Intellectual property law has been interacting with software for over sixty years. Despite this, the law in this area remains confused and uncertain: this is particularly evident in patent law. Focusing on U.S. patent law from the 1960s through to the mid-1970s, this article argues that a key reason for this confusion relates to the particular way that the subject matter was construed. While the early discussions about subject matter eligibility were framed in terms of the question “is software patentable?”, (...) what was really at stake in these debates was the preliminary ontological question: what is software? Building on work that highlights the competing ways that software was construed by different parts of the information technology industry at the time, the article looks at the particular way that the law responded to these competing interpretations and how in so doing it laid the foundation for the confusion that characterizes the area. When engaging with new types of subject matter, patent law has consistently relied on the relevant techno-scientific communities not only to provide the law with a relatively clear understanding of the nature of the subject matter being considered; they have also provided the means to allow the law to describe, demarcate, and identify that new subject matter. The inherently divided nature of the nascent information technology industry meant that this was not possible. As a result, the law was forced to develop its own way of dealing with the would-be subject matter. (shrink)

The Argumentwhile reconizing that public sector research has long been managed by a wide variety of practices and techniques, this paper concentrates on the increasingly important role that patents are playing in the management and regulation of public sector research. It argues that as a specific form of technology, patents play a significant and growing role in facilitating the management of the scientific object and can also be seen as a particular instance of governmentality. More specifically, it argues that patents (...) have had an important impact on the culture and political ecomomy of science. In this sence patents can be seen not only as a legal regime that provides limited property rights over technical information but also as a sophisticated tool of discipline and control that is used to regulate and manage public sector research. The paper suggests that with the increasing use of patents as a means of governing science, we are witnessing the growing juridification of science, the intervention of the law into an arena it hitherto largely ignored. (shrink)

The work, which came into its own with the emergence of modern copyright law at the turn of the twentieth century, occupies a pivotal position in copyright law. Focusing on the question of how copyright decides whether part of a work should be treated as a separate and distinct object, this Article looks at some of the techniques that copyright law uses to decide both what is a work and when a new work comes into being. The Article shows that (...) in spite of the central role that the work plays in copyright doctrine the law is not well equipped to explain when a new work has come into being. (shrink)