The Patent Medium: Toward a Network Paradigm of the Patent System
Or Cohen-Sasson
Article
The Patent Medium: Toward a Network Paradigm of the Patent System
Or Cohen-Sasson
Article
The full text of this Article may be found here.
32 Fordham Intell. Prop. Media & Ent. L.J. 857 (2022).
Note by Or Cohen-Sasson*
ABSTRACT
[T]
The modern patent system is conceived of as an information platform; it is evident in the common description of the patent system as a quid-pro-quo bargain: Society grants exclusive rights in exchange for information published by a patentee. But is there more to the patent system than merely informing others? Does the patent system also serve as a communication (and not only information) platform, namely, as a medium? Based on an interdisciplinary analysis of the patent system’s structure and features through the lenses of communication studies, this Article suggests that it does. It demonstrates how the patent system—as a medium—enables players to fulfill various communicative ends, much beyond the obvious goal of disseminating legal-technological knowledge. This Article strives to characterize the patent medium, as well as to examine the implications of portraying the patent space as a medium.
Utilizing the power of communication analysis, this Article uncovers an existing, somewhat implicit communication paradigm of the patent system as a medium. Although tacit and unofficial, this paradigm is evident through a critical reading of patent scholarship and case law. This unspoken communication paradigm resembles that of a bulletin board: it is linear, straightforward, and focuses on the informative value of communication. However, this bulletin-board paradigm does not fully reflect the actual nature of the communication that transpires within the patent medium. After reexamining the patent space—the rules, structure, participants, and practices—this Article offers an alternative, more comprehensive paradigm of the patent medium—the network paradigm. A network, as opposed to a bulletin board, is a connected, multi-directional, and multi-player platform, which allows communication for various ends (including, but not limited to, informing). Instead of viewing the patent medium statically as a host of informative announcements, the network paradigm suggests a dynamic perspective, considering the patent medium to enable discourse.
Beyond its theoretical contribution, the network paradigm serves as a powerful explanatory tool, offering profound implications for patent law. Specifically, the network paradigm resolves current oddities in the patent system; for instance, the network paradigm provides new understandings regarding phenomena in patent law such as patent pledging, early publication, and the first-to-file rule—incidents commonly considered enigmatic or only partially understood. As a tool with theoretical and practical-analytical value, the network paradigm helps both courts and commentators to theorize and rationalize patent law.
*LL.M., LL.B., B.Sc.; Research Fellow, Canon Foundation in Europe; Ph.D. Candidate, Zvi Meitar Center, Faculty of Law, Tel Aviv University. I would like to thank Clark Asay, Tamar Ashuri, Michael Birnhack, Daniel Benoliel, Yael Blumstein, Oren Bracha, Karni Chagal, Jorge Contreras, Avihay Dorfman, Rochelle Dreyfuss, Severine Dussolier, Timothy Holbrook, Ariel Katz, Asa Kling, Mark Lemley, Hephzibah Levine, Orit Lissak, Miriam Marcowitz-Bitton, Hisao Shiomi, Tine Sommer, Geertrui Van Overwalle, and Nitzan Wagner. Many thanks to the wonderful Fordham Intellectual Property, Media & Entertainment Law Journal’s team for their constructive comments and professional editing work. This research was supported by the Canon Foundation in Europe and ISF Grant No. 537/21.