Patent Performativity

Patent law remains stubbornly undertheorized; we have surprisingly little understanding of the social role of patents or its implications. To help address this deficit, this paper examines patents as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through Butlerian enactments, to Barnesian social constitutives. I then indicate how patents function in each of these respective modes of performativity, first as performative speech acts, then as normative inscriptions, and ultimately as mechanisms of social fabrication. Drawing on these observations, I identify what it means to perform patents, and suggest some practical and doctrinal implications of patent performativity, particularly for the “gender gap” that is manifest in the patent system.