Patents as Assets: Intellectual Property Rights as Market Subjects and Objects

Patents occupy a hybrid node in the entanglement of science, technology, and finance within capitalist economy and law. A patent, an intellectual property right creating a monopoly of twenty years, contains different proprietary modes in which an invention’s potential may be materialized in social relations: via appropriation, possession, commodification, and assetization. These modes may not necessarily always overlap. This chapter describes and problematizes a specific turn to assetization that patents have taken: the transfiguration of patents into speculative financial assets. In light of the scholarship about the marketization and financialization of sciences (Nelkin 1984; Mirowski 2011; Birch 2017) and cultural studies of capitalization processes (Muniesa et al. 2017), I extend the question of patent value (Kang 2015) to examine the practices and mechanisms of valuation by which patents— legal property rights— are transformed into assets. I delineate the different ways in which patents are valued and acted upon as financial assets, which are premised on layers of legal and financial abstraction. Whereas it is well known that patents commodify, alienate, and eclipse their original referents— the inventions (Strathern 1999)— the analysis here shows that patents are enacted as real options in valuation practices and have been used as instruments of financial hedging. As a result, I argue that law itself is turned into a speculative financial asset. The chapter focuses on the novel forms and practices that have turned the legal form of patents into speculative financial assets rather than offering an analysis of patents as legal techniques of commodification and monopoly rentseeking. From the perspective of intellectual property law scholarship, the oftenvoiced criticisms against patents, that they exclude 2 Patents as Assets: Intellectual Property Rights as Market Subjects and Objects