'Patents as Genre: A Prospectus' by Dan L. Burk and Jessica Reyman in 25
Law & Literature (Forthcoming)
argues that
Like other forms of intellectual property, patents have increasingly been the subject of controversy regarding their successes and failures in promoting and channeling innovation. But unlike other forms of intellectual property, patents are constituted and defined in terms of officially sanctioned texts. As a consequence, patents are deeply embedded in communities of composition, interpretation, and practice. In this paper we outline how genre analysis can be applied to interrogate the "typified rhetorical action" of the patent system and its constituent communities. We argue and demonstrate that understanding the rhetorical work of patents is key to addressing current criticisms of the patent system.
They comment that
What might the rhetorical features of patent documents reveal about the workings of the patent system and the underlying ideologies of the patent community?7 One method for further exploring the role of rhetoric in the patent system is genre theory methodology. In this paper, we argue that the modern patent is a compelling subject for such genre analysis and that genre analysis points the way to a better understanding of the social role played by patents. We begin by sketching the general outline of the patent as a document, its distinctive characteristics, the unique community that drafts and processes the document, the agencies and institutions that have developed around the document, and the other features relevant to genre analysis. We discuss both linguistic characteristics of the patent document as well as its social character as the product of a community of patent practitioners. In doing so, we trace the connections between the production of patents and the development of the patent community, concluding that this interaction is key to understanding the unique role of patents.
In doing so we are mindful of both the influence of the document on its associated communities, and the concomitant influence of the communities on the document. These communities of course overlap and intercalate to varying degrees. But here we focus on the community most responsible for the determining the structure and composition of the patent document, the community of patent practitioners registered to practice before the Patent Office. We expect that examining both the text and context of the patent genre will help shed light on the norms, ideologies, and values circulating among patent practitioners, as well as upon those embedded in the patent document itself. ...
... the social action of patents is not so much about innovation as it is about communal understanding and rhetorical performance. This conclusion differs radically from the assumptions underlying current patent debates, which focus on the economics and technological acumen of firms that produce inventions. But the system we describe here is a system for producing certified texts, rather than a system for producing innovation, which may be a different undertaking altogether.
Genres are the textual sites at which a discourse community’s work is accomplished. We have in this preliminary study begun to sketch the contours of the patent genre and its associated community, showing the interplay between document and discursive community, and the social action that flows from that interplay. In doing so, we hope to have laid the foundation for future exploration of a rich field of rhetorical activity that has compelling currency for social policy. Such further studies might include analysis of additional features of the document, examination of the written interaction between Patent Office and reviewing courts, consideration of the structure of other types of patents besides the basic utility patent we have described here, or detailed investigation the intricate genre ecologies of the file wrapper.
Such topics are worthy of detailed study in their own right, but may also have broader implications. For example, we have mentioned the historical influence that the patent community has had on the development of the patent document and its standards for certification; this interaction is not merely a historical curiosity, but a contemporary reality. In addition to specialty groups within state bar associations, patent practitioners also have their own very active national professional organization, the American Intellectual Property Law Association, which has historically been dominated by patent lawyers. Through such organizations the community has been active in advocacy and lobbying activity, including vocal involvement in the recent package of statutory reforms constituting the America Invents Act. Thus the community of patent drafters has shaped the form of the patent document, not only directly through evolving compositional practice, but by formal lobbying and informal influence over the regulations and statutes governing the patent. Consequently, the evolution of a different text – the patent statute – becomes an important mediating node between the patent community and the shape of the patent document. Similarly, the shape and formation of institutions such as the Patent Office and the Federal Circuit, which certify and interpret patents, have been influenced by the practice community.
In each of these contexts, the community reflected in and shaped by the patent genre displays distinguishing characteristics which may be better understood by considering patents as genre. As the importance of patents, and need for closer examination of patents rises, it is worth investigating the interplay of documents used to establish patents and the methods used for writing and reading them. While we have not attempted to outline any sort of reform or recommendations for the patent system, we do conclude that genre study heightens our understanding of the patent community’s norms, epistemology, and ideology; and such information tells us a good deal about the meaning of patents and the social role that we have assigned to them. Understanding these dimensions of patenting lays a critical foundation for discussions of patent practice and patent reform.
