ACLS Collaborative Research Fellowship Awarded to Mario Biagioli

By Loren Michael Mortimer - Distinguished Professor of Law and Science and Technology Studies Mario Biagioli has been awarded a Collaborative Research Fellowship by the American Council of Learned Societies. The award will support a project entitled "Machine-Made Law: Mapping the Modern Patent Episteme (1790-2000)." His collaborator is Professor Alain Pottage, from the London School of Economics.

Until recently, patent law reflected and was modeled on the technology of the industrial revolution, one that was epitomized by the machine. Inventions like Edison’s phonograph or the motion picture camera were tangible objects, made up of distinct parts mechanically connected to produce a certain useful effect. In this period, the courts could tell reasonably well what an invention was, and whether it could be patented.

Not so in the twenty-first century. Revolutions in biotechnology and software engineering in particular have blurred the line between discovery and invention, between what is found in nature and what is invented by humans. What constitutes patentable knowledge today? Should a pharmaceutical company be able to patent human genes because it invested capital to “discover” a particular genetic sequence? Does the body of patent law that worked for Thomas Edison still work for Silicon Valley?

Reconstructing intellectual foundations

Professor Biagioli and his colleague Alain Pottage hypothesize that reconstructing the intellectual foundations of patent jurisprudence could help clarify the concept of what is patentable, for everyone from Supreme Court justices to the lay public. How, they ask, can lawmakers remedy this problem without first understanding how the law became so contested to begin with? 

Patent jurisprudence is a historically constructed and continuously changing discourse. Sometimes the changes have been quite radical, as with the shift from the eighteenth-century notion of invention as a specific machine or device to invention as the “idea” or “principle” of such a machine. And patent law has always involved more than doctrine and texts, as shown by its reliance on models, drawings, depositories, and specialized language.

Biagioli argues that what counts as an “invention” at any given time depends on this interconnected assemblage of doctrines and material tools—what he calls the modern patent episteme. His collaborative project will map that episteme over two centuries, from the “machine age” to the “information age.”

Funded by the Andrew W. Mellon Foundation, the ACLS Collaborative Research Fellowship fosters interdisciplinary exchanges among scholars in the humanities and the social sciences. In applying, Professor Biagioli received grant writing support from the Institute for Social Sciences.

Learn more about Mario Biagioli at his faculty webpage.