Intellectual Property and Access to Im/material Goods

Intellectual Property and Access to Im/material Goods

Elgar Law, Technology and Society series

Edited by Jessica C. Lai and Antoinette Maget Dominicé

Traditionally, in order to be protected intellectual property goods have almost always needed to be embodied or materialised (and – to a certain extent – to be used and enjoyed), regardless of whether they were copyrighted works, patented inventions or trademarks. This book examines the relationship between intellectual property and its physical embodiments and materialisations, with a focus on the issue of access and the challenges of new technologies. Expert contributors explore how these problems can re-shape our theoretical notion of the intangible and the tangible and how this can have serious consequences for access to intellectual property goods.

Chapter 4: A tale of two histories: the “invention” and its incentive theory

Jessica C. Lai

Subjects: innovation and technology, intellectual property, law - academic, cultural heritage and art law, intellectual property law


One of the first things we teach students when introducing patent law is that patents protect applied ideas. What we often fail to acknowledge is that what we deem to be capable of being an “invention” is that which has some kind of physical embodiment or physical effect. This chapter takes a historical approach to highlight that patent law has never been purely about the intangible. It does so by telling two histories. The first history concerns the development of patent law theory and policy. It discusses how changes and developments in patent-law reasoning and policy show the importance of the tangible and intangible aspects of inventions. The second history addresses the progression of the understanding of the patentable “invention”. More concretely, it looks at the terms “invention” and “manner of new manufacture”, and how their judicial interpretation over the years has developed away from, but not quite shaken off, the connection to the physical.

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