On Art and Patents; and How We Value Our Creative Work
An essay for artist, inventors, and creative people

by Maggie Orth

Written for Patent Pending Exhibition, 2013.

Part 1: Why isn't the Sagrada Familia of Use?
            This summer, I had the good fortune to visit Barcelona and see the work of Gaudi in person. As I stood in the Sagrada Familia and watched thousands of people turn their faces to the sky and stare agape at the faceted ceiling of Gaudi's beautiful building, I thought about my upcoming art show--Patent Pending, which features artworks that are patented(1, 2). I thought about how, according to US patent law, the Sagrada Familia is not patentable-- about how, the Sagrada Familia is not of use.
            And it seemed non-sensical to me. After all, countless tourists make a pilgrimage to the Sagrada Familia every year, and Barcelona works tirelessly to preserve and build this great church, because they love it, and it makes them money. And so, at least to Barcelona, the Sagrada Familia is of use. And thanks to Gaudi's remarkable engineering, the building stands up. It holds people. And even if you are not religious, even if you are reasonably critical of the Catholic Church and its unsavory history, the Sagrada Familia brings a transcendent aesthetic experience to those who see it. So why isn't the Sagrada Familia of use?

            For ten years I ran a small art and technology company called International Fashion Machines, where I focused on electronic textiles. During that time, I never understood why one of the creative things I did-making technology- was patentable, while the other-making visual art- was not.  I have always thought of both activities as two sides of the same coin, two forms of techne; and I use the same processes for both, brainstorming, experimenting, testing, evaluating, and designing. I just use different tools.
            Over those years, I also felt a much greater sense of social status when I defined myself as a technologist rather than an artist.  When I told people I worked in technology they listened, they wanted to hear more, they called me for interviews. They took my opinions on economics, history, and business seriously. When I told them I was an artist, they got quiet, and the conversation, well, often just petered off.  They never asked my opinion on anything practical again. And while JK Rowling did make a bundle with Harry Potter, my hourly consulting rate for technology was a lot higher than for design.
            So I began to wonder, what was the source of this discrepancy in the value of art and technology? All around me, messages of technology's superior status blared: newspaper articles, Wired Magazine, the Stock Market, my friends. And though I often doubted Art's worthwhileness, I just couldn't believe in my soul that technology was intrinsically more valuable than art. Sure, I could see that technology could save a life with an artificial heart, but good design prevented mistakes by anesthesiologists in the ER too. And both forms of creative practice-of techne-brought wonder and joy to people everyday.  And I am not an essentialist, so I had to believe that:

                                                            Art  : Technology  ≠  Tin : Gold.

            But if technology's elevated status wasn't intrinsic, I wondered, might it not be extrinsic, the result of some external force or structure in our society and economy? As a graduate of RISD (art school) and MIT (technology school), it seemed to me that patents did technology many favors. They established inventors in the historical record and declared their works to be original, a key, though questionable component of modern genius. They legitimatized technology by declaring it to be useful, to be able to solve the important problems that society faces. And they bestowed on technology great economic power by giving it the valuable market exclusive or monopoly of the patent. This market exclusive encourages capital investment, which makes technology an important part of the growth economy. Simply put, it seemed to me that patents helped technology make more money, and in our capitalistic world what makes more money has more status.
            So I began to wonder: could patents be the cause of the elevated status of technology in our society? Of course, art has its own intellectual property too, the copyright and the design patent. But could the differences in these two types of intellectual property lie at the source of the Art/Technology status divide?

1. Technically the artworks are instantiations of the artists' patents.
2. Maggie Orth, Catherine Richards, Phil Ross, Daniel Rozin, Scott Snibbe, Camille Utterback, Romy Achituv.

Part 2: Copyrights, Patents, Intellectual Property? What Are They Anyway?

A Brief History of Patents
            While their history is murky, patents have been issued by many governments for centuries, to encourage both economic growth and, perhaps surprisingly, the dissemination of ideas. In 15th century England, patents were awarded to both novel inventions and as trade monopolies to tradesman or merchants for the manufacture or sale of certain products or goods. "From 1561 to 1590, Elizabeth I granted about 50 patents whereby the recipients were enabled to exercise monopolies in the manufacture and sale of commodities such as soap, saltpetre, alum, leather, salt, glass, knives, sailcloth, sulphur, starch, iron and paper. "(1)
            In 1610, after public outcry against patents granted to favored nobles for inventions that were not new, King James established the basic economic role of the patent: a marketplace exclusive given in exchange for "something" valuable to society, which he diefined defined asoriginality, and the lawfulness and harmlessness of the invention. He declared in his Book of Bounty that “monopolies are things contrary to our laws,' with the exception of 'projects of new invention, so they be not contrary to the law, nor mischievous to the State.” (2)
           Conventional wisdom holds that a key motivator behind granting any invention an economic monopoly is the benefit of teaching that invention. Legend has it that one of the first patents was granted to the Chamberlens, a family of male midwives who assisted in the births of James 1 and Charles 1. The Chamberlens were so successful at delivering babies because they used forceps, an invention they kept secret to protect their exclusive positions as doctors to the kings. Legend also holds that the Chamberlens were granted a patent on forceps so that they would share or teach their invention to toerh doctors and the lives of other women could be saved. In reality, the Chamberlens never earned their patent, but the logic behind the story is that without patents, many novel processes or inventions would simply remain trade secrets. In this sense, issuing patents actually encourages the sharing of information, which is seen as beneficial to society.(3)

The United States Utility Patent
            The United States Utility Patent is an economic exclusive that is granted to an idea or invention in exchange for certain things deemed beneficial to society: originality, and practical and beneficial utility. To earn a patent, the invention must be original and non-obviousness, and its inventor must prove it. The inventor must also publicly disclose how the invention is made, or teach the invention in the body of the patent. The invention must also be judged useful, both practically and beneficially to society.
            The main purpose of a patent is to prevent other people from making or selling an invention. The intellectual property or the invention covered by a patent is described in the patent by a series of claims. For example, a patent on a light up shoe might have two broad claims: 1) Some sort of footwear; 2) A method of illumination integrated into said footwear. This patent would cover anything worn on the foot, with any kind of light in it. A boot with an electroluminescent wire in it, a sneaker with an LED, or a slipper with an LCD screen would all theoretically all be covered. A narrower version of this patent might have the following claims: 1) An athletic shoe; 2) At least one LED built into said shoe. In this case only athletic shoes with LEDs would be covered, but slippers with LCD screens would not. It is hardly surprising that authors of patents try to make their claims as broad as possible.
            A product would infringe on a patent if it contained all the elements in the patent's claims: in the example above, a shoe and a light. Products are judged to be infringing whether they intend to infringe or not. Companies with profitable products that infringe on patents- whether intentionally or not- are usually required to pay money to the patent holder.

            Lately, the patent and its broad economic exclusive has incurred much criticism. From the right, free market economists attack patents as unjustified monopolies that slow down economic growth, hinder innovation, and keep new ideas out of the market. (4) From the left, open source software activists declare them undemocratic squashers of creativity. Certainly, there is something to these complaints. But according to Harvard economist Josh Lerner, the problems in the patent system are structural. In the 80's tow hcanges were made to the patent system. The litigation process was moved to a single court, which tended to rule in favor existing patents, and a patent office that isbecasem funded by fees from potential patenters, which created a conflict of interest. The results of these problems have been more patent, of more dubious inventions, which are being more easily upheld. This has led to less innovation by little companies because they fear litigation by big companies, who have more money to spend on lawyers and patents. It has also lead to patent trolling, when companies seeking to cash in on old patents that can be applied to current successful products.(4)
            But patents can, if they are properly administrated, encourage invention and innovation by guaranteeing exclusives to inventors, and by protecting the little guy from having his idea knocked off in an instant by a big company with capital, factories, and sales channels.

Copyright and Design Patents
            Copyright protects original works of authorship in their fixed form from the moment they are perceptible directly or with the aid of a device. That mean that as soon as a book is printed, or a blog posted, it is copyrighted. What is protected by the copyright is the exact form in which the book or blog was printed. In the case of the light up shoe, only the exact color of the shoe and the exact arrangement of the LEDs would be protected, not any shoe with a light. A manufacturer who made a light up shoe in a different color, or with different locations of LEDs, would not be violating copyright. Significantly, to recover damages, the artist must prove intent to copy on the part of the infringer.
            Like copyright, design patents cover a specific instantiation of an idea- not an idea or invention. Notably, the USPO goes so far as to call out that what design patents cover as ornamental- which is to say frivolous.

            Personally, I believe that in an the age of immeasurable corporate power and mass production, copyrights and patents are incredibly important to independent creative people of all kinds. Without copyright and patent protection, creative works can be copied instantly and sold for pennies by large and powerful companies. So while I acknowledge the need for reform in our current patent system, I encourage all independent creative people to work to preserve intellectual property laws, and keep them in their favor.

1.From http://www.ipo.gov.uk/types/patent/p-about/p-whatis/p-history/p-history-tudor.htm.
2. Ibid.
3. From: The Chamberlen Family Secret, an episode of the radio program, Engines of Ingenuity. by Catherine Patterson.
4.Patent Failure; James Bessen and Michael J. Meurer; 2008.
5. Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It Adam B. Jaffe & Josh Lerner

Part 3. Copyright and Patents: Two Different Animals

Automatic vs. Earned
            The first notable difference between patents and copyright is that copyright happens automatically from the moment something is displayed in its fixed form, while patents are applied for, and if the system is working correctly, earned. And while the US Copyright Office does keep a record of registered copyrighted works, anyone can enter into that record by simply registering their copyright. In contrast, to enter into the history of patents an invention must be reviewed and judged original by an official system of patent examiners, expert scientists and courts. Once an invention has gone through the patent process, its inventor enters into the published, "peer reviewed" historical record of science and technology. Of course the patent office does make mistakes, and in this day and age with so many inventions to review it makes a lot them. But this is relatively unimportant because patents are rarely invalidated and the historical document remains.
            In contrast, while registering a work of art for copyright establishes that work it in the historical records of the copyright office, it does not establish it in the canon of art. Instead art historians and cultural theorists assert works to be original and important. This would appear to be a murkier process because there is no official record of prior art that is reviewed, and the canon is established by the opinion of a narrower group of "reviewers."

Originality
            When an inventor applies for a patent he cites prior art: the historical record of other patents and inventions. His job is to show how his invention differs from other inventions that came before. The patent examiner then reviews this prior art and other patent literature to establish both originality and non-obviousness. Once the patent is granted, the invention is judged to be original in the history of science and innovation. So patents are important to scientists and technologists. They document their official genius.
            But the copyright makes a different claim on originality, because the originality of a copyrighted work is not judgedoriginal, and the originality lies in the details of a work, not its newness. For example, two books that tell only slightly different stories can both be copyrighted becasue they are differnet, not because one is leap forward in intellectual thinking. In contrast, the patented object claims to be a new "type" of object, one that never existed before.

Utility
util·i·ty noun \yü-ˈti-lə-tē\
: the quality or state of being useful
From the Merriam Webster Dictionary

            To earn a US Utility Patent, an invention must have two types of utility: practical and beneficial. Theoretically an invention must prove itself to be useful. In reality, the threshold of proof is low, and like Merriam Webster, the patent office's definition of utility is surprisingly circular.

Beneficial Utility
            In the United States beneficial utility became a requirement for a patent the 1817 with Lowell v. Lewis, which required that a patented invention "not be frivolous or injurious to the well-being, good policy, or sound morals of society". Of course determining the moral worth of anything is hard, so in practice, "an invention is deemed 'useful' if it is capable of providing some identifiable benefit."[1] And indeed, many morally suspect inventions, such as slot machines and sex toys have received US patents by declaring themselves beneficial in their own terms. The threshold for beneficial utility is also in practice low. "A rejection for lack of utility should not be based on the grounds that the invention is frivolous, fraudulent or against public policy."[1]
            In this way, we can see that while receiving a patent declares an invention to have been judged morally beneficial to society, very little assessment of its actual moral worth has been done. Patents then confer on technology the unearned but official status of having been judged morally good for society. And in puritanical America, that matters.

Practical Utility
            A patented invention must also be judged to have practical utility. At first glance, this may seem like common sense. A potato peeler = useful. A flashlight = useful. A painting = not useful.
            But actually defining utility is not so easy. Webster's defines it circularly as "the quality or state of being useful", and the United States Patent System does no better. "An invention is deemed 'useful' if it is of some real world use."(2) In addition, most inventions are "rarely challenged as lacking utility, but the doctrine prevents the patenting of fantastic or hypothetical devices such as perpetual motion machines."(3) Which means that as long as an inventor can define a practical use for his or her invention, no matter how small, and as long that invention does not defy the laws of physics, it will be deemed practically useful.
            But if utility is assumed, self-referential, and not difficult to achieve, what is it then that makes something a patentable invention, like a potato peeler; and something not, like painting or a play? I have to admit this has me a bit stumped. At one level it seems obvious. A patent is for a "kind of object", or process or method, while a copyright is for an instantiation of that kind of object, a particular book, or painting. And while I admit there is a lot more thinking to be done about this, I can find no philosophical reason for this distinction conceptually.
            So it seems to me that in the end, what is patentable is a what is defined as patentable by the US patent office, which is expressed in the form of a series of examples. And almost entirely, these are examples are of technology.

No "Useful" Status for Art
            So why does this matter? Because a patented invention, no matter how trivial, is declared by an official system of government to be good for society, to solve problems, save money, and improve our quality of life. And what is allowed to be patented by cultural and legal definition are works of science and technology. And believe me, scientists and technologist create all kinds of trivial useless things. Just Google "useless inventions". Millions come up.
            Of course, all those useless inventions could be an indication of a patent system that does a bad job of judging inventions. But I don't think so. In my experience, scientists and technologists make and invent new things and ideas for the same creative reasons that artists do. They create things to feel a sense of mastery, to solve a problem, to see what would happen, and to experience something that an artist might call beautiful, but a scientist or technologist might call cool.
            And the utility patent dignifies these creative and aesthetic urges. A technologist or scientist can create anything, a robotic bee, a method for dispensing toilet paper that sits on one''s head, or a method for seeing the texture of piece of paper and encoding data into it,(4) and rest assured that by filing a patent, his or her work will be validated as useful, and given potentially great economic power.
            But artists can make no such claims to utility. In fact, most artists struggle daily to understand the purpose and use of their work in society. Personally, I was relieved to finally create something that was deemed useful, i.e., a patented technology. And though I wasn't such a fool to believe that my patented fuzzy sensors[5] were useful in some objective Platonic realm, it felt good to officially be of use here in capitalistic America.

[1] Wikipedia
[2] Ibid.
[3] Ibid.
[4]My husband, Josh Smith's beautiful invention, the Fiber Fingerprint.
[5]United States Utility Patent: Electronic Textile Touch Light Controller, US Patent 7,054,133, 2004