2.1.1 Rites de passage

The identification of three stages in rituals appears early on in van Gennep’s The Rites of Passage, at the same time as a more granular understanding of how they emerge in practice.Footnote ⁹ ‘Rites de passage’ are rituals in which the subject is in transition, usually in social status, and have been commonly identified in the context of puberty rites or marriage ceremonies. The subject is transformed through the operation of three distinct ritual phases, emphasising an ontological change rather than a more superficial change in title or role. The subject is first isolated or separated from their existing social status and environment, they enter an indeterminate liminal space in which they have lost their pre-existing state but not yet achieved another, and then they are incorporated back into society but with their new social class or status.Footnote ¹⁰ So while all rites of passage would in principle include separation, transition, and incorporation, van Gennep points out that these are not always present to the same extent in a ritual instance.

Yet patent law appears to demonstrate quite an equal presence of these three stages, as information undergoes a series of ontological states on the way to being a patent. In terms of subject matter, patent law certainly breaks from the typical application of ritual study (and also van Gennep’s The Rites of Passage specifically). Turner, however, emphasises very early in “Betwixt and Between” the flexibility with which ritual and ritual space can be deployed.Footnote ¹¹ There is a recognition that ritual is not simply confined to specific, culturally defined, life events. Rather, ritual is a fundamental element of essentially any transition that marks the transformation from one state to another.Footnote ¹² The moment of application for a patent, or the discovery of an inventive technical solution, could be read as a similar process of transformation that marks the progress between states. Yet it is in Turner’s discussion of the more sociological dimension of ritual and its instances that relate most directly to patent law. He argues that rites de passage do not simply mark the progress between recognised states, but can also be found when a subject achieves a new state.Footnote ¹³ Approached from this perspective, patent law can then be seen to explicitly deal with the changing (legal) state of information. Technical information is transformed through the patent application process and transitions linearly (though not necessarily smoothly) from non-protection, some legal reach, to full enforceability. The patent grant that results is not simply a transition to an ascribed state in the traditional ritual sense, but is instead an elevation of the information to a new status that would appear similar to Turner’s status examples.

2.1.2 The first stage: separation

As van Gennep’s first phase of a rite of passage, the process of separation is also a central element of patent law and provides the initial framing of the ontological dimension of patentability.Footnote ¹⁴ It is not surprising given the original focus on initiation rites that the separation, in a more traditional ritual context, has a strong physical basis.Footnote ¹⁵ For van Gennep and later scholars, the separation is at once physical and metaphysical—isolating the body of the initiate (crucially, alongside other initiates) with a corresponding social or psychic isolation.Footnote ¹⁶ A would-be patent would at first appear to be a strictly metaphysical separation in which technical information becomes subjected to linguistic boundaries. In doing so, the information of the would-be patent is isolated, set alongside the prior art and commons as a distinct entity. Crucially, this connects with some of the most fundamental elements and processes in the patent office. A key aspect of the patent application that is used to guide the patent examiner assessment—though the actual extent of required material differs depending on jurisdiction—is prior art.Footnote ¹⁷ ‘Prior art’ refers to all publicly known material and essentially acts as the technical context in which the new invention sits, demonstrating the way in which the application reaches beyond what is already known. For the patent office, the concept of prior art is a technical requirement that enables the examiner to easily understand where the invention is positioned. The invitation (or requirement) for the applicant to essentially produce a synthesis of the prior art relevant to the invention frames the technical contribution of the application under consideration. And yet it isn’t just a technical or mechanical requirement of the patent office’s formal process: The applicant is enacting a separation between their own claim and what has been claimed before, isolating it from the undistinguished mass of public knowledge, and constituting a contextualised ‘prior art other’ specifically for the application.

Yet this separation also has a physical dimension because the patent specification which is submitted in the application is an important legal artefact. The metaphysical isolation of the information is confirmed by the physical document, with the physical representation of that separation carrying the legal weight of the information. Grace or priority periods are a common feature of patent law, present in the Paris Convention, and indicate, if not a direct physical form in the specification, at least a sense of physical effect.Footnote ¹⁸ Focusing on rites de passage as ontological transitions demonstrates how the patent application remains incomplete in its transformation and yet its status as a ‘patent application’ already has some legal impact. Crucially, this effect is not simply abstract but produces an important relationship to other, independent, instances of property. In this inchoate form, a patent application can be interpreted in a variety of ways related to infringement or enablement,Footnote ¹⁹ protection of claims of novelty,Footnote ²⁰ and safeguarding of the priority of a subsequent patent application elsewhere.Footnote ²¹ This hazy status or impact of the would-be patent is reflected in many other discussions in the context of ritual, in which the ritual is constructed as a suspension or a break “from the everyday.”Footnote ²² For patents and patent applications, this suspension takes on an almost concrete force, as it clearly establishes a time before—and after—the patent application. This forcibly changes our interpretation of other patent criteria (such as novelty or inventiveness) and produces a distinct legal space which supports further transformation.

2.2.1 Transition in ritual space

The second stage van Gennep highlights in The Rites of Passage are the liminal, or transitional, rites.Footnote ²³ Though he identifies several different contexts in which liminal rites function—ranging from the reception of strangers, childbirth, and priesthoodFootnote ²⁴ —the underlying purpose of these rites is to act as a preparation for the rites of incorporation.Footnote ²⁵ Key to the liminal stage or threshold stage is its indeterminacy, producing a space in which the existing class (social, cultural, legal) is succeeded not by a new state but with something more amorphous and lacking in security or certainty. Turner, though this is discussed more completely later, argues that the liminal space of transitional rites is a space in which the past is left behind (or otherwise suspended) while a future has not yet been realised.Footnote ²⁶ McCusker in particular contextualises the importance of Turner’s “instant of pure potentiality” that produces an environment “in which many options and outcomes, positive and negative, become possible.”Footnote ²⁷

Patents reflect the tensions in both the marginal phase itself and the broader sense of existence between specific and identifiable ontological states inherent to the ritual process. The liminal stage in a patent application presents an environment in which the patent application is defined by its uncertainty. The information’s existing class is left behind, but it has not yet been replaced with another and reincorporated. At the point of application, information has been elevated beyond common knowledge and afforded some legal impact, though it lacks the full weight of a granted patent. Crucially, as discussed by McCusker, one of the key aspects of the liminal process is that not only has the aggregation or reintegration not occurred, but there is also no guarantee that it will be achieved.Footnote ²⁸ This uncertainty, in transitional rites generally and in patent law more specifically, is driven by the amorphous quality that the liminal stage brings. The dynamism of this stage is produced by the force of reconfiguration and not necessarily towards a successful reintegration. Once filed, the patent application obviously has no guarantee as to a successful conclusion. There is also a corresponding uncertainty as to the precise form that the claimed information will take when or if the patent application is successful.

2.2.2 Intangible subjects of a transition

By its very nature, information which is the subject of a patent operates at the margin of knowledge. This is often presented as the technological “frontier”Footnote ²⁹ (which also retains a physical connotation as border or margin) where, to be eligible for a patent, the information must be new and non-obvious to those skilled in the art.Footnote ³⁰ This sense of frontier as both a physical and somewhat spiritual or magical space appears throughout van Gennep’s work and the literature more generally.Footnote ³¹ The margin in patent law is profoundly connected to how the information is separated in a ritual sense. The act of putting together a patent application and specification is necessarily both a separation from what is known and accepted, as well as an assertion that this information represents a new boundary or margin of innovation and somehow exists beyond our current understanding.

Yet patent law also demonstrates something more profound about the character of margins or boundaries in a subject’s ontological state. Boundaries—whether they are in a traditional ritual context or in patent law—are never concrete. This is often implied in ritual literature, wherein the stages of a ritual always have a somewhat fluid quality that has raised discussions over ritual type vs. ritual instance and the effect of variation or improvisation on the overall character of the ritual.Footnote ³² The boundaries of the patent are essentially adjusted by the application of patent guidelines. Claims that cross categories and embody multiple independent claims are an example of this because, with some broad exceptions, they do not necessarily imply the patentability of a process claim from a product claim.Footnote ³³ The application of general principles or a general framework in a specific instance, whether in a patent or ritual proper context, necessarily takes on an almost improvisational character that explores the distinction as the patent office and examiner see it. This is unavoidable in a patent context, because the information under consideration should challenge the margins and boundaries of existing knowledge.

The ‘improvisation’ that is enabled within this transitional space also extends beyond the patent office and into courts, with legal disputes over validity or infringement.Footnote ³⁴ In both contexts, the margins and boundaries of the patent can be reconfigured to arrive at a patent that nevertheless retains a rigid and impactful quality with a relatively stable delineation. The looking back at a patent in a dispute context can involve the precise claims of the patent being adjusted, the scope of the patent reinterpreted, or the entire patent being invalidated. All of these demonstrate that the actors, through a more creative or improvisational perspective on margins in patent law, are involved in a reconfiguration of the relationship between the information being claimed, its boundaries, and its very separation from the undifferentiated whole body of knowledge. This dynamic relationship is occurring in a more ad hoc way than would first appear from the more formalised character of patent law. Yet this certainly does not discount the important formal aspect of law in the patent office. Mechanisms in which there is significant national autonomy to their precise design—the existence and dynamic of pre- and post-grant opposition is one clear example—are produced through legal provisions.Footnote ³⁵ Each aspect of the design, implementation, and practice of these formal legal provisions complicates the interactive nature when they are given form in individual disputes. Opposition again appears to be a particularly illustrative example of the diversity here. Opposition proceedings in some jurisdictions can take place when the patent is published but not yet granted (pending),Footnote ³⁶ while others only allow for post-grant challenges to its validity (and some which have switched between them).Footnote ³⁷ And even when these systems adopt similar structures, there is significant variance in who has standing to challenge validity—whether there must be an interest, or whether the legislation provides a broad right of challenge to anyone.Footnote ³⁸ Formal provisions that provide for these mechanisms contribute to patent law’s regulatory or technical appearance, while in practice, validity and the determination of validity necessarily take on a somewhat fluid character.

2.3.1 Reincorporation of the ritual subject

Patent law presents some specific insights into van Gennep’s final interpretation of ritual transition, particularly because it embodies the multiplicity of incorporation. Incorporation or agrégation is the final point of ritual time that confirms the reintegration of the neophyte, in their new ontological state, within the normative order.Footnote ³⁹ Central to these rites of integration or aggregation is a sense that the individual re-enters broader society, but with their new class and status. The context in which they operate is not necessarily changed by this re-entry, though there is certainly some impact on the character of this general or public space because of the presence (entry/re-entry) of a transformed individual. This broader sense of re-entry is also present in many of the rites of incorporation and, as with the general presence of portals or markers of space, features formal entrances or a consecration of different parts of a home.Footnote ⁴⁰

Van Gennep’s original work presents an immediately physical way of understanding aggregation or incorporation because it focused predominantly on societal interactions. Here, rites of transition are concluded with an often physical representation of joining—where a marriage ceremony is concluded with a binding or tying of the participants, an “exchange of handclasps,” a sharing of food.Footnote ⁴¹ Each of these elements resolves the tension inherent to the transition in state and reflects something more of a reincorporation of the subject within the non-ritual space. Throughout the process of integration is a constant negotiation between external and internal that determines, in each moment, where the ritual subject is positioned on this spectrum. So, while van Gennep and later anthropological work has focused on human subjects being integrated, fundamental to this process in any context is how these rites facilitate movement along a spectrum of recognised state. There appears to be no reason why aggregation rites could not apply to a non-human or non-physical subject, precisely because the aggregation is a transformation in social state (insider/outsider) and not necessarily or solely a physical reintegration.

Van Gennep confirms this in references to the landmark work of Layard, presenting connection between communities or individuals as something which can be achieved even without physical contact.Footnote ⁴² Pronouncements take on a particular quality in rites of incorporation, where van Gennep describes a more multifunctional deployment.Footnote ⁴³ What is important in van Gennep’s approach to this type of incorporation is the recognition that these interactions provide “at least a temporary bond.”Footnote ⁴⁴ This sense of provisional connection with the world and an introduction of the subject back into the broader group also have parallels in the way patent specifications are handled. Just as rites of incorporation are used as a way of “launch[ing] the child into the world,” the publishing of the successful patent in the patent gazette is a way of dissolving the contextual time-space of the patent application and reincorporating it within broader society.Footnote ⁴⁵ There is also a familiar sense of naming the patented information—a pronouncement—which is sanctioned by an authoritative actor (the state via the patent office) and indicates both the change in legal and social status of the information and confirms its re-entry in general society as a complete artefact.Footnote ⁴⁶

2.3.2 Recursive and repeated incorporations

Yet patent law demonstrates that this reintegration of the subject with the pre-existing normative structures does not simply end with the conclusion of a specific ritual instance or the grant of the patent. Rather, the process of reintegration occurs reflexively and across many different contexts that stretch beyond the strict boundaries of the ritual. And yet these reflexive integrations are mirrored by the potentially expansive lifespan of the patent. This article has focused predominantly on the process within the patent office as information changes in legal state. From a broader perspective, the conclusion of the ritual space and the successful reintegration of the patent, with its new legal status, is simply the beginning of a much larger cycle. Many patents are granted and produce limited economic value for their owners, while only a small number of successfully granted patents will ever be litigated. Litigation, just as with opposition procedures and the risk of invalidation proceedings, represents the way in which the legal status of the patent can suddenly be brought into question. A patent may proceed for its entire lifespan without challenge or change, in which case the expiration of the patent would flow directly (if not immediately) from its reintegration. Litigation of a patent may be rare, but it wrenches the patent back into a liminal space in which the quality, character, and substance of the application are brought into question and subject again to considerations of separation and integration.

The underlying information of a patent undergoes aggregation in several ways, both in the narrow lifecycle considered here of an initial application, and in a challenge made through litigation later. The first is at the conclusion of the patent process in which the information emerges, legally distinct and protected, in its new form as property and becomes a part of ‘patents’ broadly considered. It re-joins the public world (that is, outside the specific confines of the patent processes) as publicly available information that nevertheless retains a distinctiveness and a legally enforceable character. Crucially, the grant of a patent also envisages its own end. The information then experiences a further ontological transformation in which the patent again becomes public, but this time as part of the commons and divested (broadly) of its legal weight. In this form, the information forms the prior art for other applications, and so retains—not as a patent but as a state of information—an influence on the future transformations of would-be patents.

This sense of expiration of a patent also mirrors many of the conventional ritual features that emphasise both a representation and a blurring of distinctions between life and death.Footnote ⁴⁷ The end of a patent term is perhaps the clearest example of a ‘death’ in legal terms in a conventional ritual context, yet this life/death continuum is often only one of many different binaries.Footnote ⁴⁸ Patent law itself contends quite regularly with questions around inventions that fundamentally question distinctions between organic and non-organic, or human and non-human. Patent law is at the centre of these binary distinctions, and the broader exploratory quality of distinctions makes sense given that patents represent the legal experience of the technological frontier and so raise difficult questions. This reflects the cyclical quality of ritual space, where the aggregation necessarily involves a negotiation of new margins that cannot be successfully resolved or reduced in a single ritual instance.

2.3.3 The contextual boundaries of reintegration

The ontological dimension of ritual space and its subjects is also particularly interesting in a patent context. Philosophical perspectives that provide a way of exploring the existence of the patent application can provide important insight in isolation, though they also can be integrated within van Gennep’s repeated connection between ritual time and non-ritual time.Footnote ⁴⁹ Schlag and the discussion of bounded objects is perhaps the most obvious connection to the separation that a patent application undergoes. For Schlag, the bounded object is finite in its reach and existence—though crucially, in its original context, the bounded object’s boundedness is closely tied to the physical representation that enables it to become an “object-form.”Footnote ⁵⁰ Patents and patent applications reflect this embodied boundedness in the form of tangible manufactured technologies, yet the quality of boundedness also extends temporally as well. The entire patent application process, as well as the resultant patent itself, are strictly delineated by time in a way that reflects many of the same fundamental tensions in the discussion of bounded objects.

How this bounded object relates to its broader context—whether this is in terms of time or space—brings together the ontological understanding of ritual time with the changing boundaries of a subject. One perspective that stands out in ritual study is again found in Turner’s “Betwixt and Between,” which provides a unique way of interpreting how patents come into existence. Turner refers specifically to the terminology used by the Bamba and Shilluk people in discussing their rites, in which a girl is not mechanically ‘made’ a woman through the ritual but how a girl ‘grows’ to be a woman.Footnote ⁵¹ Turner locates the fundamental element of the ritual here by understanding it as effecting an ontological transformation rather than a more superficial change in title. Ritual and ritual space are not simply used to relabel existing elements of a configuration, but instead to reflect a more fundamental shift in their social and cultural state. Aggregation is then not simply a description of what is happening to the subjects of the ritual, but borders on something more performative.

Employing this human body analogy and applying it to a patent application, it is apparent that the process of applying for a patent involves a similar ontological transformation. The unique features of the patent office and the application process have been discussed in other work, describing a specialised and technocratic environment that works to question the understanding of patents as a neutral inscribing of technology.Footnote ⁵² But connecting this insight to the ontological transformation of ritual reveals a more fundamental understanding of what is occurring in the patent application process. The information progressively shifts not only through the stages of a ritual but through ontological states more fundamentally—the specialised vocabulary,Footnote ⁵³ the incentives and culture of patent professionals,Footnote ⁵⁴ and the examination guidelines or classifications all influence the content and form of the would-be patent. The result is that, at every stage from application to grant, the information under consideration is transformed by its context in both form and content. Thus, the ‘patent’ that is granted does not simply involve a change of name in which a piece of information is relabelled as a patent. The ontological character of the patent has shifted from the point of application (and even before this, in that the applicant chose to apply specific boundaries and interpretations of the information in anticipation of a patent application) to the point of grant. A necessary result of this sequential ontological transformation is that the boundary of the patent—its precise scope—shifts as it proceeds through the different stages towards grant. Fundamentally, the process of the patent office is about facilitating these developments in state and working to contextualise the procedural elements of the patent grant. This is not to disregard their value entirely, but rather to recognise that there is more to the grant of a patent than the official guidelines or rules of the patent office.

Here, a more organic view would be that the boundaries (and thereby the scope of the patent) have a sense that they are grown rather than imposed. As discussed at the beginning of this section, the patent’s scope is not certain—its margins and effective scope can be tweaked, reinterpreted, or re-established entirely. The recognition that these processes are both sequential and involved in something beyond surface-level classification also extends to patent applications which are between stages. The boundaries of a ritual in a more conventional context are not always entirely clear, but patent law benefits from a legal underpinning that provides a more explicit structuring.Footnote ⁵⁵ The presence of explicit stages is juxtaposed with how the patent application shifts between these stages, influenced by contextual factors, demonstrating that the ontological transformation is part of a broader process that extends beyond singular moments in ritual space.

3.1.1 The ‘pure possibility’ of transition

All of these things together highlight the important way in which the patent application process works to transition information from one legal state to another. Turner’s work, rather than focusing on rites de passage in a broader ritual context, instead investigates the liminal or interstructural period of these rituals.Footnote ⁵⁶ One important aspect is the focus on the typical importance of biological change—as a transition and rite of passage—where a transition in ritual reflects a physical change in or between states. Turner argues that the space between stages in a ritual is not a neutral state, but instead, one in which there is the potential for reconfiguration and reinterpretation. Yet even here there is an expansiveness of what ‘ritual’ or ‘transition’ can be taken to mean. Turner recognises the more secular (or at least less overtly religious) aspect of these transitions by highlighting how “legal status, profession, office or calling, rank or degree” can all constitute a ‘state’ that can be the subject of a transition.Footnote ⁵⁷ The emphasis here on social recognition and “social constancies” would suggest the liminal space is important not only in biological transitions, as in traditional ritual literature, but also in more abstract or intangible transitions.Footnote ⁵⁸ Forth develops this further and describes how rites de passage are present “when a student ceases to be an undergraduate and becomes a graduate.”Footnote ⁵⁹ Central to rites de passage, but specifically exemplified in the example of the undergraduate, is the shift in state to one that is more valuable, more powerful, or more influential.Footnote ⁶⁰

From this perspective, patents share many similarities with how professionals or leaders experience the transition into their new social rank or class. Patents are intangible, but their stability as a state of being comes from the cultural recognition of their authority, content, and form by other participants in the patent system.Footnote ⁶¹ Liminality is important not just as an element of the broader ritual occurring, but as the enabling characteristic that supports the more fundamental ontological transformation which is occurring. Alexander argues this precisely by presenting liminality as “the basis of the transformations that ritual effects.”Footnote ⁶² Key to this is the sense of transformation. Turner emphasises the potentiality of the liminal space that reflects not just a casting off of social categories but something more creative.Footnote ⁶³ The patent application process, as with Turner’s focus, centres the potentiality of the liminal space because of this creative dimension. Alexander notes that ritual, building on Turner’s perspective, has an ontological status as a process of change rather than simply supplementing or depending upon some more fundamental social process.Footnote ⁶⁴ Returning to patent law with this greater ontological emphasis highlights how the recognition of the patent application (and eventual patent right itself) is not simply a mirror to another social process but is itself an independent and fundamental element of how the patent acquires its new ontological state. Here, it is the ritualised transformation that itself establishes the (legal, social) reality of the patent right rather than acting as a confirmation or reduplication of some other, more fundamental, social (or biological) process.

3.1.2 Continued motion and ongoing changes in state

Central to Turner’s understanding of rites de passage and transition more generally is a sense of continuing motion. This perspective renders transition not as a state of being but as a “process, a becoming, and in the case of rites de passage even a transformation.”Footnote ⁶⁵ Two elements of this apply particularly directly to patents. The first is the understanding of transition as a ‘becoming’, which reflects many of the traditional perspectives in ritual literature discussed earlier. In proceeding through the patent application system, the patented information does not enter and exit in the same state. The information is elevated in status, acquiring a more distinct legal impact, and is granted the status of property through a process of constant motion. Viewed as a process of becoming, the patent system does not simply evaluate the patented information on the basis of technical requirements. Instead, these requirements guide the transition and the process of becoming that shapes the information at an ontological level as it proceeds through the patent application process.

Related to this, the second important element of Turner’s transition is the persistent emphasis on transformation. Though the patent application system and the role of examiners can be understood in terms of the ‘becoming’ of a patent, there is certainly something more bold in characterising this as a transformation. Transformation can be identified in two further aspects of the patent application. The first is a transformation of form, though this necessarily produces the second transformation, which is of content. The patent application produces a transformation in the form of the information at a basic level that occurs from the moment of preparation for an application. How a technical solution to a problem is constructed is not simply an aesthetic question because, in a patent context, it shapes the precise scope of the patent. This rearranging of technical information has been approached from the perspective that emphasises the reduction of legal risk or exposure,Footnote ⁶⁶ and Thambisetty in particular has presented ‘textualisation’ as a way of understanding the central character of the text in the patent specification.Footnote ⁶⁷ From that perspective, the text is not simply a passive reflection or encoding of an invention but a distinct artefact with its own conventions (which extend across form, content, and design).Footnote ⁶⁸ Yet a more ritual-focused approach that emphasises transition and transformation further integrates these perspectives within a broader framework of transition. From this more integrated perspective, it suggests the transformative effect occurs not only at the point of application, but again at grant and expiration in a series of recursive textualisations.

This leads to the second transformation, which is in terms of the content of the patent. Again, the textualisation focus suggests a transformation of the information through specific language conventions, but the ritual framing takes this further. The transformation in form is itself a transformation in content. Specialised language is the primary tool for enacting these transformations, though the role of this language has been under-explored outside of a technical context. The specialised vocabulary of patent law and its complexity have been discussed elsewhere, presenting an image of patent law that is characterised by its opaqueness to generalist legal discussion.Footnote ⁶⁹ This lack of generalist input raises concerns generally for accountability, but it also reflects how patent law produces specialist spaces with their own dynamic. This creative space facilitates the transformation of information as it travels through the patent application system, isolated from broader legal reality. Ritual literature is full of analysis that details the use of special words or words that take on a particular meaning within a ritual space—though this is not to say that the patent application uses magical phrases to produce a patent.Footnote ⁷⁰ Rather, the use of specialised language and conventions represents an encoding (and thus a transformation) of specific pieces of information in very particular ways, the result of which is a piece of information which becomes a specific type of property and given legal effect. The use of this vocabulary is not just a tool to enable a more precise understanding of what is being claimed, but instead reflects a fundamental change in what is being claimed, described, and protected. Taken together, there is a sense of ‘knowing’ that is described in ritual literature. The use of technical language and the specific conventions of drafting a specification work as signals to both the patent office and other inventors that the applicant is, at least provisionally, part of the community.Footnote ⁷¹ This contributes to the specialisation of the patent office space, because its participants actively seek to integrate themselves in order to incorporate their conventions. This obviously has an economic aspect to it, because a patent applicant would like to have the patent accepted. Yet it also has a more abstract impact, in that it produces an environment with a strong delineation between a patent office space—which requires conformity and coherence—and the rest of the world.

3.2.1 Identifying the liminal in other areas of legal study

The liminal space that is emphasised in Turner’s work is a key element in applying concepts from ritual studies beyond anthropology. Just as Forth (and Turner before him) highlighted, the essence of rites de passage is a sense of transition that does not necessarily have to be religious in character.Footnote ⁷² The liminal space, the “realm of pure possibility,” is what allows otherwise rigid states of being to be reconfigured.Footnote ⁷³ The creation of a transitory state in which reality can be reinterpreted or reconfigured is key in applying ritual concepts outside of the traditional subject matter. Work across history, human rights, and sociology have all deployed the concept of liminal space in a more general, secular, way.Footnote ⁷⁴

But law in particular has an interesting relationship to the creative potential of the liminal space because of how these states of being are produced (and enforced) by explicitly binding frameworks. Bankruptcy and the work of Korobkin demonstrate the potential for restructuring that is produced by the liminal space in rites de passage.Footnote ⁷⁵ Korobkin identifies the potential for bankruptcy law to undo or modify existing commitments in the same way that a rite of passage does—where not only the commitment itself is undone, but its broader relationship to the social order is revisited.Footnote ⁷⁶ The example of a ritual approach to bankruptcy is important for patent law here, because it emphasises the relationship between specific ritual events and the broader social structure. In patent law, the difficulty in the transitory phase, just as with bankruptcy, is that the knowledge under consideration is at once a distinct object and yet is also representative of more abstract or broader categories within the patent system. Korobkin explores how the ritual space serves to “insulate the prevailing social order from disturbance,” with clear delineation between the literal world and the ritual world.Footnote ⁷⁷

In terms of contemporary patent law, the discussions around COVID-19 and the possibility of a waiver are particularly interesting when considering the concept of social order and disturbance.Footnote ⁷⁸ The waiver offers a distinct approach to the patent when considered from a ritual perspective, because it essentially brings about a temporary ‘death’ of the patent. A waiver is an attempt to forcefully push a successfully granted patent back into a liminal space—where it has an incomplete or ineffective legal impact and cannot give rise to legal action—and allow its material to be used without fear of enforcement. And yet the use of a waiver in COVID-19, rather than compulsory licensing, clearly reflects Korobkin’s analysis of how ritual space insulates the social order. This is because a waiver is at once a recognition of the validity of the patent and the bundle of obligations that it represents, whilst essentially (and however temporarily) undoing them at the same time. The waiver, if successful, must balance between its material objectives and the risk that it demonstrates the fragility of patents as legal objects. This balance would appear to be achieved predominantly through its time-limited nature and the fact that it is in specific response to COVID-19 (and not epidemics in general). Yet the undoing of an obligation and the fundamental risk that it poses to the entire concept of the patent system could explain some of the unarticulated tensions that underlie opposition to the patent waiver.

Yet what appears to be understated or more implicit in Korobkin’s work is the liminal space. While the transition between states and the actions that signal a transition between states are discussed, they are not explicitly linked with the reorganising potential of the space between states.Footnote ⁷⁹ Of particular importance for patent law is the sense of altered time that Korobkin highlights in the use of legal mechanisms.Footnote ⁸⁰ Here, the filing of a bankruptcy petition has a profound impact.Footnote ⁸¹ What is described as “an extended ‘present tense’”Footnote ⁸² in the context of bankruptcy could be more properly understood as the liminal space that Turner describes. In establishing a legal context that is isolated from ordinary rules or expectations, the automatic stay in bankruptcy marks the start of the liminal space and an (extended) transition between existing states.Footnote ⁸³ For patent law, the patent application functions in a very similar way. Just as with bankruptcy, the environment that this application produces is at once isolated from existing rules or expectations in a way that supports reconfiguration, whilst also being necessarily dependent on that broader social order for its stability and the eventual reintegration of the subject. Crucially, from a legal perspective, this isolated state of transition has not only a societal impact but a legal one—the bankruptcy petition changes the ability for debtors to pursue the applicant’s assets, whilst the patent application gives weight to the claimed invention through rules of priority.Footnote ⁸⁴ The subjects of these transitions, because they remain integrated within broader frameworks and social categories, are never truly isolated in this period of transition. As such, the ‘pure possibility’ of these transitory spaces is not necessarily unlimited and, in a legal context, is constrained quite significantly by the broader social order.

3.2.2 The liminal quality of borders in patent law

Liminality and the ‘between-ness’ of rites de passage also appear prominently in other areas of patent law beyond the application and grant procedures. Enforcement of the patent demonstrates perhaps a clearer sense of the ‘pure possibility’ that Turner describes when a subject is progressing through the different stages of a ritual.Footnote ⁸⁵ And this sense of potentiality highlights an important element when looking at patent applications—the diversity of both discipline and quality.Footnote ⁸⁶ Software is perhaps an example which stretches across both of these concerns, but there are sure to be others. The border between inventive and non-inventive shifts depending on discipline, and yet there is something much more fundamental to the liminal quality of inventiveness. The dividing line between these for an examiner will likely be clear when encountering the extremes of a high-quality application and a low-quality one. Yet it is precisely the cases of a borderline invention which highlight the improvisational element that is central to the practice of examination guidelines. Can the line between inventive and non-inventive ever be scientifically expressed? The very existence of these liminal applications represents an invitation, primarily to the examiner, to subtly renegotiate where exactly the inventive border lies in a way that cannot be expressed in strict legal language.

The enforcement of a patent—that is, a response to an alleged infringement—would at first appear to be a simple question of fact that tries to position where a patent is located in terms of knowledge and also in terms of the patent application process. Yet the reality of a patent challenge highlights how, in practice, a claim of patent infringement occurs in a liminal space in which the patent can take on multiple, potentially overlapping, roles within this isolated context.

This liminality appears in two distinct contexts, the first of which is more administrative. Many jurisdictions separate out proceedings for infringement and validity, though they are often deployed at the same time for strategic reasons, as in systems with a unified approach.Footnote ⁸⁷ This represents a fundamental contradiction in the state of the patent. A defending party can respond to a claim of alleged infringement by arguing—at the same time and potentially in the same venue—that their patent or product is not infringing, and even if it was, the original patent to which infringement is claimed is not valid anyway. This has been described as the double-track problem in specific jurisdictions, such as Japan, because the separation of infringement and validity proceedings risks producing contradictory judgments.Footnote ⁸⁸ A variety of approaches can be deployed to address this tension, such as through a unified appellate forum and more explicit communication between the institutions involved.Footnote ⁸⁹ The overlapping quality of dispute context(s) here highlights the important reminder that these transitions in state or category of the patent do not progress unilaterally. The contextual space that allows the reconfiguration of legal space is as much an undoing as it is “a doing.”Footnote ⁹⁰

3.2.3 The hazy quality of liminal boundaries in patent adjudication

But beyond the judicial way that this problem has been approached—constructed as a problem of competing venue and claim—emphasising the liminal space provides a more comprehensive understanding of the ontological dimension of the patent in these circumstances. The claim of infringement and the commencement of proceedings function essentially as a recursive stage in the patent ritual that presents four potential ways of progressing, producing a liminal space to facilitate the ontological shift in the status of the underlying information. This also works to reaffirm the non-linearity of these transitions. If the infringement claim is unsuccessful, then the elevation of information to the status of a patent is reaffirmed and its legal influence is proven. If the patent has not been infringed but is successfully defended from the validity challenge, then its elevated position and status are again confirmed. If the patent is judged to be invalid, then the underlying information loses its authoritative legal status (though it retains some influence as part of the commons), and the judgment pronounces this shift in status.

Perhaps most interestingly for liminal space and the shifting character of the patent would be the fourth potential situation, in which the patent is judged to be partially valid or partially infringed.Footnote ⁹¹ In this situation, the legal proceedings function as a kind of instanced version of the original patent office process.Footnote ⁹² The court takes the essential steps of the original ritual and replays them, though its fundamental elements are still drawn from the original uses of specialist language and defined process. Crucially, this sense of an instanced or condensed ritual process applies to cases emerging from both invalidation and infringement. Obviously these are distinct legal procedures, and yet they are both—in terms of the liminal space—performing a similar function. It is the legal challenge to the integrity of the patent that is the catalyst for a return to the liminal space. The court then takes on the same position as the original patent office, as it replays the same steps and carries out the same judgments as to the legal character and quality of the patent but from their own perspective and in their own unique context.

It is the liminal space that enables this reconfiguration of the patent and its legal effect, because it renders the underlying information as between legal states again, where its effect remains indeterminate until a decision has been made. This has been overlooked in conventional patent literature, but the ritual perspective highlights how significant this ontological reconsideration actually is. Patents function as property and their boundaries are relied upon in much the same way as real property: They can not only be assigned or licensed (leased) to others, but can also be used to secure venture capital funding or function as collateral for financing.Footnote ⁹³ It is precisely the in-between character of the legal proceeding that enables the reconfiguration of a patent and its boundaries as a form of property.

Understood as part of a broader rite de passage, it realises this by elevating certain elements of the underlying information (as a confirmation of validity or non-infringement) and rendering others as lacking the legal authority of a patent (through disallowing specific claims). The fact that this occurs on an ad hoc basis for a piece of property is significant for what it demonstrates about how far the reconfiguring power of the liminal space can go. In fact, the use of ‘information’ to refer to the patent throughout the article has been an attempt to recognise the complexity of the liminal space in patent law. ‘Information’ has been used not only to distinguish the patent from the technical knowledge that it represents, but also to try and find a neutral term to describe that underlying knowledge. Rather than framing the patent as a vehicle or representative of information, however, one could also understand it as representing investment or the labour of an inventor. Each of these implicitly recognises that the ‘patent’ is working somehow as a stand-in or is distinct from its contents. The article focused on ‘information’ because the liminal space in patent law is the reconfiguring of knowledge—of information about a technical solution—that affects not only the form in which it is expressed but the legal impact of that reshaping. Information can be represented by a patent or manifest in a patent, but the patent itself is a distinct artefact in terms of its legal effect and characteristics.

Approaching the infringement proceedings as an instance of the ritual also reflects many of the tensions found in more conventional ritual literature. Van Gennep does not necessarily consider this in The Rites of Passage, but the distinction between ritual particulars (though here ‘instance’ is used), ritual type, and ritual change was deconstructed expertly by Seaquist.Footnote ⁹⁴ Again, we see reflections of improvisation and how this does not necessarily render the instance a different type of ritual—where the choice, based on the evidence submitted, to elevate some elements and disallow others necessarily involves a contextually responsive improvisational approach.Footnote ⁹⁵ The infringement proceeding is certainly distinct from the original patent office procedure, particularly in terms of how the process is initiated and the venue where it takes place, but the essential steps and the result are the same (though the court results in a reaffirmation with the same legal weight as an ‘original’ determination). The infringement proceeding functions as an instanced form of the original, overarching ritual, but one that is nonetheless contextually limited. Also interesting to the later process of infringement is that it occurs with knowledge of the patent already granted. Seaquist has discussed how assessing ritual change or adaptation necessarily requires knowledge of how the ritual existed before these changes.Footnote ⁹⁶ And so in this revisiting of the patent in an infringement context, there is at least an immediate sense of continuity between the previous transitions that occurred to produce the patent originally and the current instance of them. This also extends to the explicitly creative task of judges in these cases—to imagine what another inventor could have known at that time, and to imagine what informational materials would have been available at the time.Footnote ⁹⁷ All of these elements together produce a process which is less concrete and more improvisational than it would first appear.

Though even in this reaffirmation of the patent there is a sense of transition between the liminal and the prescribed, where the conclusion of the process (the judgment) produces a legal effect that stretches beyond those involved in the case and to society more generally. This can also be found more explicitly in cases that deal with validity in specific jurisdictions where it does not render a formal change in validity but one that remains inter partes and yet still broadly effective.Footnote ⁹⁸ From this perspective, the conclusion of the infringement proceeding is again a form of aggregation—whereby the patent is reintegrated as a form of property and its legal status reaffirmed, with borders that have again taken on an erga omnes character. The liminal space resolves and the result is a complete property right with defined boundaries. Yet this conclusion of certainty masks the amorphous quality of information in a patent while proceeding through these stages, as well as the serial transformations that occurred through the liminal space.