The International Patent Practice Narrative: Patent Agents, Epistemic Capture and the Patent Bargain

This work explores the question of how professionalization of patent agency along with its accompanying discourse has affected the direction of international patent institutions and networks. Professionalization of patent agency is defined as the government regulation of who may provide patent agent services to the public through the form of professional licensing requirements. To the extent that professionalization of patent agency has created a unique discourse of patent agency, to what degree and in what respects has this discourse transformed global patent institutions? In particular, has this discourse created a form of ‘epistemic’ or ‘cultural’ capture that has the effect of delegitimizing other valid forms of discourse? Through the application of several methodologies, namely, historical analyses, doctrinal analyses and qualitative empirical work, this study attempts to create what epistemic capture theorists refer to as a capture story, which is a story of how cultural influences of a regulated industry – here, professional patent agents – come to dominate the regulatory discourse to the exclusion of other viable, competing conceptions of what constitutes the public interest. This work concludes that professionalization of agency within the patent system is interconnected with enablement as an organizing principle of the patent system as a social institution. Prior to professionalization, when agency was democratized throughout the patent system, so too was democratized enablement a guiding principle of the patent system. The formation of a unique, legitimized professional patent agent epistemic community has resulted in diminishing the democratization of enablement across the patent system as a social institution. This work discusses several of the practical and normative implications of the diminishing value of democratized enablement. Finally, this work concludes with a discussion of the future prospects of agency within the patent system.