International Law as Industrial Discipline: Patent Form and Legal Transformation

Our world is already feeling the social and geophysical effects of a massively changed and changing climate. Scholars and policymakers have pointed to the causes of this change as grounded in the social and technological shifts that took place following the industrial revolution, and have argued that addressing climatic change requires a transformation of production. Over the past three decades, states, non-governmental organisations, activists, and scholars have proposed ways of altering the protection afforded under international law to patents of invention, and the institutional contexts within which that protection is interpreted. In this context, this thesis examines the obligations and forms of action available to states in respect of patents, and the ways they have shaped, and continue to shape, the nature and limits of this transformation. In the thesis, I develop a new approach to thinking about the patent form in international law. I show how, from the mid-nineteenth century onward, international law has been instrumental in the creation of the form of patents as it exists today. I focus on four key aspects of this form: the categorisation of patents as property, the compulsory license, the environmental exclusion, and the patent as a right in a global market. I then illustrate, by reference to each of these aspects of form, how the enrolment of international law in the project of protecting patents as property has also meant the reshaping of international legal thought. Finally, I suggest how transforming international law for a liveable world may require contending with this form and that reshaping.