Alain Pottage

Email: r.a.pottage@lse.ac.uk
Administrative support: Rebecca Newman
Room: New Academic Building 7.21
Tel. 020-7955-7270 

Alain Pottage holds degrees from the University of Edinburgh and the London School of Economics. Before joining the Law Department of the LSE, he was a researcher at the Law Commission and a lecturer in the School of Law at King's College London. He has been a visiting professor at the Ecole des Hautes Etudes in Paris, the University of Sydney, and Cornell Law School. 

see also Alain Pottage's LSE Experts page

 

Research interests

Research interests lie in intellectual property (with particular reference to the field of biotechnology), theories of property, law and anthropology, and social theory.

   
Books  

Alain Pottage and Brad Sherman, Figures of Invention A History of Modern Patent Law (Oxford University Press: 2010)

Taking the invention as its object of study, this book develops a radical new perspective on the making of modern patent law. It develops the first extended historical and conceptual exploration of the invention in modern patent law. Focussing primarily on the figures that make inventions material, and on how to overcome the intangibility of ideas, this intellectual challenging book makes explicit a dimension of patent law that is not commonly found in traditional commentaries, treatises and cases. 

 
Selected articles
and chapters in books
 

(with Paul Rabinow & Gaymon Bennett) ‘From theory to inquiry?’ (2014) 20:2 Journal of the Royal Anthropological Institute 362-366

‘Law after anthropology. Object and technique in Roman law’ (2014) 31:2&3 Theory, Culture & Society 147-166

Anthropological scholarship after Marilyn Strathern does something that might surprise lawyers schooled in the tradition of ‘law and society’, or ‘law in context’. Instead of construing law as an instrument of social forces, or as an expression of processes by which society maintains and reproduces itself, a new mode of anthropological enquiry focuses sharply on ‘law itself’, on what Annelise Riles calls the ‘technicalities’ of law. How might the legal scholar be inspired by this approach? In this article, I explore one possible way of approaching law after anthropology, which is to find within law’s own archive a set of resources for an analogous representation of law itself. Drawing on the historical scholarship of Yan Thomas, I suggest that the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations.

‘No (more) logo. Plain packaging and communicative agency’ (2013) 47 UC Davis Law Review 101-131.

The tobacco industry’s archives suggest that the global campaign for the plain packaging of tobacco products originated in 1986, when the Canadian Medical Association passed a resolution calling for cigarettes to be sold in packages bearing only a brand name and the health message ‘this product is injurious to your health’. In most jurisdictions, regulations requiring the apposition of health warnings to cigarette packs have been in force for decades. Proposals for plain packaging aim to go further, and eliminate the visual and tactile features that turn cigarette packs into ‘badge’ wrappers, and which express the subliminal messages that diminish or subvert the effect of even the most uncompromising health messages. Given that effective plain packaging regulations would severely restrict the tobacco companies’ ability to exploit their trademarks or rights in trade dress, the question of the domestic or international ‘constitutionality’ of such restrictions has become an essential ground for the industry’s contestation of plain packaging measures. When it passed the Tobacco Plain Packaging Act of 2011, which came into force on December 1 2012, Australia became the first nation in the world to impose a mandatory scheme of plain packaging, and, in the process, the first jurisdiction to adjudicate on the constitutionality of plain packaging. Plain packaging legislation raises a number of engaging theoretical and practical questions: about the legal qualities of the intellectual property rights that articulate branding strategies, about the relationship between the regimes of international trade law and world health policy, and about the history of regulatory initiatives to address the public health implications of smoking. Here, I am interested questions about the communicative agency of the mass media: what does the example of Australia’s plain packaging laws tell us about the role played by the surfaces of material wrappers and packages in branding practices?; how do brands articulate with the other strands of the mass media?

(with Brad Sherman) ‘On the prehistory of intellectual property’ in Howe & Griffith (eds) Concepts of Property in Intellectual Property (Cambridge: CUP, 2013) 11-28.

One starting point for Hohfeld’s analysis of fundamental legal conceptions is Justice Holmes’ observation that ‘[i]t is one of the misfortunes of law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis’.[1] We focus in this chapter on one such ‘encysted’ idea; namely, the compound assumption that intellectual property rights relate to ‘ideas’, that ideas are intangible things, and that the architecture and operation of intellectual property rights is shaped by a real difference between tangible and intangible things. In the language of modern intellectual property scholarship, ideas are said to be by nature non-excludable and non-rivalrous;[2] no person can be prevented from accessing and possessing an idea that has been publicly disclosed, and no person’s use restricts or diminishes the use of another. In this chapter, we challenge this premise by way of a return to what might be called the prehistory of intellectual property rights; more precisely, the history of a period in which literary and artistic productions were construed as material things rather than the embodiments of intangible works. We draw on the history of tabula picta to make a simple point; intellectual property rights are not peripheral, exceptional, fictional, or tenuously analogous forms of true property rights. Ultimately, our suggestion is that, far from being the poor relation of ‘true’ property rights, the making of intellectual property rights exemplifies what is involved in the emergence and maintenance of property rights in even the most material of things.

‘Ius resistendi. Resistance as reflexivity’ in Bauer, Harré & Jensen (eds) Resistance and the Practice of Rationality (Cambridge: Cambridge Scholars, 2013) 262-281.

(with Claire Marris), ‘The cut that makes a part’ (2012) 7(2) Biosocieties 103-114.

(with George Gaskell & Sally Stares), ‘How Europe's ethical divide looms over biotech law and patents’ Nature Biotechnology (2012) 30(5) 392-394.

'The materiality of what?' J. Law & Soc. 2012, 39(1), 167-183.

Argues that Bruno Latour's claim that any mode of social analysis, including legal studies, must engage with the agency of material artefacts, extends actor-network theory to include the communicative dimension of "regimes of enunciation". Discusses Latour's account of law as enunciation in his ethnography of law-making in the French Conseil d'Etat, that was published in 2002. Assesses the materiality of law conceived as a regime of enunciation.

Forensic machinery' (2011) 43 Cabinet 75-80.

'Law machines. Scale models, forensic materiality, and the making of modern patent law', (2011) 41 Social Studies of Science 621-643.

Early US patent law was machine made. Before the Patent Office took on the function of examining patent applications in 1836, questions of novelty and priority were determined in court, within the forum of the infringement action. And at all levels of litigation, from the circuit courts up to the Supreme Court, working models were the media through which doctrine, evidence and argument were made legible, communicated and interpreted. A model could be set on a table, pointed at, picked up, rotated or upended so as to display a point of interest to a particular audience within the courtroom, and, crucially, set in motion to reveal the 'mode of operation' of a machine. The immediate object of demonstration was to distinguish the intangible invention from its tangible embodiment, but models also 'machined' patent law itself. Demonstrations of patent claims with models articulated and resolved a set of conceptual tensions that still make the definition and apprehension of the invention difficult, even today, but they resolved these tensions in the register of materiality, performativity and visibility, rather than the register of conceptuality. The story of models tells us something about how inventions emerge and subsist within the context of patent litigation and patent doctrine, and it offers a starting point for renewed reflection on the question of how technology becomes property.

'Biotechnology as environmental regulation' in Andreas Philippopoulos-Mihalopoulos (ed), Law and Ecology. New Environmental Foundations (London: Routledge, 2011), 105-125.

(with Brad Sherman) 'Kinds, clones, and manufactures', in Biagioli, Jaszi & Woodmansee (eds), Making and Unmaking Intellectual Property. Creative Production in Legal and Cultural Perspective (Chicago: University of Chicago Press, 2011), 269-283.

Review of Golder & Fitzpatrick, Foucault's Law (2011) 74 Modern Law Review 159-168.

'Fiction science and proprietary effect' in J-P Gaudilliere & D Kevles (eds), Living Properties (Max Planck History of Science Preprint, 2009) 225-239.

'Protocell patents. Property between modularity and emergence' in M. Bedau & E. Parke, The Ethics of Protocells. Moral and Social Implications of Creating Life in the Laboratory (Cambridge MA: MIT Press, 2009) 165-182.

The Ethics of Protocells - coverTeams of scientists around the world are racing to create protocells—microscopic, self-organizing entities that spontaneously assemble from simple organic and inorganic materials. The creation of fully autonomous protocells—a technology that can, for all intents and purposes, be considered literally alive—is only a matter of time. This book examines the pressing social and ethical issues raised by the creation of life in the laboratory. Protocells might offer great medical and social benefits and vast new economic opportunities, but they also pose potential risks and threaten cultural and moral norms against tampering with nature and "playing God." The Ethics of Protocells offers a variety of perspectives on these concerns.

'Fabled Animals'  - Review of Michel Serres (translated by Lawrence R. Schehr) The parasite, in Biosocieties (2008), 3:452-455

Alain Pottage & Brad Sherman, 'Organisms and manufactures: on the history of plant inventions' (2007) 31:2 Melbourne University Law Review 539-568.

This article examines the nature of the invention in intellectual property law. Taking the United States' Plant Patent Act of 1930 as its central focus, it explores the terms in which the compatibility of biological inventions with the modern paradigm of the invention was debated in the first part of the 20th century. The questions addressed in the debates leading up to the enactment of the Plant Patent Act of 1930--what kinds of plant qualified as patentable subject matter; what exactly did a breeder have to do in order to qualify as an inventor; and what was the relationship between the act of invention and the act of reproducing the invention--were ultimately questions about the consistency of ideas and the nature of manufacture, the answers to which are as pertinent today as they were some 80 years ago. We argue that in answering these questions, the traditional notion of the invention was redefined. Whereas traditional utility patents were based on the assumption that the only actor able to exercise agency in relation to the development of a novel invention was the human inventor, the regime of plant patents acknowledged that nature played a key role in the creation of new plant varieties. By altering the concept of agency that underpins the inventive process within patent law, plant patent law fundamentally changed the way that the invention was configured. In particular, whereas mechanical inventors were inventors at the beginning, breeders were inventors after the fact. At the same time, plant patent law also reversed the roles normally played by the participants involved in the creation of the invention. Under traditional patent doctrine, nature provided the material which was then shaped into an invention by the human inventor. In the case of plant patents, nature did the inventing, and the breeder was relegated to the task of identifying and then reproducing nature's creations. One of the consequences of this is that breeders did not create a new genetic principle--instead, they inductively appropriated a natural event. This changed the premise of invention--invention became an inductive rather than an originating act. Using the doctrinal requirement of enablement as a case study, we show how the reconfiguration of the invention had and continues to have important ramifications for the way that plant inventions, as with biological inventions more generally, are dealt with by intellectual property law.]

‘The Socio-Legal Implications of the New Biotechnologies’ (2007) Annu. Rev. Law Soc. Sci. 2007. 3:3.1–3.24

This review explores a number of legal-theoretical studies of the encounter between law and biotechnology. Rather than attempt an extensive compilation of scholarship, the review focuses on those studies that have addressed the effects that biotechnologies (understood in the broadest sense) have had on the composition of legal form. Although the relation between law and biotechnology is often seen as being one in which law is applied to biotechnology as a kind of prohibitory limit or regulatory force, this review explores some of the ways in which biotechnological programs have challenged and eroded the conceptual form of law. The hypothesis is that there is an antagonistic relation between law and biotechnology and that this antagonism is brought out in scholarship relating to the key areas in which the encounter between law and biotechnology is played out: intellectual property, governance and regulation, and those domains of law that have incorporated technologies of DNA fingerprinting.

Conflicts of Laws: Comparing Autochthonous Legal Cultures' in Stephan Stetter, ed. Territorial Conflicts in World Society: Modern Systems Theory, International Relations and Conflict Studies (New International Relations Series; Routledge, 2007)

Law, Anthropology - cover

By bringing into dialogue modern systems theory and international relations, this text provides theoretically innovative and empirically rich perspectives on conflicts in world society.
     This collection contrasts Niklas Luhmann’s theory of world society in modern systems theory with more classical approaches to the study of conflicts, offering a fresh perspective on territorial conflicts in international relations. It includes chapters on key issues such as:
-- conflicts and human rights   -- conflicts in the Middle East and sub-Saharan Africa  -- war and violence  -- Greek-Turkish relations  -- conflict theory  -- the role of states in world societal conflicts  -- legal territorial disputes in Australia  -- hegemony and conflict in global law -- conflict management after 9/11.
     While all contributions draw from the theory of world society in modern systems theory, the authors offer rich multi-disciplinary perspectives which bring in concepts from international relations, peace and conflict studies, sociology, law and philosophy.

‘Materialities in Life and Law: Informatic Technologies and Industrial Property’ (2006) 15(1) Paragrana 82-101.

‘Too much ownership: bioprospecting in the age of synthetic biology’ (2006) 1(2) Biosocieties 137-159.

Taking the example of Craig Venter’s marine bio-prospecting expedition, this article explores the effects that bioinformatics and sequencing technologies have had upon the process of bio-prospecting. What kind of an aggregate is a collection that spans evolutionary ecologies, database logics and programmable synthetic organisms? And by means of what displacements, translations and topologies are genetic collections ‘made up’ in the age of bioinformatics and synthetic biology?

‘Fabricating persons and things’ and ‘Our original inheritance’ in Alain Pottage & Martha Mundy, eds., Law, Anthropology and the Constitution of the Social. Making Persons and Things (Cambridge:Cambridge University Press, 2004).

Law, Anthropology - cover

This collection of interdisciplinary essays explores how persons and things - the central elements of the social - are fabricated by legal rituals and institutions. The contributors, legal and anthropological theorists alike, focus on a set of specific institutional and ethnographic contexts, and some unexpected and thought-provoking analogies emerge from this intellectual encounter between law and anthropology. For example, contemporary anxieties about the legal status of the biotechnological body seem to resonate with the questions addressed by ancient Roman law in its treatment of dead bodies. The analogy between copyright and the transmission of intangible designs in Melanesia suddenly makes western images of authorship seem quite unfamiliar. A comparison between law and laboratory science presents the production of legal artefacts in new light. These studies are of particular relevance at a time when law, faced with the inventiveness of biotechnology, finds it increasingly difficult to draw the line between persons and things.

‘Who owns academic knowledge?' (2004) 24(2) Cambridge Anthropology 1-20.

‘Persons and things. An ethnographic analogy’ (2001) 30:1 Economy & Society 112 138.

This article explores some parallels between the ethnographies of Marilyn Strathern and Bruno Latour. More precisely, it distinguishes Latour's models of a symmetrical alliance between humans and non-humans from Strathern's conception of an ethnographic analogy,which finds (in the context of Melanesia) a mode of social action that is indifferent to the modern distinction between persons and things. This theoretical inquiry takes as its theme the question of the ownership of genetic tissues, which not only affords a topical, concrete, context for the exploration of theoretical issues, but also offers a persuasive illustration of the critique of 'symmetry' that unfolds from the perspective of Strathern's ethnographic analogy