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 5: The nebulous “invention”: from “idea and embodiment” to “idea/embodiment and observable physical effects”?

Jessica C. Lai

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

Abstract

This chapter examines modern case law to show that patent law continues to be interested in the tangible physical embodiment of inventions as well as the intangible idea and information behind them. Focusing on information-based technologies, it analyses the different ways that Europe, the US and Australasia have recently dealt with software, business methods, biotechnology and methods of medical treatment or diagnosis. The cross-jurisdictional overview underscores the importance of physical embodiment or physical effects when it comes to identifying an “invention” or “manner of new manufacture”, even with these more informational kinds of developments. The chapter highlights the inconsistency between the arguments that such technologies cannot constitute patentable subject matter because they are information-based and have no corresponding physical embodiment or observable physical effects, on the one hand, and the concept that patent law is about the intangible, on the other hand. Finally, the chapter questions patent law’s ties to the physical and whether it is desirable or not.

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