Chapter 1 chronicles how the distractibility of a king, the agency of objects, the desires that cloud judgment, and the memories that haunt the present shape events perhaps even more than ideology. Prior to the restoration of the monarchy in 1660, the Duke of Newcastle proposed returning to a Caroline-style theatrical marketplace, but he was outmaneuvered by courtier-playwrights long accustomed to deploying networks of access. Contingency also determined outcomes. The particular circumstances of Charles II’s upbringing certainly benefited William Davenant and Thomas Killigrew, the two successful patentees. Unlike his royal predecessors, the new monarch regarded the commercial theatre as a gift to be bestowed upon persistent clients who would enjoy monopolistic control going forward. No one foresaw, of course, the economic repercussions of that gift, namely, how the transformation of the theatre from a purely commercial to a hybrid enterprise would require substantial support beyond the box office. Additionally, the duopoly so sought by Killigrew and Davenant exerted its own unexpected agencies. As the following chapters explore, its resulting economic and cultural logic galvanized a host of decisions about repertories and performance practices that would prove both innovative and ruinous.

This chapter begins by outlining the dematerialisation of subject matter that has occurred over the last two decades or so and the problems that this has created for the law. I then explain the aims of the book, namely to look at three situations where patent law has already dealt with a dematerialised subject matter and the role that science and technology played in helping the law to accommodate that subject matter. I end by explaining the particular way that I approach subject matter in the book.

How do you read a patent and what subject matter is patentable? What is the purpose of a patent? Who is an inventor on the patent if work is done by many people on the project? What is the process of obtaining a patent in my country and globally? Read this chapter to see how you could lose commercialization rights to your own invention. When exactly does an invention or idea become patentable? Once you own a patent, how can you make money from it? What is the process of licensing and the key terms that should be negotiated in such a license agreement? What is the use of a copyright or a trade secret in biotech? What exactly constitutes patent infringement ? These questions and many others are addressed in this chapter on intellectual property.

Design patents protect the way a product looks whereas utility patents protect the way a product is used. The law suggests a great disparity between the artistic creation relevant to design patents and the scientific creation relevant to utility patents. The design process is believed to be so personal and subjective that judges refuse to consider any part of a design more important than another. This stands in sharp contrast to the law’s assumptions about scientific invention, which permits objective and focused evaluation of the invention and its prior art. This art/science double standard does not jibe with evidence that the same neural phenomena are at work in all kinds of creative tasks. For scientists as well as designers, both sides of the brain must be engaged in the same process: coming up with an idea, then building on that idea so that it is useful. To earn design patent protection, a claimed design must be “nonobvious” to “the ordinary designer.” To the extent judges refuse to rigorously compare claimed designs against earlier works to determine nonobviousness, they are straying from the way designers actually generate innovative design.

The Introduction sets out the central premise of the book: a sea change in our understanding of the human brain has deep, unexamined implications for intellectual property law. The Introduction begins to build the case for this argument by providing a brief description of the techniques used to detect the biological mechanisms attendant to different thought processes. It connects these techniques to the relevant actors whose perspectives structure the book’s three main parts: artists, audiences, and judges. Neuroscientific lessons for intellectual property law should be approached with a mixture of hope and caution. The hope comes from replacing some of the mistaken hunches about artists and audiences that have shaped intellectual property law for decades. The caution comes from a need to avoid junk science and neuroscientific theories that could do damage to the underlying aims of copyright, patent, and trademark law.

Design patents are meant to promote designs that are “pleasing,” “attractive,” and “beautiful.” Yet judges fret that they will inject their own prejudices into such aesthetic determinations and have adopted a permissive nonobviousness standard that only rejects designs when they are exact copies of what came before. Neuroscience sheds light on the mechanics of design perception and appreciation. Visual processing is arguably the best understood mental process in modern neuroscience. Recent studies show that aesthetic preference is strongly tied to the ease with which an observer can mentally process a particular design. Although a limited amount of innovation may be needed to gain the observer’s attention, consumers insist on simplicity, familiarity, and congruence in designs. Rather than correlating with what an audience considers pleasing, innovation in design, after rapidly reaching an optimal level, begins to trigger aesthetic distaste. I use a variety of examples from popular products and actual cases—like Herman Miller’s Aeron chair and Lego blocks—to illustrate this audience preference for designs in the “aesthetic middle.”

Chapter 14 covers legal issues arising in the context of academic research and technology transfer. A brief history of university technology development and the Bayh-Dole Act of 1980 are given, followed by a discussion of various issues that have arisen under the Act. The Act’s effect on ownership of IP is discussed with reference to Stanford v. Roche (2011). Its requirements for royalty sharing and US manufacturing are discussed. The area of march-in rights is illustrated through the dispute over Fabryzyme. Next focus shifts to the role of university technology transfer offices (TTOs) and ways that universities have attempted to shape university technology transfer over the years, including through the 2007 Nine Points document and the highlighting of issues such as reserved rights, limits on exclusivity, socially-responsible licensing and price controls. Next, other forms of university technology development agreement are discussed, including sponsored research and materials transfer agreements. The chapter concludes with a discussion of university policies relating to copyright.

Chapter 2 covers issues surrounding the assignment of IP (i.e., fixing its ownership as a prerequisite to transacting in it), and contrasts ownership with licensing of IP. It specifically covers the assignment of rights in patents, copyrights, trademarks and trade secrets, including within the employment context (i.e., shop rights , individuals hired to invent and works made for hire). The Supreme Court decision in Stanford v. Roche is considered at length. The chapter concludes with a thorough discussion of the issues presented by joint ownership of IP.

Chapter 4 addresses a range of legal mechanisms by which IP licenses are implied either in fact or in law, notwithstanding the requirements of the Statute of Frauds. Specific cases cover pitches and idea submissions in industries such as toy design and creative works (Nadel v. Play by Play and Wrench v. Taco Bell), commissioned works (IAE v. Shaver), and implied licenses arising from conduct (McCoy v. Mitsuboshi Cutlery).

This chapter describes how device makers try to leverage intellectual property (IP) rights to restrict repair and why those assertions are, as a general rule, inconsistent with a proper understanding of the law. IP—in the form of copyrights, patents, trademarks, and trade secrets—offers manufacturers an arsenal of weapons in the war on repair. From a practical perspective, IP law allows firms to credibly threaten to enjoin, silence, and ultimately bankrupt anyone with the audacity to repair a product without permission. That’s true despite the fact that IP claims against consumers and repair providers rest on questionable legal foundations.

For more than sixty years, “obviousness” has set the bar for patentability. Under this standard, if a hypothetical “person having ordinary skill in the art” would find an invention obvious in light of existing relevant information, then the invention cannot be patented. This skilled person is defined as a non-innovative worker with a limited knowledge-base. The more creative and informed the skilled person, the more likely an invention will be considered obvious. The standard has evolved since its introduction, and it is now on the verge of an evolutionary leap: inventive algorithms are increasingly being used in research, and once the use of such algorithms becomes standard, the person skilled in the art should be a person augmented by algorithm, or just an inventive algorithm. Unlike the skilled person, the inventive algorithm is capable of innovation and considering the entire universe of prior art. As inventive algorithms continue to improve, this will increasingly raise the bar to patentability, eventually rendering innovative activities obvious. The end of obviousness means the end of patents, at least as they are now.

The expansion in subject matter of copyright, design and trade marks has made cumulation of protection a more common occurrence, even if the problem has long been recognised as a challenge for intellectual property law. EU law has no consistent approach to overlapping subject matter. In some cases, cumulation is permitted (and perhaps even mandatory). In others, it is looked upon with disfavour. However, it is clear that when regimes clash and cumulation rejected, trade mark law appears the one most likely to be regarded as pre-empted. This chapter considers reasons why this might be so, and finds most possible reasons wanting. However, this analysis does offer some important insights into the nature and challenges of trade mark law in Europe.

To the elemental question of what is the nature of intellectual property, the conventional answer is that it is ‘intangible’ and hence has no physical existence. This is because, it is said, there is a fundamental dichotomy between the immaterial subject matter that is protected by an IP right and its embodiment in some material object. This chapter revisits the elemental question and comes to the conclusion that the conventional view mis-states the position. In particular, while it is true that IP laws recognise something like the tangible/intangible duality, properly understood the rights granted by those laws do not attach to the immaterial subject matter; rather, they attach to the material object in which the subject matter is embodied. More specifically, while the class of things in respect of which IP protection may be granted includes intangibles, it also includes tangibles. Moreover, the things in that class are material – in that they are perceptible by a human sense.

This chapter both provides a condensed case for why the analysis of intellectual property (IP) through differing regimes of power is a fruitful one, and details a couple of its implications. One is that we need to be attentive to the way IP law creates certain kinds of subjects, and to be willing to critique it on those lines.The other takes the form of a brief discussion of alternatives proposed to IP, in such areas as “low IP” zones and in creative commons-style proposals.I conclude that the degree to which these alternatives fundamentally challenge the neoliberalization of IP and its move away from public biopower, is essential in assessing the extent to which they actually are alternatives.The goal is not to be strongly prescriptive, but, in the manner of Foucault, to help figure out what are the right questions to ask.