Patent Classification and Scientific Taxonomies

Patent Classification and Scientific Taxonomies: Law as a Space of History of Science?

Hyo Yoon Kang

What do scientific taxonomies have in common with patent classifications? Both are examples and practices of ordering and structuring information into manageable and more or less visible entities; entities that are made to relate to other entities within determinate variables and pathways. The International Patent Classification (IPC) represents a hierarchically structured legal taxonomy in which technological and biological objects are classified into sections, classes, subclasses, and groups. Although its primary activity is one of ordering scientific and technological objects, the patent classificatory scheme is mainly understood as a legal exercise. The IPC was created by an international treaty, the Strasbourg Agreement (March 24, 1971) and is administered by the World Intellectual Property Organization (WIPO). The Strasbourg Agreement even goes so far as to emphasize that the IPC is to have a solely administrative character in order to facilitate the patent decision process.

Such legal provenances and administrative assurance notwithstanding, the IPC plays a central role in re-inscribing properties of scientific and technological objects by delimiting the scope of proprietary claims of novel inventions. Somewhat incongruously to its humble administrative function, the International Patent Classification purports to define inventions by reference to “their intrinsic nature” rather than with respect to their utility or “applications,” as the WIPO’s Introductory Manual to the IPC (Chapter Three) puts it. In the philosophy of the IPC, an object is not classified by reference to its utility or to its constituent parts, but rather as a “whole.” Several questions spring to mind: What are the criteria employed in order to distinguish between whole and parts; What steps are taken in order to determine an object’s “intrinsic nature”; What is the relationship between the legal patent classification and scientific taxonomies? The IPC writes that the “nature” of a thing is interpreted mostly as its function rather than as its application. If this claim is to be taken in good faith, it would imply that the IPC is not only involved in the practice of classifying objects, but that it is also simultaneously engaged in the definition and reconstruction of a scientific object’s “intrinsic nature” and “wholeness,” at least from the viewpoint of proprietary strategies employed in patent law.

The IPC as a site of historical and epistemological investigation: More interestingly, there are three ways in which the IPC represents a remarkable object worthy of historical, epistemological, and scientific scrutiny. First, the patent classification practice can be understood as a visualization of a certain historical trajectory, as a process of archiving and recording novel scientific objects as a “kind.” The IPC provides a body of reference to past scientific objects, which need to be differed from in order to fulfil the requirements for obtaining a patent on a novel object. It serves as a textual embodiment of a history of scientific objects that have been legally acknowledged as inventions. This implies that any decision with regards to potential patentability of a scientific object must necessarily incorporate a certain reconstruction of the past as articulated by the IPC.

Second, the IPC is engaged in a certain mode of (re-)production of scientific objects as legal properties (as inventions), as well as constituting relations between these different properties by placing them into a hierarchical order of past inventions. In a way, the IPC can be understood as a mapping exercise, which creates novel (the question is: Legal, scientific, or both?) relations between objects on the basis of a legal perception of scientific “nature.” In other words, the IPC represents an unofficial site of scientific classification; however, it is one which is put to nonimmediate, nonscientific use.

The third interesting aspect about the IPC conjoins the preceding observations. IPC’s practice of cutting and intermediating between what is taken to be a novel (inventive) scientific object and objects already known to society as belonging to the legal category of “prior art”—in other words, the accumulated body of scientific knowledge generally known—exerts peculiar ontological effects. On the one hand, the IPC could be understood as a metaphor for the reality of different kinds of scientific objects. On the other hand, the metaphor could also be taken as a means: as ways by which a nonnegligible kind of scientific history and reality are generated.

It is on the basis of these initial observations that Hyo Yoon Kang chose to study the IPC in relation to the scientific taxonomies of the Linnaean code and the PhyloCode. If the IPC is an epistemic tool that creates commodities (patents) by articulation of what it takes to be the essence of a scientific object, then the practice of patent classification forms an interface between a “legal history” of the history of science and proprietary boundaries within the field of scientific practice itself. More succinctly, such an interface negotiates how materialities, understood as emergent properties engendered by a combination of matter and meanings, are coming to the fore.

Thinking about these epistemic practices as ways of materializing properties at various points in time, the differences and commonalities between the legal history of the history of science and the Linnaean and PhyloCode schemes of classifications do not appear as self-evident and raise several questions:

  • What kind of underlying visions of materiality of scientific objects do the various taxonomies posit?
  • What kind of temporal registers are presumed and referred to by the three classifications?
  • What kind of epistemic spaces do the taxonomies circumscribe and produce?

Answers to these questions weree sought at the point of entanglement at which these different epistemic practices have come to be increasingly problematized: the intellectual property strategies in the life sciences—in particular the bioinformatics practices, which pose fundamental questions about the historicity of scientific taxonomies. Referring to patents whose proprietary claims are based on homologies under computationally simulated conditions, the juxtaposition of the IPC, the Linnaean code, and PhyloCode forged interesting ways to think about novel spaces of history of science and of scientific objects.