This chapter begins by providing an overview of the key features of early chemical subject matter, namely that it was fickle, empirically based, and rapidly changing. After outlining the problems this created for patent law, I look at the way that patent law dealt with one of these problems. This was how to reconcile the way that chemical inventions were created with a mechanical understanding of invention that dominates in patent law.

After looking at how software was created and consumed in the 1960s and, as this changed, how it gave rise to questions about the role intellectual property might play in the emerging software industry, Chapter 5 looks at the contrasting ways that patentable subject matter was seen within the information technology industry and how these views were received within the law.

This chapter builds upon the previous chapter to look at the way that plant-based subject matter changed across the twentieth century as science began to look below the surface of plants at the molecular or cellular level. It also traces the shift from plant to biological subject matter which, over time, changed to become a molecular subject matter. It ends by looking at the role that materiality played in helping the law to deal with a molecularised subject matter.

This chapter looks at the way that patent law resolved some of the other problems that chemical subject matter posed, particularly in working out how to define the boundaries of what was being examined or protected. While patent law employed a number of different strategies to delimit a fickle, empirically based, and changing chemical subject matter, this chapter highlights the central role that the materiality of chemical compounds played in helping the law to accommodate chemical inventions.

This chapter begins by outlining the changes that took place in second half of the nineteenth century with the rise of structural formula in chemistry and what this meant for patent law. Of particular importance was that it led to a shift away from the materiality of chemical compounds to more paper-based speculative inventions. The chapter ends by looking at what this dematerialisation of chemical subject matter meant and how the law responded.

This chapter begins by highlighting the notable characteristics of plant-based subject matter and the problems this posed for patent law. It then looks at the way that patent law responded to these problems. Specifically, it looks at how the process of invention was reconfigured to take account of the peculiarities of plant-based subject matter; the role that materiality played in helping the law to draw boundaries around the subject matter; and finally the role that the informed nature of the subject matter played in allowing patent law to deal with plant-based subject matter.

Chapter 6 looks at the problems patent law experienced in the 1960s and 1970s in attempting to reconcile the conflicting views of the industry about what the subject matter was and how it should be interpreted.

As early as 1996, when bearing multiple tattoos was less common among celebrities and athletes, a famous tattoo bearer filed an intellectual property lawsuit to protect against the commercially exploitative use of his tattoos by a third party. Dennis Rodman, “a well-known, extremely successful and hugely popular professional basketball player” in the National Basketball Association (NBA), sought to prevent T-shirt manufacturer Fanatix Apparel, Inc. from making and selling the “Dennis Rodman Tattoo T-Shirt.”2 The long-sleeved T-shirt bore replicas of 10 of Rodman’s tattoos in the same locations as the tattoos on his body.

Intellectual property (IP) scholars have spent considerable time demonstrating the global injustice produced by IP rights (IPRs). In any area where IP has taken on a significant role, it comes at a cost. The world’s food security, for example, is dependent upon corporate agriculture and biotechnology companies that control who can plant what and when they can plant it. These patent-protected products are virtually the only choice for modern farmers, even as these companies experiment indiscriminately with new patent-protected products that could have far-reaching impacts on the very ability to produce food in the future.

For a growing portion of our society, and especially younger generations, life increasingly revolves around intellectual creativity, entrepreneurship, and the digital domain. General Motors and other manufacturing companies are no longer the largest and most significant economic enterprises. Digital Age startups, such as Apple, Google, Facebook, Amazon, and Netflix, provide the social and commerce platforms of daily life. They dominate the business news. Tesla is revitalizing the American automobile industry and revolutionizing automobile transportation. The balance sheets of these companies are not based on tangible resources but rather intangibles – intellectual property rights, information, and human capital. As President Obama emphasized in his final State of the Union Address,1 technological innovation provides the greatest hope for addressing the most pressing human challenges – climate change, public health, food and fresh water supply, and world peace. Social interaction occurs more and more in cyberspace, a seemingly infinite, borderless “place.” And a growing proportion of the most salient “property” rights issues that concern netizens and the U.S. judiciary relate to information resources and digital technology.

Throughout most of the twentieth century an exceedingly narrow interpretation and application of the utilitarian rationale for intellectual property protection dominated much of Western intellectual property (IP) law and policy.1 This was especially evident in the United States, wherein an economic incentive/commodification approach to IP social utility pervaded IP jurisprudence and scholarly discourse. In essence, that limited perception of the utilitarian economic incentive approach to stimulating IP endeavor, including among other things, the production of patentable inventions and copyrightable expressive works, was premised on the belief that IP endeavor is most effectively promoted by providing individuals with nearly absolute property rights in their IP output and the accompanying prospect of monetary rewards for their intellectual labors. Concomitantly, the commercial marketplace would not only determine the “rules of engagement” for IP production and dissemination, but also incentivize and determine the quality and quantity of IP output. Such an approach would result, by design, in IP innovators and creators devoting their energies to producing the kind of IP products that the public was willing to pay for, with little incentive to engage in “nonessential” IP activity unlikely to bring adequate economic returns.