Bruno Latour, Mario Biagioli, and the Rhetoric of "Balance" in IP Law (and Climate Change)

I just read Jennifer Szalai's fascinating review in the New York Times of the French anthropologist and philosopher Bruno Latour's new book on politics and the debate over climate change.  As I recall from my history of science days, the whole point of Latour's body of work was that "facts," in science, are not really facts. They are the social constructions of scientists who are real people with childhoods, values, and careers, whose conclusions cannot be divorced from the environment in which they were produced. "[T]he essential point," Latour wrote,

is that the facts, contrary to the old adage, obviously do not 'speak for themselves’: to claim that they do would be to overlook scientists, their controversies, their laboratories, their instruments, their articles, and their hesitant, interrupted, and occasionally deictic speech...

Thus, we might think Latour would be sympathetic to so-called climate change deniers, who greet with skepticism the science community's conclusions about humans' impact on global warming. As Szalai puts it in her review, Latour "has spent a career studying how knowledge is socially constructed." So, surely, "[the] kind of postmodernism" that lies behind the "conservative tradition" of "performing a skepticism so extreme that it makes the ancient Greek skeptics look like babes in the woods[]" would appeal to him.

But it's not so, Szalai writes. To the contrary, Latour sees "[s]uch pretensions to reality-creating grandeur" as "amount[ing] to little more than a vulgar, self-defeating cynicism." Perhaps even Bruno Latour, in the end, was a "realist" — at least when it comes to some things.

Revisiting Latour's skepticism of facts, I can't help but wonder (although I think I know) what Latour would say about patents. This brings me to a gem that I was lucky to get ahold of over break: an article by esteemed historian of science and expert on the Scientific Revolution, and now a law professor at the University of California Davis School of Law, Mario Biagioli. Adding another layer of irony, everything in this post will be colored by fact that Mairo is a long-time mentor and supervised my undergraduate thesis in the Department of History of Science at Harvard. His paper, Patent Republic, tracing the development of the patent system from the Venetian Republic to early America, inspired me to study IP.

We might initially assume Biagioli's article, entitled Weighing intellectual property: can we balance the costs and benefits of patenting?, is another article addressing the costs and benefits of IP, and bemoaning the deficits in the empirical evidence. Biagioli's conclusion that "we are unable to measure the benefits that IP has for inventors or the costs it has for the public" might remind readers, for example, of Mark Lemley's now-famous critique of what Lemley calls "faith-based IP." Lemley argued provocatively that despite, or because of, inconclusive evidence on the utilitarian benefits of IP, such as promoting innovation and disclosure of technical information, "more and more scholars have begun to retreat from evidence ... justifying IP as a moral end in itself rather than on the basis of how it affects the world."

Many people disputed Lemley's conclusions and characterizations of other IP scholars' work. Yet the term "faith-based IP" may still strike home to many, because the reality remains that the empirical evidence leaves plenty of uncertainty on both sides. (Incidentally, one of the most concise summaries I've ever read of the inconclusive empirical evidence regarding the costs and benefits of patents appears on pages 75-87 of Lisa Larrimore Ouellete's article, Patent Experimentalism.)

To some degree, Biagioli's article has a lot in common with these prior articles, expressing skepticism about whether patents and IP, generally, bring benefits that are greater than the costs, and about how society justifies the institution in light of existing measurements. But whereas Lemley confronted the topic as a veteran IP insider with nearly two hundred articles and countless staked-out positions relating to a huge diversity of IP topics, as well as a consistent prescription (weaker IP rights; more competition), Biagioli views the debate from a distance. His article is likely written for non-lawyers. It was published in History of Science in a Special Issue entitled "Technologies of the Law/Law as a Technology." To riff on Szalai's description of Latour's book, Biagioli's is "a wilder, more playful [article]" than Faith-Based Intellectual Property.

For sure, like Lemley, Biagioli reviews certain empirical studies on the uncertain benefits of patents, and includes all the usual suspects:

• Fritz Machlup’s observation that “[i]f we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. ..."; 
• Edwin Mansfield's conclusion that “[the patent system's] effects [on the rate of innovation] are very small in most of the industry we studied"; 
• Adam Jaffe's assessment that that "it would be surprising if major changes in the patent system did not affect the innovation process[,]" and Jaffe's recognition of the potential viability of the "alternative view" that "patents are not central to appropriating the returns to R&D in most industries[]"; and
• the Berkeley Patent Survey's finding, based on 1,332 responding high-tech entrepreneurs, that "on average patents offer just above a 'slight incentive' to engage in invention, R&D, and commercialization, and between 'slight' and 'no incentive at all' to create internal tools and processes." 

(Biagioli, 7-11) (quoting the results of these studies).

On the flip side, Biagioli also has some critical things to say about work (presumably including some of Lemley's) measuring the costs of patents. In short, Biagioli writes, there are not very many studies measuring the costs of patents. The studies that do exist tend to have short time-horizons. And they tend to focus only on costs like hold-ups and foregone innovation opportunities (and, I'd add, costs of administration and enforcement of patents). (13). Meanwhile, the studies ignore, presumably because they cannot realistically measure, indirect costs like "loss of health (or life) that may have resulted from" "the higher financial costs to patients" of life-saving drugs and diagnostic tests, such as Myriad Genetics' breast and ovarian cancer tests. (12-14).

In the end, Biagioli appears, like Fritz Machlup, to be unimpressed. (14) ("Returning to the key question of what these studies tell us, the short answer is: not much. Their results have been as inconclusive as those of the studies of the social benefits of patents, despite a few outliers.").

But the ultimate point of Biagioli's article, I think, is not to review the empirics and confirm that, yes, they are often pretty inconclusive. Nor is it to condemn IP professors—who, after all, are hired to teach IP law to tuition-paying law students and IP lawyers—for ignoring the inconsistencies underlying the justifications for their field. Rather, it is to highlight the irony of the discourse in IP scholarship around "balance."

"The discourse of balance," Biagioli begins, "is a common denominator shared by both supporters and critics of intellectual property. The former see balance as a way to justify IP protection and differentiate it from monopoly, and the latter see it as a door through which issues of social justice and public responsibility (especially responsibility toward future users and producers) can be brought into patent law." (5).

I am reminded of how IP proponents and IP opponents use the Lockean proviso. Does Locke's maxim that people develop "natural rights" in the fruits of their labor, but only so long as there is "enough, and as good, left in common for others,” provide a reason to weaken intellectual property rights, or counterintuitively help to justify them? While some might think only the former, Robert Merges would likely suggest the proviso is representative of a "midlevel principle" in favor of "proportionality" in calibrating IP rights—i.e., the requirement that "the grant or reward be proportional to effort or contribution." Professor Merges' Proportionality Principle can help to justify continued protection of intellectual property rights so long as the commitment to proportionality is upheld.

To give another classic example, Biagioli points to William Nordhaus' article on how to calculate the optimal patent term. (Biagioli, 4). In Invention, Growth and Welfare (1969), Nordhaus conceptualized patents as a "trade-off" between the goal of more innovation, and the goal of free competition and avoiding monopolies. What Nordhaus sought, literally, was the proper balance between longer patents, on the one hand, and higher prices and more deadweight loss, on the other.
     
The ostensible message of such works is that, if we can just calibrate IP rights so as to optimize costs and benefits, all will be well, or at least "well enough" to justify the field. This is the refrain of much IP scholarship, including, I am sure, much of my own and likely many readers'. (I just finished a trade secrets article with a section called "A Difficult Balancing Act" or something like that.)

Biagioli asserts that, in light of the empirical uncertainty about both the benefits and the costs of patents, these allusions to finding the proper "balance" may be performing a different function than is asserted. "[I]f the figure of the balance is invoked so widely and so often," Biagioli writes, "it is not because of its ability to actually balance what it is supposed to balance, but rather due to the fact that it conveys the impression that it is possible to perform the kind of accounting of social costs and benefits necessary to justify the existence of IP." (6) (emphases in original).

Biagioli's insights about IP professors' debating the virtues and vices of IP rights brings us back to Latour and his insights on debates over climate change.* After reading the aforementioned review of Latour's new book, which in turn prompted me to write this blog post, I couldn't help myself, and checked ExxonMobile's statement on "[m]anaging the risks on climate change."  It reads:

ExxonMobil believes the long-term objective of effective policy should be to reduce the risks of climate change at minimum societal cost, in balance with other priorities such as economic growth, education, poverty reduction, health, security and affordable energy.

Biagioli's work, like Latour's, leaves one to ponder. Is Exxon referring to the need for "balance" because of its ability to actually balance what it is supposed to balance, or because it conveys the impression that it is possible to perform the kind of accounting of social costs and benefits necessary to perform this balancing? (Biagioli, 6).

 *Incidentally, Lisa Ouellette has also written about science literacy and the public's views on climate change, as well as an IP Theory essay linking cultural cognition to intellectual property.