Machine-Made Law: Mapping the Modern Patent Episteme, 1790-2000

Collaborative Group

Professor Mario Biagioli, Professor Alain Pottage




The institutions and discourses of modern patent law have had a relatively short history, which stretches forward from about the 1790s to the present. In this project, Mario Biagioli, a historian of science and technology, and Alain Pottage, a legal scholar, explore the formation and operation of the “episteme” of patent law—the practices, techniques, and devices that facilitated the stabilization of the patent doctrine that is practiced by lawyers and discussed by commentators. Because these epistemic elements functioned behind the scenes, or because they were simply too obvious to be noticed, their role in the constitution of patent law has not been explored fully. Such elements include practices of textual and graphical representation, the use of models and other material media, and the evolution of pedagogical and forensic tools. Biagioli and Pottage hypothesize that these epistemic elements were decisive in the emergence and consolidation of the thing that distinguishes the modern patent regime, namely, the notion of invention as intangible property. The project draws on Biagioli’s work on the new modalities of representation that characterized the late eighteenth century, which can be seen as much in the introduction of representative government as in the formation of the US patent regime, and on Pottage’s work on the juridical media that worked as felicitous conditions for the articulation of patent discourse. One of the project’s central aims is to reconstruct the classical distinction between “invention” and “discovery,” and to explore how the epistemic instability of that distinction was overcome by a set of concepts and techniques that “fixed” the intangible. They also seek to elucidate how this basic instability is now being exposed once again by the inventions of the “Information Age.” The research will result in a coauthored monograph written for a broad audience in the humanities and social sciences. Award period: July 1, 2017 through June 30, 2019