target may be potential substitutes created by others ‘inventing around’ the original invention. ‘In this setting, firms wishing to protect some patented core invention may patent substitutes to foreclose that possibility to rivals, building what is sometimes called a “patent fence”’ (Cohen etal. 2000: 22). Such patent blocking, they add, is nothing new, and they cite the famous 1940s case of du Pont’s patenting of over 200 substitutes for nylon to protect its own core invention. This is the defensive patent put into place for the kinds of reasons to which Barry’s arguments apply. In essence, the intention is to stop others from calculating the likely advantage of inventing around another’s patent by claiming as large a cognate field as possible, ‘laying claims to a territory in order to ensure that others do not get there first’ (Barry 2000: 65). In short, the pre-emptive strike lies in preventing competitors from acting on information that is released into the world; for those who take action project the possibility of so acting onto their competitors who themselves become the reason for companies taking out patents.
In the second type of patent blocking practice, traffic is often two-way. Patent holders may instead try to force entry into areas being developed by their rivals. ‘Because no one firm can move ahead on developing and commercializing new technology without access to rival technology, incumbents can use their patents as bargaining chips either to compel their inclusion in cross-licensing or at least secure the freedom to move ahead on similar technological efforts without being
Externalities in comparative guise 69 sued’ (Cohen et al.
2000: 22). This kind of patent may thus earn money for the patent holder (through license fees) regardless of whether it in itself leads to a direct product. It has been called ‘block to play’. The situation typically arises when it is impossible to proceed with any single invention because the development to product stage will depend on a complexity of inter-related inventions, and firms must dovetail their patent portfolios. So a firm will hold on to access to a piece of knowledge that may be useless by itself, in order to be able to trade on its usefulness for others. Again, this is nothing new: creating utility has always been true of industrial production (without the factory the worker’s labour has no value). Patents measure the significance of each item of information and give it value. Equally to the advantage of the patent holder has become the issue of how narrow or how broad any one patent will be. The tinier the fragment of information which will qualify as an invention, the more patents will multiply;6 the broader the patent, the more a single firm will attempt to underwrite or encompass the efforts of many others.7 Disease gene patents are a growing phenomenon here; these are patents which lay universal claim to methods for diagnosis of a particular genetic condition, that is, they cover all or any methods of looking at a disease-associated locus for the purpose of diagnosis (Merz 1999).8 These may lead to ‘the imposition of stifling reach-through conditions on licensees... (e.g. rights of first refusal or compulsory cross licensing of related discoveries)’ (1999: 326).9 At any rate, in this scenario competitors are also co-patent holders. They become collaterals in the enterprise.Either way, competitors thus become drawn into one another’s domains of action. We are back in the market where calculative agencies inevitably attend to the calculations of others: ‘once framed, each agency is able to integrate the already framed calculations of other agencies into its own calculations’ (Callon 1998: 32).
The defensive patent highlights the process, thereby drawing attention to a persistent externality of a kind. If competition emanates from the agent’s own sense of agency, a firm’s fear of or readiness for battle, then this internal motivation (competitiveness) is being externalised. To be precise, it is externalised insofar as competition is anticipated, even imagined. The blocking patent can even create competitors in the abstract, firms who do not yet exist but who might exist. Agents thereby generate externalities for themselves. For the potential rivalry of imagined others is a projection of agency (from within) that has to imagine - by virtue of that very projection - agency lying beyond itself.Among other things, we might note the obvious: an original ethical impulse (to make information public) has market effects that hardly bear on ethics at all, as presently understood. Its external character is thereby conserved.