Intellectual and the Knowledge Economy’s Global Division of Labor: Producing Taiwanese Green-Technology Between the United States and China

Matthew E. West

Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences

COLUMBIA UNIVERSITY

2015

2015 Matthew E. West

This work is licensed under a Creative Commons: Attribution – NonCommercial - NoDerivatives 4.0 International through December 31, 2025. Please see http://creativecommons.org/licenses/by-nc-nd/4.0/ for complete license details. Beginning January 1, 2026 this work is licensed under a Creative Commons: Attribution - NonCommercial 4.0 International License (see http://creativecommons.org/licenses/by-nc/4.0/ for complete license details). Please contact the author about a license for any other uses at [email protected].

ABSTRACT

Intellectual Property and the Knowledge Economy’s Global Division of Labor:

Producing Taiwanese Green-Technology Between the United States and China

Matthew E. West

The social scientific study of globalization's increasing flows of commodities, financing, knowledge, media, and people has been a productive ground for investigating changing connections among geographically distant people and their consequences. In spite of this recent focus on movement and flows, however, I suggest that our knowledge of globalization is incomplete without an understanding of the infrastructures of stoppage that underlie and determine the ongoing shape and directionalities of that movement. This dissertation lays out an argument for as one such critical legal infrastructure of global stoppage that provides unique insight into the changing roles and challenges confronting China and Taiwan within global systems of production, consumption, creativity, and copying. The dissertation's ethnography of patents in practice is based on 20 months of fieldwork on the production of technological knowledge and property in it within a Taiwanese LED (light emitting diode) company that produces patents between Taiwan and the United States and products between

Taiwan and China. I argue that the processes by which knowledge is extracted and translated from the lab to the law decouples the knowledge from its origins in machines, materials, and engineers. This decoupling enables patents to circulate separately from these and provides owners with new control over global flows of engineers, tangible commodities, and usable knowledge. Alongside my Taiwanese interlocutors, I argue that patents are best understood as weapons of competition: more similar to non-disclosure agreements or aggressive pricing tactics than or other forms of “.” As weapons, the deployment of patents encourages the production of new patents much more than it does technological . As they are currently practiced, patents therefore enable flows, but do so only in particular directions. It is through this stoppage that high tech patents create and maintain global divisions of labor, profit, and environmental risk.

TABLE OF CONTENTS

LIST OF FIGURES ...... vi

ACKNOWLEDGMENTS ...... viii

DEDICATION...... xii

CHAPTER 1

Introduction:

Globalization and an Ethnography of Stoppage ...... 1

Globalization and Stoppage...... 7

Secrecy, Knowledge, and the Company...... 12

Taiwanese, Chinese, and the Global of Taiwan's Between ...... 20

Global, Local, and Intellectual Property...... 21

Being Between: The Global as Taiwanese ...... 28

Chapter Summaries...... 38

PART I

Creation...... 43

CHAPTER 2

"Enlightenment":

Patents and Embedded Knowledge in a Taiwanese LED Company ...... 44

1. Knowledge Embedded in Networks of People...... 46

2. Emergent Knowledge as Material ...... 53

3. Disembedding Knowledge: Searching out the “New” ...... 59 i

Conclusion: Barth, Hacking, and the Anthropology of Knowledge...... 66

INTERLUDE 1:

The Anatomy of a Document: Hybrid, Process...... 71

CHAPTER 3

Representation:

Translation and the Decoupling of Property from Knowledge ...... 83

Translation: Additions and Omissions...... 85

Iterative Cooperation: From Diachronic Narrative to Synchronic Description...... 87

Diversifying and Genericizing the Idea...... 93

Diversification ...... 95

Genericization...... 99

The Occlusion of Translators in Translation ...... 106

Decoupling Commodities: Translation, Translators, and Property ...... 115

INTERLUDE 2

Written Descriptions:

Toward the Logical from the Techno-Logical...... 120

CHAPTER 4

Negotiation:

Claimmaking and the Production of the Means of Ownership...... 130

The Claims Section...... 132

Defining a Single ...... 147 ii

Negotiating Claims and Counterclaims...... 159

Enabling Dispossession: Representations, Technology, and Property in Knowledge ...... 179

Delayed Dispossession ...... 179

CHAPTER 5

Property as Weapon:

The Philips-Epistar Patented Infringement Case...... 188

Deployments...... 194

Rights...... 194

Words...... 196

Weapons ...... 200

The Law as a Weapon...... 203

PART II:

Deployment and Consequences...... 210

CHAPTER 6

From One to Many:

Hollowed Landscapes and Defensive Patent Portfolios ...... 211

Shang-Xiawei Patents and the Curious Case of Overlapping Intangible Property...... 216

Defensive Patent Portfolios and Hollowed Landscapes ...... 229

Conclusion: What Patents Beget ...... 238

INTERLUDE 3

Return to the Field (The Company Speaks Back):

iii

Ownership, Time, and Value...... 245

CHAPTER 7

Green Technology Deployed:

Contents and the Making of a Global Division of Labor ...... 250

Technologically Green: Commodities of White Light ...... 250

The Race to Blue: From red and green to blue and white ...... 250

Technologically Green: From Brightness to More...... 256

“Green” Patents and a Changing Global Division of Labor...... 264

The Emergence of the Big 5 ...... 264

Power, Taiwanese Fast Followers, and the Messiness of Globalization ...... 273

Conclusion ...... 280

CHAPTER 8

Green Capitalism on Taiwan's Green Silicon Island:

Commodities of Light in the Shadow of Carbon...... 284

Green Technology as a Question...... 286

Discursively Green: In the Shadow of Carbon...... 289

An Emerging Green Silicon Island: Act I, Environmental Opposition...... 289

Act II, The Government’s Environmental Embrace...... 295

Articulating Green, Capitalism: Green Regulation and Green Markets...... 302

Expanding Green ...... 303

Regulating Green...... 306

Endangering Green ...... 310 iv

Conclusion: Commodity Lifecycles, Environmentalism, and Global Divisions of Labor...... 315

CHAPTER 9

Conclusion:

Innovation, Environment, and Legal Infrastructures of Stoppage...... 320

Innovation, Competition, and the Intellectual Property Umbrella ...... 327

Commodity Capitalism: Articulations and Other Ends...... 333

BIBLIOGRAPHY...... 336

v

LIST OF FIGURES

Figure 1.1: The LED industry's “Big 5” set of European, American, and Japanese primary patent

holding companies...... 7

Figure 1.2: The Traditional Contours of the LED Industry...... 36

Figure 2.1: LED Structure ...... 61

Figure 2.2: Electron-Hole Recombination and Bandgap Diagram...... 62

Figure 2.3: Lattice and Lattice Mismatch...... 63

Figure 2.4: LED Roughing ...... 65

Figure 2.5: A scanning electron illustration of the location of Flux’s bubble...... 69

Figure 2.6: The Anatomy of a Patent...... 73

Figure 3.1: Ohm’s Invention Drawing...... 92

Figure 3.2: Removing Details from a Patents Figures:...... 103

Figure 3.3: SemiLEDs Patent ...... 133

Figure 4.1: The Scope of Claims after Genericization and Diversification ...... 133

Figure 4.2: Claim 1 of ITRI's US patent number 7,586,126 ...... 139

Figure 4.3: Aviva’s sketch of the ‘302 patent’s first claim...... 143

Figure 4.4: Generic version of the ‘302 patent’s first claim...... 148

Figure 4.5: Drafting the Claims...... 145

Figure 4.6: Merging Patent Ideas into a “Single” Invention ...... 152

Figure 4.7: Gebremariam’s First Non-Final Rejection...... 165

Figure 4.8: UEC’s ‘966 Patent’s Four Embodiments...... 173

Figure 5.1: Philips’ (above) and Epistar’s (Below) Arguments over the ‘718 Patent...... 196

vi

Figure 5.2: Philips versus Epistar and UEC Lawsuit History ...... 205

Figure 5.3: Lawsuits filed by Epistar against Taiwanese Firms...... 207

Figure 6.1: Epistar Corporation's US 7,652,302 chart ...... 218

Figure 6.2: The '302 patent from Figure 1 (top) turned inside-out...... 219

Figure 6.3: A Shangwei (Genus) Patent Claim...... 221

Figure 6.4: Once Hollowed Out...... 222

Figure 6.5: Twice Hollowed Out...... 224

Figure 6.6: Hollowing out over time ...... 225

Figure 6.7: Clusters of Patents around Patterned Sapphire Substrate Technologies...... 234

Figure 7.1: The CIE 1931 Chromaticity Chart ...... 256

Figure 7.2: Lawsuits and Cross-Licensing among the Big 5 patent holders...... 270

Figure 7.3: Licensing and Lawsuits in the LED Industry...... 271

Figure 7.4: Globalization and the X Watt Project ...... 275

Figure 8.2: Taiwan's Carbon Reduction Initiatives ...... 300

Figure 8.3: Huga Website...... 312

Figure 8.4: Everlight Electronics’ Green Facts Sheet ...... 313

Figure 8.5: Relative environmental impact of LED, Incandescent, and CFL bulbs...... 318

vii

ACKNOWLEDGMENTS

Over the course of the preparation, research, and writing of this dissertation I have had the great fortune of having met and been assisted by a great number of people in New York, Boston,

Taipei, Hsinchu, Taoyuan, Tainan, and Shanghai. First and foremost, I would like to take this opportunity to thank all of the people who accepted my interviews, interruptions of their work, and what must have often seemed like obvious questions at the Company, at CD Cafe, and elsewhere in Taiwan and China's high tech and patent industries. Whether pieces of your particular interviews or our particular interactions have an explicit presence in this work or not, your willingness to share something of yourselves, your working lives, and your expertise are what have made this work possible at all. I hope that my discussion, analysis, and anthropological conclusions here will be another chapter in our ongoing conversations. I especially appreciate the willingness of top-level managers to allow me to conduct my participant observation fieldwork within the Company alongside themselves and their employees.

I have benefited tremendously from the guidance of Myron Cohen, Paige West, and

Brian Larkin, my internal doctoral committee members at Columbia. They not only guided me in terms of research design, execution, and writing, but also have provided valuable examples of what anthropology can look like as a profession. I greatly appreciated the willingness of these three advisors as well as of Anru Lee and Alain Pottage, my external committee members, to critically engage with my work, to challenge me toward stronger arguments, and to encourage me to take it in new directions. Like my engineering interlocutors, it was always nice to hear

viii when what I was doing was “new enough.” At Columbia, I also owe a special debt of gratitude to the cohort—Seema Golestaneh, Kaet Heupel, Anand Vivek Taneja, Sophia Stamatopoulou-

Robbins, Sarah Vaughn, and Darryl Wilkinson—and to the department's dark-siders for turning

Columbia into a very real institutional home even when the going got tough.

The field research on which this dissertation is based as well as the writing of the dissertation itself was recognized and funded by a Doctoral Dissertation Improvement Grant from the United States Science Foundation, an International Dissertation Research

Fellowship from the Social Science Research Council, a . Martin Wilbur Fellowship from

Columbia's Weatherhead Institute for East Asian Studies, a Chiang Ching Kuo Foundation

Doctoral Fellowship (declined), and a Dissertation Writing Fellowship from the D. Kim

Foundation for the History of Science and Technology in East Asia. Moving from an initial concept or set of research interests, to operationalizable research questions, through at times difficult fieldwork, and then through the long haul of writing often felt like a never ending process. Without these institutions’ financial support and valuable vote of confidence in my project at several critical junctures, this research would not have been possible.

While in Taiwan for my fieldwork, I was affiliated with the Institute of Ethnology at

Academia Sinica and appreciated early discussions with Shu-min Huang and Teri Silvio among others. I could not have done my fieldwork in Hsinchu without the support of Chien-chung Lin, who introduced me to colleagues at NCTU's Institute of Technology Law, invited me to attend their annual Intellectual Property conference, and provided a welcome periodic respite from

“fieldwork” at a variety of local coffee shops and other restaurants. I also had great conversations at a variety of stages of the project with Julia Huang, Yi-Tze Lee, Wei-I Lee, Chyuan-Yuan Wu, and with members of ITRI's Electronics and Optoelectronics Research Division.

ix

Parts of this dissertation have been presented in lectures and conference presentations at

Columbia University, Barnard College, Boston University, National Tsing-hua University,

Academia Sinica's Institute of Ethnology, and at annual conferences of the North American

Taiwan Studies Association, the Association for Asian Studies, and the American

Anthropological Association. I have gained much from audience comments and questions at each of these presentations. I wanted to particularly thank Mark Goodale, Paul Kockelman, Sida

Liu, Elizabeth Mertz, Deborah Tze-lan Sang, Derek Sheridan, and Joseph Wong for offering in- depth discussant remarks on the dissertation material I presented. At Boston University I would like to thank Fred, BU's anthropology department dissertation writing group, as well as its faculty and graduate student members for graciously allowing me to join them and for their substantial comments and encouragement on drafts of multiple chapters. Kimberley Arkin,

Thomas Barfield, Charles Lindholm, Huwy-min Lucia Liu, Chun-yi Sum, Christopher Taylor, and Robert Weller all contributed valuable criticisms, comments, advice, and encouragement as the dissertation was taking its final shape. Of course, while I am grateful for the input and support of the people and institutions mentioned (and not mentioned) here and while I hope that my writing has come to reflect some portion of each of their suggestions, responsibility for the final form the analysis has taken as well as any failures or mistakes in the text lie with me alone, as the motivator of this particular network of knowledge.

My last note of thanks goes to my family in the United States and Taiwan—particularly to Thomas and Nancy West, Tsui-Chuan and Szu-chi Liu, Christina West, Elizabeth West,

Ming-how Liu, Peter and Susan Brown, and Pamela Moo—for their love and support throughout this lengthy journey. As I have continued to deepen my engagement with anthropology as a profession, my encounters with anthropology as an entrance into others' lives, and my own

x personal exploration of life, I have been immensely fortunate to be accompanied throughout by my partner, Huwy-min Lucia Liu. Every chapter of this dissertation has her imprint on it and throughout the last decade or so she has constantly been there with encouragement and with an intellectual force that has helped me wrestle through thick and thin. Though our anthropologies are vastly different, they are complementary, and I very much look forward to the results of future collaborations.

xi

DEDICATION

To My Family, Both Two And Four Legged Members1

1 The picture on this page was compiled together by the author from a scan of a Dutch map of Formosa (Taiwan) from 1640 that is in the as well as from the following sources (all of which have copyright terms allowing for reuse with modification): Flickr users James4765 (LED chips on board), Yellowcloud (microchip), Jim Rees (individual packaged LED chip), Mojo Mike (solar panels), and Wade Brooks (LED light bulb). xii

Chapter 1

Introduction:

Globalization and an Ethnography of Stoppage

“Within the green economy, light emitting diodes (LEDs) are an important area for contract manufacturing because the industry's patents have gotten completely tied up (被綁死了), so you have to go out to find [a license-able way to do it] yourself.” “Tied up?” I asked. “Yes, completely tied up by Japan, by Japan's patent rights. Japanese companies have applied for a lot of LED patents, [not just on the best way they found, but on all of the little variations too]. So as a result, take my company for instance, it does not directly invest in LED factories, and we don't do it ourselves, because we know we would have to buy the patent rights from Japan [rights the Japanese companies, for the most part are not selling]. So as a result we have to invest only indirectly.”

I had this conversation with a Taiwanese environmental activist at a cafe in Taiwan about green technology towards the beginning of my fieldwork in 2009. At that time, he was working in an environmental foundation established by a Taiwanese electronics company. The electronics company had shifted their production drastically over the past decade toward LED products, solar panels, and other green energy technologies and had recently funded their own environmental NGO. While our conversation ranged widely, on re-reading the interview a few years later I have been struck by the contradictions that seemed to be bound up in the idea of green technology solutions to global climate change issues. Within the LED industry there is tension not only between producers without key patents and the companies with them—holders of key patents often contract-out their manufacturing to those without—but also between a need to distribute knowledge and products widely in order to have an impact on global climate change

1 and the intellectual property rights that are said to promote the development of new knowledge in the first place. Both “green” and “patents” have come to be critically tied up with globalization and, as such, are key nodes for understanding the immense impact of globalized supply chains and truly global problems on the lives of workers and consumers around the world.

In short, these are challenges inherent to “Green” “Capitalism.” They are also problems that parallel those in a range of industries where private property in knowledge is supposed to play a role in promoting innovation.

This was something that my interlocutor was well aware of at the time. He was a well- regarded advocate for low-carbon living who had written a best-selling book teaching and popularizing the idea of calculating, and thus giving a basis to reduce, one's personal carbon footprint. Yet, at the time I interviewed him, he was working in a foundation run by a large electronics company whose carbon footprint, quite frankly, was huge. When I asked him about this, he shrugged, explaining that despite his ongoing vocal support for lower carbon emissions, including lowering those coming from factory production in Taiwan and China, the company had neither intervened in any way nor asked him to tone things down. If they did, he would leave, he said. He was not there to serve as anyone's green-washer. At the same time, he thought the company's work on green technology products was quite important, providing essential products that could help global consumers to reduce their own carbon emissions.

“This area has a lot that is really worth a deeper discussion,” he continued. “For instance, in a recent international conference, India's representative brought an LED bulb out and said, 'This thing was manufactured in India, it was assembled in India, it was even sold in India, but because the patents are in the , you know how much one of these sells for? Then you know how little the costs are?' […] Another example is wind turbines. Denmark, they have a lot of intellectual property on wind turbine technology. China has always wanted Denmark to release the patent rights to one of their (齒輪) patents. But to do this we would need a “carbon fund.” If the whole world, or developed countries,

2

had this kind of thing...You go to private companies to buy their patent rights, then you can transfer them to developing countries. But from the perspective of private companies, it is exactly because of patents that I can make any money, its only because of them that I invest so much in research and development. So I think this is of critical importance. In the future can we or can't we use green technology to do this sort of fund, that's something I thought of when I saw your topic. Because how do we achieve a balance? On the one hand, you want “private” capital to invest in this research, on the other, developing countries are asking developed countries to give them these technologies, how do you do this? How do you make the list [of what to give]? What's on the list of things that you think can be transferred, what things cannot? […] For [something like irrigation technologies] we could use this green fund to do something [easily]. But for something like LEDs, these are still being developed. You want it to be transferred, but they don't want to do it. In this case, it really isn't easy. Even though solar panels look like they have more to do with “Green”, actually it is “energy saving” that is the real battle because “renewable energy” in Taiwan is limited by our total “natural resources.” So because of Taiwan's cloud coverage, for Taiwan “energy saving” actually occupies 50 to 52% of our total potential carbon reductions, but “renewable energy” occupies only around 17%.”

In 2014, the Nobel Prize in Physics was awarded to three Japanese researchers—Shuji

Nakamura, Isamu Akasaki, and Hiroshi Amano—for technological advances that enabled the first of these new energy saving white lightbulbs made with LEDs. It seems that LEDs' promised energy saving abilities have truly begun to capture the imaginations of consumers outside of

Taiwan and Japan, two early adopting countries. Each of these scientist-engineers had contributed key advances toward the invention of the first commercially viable, high brightness blue LEDs and, later, the first stable, room temperature solid state blue . While these blue lasers have enabled dramatic advances in data storage through blue-ray discs, the blue LEDs were the final step towards manufacturing LED-based white lights. According to the Nobel prize committee,2 white LED bulbs are now incredibly more efficient than both the traditional incandescent bulbs and florescent bulbs they are replacing. White LEDs have recently hit 300

2 "The Nobel Prize in Physics 2014 - Popular Information." 2014. Nobelprize.org. The Royal Swedish Academy of Sciences, Nobel Media AB. Last accessed November 16, 2014 at http://www.nobelprize.org/nobel_prizes/physics/laureates/2014/popular.html. 3 lumens per Watt (300 units of brightness or “flux” for every unit of electricity they use), an efficacy over 4 times greater than florescent lights (at 70 lumens per Watt) and almost 19 times greater than incandescent bulbs (at 16 lumens per Watt). Combining this lighting energy efficiency with this generation of LEDs' versatility of light emission from cool all the way to a warm yellowish white light and their very long lifetimes (lasting about a 100 times longer than an incandescent bulb) and they have also begun to make inroads into the market for general lighting for , homes, offices, and streetlamps in China, Europe, and the United States. LEDs are at the forefront of today's green capitalism: not only are they making money for the companies that produce or sell them, but they are also effectively reducing energy used for lighting in the developed world, a category that makes up 20-30% of world energy use (Class for

Physics of the Royal Swedish Academy of Sciences 2014):

LED lighting in general illumination applications has the potential in the U.S. alone to reduce lighting energy consumption by nearly one half. Over the next twenty years, the DoE estimates cumulative energy savings to total $250 billion at today’s energy prices and reduce greenhouse gas emissions by 1,800 million metric tons of carbon. This historic shift would not be possible without the development of a manufacturable intense blue LED light source (Conner 2012).

Back when I arrived in the field in 2009, however, while general lighting LEDs had only just begun to come onto the market there, Taiwan already seemed to be swept up in the idea of reducing carbon emissions. Several towns around Taipei hosted low-carbon footprint campaigns and Commonwealth (天下雜誌) both put out several green-focused issues and hosted a number of green energy discussions about the promise of biofuels,3 solar panels, and LEDs.

Over nearly a decade since the turn of the 21st century, “green” had gone mainstream in Taiwan, a relatively dramatic departure from its origins as a protest movement that served as the

3 For more on Taiwan's experiments with biofuels and organic enterprises see Yi-Tze Lee (2013). 4 foundation for Taiwan's pro-democracy movement in the 1980s and 1990s. Taipei city itself worked to promote biking and greenways in and around the city partly as a response to environmental campaigns, but also as a way to beautify the city according to a new, greener, image of modernity as well as as an engagement with its middle and professional class's growing interest in spending time and money on biking, hiking, climbing, and other out-in-“nature” activities (cf. Weller 2006).

Ma Ying-jeou even named the development of “an environment characterized by low carbon emissions and high reliance on green energy” one of his “Five Pillars to Make Taiwan

Robustly Competitive” in his 2008 presidential inauguration speech (Tso et al. 2013). While it seemed that Ma reversed nearly all of the other emphases of his predecessor—especially with regard to relations with the China across the Strait—he kept, and made his own, Chen Shui- bian's idea of building Taiwan's “knowledge economy” through its pursuit of a future as a

“Green Silicon Island.” This, of course, was not just about the environment. It was also about the economy. As I explain further in Chapter 9, much of Ma's efforts seemed to focus on reductions in carbon emissions at sites of consumption, and therefore on individual citizens, rather than on companies at sites of production. Ma and Chen's plan was, therefore, also premised on the two decade rise of Taiwan's solar and LED industries as relatively solid arenas where Taiwan seemed to have a competitive advantage within a globalized economy. This rise, in turn, was a result of

Taiwan's existing export-oriented semiconductor industry base, global trends in wages, green- targeted government subsidies, and slowly growing consumer demand for “green” products.

While the Nobel prize went to Japanese scientists, Taiwan at the time of my fieldwork was the world's leading producer of LEDs, producing locally to sell to a global market (Liu

2011). Though my interviewee above pointed specifically to the prevalence of Japanese patents,

5

LED industry lawsuits have actually resulted in the development of a “Big 5” set of American,

European, and Japanese companies who control the vast majority of primary patents and cross- license almost exclusively to each other (see Figure 1.1). These companies, meanwhile, outsource much of their actual production to Taiwanese, Korean, and Chinese companies.

Taiwanese companies are thus caught in the middle between patent rich, brand name companies and up-and-coming Chinese companies that have both the advantages of lower costs of labor and larger sources of capital accessible through government support. Though these Taiwanese companies have the knowledge to produce the primary, technologically challenging components of this new generation of energy efficient lighting, and indeed sometimes can do it both better and cheaper than the brand companies they work for, they cannot compete directly with the Big

5 due to their strong patent holdings. Green technology patents are here a critical part of the

6

Figure 1.1: The LED industry's “Big 5” set of European, American, and Japanese primary patent holding companies. (Figure by Author). structuring of both a global industry and a global problem: though they are justified rhetorically as promoting innovation, a necessary part of any long-term climate change solution, they also stop the wider production and sale of the very innovative products they cover. These products, in turn, can only hope to impact the global environment if distributed on a massive scale. With this odd articulation of environment and industry, Taiwan's LED industry is a great place to understand the pressures and practices that balance innovation and stoppage in a world of globalized production, distribution, and consumption.

Globalization and Stoppage

Whether we like it or not, or pay attention to it or not, we are living in a world produced through and producing new property forms that have very real consequences for how we live our lives. A nuanced understanding of property and piracy is critical for understanding not only green technologies like LEDs, but also everything from today's media landscapes, to biotechnology, branding, the promotion of “innovation,” and ongoing efforts to secure the rights of indigenous peoples. Nearly every product that we buy today not only has a material/useable component that we buy for the purchase price, but also an intangible “component” that consumers very rarely buy. This intangible component circulates separately from the tangible commodity and may include a branded , copyrighted content, patented technology, or a mark, pattern, or story sacred to an indigenous group (whether local or living on the other side of the world).4

4 cf. Coombe 1998. 7

When we think about globalization, often the first thing that comes to mind is the importance of connections across the whether in terms of ties between people, exchanges of information, the co-production of products, or the production of things in one place for sale in another. As Joseph Masco's (2010) work documents, it was the deployment and connection of a truly global array of sensors designed to detect and analyze the existence and effects of

American and Russian nuclear tests that later gave scientists an understanding of “environment,”

“climate,” and climate “change” on a planetary scale. Intellectual property, on the other hand seems to be a more “local” thing: private property, wherein a particular person stakes a claim to a particular intangible thing. Patents, for instance, are governed by national, not international law such that if you want a patent on the same invention in multiple legal jurisdictions, you have to apply for it separately in each. Where patents thus appear to be only single connections between owners and owned, globalization, when imagined from the perspective of flows and connections, looks like a whole web of lines linking people and places together via product production, distribution, and consumption, immigration, financial flows, and circulating of ideas.

Due to globalization's connections, it is no longer all that surprising that in the smartphone arena a Korean firm like Samsung competes head to head with an Apple in the

United States. Nor is it surprising that an American firm, Google via Android, is allied with both

Korean (Samsung) and Taiwanese (HTC) firms against another American one (Apple). Even more, outsourcing has become so pervasive for products sold in the United States (as well as in other markets around the world) that I believe few Americans would bat an eye at the fact that these American, Korean, and Taiwanese firms all equally produce the majority of their products' components outside of the United States. It is these global connections that allow companies to better control their profits and to take advantage of differences from country to country in the

8 price of labor or other product input costs. These same connections, of course, also mean that other places that were formerly centers of manufacturing, as in the rust belt of the United States, now have to “reinvent” themselves in order to find new jobs and industries for formerly skilled, and now mis-skilled, laborers.

Globalization—whether conceptualized in terms of flatness (Friedman 2005), 'scapes

(Appadurai 1996), or empires (Hardt and Negri 2001) and regardless of whether seen “from below” or from above (Brecher et al. 2000, Portes 2000, de Sousa Santos and Rodríguez-

Garavito 2005, Mathews 2011)—is thus an analytical concept born of movement and speed.

Even as scholars have shifted the term's early history backwards from its euphoric emergence out of the rubble of the Berlin wall, challenged by examples of slavery and sugar plantations in the

Caribbean in the 18th century, European colonial expansion in the 16th century, or even the 15th century Southeast Asian maritime trading circuits gravitating around China, each of these shifts are premised precisely on the common thread of increasing global movement of capital, goods, concepts, and people. The movement typical of globalization has meant that, regardless of their being sold by Samsung, HTC, or Apple, we take it as natural that a striking amount of all US- sold smartphones are actually produced in factories a half a world away from the markets they are produced for. Following this circulation of products or components of products from their places of production to the places they are eventually consumed, no less than from the place they are initially consumed onwards through the social lives and afterlives of such commodities, has become a critical technique for social scientists to understand the speeds, connections, and consequences of these new forms of global entanglements.

Yet, despite this focus on movement and global connections through movement within contemporary globalization and studies of it, it is important to note that movement does not

9 happen in every which way, nor in all directions equally. As Adam McKeown (2001) has shown for historical emigration from China, migrants tend to follow particular routes and not others.

Young men from a particular town outside of Guangzhou, for instance, might be much more likely to emigrate to Chicago than they would be to Guangzhou itself because of the personal connections that push and pull them to their destinations. Effectively, the previous travels of others from their village have made their village “closer” to Chicago than Guangzhou. Similarly,

Kahn (2000) is fascinated by the ease by which images, and therefore conceptions, of Tahiti that emphasize its exotic people and beaches circulate the globe in stark contrast to the lack of movement of alternative images of its people as Christian or of the beautiful island as a former testing ground for French nuclear weapons. Only particular “things” and people travel along these routes and these travel in particular directions. Thinking of globalization in terms of movement, then, is clearly not enough. In order to understand the webs of links among geographically dispersed places and people, I suggest we need to turn inside-out the web-like image that results from this perspective in order to instead focus on the routes and infrastructures5 that underlie them.

I argue in this dissertation that when you turn inside-out the links of production, outsourcing, and consumption that make up our popular perspective on globalization what you see are complex webs of intellectual property and the structural importance of patents and patent

5 While I therefore am building on and borrowing inspiration from the burgeoning literature on infrastructure and particularly on infrastructures of circulation (cf. Larkin 2008; Larkin 2013b; Simone 2012; Graham and Marvin 2001; Mattelart 1996; Kittler 1999; Schivelbusch 1977; McLuhan 2003), my work has also taken me in a somewhat different direction. First of all, instead of dealing with more directly tangible infrastructures like roads, railways, radio, or , I am dealing here with a legal infrastructure that emphasizes its intangibility. Also, instead of a look at the movement of things, people, ideas, or images through this legal infrastructure, I am actually interested here in the creation of the infrastructure itself and in the traces of (and disconnections from) materiality that remain in it beyond its translation. Knowledge in a patent is both traveler and infrastructure through which other things do or do not travel. As I describe later, patents are both stores of knowledge and commodities composed of property rights to the use of that knowledge. 10 lawsuits. The ethnographic story of the creation, circulation, and use of LED patents by

Taiwanese companies in the pages that follow suggests that we live in a world as much defined by stoppage as it is by movement. While this is a point that current legal battles may periodically bring to the fore, the current Smartphone Wars being among these, I show here how stoppage is actually also an integral part of the everyday practice of patents that persists well beyond the occasional high profile event. Over the past few decades, like Taiwan, developed and many developing countries have sought to transform their economies from manufacturing- or capital- intensive economies into “knowledge economies.” Though the knowledge economy is thought of as having achieved new heights in global integration and flows, this dissertation illustrates how it simultaneously depends on the expansion of a regime of “intellectual property” (IP) designed and deployed precisely to stop movement.

To get at this perspective of patents as a key infrastructure of stoppage underlying globalizations' flows, I tell here a story of the practice of patents that allows us to move beyond the black and white letter of national statutes and the common rhetoric advanced to justify the system. In turn, this enables us to return and evaluate both of these on the basis of an analysis of how patents are created and deployed in the daily life of global high technology industries.

Following Appadurai (1986) and Kopytoff (1986), I have constructed here the early chapters in a social biography of the intangible object—alternately thought of as a skill, a technology, an idea, or the echo of an assemblage of people, materials, and machines—that is created to be owned in a patent. Just because this means the book will “follow the thing,” however, does not mean that people will ever be far from our sight. The creation, circulation, and consequences of patents as practiced are intimately tied to the lives, prospects, and health of global consumers no less than they are to those of the Taiwanese and Chinese producers of LEDs.

11

This story is based on 20 months that I spent conducting interviews and participant observation fieldwork from 2009 to 2011 primarily within a single Taiwanese LED company that produces patents between Taiwan and the United States and products between Taiwan and

China. I have then supplemented this indepth case study approach with work within a variety of patent archives as well as with data from a broader set of interviews with Taiwanese semiconductor industry workers and patent professionals. I focus here on LEDs because I believe this industry provides a critical vantage point from which to gather data that speaks to a variety of pressing contemporary theoretical and ethnographic concerns. These include present debates over intellectual property and innovation, the changing positions of Taiwanese and Chinese workers within a global economy, and the role of infrastructures in our understanding of globalization. Finally, LEDs, as a critical green technology and a current focus of Taiwanese and

Chinese economic development plans, also provide an opportunity to better understand the articulation of environmental action against global climate change with capitalist commodity production.

Secrecy, Knowledge, and the Company

I walked up from my curbside motorscooter parking space toward the Company's main doors on what would be my first full day there. One of the striking things about many of the high tech companies that I visited in Taiwan was the attention they paid to security and secrecy. Even the heads of small companies with only a few employees were guarded in discussing particular aspects of their daily work or in showing me around their actual work areas. For the most part, I met the people I interviewed in coffee shops or the lobbies of their companies rather than in their

12 offices. Early on in my fieldwork, after my originally arranged fieldsite fell through, I found it rather easy to find and interview individual engineers in Taiwan's semiconductor and related industries. Most spoke quite freely with me about patents, innovation, and the knowledge economy within their respective companies and industries. What was difficult, if not impossible, in those early months was to get any of these willing interviewees to recommend other non- academics that I might contact to interview next. While they were fine with speaking to me themselves, to recommend someone else meant that that someone else would then also know the kind of questions they had already discussed with me. In short, my “snowball” samples kept melting in Taiwan's subtropical sun.

My entrance into the Company was the critical “break” that opened up the remainder of my fieldwork not only for substantially more (and more indepth) interviews, but also for participant observation with both patent and Research and Development (R&D) engineers. It was also the place where I began to understand why there was such a focus on secrecy and which sorts of things were particularly sensitive. As an anthropologist and as one with knowledge of the prevalence of small and medium-sized enterprises in Taiwan, I had originally assumed that my

“break” would come from a personal connection of some sort to the head of a small company, perhaps to one with no more than a dozen or so employees. To my surprise, however, my entrance into the Company was facilitated by a friend who worked there in mid-level management. In the two months since I had explained my project to him, he had passed it along to the head of the Intellectual Property department (whose department happened to be my friend's office neighbor) who then passed it on upwards in the Company hierarchy. By the time, out of the blue, I was invited to come by to discuss the logistics of conducting my research at the

Company, I found that my project summary and resume had already been passed around and

13 signed off on by no less than five department heads (including legal) as well as the CEO and

President of the Company. Unlike the micro-companies I thought I should be targeting, the

Company had grown significantly over the last few years, growing out of the size where decisions could be made through inter-department consultation, consensus, and, ultimately, personal authority. They had thus been working on developing a series of SOPs (standard operating procedures) for a whole range of practices from competitor product analysis to how to engage with outside academics. While the latter were primarily being developed for academics in physics or material sciences, my anthropology research request had nonetheless given them a chance to try them out. Importantly, as a company now with four-digit employee numbers rather than the dozens of a small firm, they also felt more able to accommodate (and keep an eye on) an outside researcher than a small company whose employees were each already stretched to handle multiple job descriptions only in order to scrape by from purchase order to purchase order.

The Company's lobby, like many others I had visited, was beautiful, complete with marble floors, a two or three story vaulted ceiling, reception desk, and a set of display cases that showcased the Company's LED products at each step of their manufacturing process. This well- kept frontstage,6 as I later discovered, itself remains mostly deserted even during shift changes;

Company employees instead enter through doors at the Company's loading docks or in the parking garage. The lobby was not just for show, however; it was also designed to accommodate nearly all on-site sales and other meetings with outsiders. Next to the reception desk, for instance, were several sets of couches, , and tables for meetings as well as three or four small conference rooms directly adjoining the lobby. That first day, after signing in at the reception desk, I was greeted by John, a patent engineer, and escorted through a set of keycard-

6 cf. Goffman 1959. 14 secured doors to the that led to the actual working areas of the Company. Before entering, I had to surrender my digital recorder to the receptionist and have the output ports of my laptop secured with security tape which would then be re-inspected when I left to ensure I had not tampered with any of them. As a further layer of security, non-Company services were not available within the Company's firewall and the only Company which could accept USB drives were those of high level management or those in the IT department. Sales meetings were thus held in the lobby not just to prevent the leaking of

Company secrets, but also to prevent customer representatives from having to go through the trouble of securing their electronic devices for what might only be a short meeting anyway.

Finally, John also instructed me to wear cloth booties over top of my outside . As everyone else wore anti-static indoor sandals,7 sporting these blue covers not only served to cut down on the dust that was tracked into the Company, but also quite clearly marked me as a visitor.

We took the up to the third floor, exited, and then took the nearby staircase down to a normal sized floor halfway between the building's “second” and “third” floors. The

Company had taken over this particular building from an older semiconductor company (as was common for the then expanding LED industry). It had been designed on the factory side to house production machines on one floor and their respective input, scrubbing, and exhaust pipes on a

7 I received my own pair of such sandals and a locker to store them in a week or two later, once the Company was finally able to find a pair that fit my rather large feet. The use of sandals and shoe coverings were in part a result of the Company being a semiconductor company: for clean room employees, wearing shoe coverings is really only the beginning of an essential uniform meant to eliminate dust and outside particles from the chips and wafers being produced. Yet, it was not only clean room employees who wore the sandals. Even accounting and finance divisions of the company wore the sandals at work despite never going anywhere near the Company's products, let along its production areas. The other reason for the sandals, then, can be traced to Japanese-influenced practices in Taiwan of removing shoes on entering private spaces. In chatting with employees, many saw the provision of sandals to wear at work as something that made working more, rather than less, comfortable. As I discovered on Taiwan's frequent rainy days, changing shoes before entering the office also had the benefit of allowing me to wear galoshes or other non-work shoes on the drive to and from work without then having to wear them all day. Moreover, my wet shoes could dry out in or next to my locker by the time I left again at the end of the day. 15 less accessible floor directly above them. The factory side was then separated by a wall from the office side and each were served by separate staircases and first floor entrances. The result of these “doubled” floors on the factory side was a set of half floors on the office side. Though I was told this was fairly common in factory-converted offices throughout Taiwan, the half-floors would have been difficult to find for someone who was only familiar with the Company's frontstage area or accustomed to elevators that actually stop on every floor. As soon as we left the area next to the elevators, we thus also left the Company's frontstage and moved into areas really only ever seen by employees of those particular departments. The marble flooring disappeared in favor of worn linoleum tiles, the bright display lighting switched to a standard, somewhat dimmer office-style florescent lighting, and the space filled up with people going about their normal business. At the second and a half floor, we again used John's keycard to pass through a second secured door and into an office space arranged into several groups of cubicles.

At the back of this office space, behind a lockable glass door was the set of cubicles that housed the Company's IP department and which would be my primary base for my fieldwork.

The Company was not only concerned with secrecy in the sense of restricting physical or technological access, but also in the sense of legal restrictions directly negotiated with people working with or within the Company. Before I had been invited into the Company that day, I had signed a confidentiality agreement, also known as a non-disclosure agreement, that restricted my legal ability to share any of the confidential documents or technical knowledge I happened to accumulate in the Company during my stay there. This type of agreement is rather standard for employment in high tech companies in Taiwan no less than around the world. For employees and sometimes even for customer and supplier company personnel, it would have supplemented a targeted “non-compete” agreement in which the “Receiving Party” would give up the right to

16 work as (or within) a direct competitor to the Company in those areas and for the timeframe outlined in the contract itself. My own agreement was negotiated to allow me access to

“confidential materials,” stamped on each page as “Confidential,” for the “Purposes” of our cooperation, purposes which were defined to include my “participant” and “observation” roles teaching English to Company personnel, editing the occasional English language documents, and conducting my own dissertation research. It is as a result of this formal negotiation of confidentiality and roles—something which, perhaps less formally, exists in the back and forth of nearly all anthropological research—that, in addition to the standard anthropological practice of using pseudonyms for people and places,8 I have also altered some of the technical details of the products and processes that I describe herein. While these technologies and conversations remain true to the contours of my observations and fieldnotes as pertains to property, their laboratory and social contexts, and social interactions around them, their technical content is more “in the ballpark” of LED research than providing any sort of useable “blueprint.” Though

LED experts and other physics-inclined persons may find the “” described here to be of little immediate use, I encourage such readers to enjoy the humor of my strategic deviations from reality as an appetizer to the main anthropological focus of the arguments I am making.

As it turned out, despite these clear examples of the Company's insistence on secrecy and control of knowledge outflows, I was constantly struck by my lack of understanding of which things were particularly sensitive. That very first day, after being introduced to my new

“colleagues” in the IP department (as well as to the curious inhabitants of neighboring department cubicles), I was taken directly to meet the head of R&D who promptly invited me to

8 I have, for instance, also changed a few details about the particular location and demographics of the Company to help keep the specific company relatively anonymous. Of course, given the number of mergers and the ups and downs of LED business in Taiwan, the identification question may be rendered relatively moot in a few years anyway. 17 attend R&D's twice weekly project progress meetings. To put this into context, it had taken me 8 months to find a green technology company willing to let me conduct my research on their premises. One CEO I had approached through intermediaries rejected me with perhaps the most elaborate answer I ever received. He kindly explained that it was not only that IP was a very sensitive part of his, and any company's operations, but also that he guessed it would be difficult for companies not to see me as a potential spy, given I was from Columbia University. It was only then that I connected my own research with the fact that a professor at Columbia had only recently launched a series of lawsuits against nearly all upstream and downstream Taiwanese (as well as Korean, Japanese, American, and Chinese) LED companies for infringing patents on her early wide-band gap semiconductor research. While I had had no interaction with this professor or anyone else in her department, it was suddenly apparent to me how others might not realize (or believe) this. Given these months of challenges, I was therefore stunned to find myself, in a single day, immediately invited into weekly meetings where the newest of new research, product designs, and experimental results were presented by R&D engineers to their bosses.

On the other hand, some things that I had not even imagined would be secret turned out to be very much so. A month or so after entering the Company, I spoke with a contact in HR about looking through the Company's organizational chart to help me strategize my upcoming set of interviews with employees from a range of departments. In my anthropological mind, I saw this as an exercise parallel to conducting an initial census of my fieldsite to help determine who was there, what demographic differences might be “meaningful,” and thus who to seek interviews with. When one of the bosses of IP saw me with the organizational chart, she reacted immediately. Apparently, this was not something I was allowed to see.

18

“Even I don't have a copy of this!” She told me, most likely in disbelief that I had gotten my hands on it in the first place. “If I need to access it, as a department head, I can, but only the portions I need at that moment. I can't even print it out.”

I couldn't believe it. The single sheet of that set this off merely showed the hierarchy of the departments within the Company and the names of the people in charge of each.

Many of the names at the top end of the chart and the rough outlines of the hierarchy it depicted were disclosed in annual reports to the Company's investors. How could the remaining names and detailed hierarchies be that sensitive? Despite her tone of voice, I had come to know the office as a fun place to work, taking part in frequent joking conversations with my interlocutors, and it took me a while to convince myself that she was not actually joking.

“If this is secret, then how would employees get in touch with people in other departments?” I asked, testing the boundaries.

“Most of the time there is no need. Our department employees may know individuals from a variety of co-operative, cross-departmental projects, but most have no need to know [the whole picture]. If they need to speak with someone in, say, manufacturing, then they can talk to me. I will then reach out to that departmental head and they can find an appropriate person in their department for my employee to speak with.”

“But why is this so secret?” I asked, still somewhat incredulous.

“Its the same as with internal phone extensions. You know you can't just call into the

Company and ask for the person in charge of X without already knowing their name and extension [and these are not listed publicly]. All calls to any Company extension now go through a single switchboard operator who then decides whether or not they should be sent along and to whom. A few years ago, we started having problems with people (probably from the Mainland)

19 calling random numbers to try to find and map out groups of knowledgeable people that they could then try to poach for competitor companies there.”

While the new technologies and products discussed in detail in the R&D meetings were not so sensitive that my NDA could not alleviate any worries, knowledgeable people apparently were. I later heard a story of a few mid-level managers who had been lured away to jobs in

Chinese competitors with promises of salaries that were rumored to be three or more times their annual salaries in Taiwan. As a mid-career engineer, if you could stand working there for a three year contract, you could essentially set yourself up for early retirement! Both the phone and organizational chart policies were oriented at preventing exactly this type of poaching of employees. These employees knew much more than what I was learning in the weekly R&D meetings and, as I discuss throughout the dissertation, much more than the Company even had to disclose in its patent applications. As I build up to in the chapters that follow, rather than seeing patents as kin to , , or indigenous cultural property—the other major varieties of “intellectual property”—I encourage a perspective that instead understands their creation and use in practice as legal devices deployed to control the flows of specific kinds of knowledge as well as to control the movement of both the people and products that embody that knowledge. They are infrastructures of stoppage.

Taiwanese, Chinese, and the Global of Taiwan's Between

One of the questions I often get after I have presented my research to a new audience concerns what, if anything, is particularly “Taiwanese” or “Chinese” about my research, conclusions, or topic. This is, of course, a fair question, especially for an anthropologist “studying up.” The short

20 answer is that I am less looking at something Taiwanese and more looking into, from my location in Taiwan, a system that is very much global. When most anthropologists think about

Taiwanese culture (or about Chinese culture in Taiwan), we think of temple festivals, night markets, filial piety, bridal , popular movies and music, particular ideals of masculinity or femininity, social movements, nostalgia for and general depopulation of the countryside, and the identification of a wide variety of Indigenous, Hakka, Hok'lo, Mainlander, and Japanese influences on quotidian life. In some sense our understanding of “culture” very easily, and often without us being aware, can get limited to a subset of culture that includes primarily the “traditional” and the “popular.” The plethora of good work on even these subsets of

“culture” writ large, however, are good precisely because they reach beyond the “traditional” or

“popular” to show connections and relevance to the rest of life in Taiwan and China. As a part of my longer answer, then, I suggest a bit further on that this question (as well as my short answer to it) misses the mark. The question makes much more sense if asked not in terms of “local”

“culture,” but instead, in terms of the importance of either the subject studied or the implications of the study for Taiwanese and Chinese lives.

Global, Local, and Intellectual Property

First, however, I want to talk a bit about what is “local” culture and what is “global” here.

There were indeed several things that I noticed over the course of my fieldwork that struck me as being particularly “Taiwanese,” or at least, different from my American expectations or my previous field experience with small businesses in Northwestern China. In the first week I spent at the Company, there was one day that I arrived a bit later than usual. As I walked through the parking lot, I passed two folding tables that had been set up with a variety of ritual offerings and 21 incense roughly in front of the Company's main door. “Ah-ha!” I thought, “I've found something here.” Where individual families tend to set out offerings on the 1st and 15th days of the lunar month, businesses in Taiwan tend to do it instead on the 2nd and 16th days. I had seen many clothing shops and restaurants with offerings (and many with small shrines within their businesses to a patron god), but I had not expected to find this so quickly at a larger high technology company. Anthropologists love this sort of juxtaposition and I was no exception.

Seeing such a “traditional” religious practice being performed by and for a large high technology company seeking to be a part of a global industry made me smile. I thought I had, at least, stumbled upon a fruitful side project to pursue. I walked over to the tables and watched for a while as, a few minutes later, two of the Company's security guards came out to help the receptionist take the tables back inside and put the offerings away.

A few hours later, when I asked some of the patent engineers I met about the kinds and frequency of the offerings they put out, they were surprised to learn that the Company even did offerings. We took the question to others in the office and only one or two of them had ever even seen the setup. As it turned out, like them, this ended up being the only time I saw offerings either. Of course, one of the critical aspects of Chinese popular beliefs is that it does not matter so much that you do the ritual or that you even know the ritual is performed, rather it is efficacious just as long as it gets done by someone. While this is clearly an example of something that is Taiwanese or Chinese about the Company, it was not something that had a clear impact on the people I worked with or the work they did to turn knowledge into property.

There were, of course, a bunch more examples of similar aspects of Taiwanese (high tech) office culture including the use of slippers inside the office (see footnote 5 above). To give one more, at the front of both the IP department and the R&D department's set of cubicles there

22 was one desk space (or for IP, the top of a waist-high filing cabinet) where we all put food gifts that we wanted to share with the office. Almost any time someone in the office took a trip, for business or pleasure, they would bring back snack foods that were “famous” as being “from” that place. On chatting breaks from cubicle work, I got to joke around with colleagues and eat techan

(local specialty products) from small towns around Taiwan as well as from Hokkaido and numerous other more distant vacation spots. This was also the spot that we would share extra wedding cookies (xibing) given to us as gifts for attending a friend's wedding. Around the time of the Mid-Autumn Festival in October, the same space would fill up with mooncakes that were sent to the Company's IP team as gifts from law and IP firms currently retained by the Company or seeking to woo the Company onto their client lists. Some of the unopened boxes that arrived early enough could be re-gifted, but many were opened and shared like slices of mini-pizza among employees on the same floor as us. By the end of the festival, everyone was sick of mooncakes and trying desperately to find anyone to give the remainders away to. More than with the offerings, this food sharing was an aspect of Taiwanese office culture that affected the people and the social environment within which my interlocutors worked, a “water cooler” area stocked by employees ourselves.9 Yet, this too, had little effect on either the ways that knowledge was created in the Company or transformed into property that the Company could own.

Part of the problem with trying to find Taiwanese culture within a study of intellectual property is that such a pursuit of local difference, to a certain extent, distracts from the structural aspects of this global system of property that my interlocutors, to a person, saw as overwhelmingly more significant. Intellectual property in general and patents in particular are a

9 While this was definitely a Taiwanese thing, it was not a uniquely Taiwanese thing. A similar food sharing culture seems to also have been a part of Korean company life (Hoffman 2006:147) and I would not be surprised to learn of something similar in China, Japan, or in different shapes in a variety of other global business environments. 23 legal regime of property that was non-indigenous to both Taiwan and China (Alford 1995). It did not arise as an expansion from sovereign bestowed monopolies on particular trades, products, or land nor did it arise as in England from a push by local publishers against less established local and foreign publishers (Johns 1988). In this sense, the history of IP in China and Taiwan reflects the more general global expansion of the IP regime to gradually cover more and more intangible things in more and more places. This expansion has occurred not because it was seen to be beneficial to the general population or even the elites of adopting countries, but because of the push by nations, companies, and individuals who already had both significant IP assets to protect and the political and economic power to force their will around the world (cf. Lessig 2004,

Vaidhyanathan 2001, Matthews 2002, Richards 2004). For China and Taiwan, no less than elsewhere in the world, this political power was exerted both through multilateral channels like the requirements both faced to join the World Trade Organization (the institutional home of

WIPO, the World Intellectual Property Organization) as well as through the bilateral pressure the

United States could exert on its trading partners through the threat of Section 301 trade sanctions.

As Alford suggested in 1995, even having formal laws on the books in China and Taiwan, the people and companies in these places had not yet developed a “rights consciousness” (117).

Combined with what we know of the political economy of IP's expansion, this suggests that they did not have knowledge of or a desire to exert their rights under these laws in part because they had very few valuable IP assets to “exploit” in the first place.

This is not to say, however, that there aren't interesting aspects to the Taiwanese case in particular.10 Patents did come to Taiwan in a different form than they did to China, for instance.

As with most things in Taiwan, patents arrived on the islands at least twice. The Japanese

10 See West 2006, West 2008, Alford 1995, and Mertha 2005 for more on the particularities and cultural aspects of Intellectual Property, “copying,” and “piracy” in the Chinese case. 24 colonial regime brought its own IP laws11 into its colony around the turn of the 20th century, well before IP arrived in a substantial, codified form in China. As Chung (2009) explains in her research into the legal history of patent law in Taiwan, Taiwanese and not just Japanese citizens in Taiwan applied for and received patents under this colonial property regime. As with restrictions on subjects available for tertiary education in Japan's Taiwan colony, Taiwanese were restricted in the technological areas in which they could receive patents to areas thought to be beneficial to and conform to colonial imaginations of Taiwan under Japanese colonial rule including medical, agricultural, and fishing industries. Chung even found records of a few cases where Taiwanese or Japanese in Taiwan filed infringement lawsuits in Japanese colonial courts over alleged violations of their patents. Alongside these specific origins of the first IP laws in

Taiwan, Taiwanese also had a longstanding legal tradition involving “writing” tangible property in the form of family division contracts (fenjia dan)—as well as a whole range of uses for written contracts involving property exchanges, transfers, and shareholdings—that was complete with its own grammatical tendencies, legal procedures for signatories, and sets of boilerplate language

(Cohen 2005). While many of these are shared with practices in southeastern mainland China, these practices had long roots in Taiwan and were almost universally practiced among Hok'lo and Hakka populations there. Both of these property-oriented legal traditions certainly point to something “local” about property in Taiwan.

While these two strands of the history of property in Taiwan thus could have been pulled on within current legal structures, or could resurface as undercurrents within the actual practice and legal wording of patents in Taiwan, as far as I can tell they have not. The IP regime that is in place today, came not from Japanese colonial period law, but rather from the legal structures the

11 IP laws were non-indigenous to Japan as well, having been adopted primarily from German law by Japanese reformers intent on propelling Japan into a modern age as a player on the world stage (Chung 2009). 25

Republic of China (ROC) brought with it when it took over Taiwan from the Japanese at the end of World War II. Moreover, ROC intellectual property laws were neither indigenously grown in

China nor even cobbled together from the same foreign legal traditions that formed the core of its legal statutes concerning tangible property (again, influenced more by continental German, than

English ). IP laws were forced upon the ROC by its American and other (eventual) allies and therefore reflected non-indigenous ideas of what can be owned, by whom, and in what ways (cf. Alford 1995, Chung 2009).

As a final note on the global and local of IP law, I began many of my early interviews with an open-ended question designed to draw out local conceptions of patents and intellectual property. Anthropologists have long found that seemingly “universal” or “global” concepts like relatedness (kinship) or ownership have a range of different definitions from culture to culture and often depend on a particular person's structural position within a particular culture. Such elucidations have been especially important for understanding globalization. Qualitative research has long found that global trends, concepts, and commodities are invariably reinterpreted as they articulate with local systems of knowledge and value. In this case, however, the responses I got back gave me very little of the “local” and much more of the “global.” The most frequent response I heard was for all intents and purposes identical to the dominant definition of a patent in legal forums in the United States. My interviewees described a patent as a “bargain” between inventors and the public in which, “in exchange” for “disclosing” their invention to the public, inventors were granted a “limited term” “monopoly” over it. Many of my interlocutors codeswitched into English when they spoke these quoted keywords of intellectual property and a few engineers even directly quoted the United States constitution back to me in answer to my inquiry: “Congress shall have power […] To promote the Progress of Science and useful Arts, by

26 securing for limited Times to Authors and Inventors the exclusive Right to their respective

Writings and Discoveries” (Article 1, Section 8).

While there are, of course, many reasons why these early interviewees kept winding their way back to dominant American narratives, despite them not themselves being American,12 I believe that this primarily a reflection of the historical and ongoing presence and power of the

United States within Taiwan more generally and certainly on ROC government policies in particular. While patent law (as opposed to copyright) is a deliberately national rather than international system—that is to get a patent in multiple legal jurisdictions you must apply for it separately in each jurisdiction within a year of your application in a first country—the Company saw its Taiwan application more as a placeholder than the main event. Their primary goal was to have their inventions patented in the United States (as well as Europe and Japan) as 1) this was one of the key ultimate destinations for their and their competitor’s products13 and, 2) US law provided the most generous pre-trial “discovery” rules that would enable their own lawsuits the best chance of succeeding against accused infringers.14 As such, the Company wrote their patents and the Taiwan Intellectual Property Office (TIPO) made recommendations to the legislature on updating Taiwan's IP laws to take into account the changing peculiarities of United States Patent and Trademark Office (USPTO) procedures and United States Federal Circuit precedents. For

12 For one, it is possible that many chose to explain patents in terms that they felt I, as an American researcher, would understand or approve of. Moreover, as all of them were well educated and some had received masters or doctoral degrees from US universities, they also were eager to make use of their English. At first, I therefore assumed that as I got to know people better and as we began to do away with some of this initial posturing on both sides, that those “local” differences that I sought would gradually emerge. They did not. 13 This focus on the United States or, at least, beyond the borders of the territory under the control of the ROC government is not unique in any sense to the Company. Taiwan's “economic miracle” was built precisely on an emphasis on export-oriented production with the United States long being the political and economic destination of choice. 14 Interestingly, these reasons also suggested that as the Company's primary markets broadened to include the increasing purchasing power of China, that their patenting strategy would also begin to shift. The beginnings of this shift actually happened as I was in the field. Though no one in the Company was under the illusion that a patent in China would help them win very many lawsuits in China today, the thinking was that changes currently underway there might make these patents valuable towards the end of their twenty year term. 27 my patent engineer interlocutors, their work was predominantly a matter of learning how to succeed playing an international game that required up-to-date strategies to deploy within a variety of (inter)national patenting regimes. The practice of patents here, then, is much less

“locally” oriented than it is “globally” influenced.

Being Between: The Global as Taiwanese

In many ways, then, the Company, Taiwanese IP law, and Taiwanese patent practices all are physically or figuratively a “space apart” from Taiwan or Taiwanese culture. To a certain degree they are neither “Taiwanese” nor “Chinese,” but “international,” though all are actually located in and particularly relevant to Taiwan and the people living in Taiwan. For anyone who has spent time in cities or even small towns in Taiwan, Hsinchu Science and Industrial Park

(HSIP), where a good number of Taiwan's high tech and green tech companies are located, simply feels like a different world. Though located just outside of Hsinchu city and next door to two of its largest universities, except for its two rush hours and a smaller uptick at lunch the science park appears to be oddly deserted to anyone driving through it. Traffic lights cycle from red to green and back again without more than one or two cars passing by. Taiwan itself has some 23 million people (roughly the same population as Australia) occupying a set of islands about the size of Delaware and Maryland combined (32,000 square kilometers, inclusive of a large range of mountains running up the main island's spine).15 As opposed to the sometimes silence on its streets and the perhaps never-walked-on-sidewalks inside the science park,

Taiwan's urban areas are known for a bustling feeling generated by innumerable small retail shops, their lit signs, and the sheer numbers of people, cars, and above all, motorscooters buzzing

15 Or Belgium, for those readers more familiar with Europe. 28 about. Inside the park, the move from its tree-lined boulevards to the entrance of one of its factory buildings generally means crossing not only a small parking lot, but also often a carefully landscaped lawn. By contrast, shops in Hsinchu and the rest of Taiwan seem to be aggressively pushing their way out into the streets at odd angles, barely leaving room for sidewalks (which are often covered by the second floor of the buildings to provide refuge from frequent rain) and a largely impenetrable line of parked motorscooters. Much of city life happens on the streets and in shops with open doors in the rest of Taiwan, yet in these high tech corporate areas the activity is all inside, behind closed doors. TSMC, one of the largest semiconductor chip manufacturers in the world, for instance, has a Starbucks and other shops inside the strict security perimeter of its building.

HSIP not only feels like a different world, in some senses it is a different world. The science park was built as a follow-up to the KMT's ten big infrastructure projects of the 1970s. It was envisioned as Taiwan's Silicon Valley, a place to foster innovation and to build Taiwan's semiconductor industry, but it was also built based on the model of Taiwan's industrial and overseas-oriented Export Processing Zones (which had previously been primarily designed for heavy industries like petrochemicals and labor-intensive industries like the garment and early electronics (producing radios and such) industries). The park thus opened in 1980 next to the country's main highway (and later, its high speed railway) to facilitate the movement of goods and people from the airport or seaports into and out of the country with minimal need to stop along the way. In order to attract foreign businesses, the government laid out considerable tax incentives for companies resident in the Park (the difference could be between a tax burden close to zero and the average 15-20% rate for small to medium sized businesses outside the Park) along with subsidized rents for the land they would be occupying. As designed, and as an

29 indicator of HSIP's separation from the rest of Taiwan, by 1982, 21 of the 36 firms that had been approved to locate in the park were either wholly foreign owned or foreign-Taiwanese joint- ventures (So 2006:74). While this ratio has changed significantly over the past three decades with the rise of domestic companies in the IT and other semiconductor fields, the focus on export and on the world beyond Taiwan as primary customers has continued and is reflected in the orientation of Taiwan's LED industry as well.

In other terms, too, the park is set apart from its surrounding residential and business communities. As of 2011, its considerable water needs (on average 140,000 tons a day in 2011) were served by a set of dams, waste treatment and desalination projects, and massive water storage facilities constructed specifically for its own use. In order to enhance the stability of its electric supplies, three new electricity substations and one new extra high voltage substation were built in the park and the grid was designed so as to continue to supply electricity to the park even in the event of problems at the main Tunghsiao Power Plant that serves the region as a whole (SIPA 2012:23). The park was even governed through a direct conduit to the National

Science Council, thereby allowing it and its resident companies ways to bypass local government restrictions, regulation, and oversight. The Science Park Administration (SPA, SIPA, HSIPA, or even HPB depending on the publication) is the official governing entity (unaffected by local democratic structures) that is responsible for both attracting companies to the park (and, later, retaining them in the park) and regulating them. It advertises itself as a “one-stop shop” for

“planning management and evaluation, talent cultivation, subsidies for R&D, investment services, labor affairs, medical and health care, civil engineering, environmental protection, land planning, landscape management, information networks, fire prevention and disaster relief, and security management” (SIPA 2012:9). This particular combination of duties as both host and

30 oversight and responding to a national government whose legitimacy largely rests on its promotion of national economic development has proven to be particularly problematic in terms of the SIPA's oversight over environmental issues (Huang 2012:300-303). In many ways, then, both in its early design and the current orientation of its companies, the Hsinchu Science and

Industrial Park is a “global” or at least “national” space that just happens to be located in

Hsinchu on lands appropriated from local people.

Yet all of this separation of the park from local life was less a result either of the park being built on “empty” land (it wasn't) or a result of local democratic desires (there weren't any mechanisms for expressing this and protests were suppressed) and more a result of the imposition of national level policies and power that began under Taiwan's authoritarian regime and has continued with somewhat less potency and somewhat more pushback under its various democratic governments. Consistent policies favoring the park over local interests and concerns were justified by reports by ITRI (Taiwan's primary government research lab aimed at promoting

Taiwanese industry) that the semiconductor industry was one of the most ecologically and economically efficient industries in Taiwan. As compared to, say a steelworks plant, the amount of “economic value” extracted by the industry per unit of land, water, and electricity used is enormous. This was not only meant to justify the removal of agricultural land for park use, but also used to justify the priority the Park frequently received during water shortages, electricity shortages, and environmental crises (Huang 2012:226).

As the park is governed from the national level, Hsinchu city and Hsinchu County governments do not receive direct benefits from the park while certainly receiving significant stress on local infrastructure, land, and environment (So 2006:76). In the middle of a pollution scandal for park resident UMC, one of the largest semiconductor manufacturers in the world,

31

Jen-chien Tsai, the DPP mayor of Hsinchu city in 2000, even suggested that the Park was really a “technology colony” (Li 2000:4 quoted in So 2006: 77) due to the lack of local oversight and input. Land shortages in the park were apparent by the mid-1980s, for instance, and the national government quickly pushed environmental laws aside to allow more space for industrial growth within water protected areas, on hillsides (So 2006: 78), and by exercising its eminent domain laws to take over more local agricultural land.16 Traffic into and out of the park at rush hours is a constant problem for the city and county governments to deal with as well. While the park has now accumulated its own or preferred access to the significant supplies of water and electricity it needs, this has often been achieved at the direct expense of the other local users of those same resources. In order to preserve this stability of resources throughout the year in a very dry area of the island, the government has constructed a series of dams, desalination projects, and other water storage facilities often against the desires of local residents and environmental experts (cf.

Chang et al. 2001). In addition, the national government arranged several times to divert water from local agricultural use to the park's industrial tenants during times of drought. In 2002, for instance, the national government ordered some 30,000 hectares of land competing for water with the park to be left fallow to ensure water supplies for the electronics and optoelectronics industries (Tu 2006: 151-153). This was done to prevent companies from making good on their threats to move their businesses to Singapore or China and it was done in spite of laws on the books requiring the government to privilege agricultural over industrial water needs during droughts.

In terms of environmental protection, since 1994, all new construction projects in Taiwan have had to first submit an Environmental Impact Assessment to Taiwan's Environmental

16 For one example related to the expansion of the Hsincu Science Park, see Yang 2013 on the “Dapu Incident.” 32

Protection Agency for approval prior to commencing construction. In 2002, as a part of the overall efforts by the national government to make Taiwan's science, industrial, and export parks more appealing for businesses, however, environmental impact assessment reviews for new construction within the parks were waived so long as the new factories could estimate that their proposed pollutant emissions would not exceed the “overall pollution volume controls exercised by the competent authority [the park itself].”17 This was in part a response to local backlash over several high profile pollution incidents in the Park that had protesters aiming to prevent those companies from expanding their operations. Following one of these incidents, UMC was later quoted as saying that, because they were residents of the HSIP, they were “under the jurisdiction of the SIP Act.” They therefore “should be protected if they comply with the orders and rules of the HSIPA. If any other legal provision conflicts with the SIP Act, it is not the matter of the companies to be concerned” (Huang 2012: 302). The local government, in whose river and whose air UMC's pollutants had run should, according to UMC, not have any right to supervise companies because they were shielded by the Park's governance structures (Chang et al.

2001:35). Moreover, rather than pollution being measured (or measurable) for individual plants, the park system manages wastewater as a whole (Huang 2012: 301), aiming to keep emissions under particular volumes but also providing a screen of sorts that removes accountability from individual firms to the hosting/“regulating” authority.18 These volumes, in turn, are set not only for the entire area of the park, but for the entire regional area the park is situated within disregarding the fact that there are many other businesses and factories in the region beyond the

17 The 2002 Amendment of the Standards for Determining Specific Items and Scope of Environmental Impact Assessments for Development Activities, Article 31-1, Taiwan, Republic of China. 18 See, for instance, accounts of the Shengli Toxic Waste Incident in Chang et al. 2001. 33 park and that the governments of that entire region have no control over the Park itself (Huang

2012:288-289; Tu 2006; Tu 2004: 146).

Of course, just as the water, electricity, and waste come from and return to the Taiwanese world beyond the Park's boundaries so too do the people who work in the park, fill its streets during its shift changing rush hours, and remain hard at work hidden away in its buildings at all other times, make up a significant part of the Taiwanese world. They live in Hsinchu, Zhubei,

Zhunan, and the Baoshan mountain suburbs much as their farming and non-farming neighbors do. From the perspective of the people who make high tech run, companies like the Company are very much a part of “Taiwanese” life no matter how “global” their outlook may be.19 At one point in my fieldwork, I added a question asking my R&D interviewees where they saw themselves five to ten years down the road. Very few mentioned still being employed in the

Company or another high tech company (though this certainly was a possible reality). Rather, I got a whole range of responses that people familiar with Taiwanese life more generally will recognize. These included dreams of going out to be the boss of their own tech company as well as starting everything from coffee shops and clothing shops to a school for middle schoolers complete with an end of the year recital for parents and other community members.

The idea for many was that this was a job where few people could continue to advance to higher and higher level management positions. For many, the job was about making enough money to do what they really wanted to do in the first place.

Even the presence of the non-Taiwanese working in the Company indexes and helps create a reality of contemporary Taiwanese life. Companies in the science park (though less in

19 Like Taiwanese elsewhere, my colleagues were also caught up in the latest bulk shopping (tuangou) trends where they would put together orders of a dozen or more of everything from Snuggie blankets, to tablets, mops, sweet tea drinks, and deep fried chicken on sticks. 34

Tainan's Science Park due to local employment regulations) now hire a large number of laborers

(including many women) from the Philippines and Indonesia to work on their factory floors doing the actual production work. These migrant workers come in on special three year work visas that do not provide them with any possibility of longer term working or living permissions.

Many work 12 hour shifts (with a two day on, two day off schedule) at wage levels lower than those that would be demanded by local Taiwanese. Companies pressed for these new visas as a way for “Taiwanese” companies to be better able to compete with companies in China with lower labor costs. Similar in-sourcing arrangements have brought Thai and Indonesian workers to Taiwan to perform the construction and elder- or disabled-care jobs that Taiwanese do not do in large enough numbers.

If high tech, green tech, and science parks are in some sense “global” spaces apart from

Taiwan's “local,” they are staffed by a combination of “local” people with quite Taiwanese desires for their futures and “foreign” workers who increasingly make up a significant part of

Taiwanese reality. In Taiwan, these “global” spaces as well as the effort to be “global” are a fundamental part of being Taiwanese. As if to confirm this impression I had of my fieldsite—as simultaneously both oriented and influenced by the “global” and very much “local”—one of the popular dramas to come out shortly after my fieldwork centered on the political machinations within a green technology, LED company located in a Taiwanese science park.

You know you've struck upon a critical part of Taiwanese culture—or at least in Taiwanese popular imaginations of Taiwan—when your fieldsite becomes the set of a Taiwanese ! In all seriousness though, this is yet another indication that the imagination of being Taiwanese, today, is very much focused on being connected to the global (see also Lee 2007 on this subject as connected to urban transportation systems). The LED industry as an export oriented one, is

35 certainly global. The Company is competing on a global stage and, as such, draws on “global” models of management and “global” theories of knowledge production and innovation.20 To return, then, to the original question, while there may be little traditionally “Taiwanese” or

“Chinese” about the production of LED knowledge or of property in it, an understanding of the global practice and structural effects of patents within the green technology industry is indeed significant for understanding what Taiwan is today as well as what it might be in the future. The global divisions of labor that the practice of the patent system enable feature prominently not only in the balance of power between companies in the industry, but also in both the availability of particular kinds of science park jobs in Taiwan and in the wages that these pay. As such, they

Figure 1.2: The Traditional Contours of the LED Industry (adapted from Dept. of Investment Services [circa 2011] :6).

20 The head of R&D, for instance, was interested in Cambridge's T-Plans for technology road-mapping, AIM, and TRIZ around the time of my fieldwork. 36 have an impact on the dreams of Taiwanese people, their relations with Chinese people across the Taiwan Strait, and on the creation of systems of migration designed to accommodate labor, but exclude the laborer.

The Company, like other companies like it in the LED and larger semiconductor industries, produces its products between Taiwan and its affiliated or allied factories in China and its patents between Taiwan and the United States's and court system. The

Company is neither at the top of the patent food chain nor at the bottom, its “between” position provides a study located here not just a perspective from which to better understand Taiwan and

China, but also from which to understand a global system and its global divisions of design and manufacturing labor. Not more than 25 years ago, both Taiwan and China were frequently derided by the United States as “pirate” nations whose populations (and governments) largely disregarded the non-indigenous IP regimes that had been forced upon them. While China has largely retained this “pirate” label, at least in our politically fueled popular imaginations,

Taiwan has slowly become an advocate for patent protection. This has come as wages rose in

Taiwan, much of its lower-end manufacturing industries moved to China (either the Taiwanese factory moved its operations to China or the original contractors simply changed suppliers from the Taiwanese company to a Chinese one), and as its government has been promoting a move towards a “knowledge economy.” In response to the lower wage levels in China and tremendous capital investments by the Chinese government, the Company has been trying to move from lower end LED products (like Christmas lights and phone backlights) into higher profit LED products like general lighting's warm white “60W” replacement bulbs. In doing so, however, they have run up against the powerful patent portfolios of the “Big 5”

American, Japanese, and European companies. This has led to two trends, first the Company

37 has moved some of its lower cost production to China and begun to build alliances with newly rising Chinese companies. Second they have tried to build up their own portfolio of American and European patents in the hopes of enticing or forcing one or more of the “Big 5” into a cross-licensing agreement. It is in this way that many Company employees still occupy a position between criticism of and advocacy for patents. This state of “between” provides both a diversity of perspectives on patents as well as an explicitness in my Taiwanese interlocutors' discussions of and deployment strategies that is particularly useful for social scientists trying to understand the system.

Chapter Summaries

This dissertation argues that patents underlie and fundamentally shape the direction of globalization's movement and flows and, through a clear understanding of their practice, that they provide unique insight into the changing roles and challenges confronting China and

Taiwan within this global system. It is an ethnography of the social production of optoelectronic patents alongside the ongoing production of both semiconductor knowledge and products. The remainder of the book has been divided into two parts and a conclusion. Part I focuses on the

“creation” of property in knowledge helping us to begin to distinguish between ideas, technology, and patents. Part II then focuses instead on the deployment of patents within the

Company and industry as an entree into some of the consequences of this particular regime of intellectual property. Interspersed throughout the book are four interlude chapters that zoom-in to provide space to re-consider, in more depth, particular aspects of patents and their practice that are referenced in the main content chapters.

38

Part I begins with the chapter immediately following this one on the creation of knowledge in the Company's R&D labs. This chapter shows how knowledge from the lab is not itself automatically ready to be owned. That is, knowledge must first of all be extracted, or decoupled, from those relationships between engineers, management, materials, and machines that it is embedded within. This chapter focuses ethnographically on three sorts of motivated networks and corresponding conceptualizations of “knowledge” that were centered in the

Company's R&D department. The first is a network of employees motivated by upper level management into projects to produce new products using knowledge conceptualized in terms of engineer skills. The second is a network of machines and materials motivated by the engineers to create new semiconductor properties. Knowledge is here conceptualized as inherent properties of materials that are to be coaxed out. The third network, motivated from the IP department conceptualizes knowledge as divisible into distinct inventions needing to be delineated and decoupled from their context embedded in the material and social contexts of the lab.

Chapter 3 then describes the process by which knowledge from the lab is converted into words that will be legible to the law via a translation process focused on “diversifying” and

“genericizing” the knowledge. The end of this translation process is the patent engineer's draft of the patent's Specification section, the main portion of the patent that describes the technical knowledge in legal terms. The chapter ends with a discussion of the erasure of the actual people

(patent engineers) who do this translation as a necessary step to maintain the assumed direct link between the technology in the lab and the property as owned. It is through this translation that the knowledge is made alienable from the people whose skills with materials and machines it originated from. It has also become something different than it started as, now consisting of a

39 claim to a higher level “category” of technology within whose scope are a much wider array of potentially infringing products (only one of which resembles the original version from the lab).

From the Specification that sets out the technology, Chapter 4 then moves the story to the writing of the patent's Claims, the portion of the patent that actually defines the metes and bounds of the invention-as-property. This chapter describes the negotiations that go on between the Company's patent engineers and the Government Patent Office's patent examiners over the scope of knowledge that the patent will claim to own. The knowledge is rewritten through these negotiations in logical, rather than technological, terms. Moreover, in the process, it is shaped according to the needs and strategies of the Company rather than those of R&D or the individual inventors. The final writing of the claims and the issue of the patent recouples it into a new context among equals within the government's archive of other patents (regardless of their unrelated technologies). On issue, the knowledge reemerges as property that can even be wielded against its original inventors.

The final chapter of Part I of the book, Chapter 5, serves as a mini-conclusion by looking at the ways that words, rather than technology and the law rather than the lab, have come to reign supreme. This chapter uses the Philips-Epistar patent infringement lawsuit, one of the largest within the Taiwanese LED industry, as an example to show how the patents produced by these processes of translation can be honed and deployed to disrupt the efforts of competitors to move up the value chain. Essentially, the abstraction from the lab to the law enables patents to be wielded at a distance and, therefore, as useful weapons of stoppage.

Part II of the book then builds on Chapter 5's description of the deployment of a single patent to layout some of the consequences within the LED industry of the creation and deployment of entire portfolios of patents. Chapter 6 begins this description by shifting from the

40 perspective of the creation of single patents toward the perspective of patent engineers themselves who, instead, always encounter patents as “many.” The chapter discusses the relationships between patents and the way that these structural relationships mean that later patents essentially can “hollow out” the scope of property originally claimed in earlier patents.

Due to patent right being rights to exclude rather than positive rights to produce, this hollowing out also implies an additional layer of stoppage built into the system whereby later and earlier patentees can stop each other. The chapter finishes describing Taiwanese companies' attempts to accumulate and strategically maintain portfolios of patents that they intend to use defensively (at least) with visions of mutually assured destruction and dreams of cross-licensing agreements.

Chapter 7 then describes how the deployment of patents served to create a particular division of labor within the LED industry. It discusses the birth of the Big 5 patent-holding companies as well as of Taiwanese companies as fast following challengers to the current hierarchy. It ends with a discussion of the connection between these patent struggles and the emergence of LEDs as a “Green” technology. The final content chapter, Chapter 8, picks up where Chapter 7 left off describing how it was that LEDs came to be “Green.” The chapter appends to the discussion of their technological “Greening” an understanding of the equally important discursive conditions of possibility for LEDs to be Green. It ends with a discussion of how the same patent systems that produced and maintains the global division of labor and profit from the last chapter, here are also can be seen to maintain an uneven distribution of both the environmental risks of LED production and the “green” benefits of their consumption.

Finally, in the conclusion, I consider how, based on this ethnography of the practice of patents, we might come to better understand patents. Based on this research into the social lives of patents and the labor of Taiwanese patent and R&D engineers, I argue that patents are best

41 understood not in terms of their promotion or hindrance of innovation, but rather in terms of a much more direct connection to competition and stoppage. By highlighting their more direct links to competition rather than innovation, it becomes clear that the role that patents will play in industries will be different depending on the sort of products being protected and the number and status of companies competing within it. If the effect of patents are different in different industries (or in the same industry at different times or from different perspectives) then why should the term and scope of rights assigned to patent holders be the same universally? Finally, I suggest that we need to move away from terminology like “Intellectual Property” that allow us to too easily elide the significant practical differences between copyrights, trademarks, patents, and indigenous cultural property. This ellision is what allows for arguments for or against copyright or trademarks based on the role that, for instance, patents have played in the development of particular products. It is another rhetorical strategy for the political expansion of systems that benefit particular players rather than a strategy for ensuring that the system is designed and repaired to achieve particular goals. Instead of grouping all of these forms of property together simply because they are, in different ways, intangible, we need to do a better job of considering the practice and consequences of each in more detail. In the case of patents, this sort of indepth consideration of their production and deployment sheds light on a situation echoed in form, if not in its specific articulation, throughout the world. The study of patents contributes to broader anthropological debates by tracking not just increasing flows of knowledge and people under globalization, but also one of the legal methods by which those flows are enabled, directed, and halted.

42

Part I:

Creation

Chapter Two

“Enlightenment”:

Patents and Embedded Knowledge in a Taiwanese LED Company

While the overall focus of the dissertation as a whole is on property, on patents, we cannot understand patents, at least not anthropologically, simply based on the fact of their related laws or on the black and white wording of national patent office statutes. Rather, we must also understand them in terms of their actual practice. If this is the case, then we must delve not just into the rights of property, but also into the object of these property rights. This means delving into “knowledge”—not only the kinds of knowledge that become patents, but also the kinds that are related to these, but do not. This chapter focuses on the Company's research and development department, on their pursuit of knowledge both of and through the production of light. Where might we go to look for the source of knowledge of light? How do we come to be “enlightened”?

What I describe here is in some sense an early portion of a social biography of LED light

(cf. Appadurai 1986, Kopytoff 1986), an exploration of the social production of light and through it, the social production of knowledge of it, and then property in it. I build here on insights about knowledge offered by Fredrik Barth and Ian Hacking, two key scholars in the social science of knowledge. While this could equally be built with a reliance on and consideration of numerous other scholars, I believe using these two to be useful stand-ins for this larger literature to more easily draw out and work toward reconciling two quite separate arenas of literature on knowledge as “culture” and knowledge in terms of science studies. Barth begins his discussion of knowledge noting that it has three key faces—note these are not simply

44 characteristics of knowledge, but actually the faces of it—and relating human knowledge to our construction of worlds through culture:

A comparative perspective on human knowledge allows us to unravel a number of aspects of the cultural worlds which people construct. I argue that knowledge always has three faces: a substantive corpus of assertions, a range of media of representation, and a social organization (Barth 2002: 1).

For Hacking, scientific knowledge—here represented as something that can be believed about the world, “the real” in his words—is something that can be represented (scientific theory), but more so, it is something created (and believed) only through experimentation (what he terms, intervention):

We shall count as real what we can use to intervene in the world to affect something else, or what the world can use to affect us. [...] Natural science since the seventeenth century has been the adventure of the interlocking of representing and intervening (Hacking 1986: 146).

In working on patentable and unpatentable knowledge, I've found both of these perspectives to be quite useful, despite their quite different orientations and their focus on quite different sorts of knowledge. First, based on Barth's focus on knowledge's social organization face, I describe within R&D three quite distinct types of networks with three quite different conceptualizations of knowledge. Second, based on Hacking's insights, I suggest that these are not static analytical networks, but rather are constructed and motivated in R&D through direct, purposed interventions. These interventions are the primary process by which new LED lighting products take shape and move onwards toward production. More importantly for us, it is these interventions that also create new physical properties, and thus new ways of knowing, within the systems of materials and machines that are necessary for this instance of the production of light.

The chapter is thus structured around these three sorts of knowledge and light producing networks—each of which is motivated to particular ends and each of which indexes and implies

45 quite different conceptualizations of knowledge itself. The first network consists of the hierarchical interventions in engineers and operators by management to move their efforts in directions thought to be advantageous for the Company in the face of (as well as in championing the cause of) capital and a global division of labor in the LED industry. The second network is formed through interventions in materials and machines by such engineers to produce and reproduce new properties in semiconductor materials. In the first network, on the one hand, knowledge is taken to be embedded in people as technical capacities; in the second, on the other, it is conceptualized as embedded in materials and machines as “properties.” Finally, coming from outside the R&D hierarchy, the third network is motivated by intellectual property (IP) engineers intervening across the “boundaries” of the first and second type of networks to find, delineate, and extract patentable “inventions” to augment the Company's patent portfolio. Here, rather than seeing knowledge as embedded, knowledge must be disembedded and deployed as a strategic intangible commodity that necessarily circulates separately from any particular machines, materials, people, or products. The first two ways of conceptualizing knowledge as embedded are thus, in turn, essential for understanding both the translation process at the center of the patent-focused third network and one of the key reasons behind that process: control.

1. Knowledge Embedded in Networks of People

From the view of managers higher up in the Company's hierarchy, knowledge is something thought of as a technical capacity of particular people. These managers thus intervene in their employee's working relationships and tasks in order to motivate networks that will produce the products the Company needs to stay competitive.

46

On my first full day at the Company, Jess, the head of IP, brought me downstairs to meet with the local head of R&D. He had been one of the five or six people (Jess was another) who signed off on the memo they circulated prior to giving me permission to do my research in the Company. I knew that he knew who I was, but I was unsure how much he actually knew about my project. I therefore had worked up a short introduction that especially highlighted my hopes to do interviews and observations in R&D. City, however, is not someone who sticks to other people's plans for a meeting. Not a minute into my short talk, City jumped in not with a question, but with a summary. “You're here to study 'KM',” he said matter-of-factly and somewhat impatiently. “'KM'?” I asked. “'Knowledge Management',” Jess explained. City then launched into his own introduction to his perspective on knowledge management and on the challenges of managing a research and development program in a Taiwanese company. “Yes, you're here to study KM, our R&D process...R&D management. How we get innovation out.”

City speaks at about a mile a minute pace, sprinkling English (innovation, KM) into his

Mandarin and accenting it all with an occasional phrase in Taiwanese. In this first encounter, while he was speaking, I was desperately trying to keep up with my notes. I would later find out that no matter how fast I found his speaking, his voice sometimes can't keep up with the speed at which his thoughts jump from one point to the next. He is a very smart, gregarious man in his mid to late 50s, quick with motivational phrases and jokes and willing to laugh loudly through them. But, what struck me most was that he has a forcefulness about him; a forcefulness such that my one-on-one meetings with him were more like getting swept down a whirlpool than any kind of orderly Q&A or meandering conversation. He was extremely busy, often having to leave one meeting early to race on to the next one a floor or two away. When I did corner him to talk, however, he almost always spoke beyond the 15, 20, or 30 minutes allotted for me. His secretary would have to come in to remind him of his next appointment and we would wrap up in a manic rush.

47

“...Well, one way is through open thinking, like Cree. But they get 10% of of their yearly gross for R&D, I get at most 5. And I use only maybe 3 and a half. I have to try to get to the same goal with the least money. So we do do open thinking too, until... we can't do it as wide [as them] so I have to be selective and reign in some project topics. I have 17 with PhDs and all of them have their own thoughts on [what is the right direction for research], they all can be professors, and all want to finish their own research, so my challenge, how do you make these fit the Company's need?”

City is an an engineer to the core. Even as he no longer works with materials hands-on, he still has little use of theory for theory's sake. He really thinks chaotically, jumping from topic to topic. He is excited by solving problems, but having also left his work on factory floors behind him, he would much rather move onto thinking about the next problem than meticulously follow his solution through its manifestation in actual material products.

Mostly though, in R&D, he is the boss. He is a manager of people. R&D is broken down into two main sections, one producing red spectrum LEDs and the other, blue. These are then divided into divisions and groups. But the most important type of breakdown of the department was in the form of projects as everyone in R&D, at any particular time, was assigned to a particular project (or projects). Projects were not only the crux for organizing people, but also for determining each person's responsibilities for the three to six months that they ran for. While generally these were proposed by customer requests or by individual R&D engineers and organized within groups by division leaders, City liked to mix things up occasionally. He might move people from one division into a project in another division or set up mini competitions between projects to reach a technical goal. While this determined the bulk of an engineer's work in the Company, City would also create separate cross-cutting sets of groups to meet to work on other topics, such as brainstorming ways to cut material costs across multiple platforms or evaluating existing and potential additional approaches to solve the problem of extracting larger

48 and larger percentages of light from within the diodes. As an upper level manager, City no longer did his own research in the labs. He continued to leave a mark on Company products, processes, and on many patents through vigorously talking and arguing with his employees in the weekly meetings or those group and division meetings that he sat in on.

“...We do LED scenario work, map out what LEDs there should be in 2015 [5 to 6 years out], analyze what future trends will be. Look at the US DOE's [the US Department of Energy's] technology roadmap and compare these to where we are at right now. You know the T-Plan, right? Cambridge's T-Plan and AIM, a German University's operations model? You know TRIZ? He paused, ever so briefly: I didn't have a clue. “We're going to be working on that this year. Lots of companies are using this now. I read a lot of these books when they come out and make powerpoint presentation summaries of all of them for later. If my boss trusts you and you sign an NDA,” he continued, laughing, “then I can share more of this stuff with you. Its like a big funnel, start with scenarios and roadmapping then move on to the technologies to get there. This is where you manage uncertainty, most of these technologies will be wrong or have uncertain results, so we screen them, with 100 different things, doing them all would be too much work. So then [as you move down to a narrower part of the funnel] we go on to product development and then send these to product managers.”

Knowledge management is really about management first, knowledge second. It is a set of practices involving brainstorming methods, filtering methods, prioritizing methods, and most of all the organization of labor that will help a set of smart people come up with large sets of ideas, select the best of those to actually run experiments on, and ultimately produce new products on the Company's timeline. Looked at from this abstract perspective, knowledge seems more akin to

“ideas,” divorce-able from particular contexts and evaluable on par with other such ideas.

The actual practice of knowledge management, however, leads to a different sort of conceptualization. Much later on, City had an R&D engineer explain to me one of the sets of management software they used, something called KKPM. The software tracks a project's progress towards their goals and enables relatively faster re-planning as setbacks or

49 modifications to the original plan arise. At the beginning of a project, the designated project manager (or PM) and the others who have joined it come up with a list of tasks that need to be performed relative to the project's goal, their ideas for new modifications, and the final product to be produced. Such tasks include the experiments they will run to evaluate the potential of their modifications, the integration runs to ensure that each individual modification works in concert with the others, and the production runs necessary to perfect the first complete prototypes. Each engineer estimates how much time they will require for each of tasks they will be in charge of and they discuss which tasks necessarily cannot run concurrently due to their use of the same machines, same materials, or the same engineers. The PM then inputs all of this data into the

KKPM program and the software maps out the tasks and reduces the time estimates by at least

50% to come up with the project's official schedule. As the engineers get better at meeting this schedule, R&D will tell the program to cut 75% instead. Each week when the PM presents their group's most recent progress they must first address their position on a chart the KKPM program puts out. If they are ahead of time or on time, the chart will show the group in a green zone. If they have gotten behind time, then the chart shows them in a red zone and the PM must provide both an explanation and a path for them to get back into the green. For City, this software tool was one of the key ways that he pushed and kept his engineers on a faster track to ensure the

Company would consistently have new improved products in their pipeline.

For KKPM, knowledge is certainly about ideas, but these ideas are tied directly to a set of particular tasks that must be done. Through projects and their tasks, knowledge as brainstormed idea is reconceived in terms of particular engineers' technical abilities, social relations with other operators, and other time commitments. Knowledge in these terms is not just about content, but also about control, and here explicitly it is about the control of people (cf. Simmel 1906 on

50 control and the sociology of secrets). Where KKPM was a way to control an engineer's time, the project proposal process was a way to ensure that, even as engineers got some choice in what they would do, the research would result in products or processes that would contribute over time to the Company's bottom line. Meetings were a further way to assert control, to bring people together in spite of their work on quite distinct sets of products and product platforms. They were also a way to enable and manage knowledge circulations in the Company, to ensure that the necessary knowledge of each project in the pipeline moved its way up to City, and through him to the heads of the Company. Unlike engineers and operators lower down in the hierarchy, City saw the key to doing R&D and to knowledge management as managing people, not materials.

“How do you get an idea and move it out into a product? 又要馬兒好，又 要馬兒不吃草 (you yao ma er hao, you yao ma er bu chi cao),” City said with another laugh. “Can you write that down for me?” I asked, in part to slow him down a bit. 'You want a horse that is fast, and also want one that eats no grass.' For him managing R&D was a matter of wanting high production, but without needing to pay high costs. The horse stands in for both the products and the employees he managed. “The first part means to challenge the impossible,” City picked up again at full speed. “If you think it is impossible, then it is. The second says not to be complacent.” [...] “There aren't any problems that haven't already been thought of or solved, so R&D is mainly about finding that person. You're here at A and you're goal is there at B, you need to find the person that knows how to get you there, knows the path. Its like bionics (仿生學 fangshengxue), you look at nature, go from butterfly to camouflage, or look at the lotus to learn the water repellent effect on its leaves. Look at nature to see ideas for products. You must find the person who knows this, then your problem is fixed.”

For City, then, the production of products rested on a system of management of people that focused on finding the right people to solve a particular problem, rather than merely on a set of experiments focused on determining or producing material properties. Knowledge for him is embedded in people and his job is to coax it out of them, to manage their time and the direction

51 of their research, to align their work with the needs of the Company and a vision of future competition in an imagined market of products, and to do all this giving his employees (and his materials suppliers) as little grass as possible. To a certain degree, his suggestion that I was there to study knowledge management was a similar attempt to direct my own work, to nudge it to fit better with the interests of the Company as he saw them. He was trying to motivate me into a network that would produce knowledge he needed just as I was trying to rope him into a network aimed at getting access to embedded knowledge that I myself needed.

Knowledge for City and others in the Company was also clearly about control. If knowledge is embedded in people, then when people leave there is a direct loss of knowledge, of relative competitive advantage, to the Company. This loss is both due their taking their abilities away from the resources available to the Company, as well as to their adding their technical capacities to a competitor (these days often in China). As such, the Company was most secretive not about my joining their R&D meetings and seeing the most recent lab results, but rather about the Company's organizational chart. Even Jess was only allowed to see it when necessary and not to keep a copy. Poaching of employees was managed through selective promotions, non- disclosure contracts that all of us had to sign, trade secrets education, and through the extraction of this knowledge from people into separately circulable patents. While I still think my project is about more than KM, City was right that it is necessarily about knowledge.

52

2. Emergent Knowledge as Material Properties

Rather than seeing knowledge as embedded in people in the form of technical capacities like

City did, the posessors of these technical capacities preferred to see knowledge as embedded in materials and machine-material systems.21 These R&D engineers lower down in the hierarchy

were the ones who actually took turns at

designing or redesigning recipes, editing

machine software, shepherding the LED

wafers from one step to the next, and

operating the machines that would grow the

correct properties within the LED structure to

enable it to give off light of the right Figure 2.1: LED Structure (Figure by Author) wavelength, brightness, and direction. They focused on machines, materials, and the relations between and among these.

Both knowledge and light, here, have a clear material origin. Light is produced in LED materials grown and manufactured in particular controlled configurations, in semiconductor clean rooms, that parallel Hacking's (1986) description of the creation, rather than discovery, of phenomena in the lab. Rather than rediscovering properties of the world in general, my R&D engineer informants used the materials they experimented with as well as the physical properties

21 Please note that while the technologies and conversations described herein remain true to the contours of them from my observations and fieldnotes as pertains to property, context, and social interactions, I have changed some aspects of their technical content. I have assured the Company that I will not disclose any of their technical secrets and therefore most LED experts will find these “analogical inventions” to be, obviously, of little actual use. Of course, as in accord with standard anthropological practices protecting informants, it is not just the technologies that are here given pseudonyms, so too are the people who donated their time, knowledge, and good humor to the project. 53 of the machines and of the lab itself to create conditions whereby the properties they desired could be brought into existence. Both knowledge and light emerge from these deliberate interventions.

LEDs are like a layer cake of semiconductor and non-semiconductor materials. Their most important part, albeit not the most clearly “cake” part, is the platter the cake sits on: in LED terminology, the substrate. Without a strong supporting layer like sapphire, silicon carbide, or

Gallium Arsenide, the other LED layers would have nowhere to grow on and they would not be able to hold the “weight” (tensions between a variety of conflicting forces) of the layers above them: some of these layers are only a few atoms thick and the entire structure may be only as thick as a single piece of paper, around one tenth of a millimeter.

Beyond the substrate, the most important part of an LED is its p-n junction, what allows it to produce light. These are the layers that make the LED an LED, all the other layers merely augment this

22 function or solve problems related to it. Figure 2.2: Electron-Hole Recombination and The layers on the top and bottom of the cake Bandgap Diagram (Figure by Author after physics textbook information) have opposite charges, one being positive (or “p-type”) and the other negative (or “n-type”).

These different charges are generally produced through doping, that is, bombarding the growing semiconductor materials with a different set of atoms (like magnesium, aluminum, or indium) to create impurities in the material that gives it its charge. In the middle, where the positive and negative materials would meet is a third (generally undoped) layer called the active layer. When

22 Everything else, some of it rather literally, is just icing on the cake. This could include mirrors, window layers, ohmic layers, current spreading layers, current blocking layers, insulation layers, pads to connect to the electricity source, and metal frameworks to distribute it around the device's surfaces. 54 electric current is passed through the LED, negatively charged electrons “move” from the n-type layers towards the p-type layers and positively charged “particles” called holes move from p- type to towards n-type layers. In theory, these then meet in the middle from opposite directions within the active layer. When such an electron and a hole meet they combine together, neutralize each other's charge, and drop in energy state, emitting an energy equal to this drop as a combination of heat and light (photons).

The materialities of these primary layers have a direct effect on the light that we see.23

Each of the potential combinations of semiconductor materials that can be used in an LED have a specific “bandgap,” the size of that drop in energy. The bandgap of the active layer directly

determines the wavelength of the photons

emitted, and thus the color of the light

emitted, for successful recombinations. If

you change the materials from gallium

phosphide or gallium arsenide phosphide to Figure 2.3: Lattice Match and Lattice Mismatch (Figure by Author after physics textbook gallium nitride then you've changed the information) emitted light from the red-yellow-orange range to the blue-UV part of the electromagnetic spectrum. This means that no matter how much or how intense the electricity that is put through a particular device is, the color of light it puts out will not change.

In addition to a semiconductor material's bandgap, engineers must take into account the macro-structure of its crystals, called its lattice structure. That is, they must take into account how the crystals actually physically fit together. If you try to build a building made purely out of vertical columns, you would need to make sure that the spacing between the columns on each

23 Or do not see, in the case of infrared and UV LEDs. 55 floor is as close as possible to the spacing between the columns on the floor directly below it.

The same is true for crystal growth. If you try to grow GaN with a lattice constant, or distance between its “columns,” of around 3.2 angstroms on GaAs, with a distance around 5.6 angstroms, you won't even get it to grow. If somehow you got it to grow, the stress between the layers would be such that your structure would pull itself apart. GaN (blue) LEDs thus are generally grown on sapphire substrates (with a lattice constant around 2.8 angstroms) and even then there is a significant amount of jiggering that has to be done to make it work (patents on this buffering process are held, at least, by Boston University and Nichia Chemical Industries). When you change materials, and thus wavelegnths, you've also by necessity changed the type of substrate or foundational layer that can be used, the temperatures, pressures, and finishing processes that are necessary, and the set of other materials that can be used in the LED's other layers.

LED production, is not best understood by theory or via lists of the properties of individual ingredient materials, however. The properties that most concerned the engineers I worked with were those having to do with interactions between and among layers or with the structure as a whole. In part because of the relatively advanced state of the technological field itself, new advances that might produce light and produce it in particular ways are more likely to be found in these extremely complex (and generally invisible) interactions between materials in the same layer, between materials in different layers, and between the materials on the one hand, and the electricity going in and the light coming out on the other.

A short example should help to illustrate this point. In R&D meetings, City or one of the other heads of R&D units would occasionally suggest that one group should try out incorporating another group's tactic in their own product platform as well. “Roughing,” for instance, was a strategy common across several product platforms aimed at reducing internal reflection and

56 increasing the light emitted. Roughing is just what it sounds like, roughening up the normally smooth surface of a particular layer or portion of it.

This suggestion by City was not merely for the second to “copy” the first group, but rather to try to find a way to roughen up the analogically parallel structure on their own platform.

The second group would still require time to fit the modified layer into their own overall platform, accounting for differences in materials and relations between layers. Though in theory it should be possible, sometimes the “idea” simply would not translate over to another platform; roughing, for Figure 2.4: LED Roughing (Figure by Author) instance, is actually relatively difficult to do on blue LEDs in a way that gives significant results. Moreover, the procedure used to do the roughing will vary depending on the potential vulnerabilities of previously grown layers and the amount of time that process requires will vary on different machines.24 The idea to

“do roughing” then, is not enough by itself. It needs a material context.

24 The entire process can also be affected by other, not yet known or not yet created, properties of the particular material configuration tested. One engineer I met, for instance, was working on an issue related to the epitaxial growth of the p-n junction layers of an LED. He explained to me that he now thinks that improvements that he and his team were slowly making there were actually preventing other engineers from doing the roughing on later layers of his LEDs. His improvements vis a vis one problem, the production of light, were making later materials less susceptible to roughing and actually resulting in less (not more) light leaving the device. Returning to our cake analogy, this would be like the cream filling in the center of a layer cake affecting the consistency of the icing added to the top of it multiple layers later. At the beginning of his project, these aspects of the LED were not considered to be even remotely related. He believes, however, that he has new evidence for some of the reasons why roughing succeeds or fails in particular cases; this particular new configuration of materials allowed him to know a new property of the roughing process. All of this is knowledge that clearly comes from the materials it is embedded in and is only accessed through particular interventions in those particular material systems. 57

I am suggesting here, that from an engineer's perspective, LED knowledge is embedded less in their own skills than in the properties of the particular systems of materials they grow, their product platforms. This is not to say that they do not recognize their own and their colleagues' expertise—some employees are actually well known as sort of horse-whisperers for a particular machine or a particular process and nearly all have advanced degrees—but rather, it is to say that results in any particular case are dependent on the interactions between these skills and the materials they are working with. For them, the skills do not determine the result, rather their skilled interventions in the materials provoke new properties of the platform as a whole.25

Whatever new shift in the light produced will, thus, be understood (and analyzed) as a property of the materials as a whole; the system is the source of the response. This is how knowledge is conceptualized as embedded in materials. Note that embedded here does not, however, imply permanently embodied. Knowledge, of course, can be abstracted out of these product platforms—this was, in part, the purpose of City's weekly R&D meetings and is an integral part of the creation of property that I will begin to describe in the next section—but it loses much in this shift that can only be regained through new interactions with materials.26

While we often conceptualize material properties and knowledge of them as two different things, at least in my ethnographic situation the boundary between the two turned out not to be clear at all. This is especially the case when we see material properties not in terms of elements or compounds, but as properties of systems of interacting materials, machines, and people; properties that are created through the very same experimental processes of intervention that give us the knowledge of them. Rather than seeing Barth's “assertions of knowledge” in the form of

25 In this sense LED engineers may have much in common with Ingold's (2000) basketweavers. 26 It is in these meetings that we begin to see a distinction between properties and knowledge of them that is not as obvious as engineers work with the materials in their experiments. 58 technical capacities of people, here we see assertions of knowledge as material properties. His

“social organization” face of knowledge here consists of the network of engineers, machines, processes, and a whole host of materials that are pulled together in ways to be the source of both light and knowledge of its production.

3. Disembedding Knowledge: Searching out the “New”

Neither of these first two conceptualizations of knowledge, as embedded in materials or in people, is wrong; they are just different ways of conceptualizing knowledge, of seeing it as situated, of pinpointing where you will go to find it. Though City represents to me a perspective where knowledge is understood as technical capacity, he too was an engineer meddling in the properties of material systems not all that long ago. In both of these conceptualizations, however,

I suggest that knowledge appears deeply embedded in the contexts, both human and material, of

R&D. Moreover, both sorts of knowledge are actualized (or created?) through interventions by particular social organizations composed of people and materials. Taking my ethnography in terms of Barth's faces of knowledge then, while knowledge must be expressed as assertions and representations in a wide array of media, the source of it, like the source of light, is in the social- material organization that creates it and establishes its context.

What this third type of motivated network describes, however, is an attempt at disembedding knowledge, of beginning the process of translating it into a form that can be owned and circulated separately from people, materials and machines. Its conception of knowledge is of sets of discrete ideas, some of which may be patentable and thus owned with equal rights as any other patented unit of knowledge. This third network is thus also extractive. It

59 cuts across both the material-based distinctions of lower level engineers as well as the hierarchies of control mobilized by upper level management.

By the middle of the summer of 2010, IP had decided that they wanted to shift their department from being a passive one, only reacting to patent ideas initiated by R&D, to being a more active one searching along with R&D for what was “new.” Rather than only being called in when a project had nearly finalized a new (or modified) product and was ready to transfer it to the factory side, the idea was to get IP inserted earlier in the R&D process. This would prevent the

“finalization” of products that had patent issues (at least those known to IP) and thereby save the company time by incorporating design-arounds in the earliest stages of product experiments.

They sought permission from City for an IP engineer to begin to attend the R&D weekly meetings with me.

In the first meeting Paul attended with me, he asked me for background on a project involving fixing electrical pads that were peeling off the tops of a specific LED line. The two of us grabbed the engineer after the meeting so Paul could ask in more depth. Flux and his team had been working on an emergency that had come up in the process of the mass production of a product. A percentage of products from these mass production runs were failing because the pads where electricity enters the LED would not stay stuck to the top of the device. Since Flux had headed up the original R&D version of the project, he was called in to help figure out the problem. Much of Flux's recent weekly reports had detailed the various attempts he had made to analyze the failed chips to see what was wrong.

The issue itself was quite a mystery as there was no hint of it in any of the earlier sample runs Flux had done on the R&D machines. The strange thing was that the technology being used

60 to “glue” the pads to the LED was not at all new. Though it had not been used on this particular product platform before, it was used routinely in several other lines and no one there he had spoken with had ever seen this type of issue before. Moreover, not all of the chips were failing and those that did could not be traced back to any particular set of potentially malfunctioning machines. Not only were there few good ideas on how to solve the problem, no one really could guess what was going wrong in the first place.

Just a week before Paul's arrival, Flux had finally stumbled on what he thought might be the cause. He had cut the failed chips into cross sections at several points where the pads appeared to be peeling and used a scanning to take pictures of those areas.

Most of these dozen or so pictures showed only the expected variation in the thickness of the

“glue” layers.

One shot, however, showed a rather large air bubble (several microns in diameter) several

layers down into the glue. This, he

suggested in his presentation,

might have been caused by a

chemical reaction between

molecules that had migrated from

non-adjacent layers of the “glue”

and may be large enough to

prevent the glue from holding in Figure 2.5: A scanning electron microscope illustration of the location of Flux’s bubble. (Figure by Author) that particular place. The weakness in that spot would pressure the remaining “normal” areas and, combined with the pad's own curling properties, could conceivably result in peeling. With only this to go on, Flux suggested

61 adding a new, slightly thicker layer into the recipe for the glue that should prevent the formation of the bubbles.

The problem was that it was pure luck that Flux even saw the bubble at all, he just happened to cut the cross-section for that particular photo right through the middle of it. There was no way to know if only failed chips had these bubbles or if the “good” ones did too. How could he know if this was not also something that happened in all the other previous uses of the

“glue”? Perhaps there, the bubbles just never got large enough to cause peeling. Or perhaps these bubbles were not the only issue at all. Lacking any other explanations, however, City told Flux there was no more time. The products were due yesterday. He should assume that this was the issue, see if eliminating the bubbles would solve the problem, and just in case, also try adding a few extra seconds to and doubling the pressure of the gluing step. “If none of this works,” he ended with, “well, then we'll keep looking.” Following this advice, in the end, seems to have fixed the problem.

After hearing all of this, Paul told Flux that he should write the whole extra layer idea up as an internal patent idea proposal and include measures of the improved adhesion on the pads.

This “new” glue structure was a good candidate for a proposal as it not only was going to be a part of a product in the very near future, but it also was a structure of “glue” layers that Paul had never seen used in LED patents before. Besides, Paul had only recently been working with an engineer in a different R&D division on her idea for yet another type of “glue.” Though this was to be used in a different part of the LED and was based in a completely different material system,

Paul saw commonalities in that both made use of relatively thick layers of the same compound.

If Flux's idea passed internal reviews, Paul could merge it into this existing application as a

62 single invention. Merging the two would enable the Company to claim a broader swath of “glue” technology while also presenting a stronger case for an inventive leap over earlier patents.

When I spoke to Flux about it later he explained his view in a way similar to explanations

I heard from many other engineers:

“I really wouldn't say that it is “new” at all. The problem,” he explained, “is a new one to the Company, but [the material we added to the glue] is just a metal. The fact that [these two mischievous elements] combined together to form a compound and a bubble is just basic materials [science].” This was just one problem solved on just a small portion of the LED, in a long line of work his group had done on that particular LED product platform. He wouldn't even count it as one of the primary changes that they had made in the course of that project. He certainly did not see it as an “invention.” All he was willing to say was that it was “new to him.”27

For Paul, on the other hand, it was “new enough.” While this technology was entirely dependent on its creation and use within a particular product line to solve a specific problem (the air bubbles) that remains a mysterious property of the materials as put together under those

27 Throughout my time in the Company, I was never really sure how “big” the changes they were making to their LEDs actually were. Like my R&D informants, I too was unsure what was “new.” Certainly nothing was along the lines of the creation of an entirely new material platform from the ground up like a Japanese engineer did in the early 90s (a distinction that the Company's engineers themselves almost immediately made when I asked them what an “invention” was). It turns out, however, that any material changes, even if clear in principle or in theory, are anything but simple in practice. I quickly realized that something as seemingly simple as moving the place where electricity entered the structure from the middle to one side involved a whole series of additional modifications and then remodifications. Moreover, R&D projects were rarely, if ever, about a single modification. Rather, R&D project groups attempted three to five major modifications to various parts of the structure in the same new product development cycle. Are these multiple small advances? One big advance? This is why R&D personnel referred to products as “platforms” on which they attempted modifications and improvements. It was never a matter of simply finding the most transparent materials or the materials with the best conduction properties, but of finding those ones that could best integrated into the preexisting or foreseen material system and learning how to perform that integration successfully. At a more conceptual level of explanation, this is something that can also be linked to the common conceptualization of knowledge/properties as always already embedded in people and materials: the various new configurations they put the materials in merely allowed the emergence of different sets of properties. This new knowledge, eventually, will be explainable as the (then) predictable interaction between materials under those specific circumstances. To them, the things they worked on were just “new to them.” 63 conditions of LED manufacture, its “newness” was, for Paul, instead related to a separate system of already existing patents and . While it made little sense to Flux to combine his idea with the other engineer's idea due to the completely different product platforms they were working on and problems they were solving, from the perspective of the these two could be written as different embodiments of the same invention. Even though they did not know either the mechanism or the specific conditions under which the bubbles formed, let alone have a theory of bubble formation and prevention, what mattered to Paul was that they had a detailed solution to the problem and it was one he had not seen before. Even better, the technology described a layered glue structure that, sometime in the future, could be easily seen and confirmed when analyzing a competitor's product for suspected infringement.

This entire network—Paul, Flux, the other engineer, all of their project members, the failed and reworked products, and Paul's IP colleagues who would later help him write the patent application—is brought together and motivated by Paul toward disembedding the knowledge from its laboratory setting and materials context. In doing so, the patent application also creates, in order to face the law, a different sort of object of knowledge than the one that it purports to represent from the lab. For Paul, though the background information on the project was important to understand the technique that Flux was using, his job was to extract out of that narrative the portion of it that might be patentable, and only that portion. Paul's delineation of the object to be owned in the external patent application later would involve a process of genericizing the knowledge: removing details that were not necessary to the idea as Paul saw it and representing it as of the same type as the other engineer's “glue” structure. For instance, as the application would center on the new gluing innovation, rather than on it as an experiment to fix the bubble problem, there would be no need to describe the added pressure or time that City

64 had asked Flux for to do for good measure along with the added layer. With Flux's help in a series of later conversations, Paul would gather information on what other procedures or machines might be used to accomplish the same result or what other materials, regardless of cost, current technological limitations, or their fit in this product, might stand in for any particular layer of the glue structure. These were beyond the scope of the current application and probably would not be judged to be innovative enough to be the center of their own applications. Paul would even convert the specific optimal temperatures and pressures found in the project into ranges so as 1) not to give away too much information in the pursuit of the patent and 2) to protect their own products even if a future change in their own processes forces them toward a new set of optimum conditions.

This third, IP-motivated network, through the patents it produced, determined what was

“new.” It is out of this extractive network that the idea comes to exist “on its own” for the first time, albeit still grounded within the patent application and the IP-R&D network. It is now stripped of much of the very detailed context that enabled the knowledge to emerge as material property or technical capacity in the first place. The writing of the application and later negotiations with the patent office after submission will serve to further recontextualize the idea into the expectations and requirements of the patent system and of the law. Just as R&D engineers intervene in LED materials to engage their properties and produce representations of technical knowledge, so to do IP engineers intervene in the R&D project process to rip potential patent ideas out of their contexts to produce property claims. As I explain in the coming chapters, through its removal from the contexts of the lab, materials, and engineers, the patent circulates independently from them and enables a measure of legal control over the knowledge it claims even when the Company's control over the circulation of products, machines, and people fails.

65

Conclusion: Barth, Hacking, and the Anthropology of Knowledge

By way of conclusion, I want to return, for a moment, to the chapter title and to

“Enlightenment.” In thinking through my interactions with R&D engineers in their lab, I was drawn to “enlightenment” as a framing concept due to its ability to encompass quite directly an interface between knowledge and light in a way that suggests becoming rather than simply being.

It is the state of coming into knowledge or of becoming brighter. It is, of course, also a fun word to use to talk through the ways that my informants struggled in their quite explicit pursuit of the production of both light and knowledge of it. For me, enlightenment calls forth an emphasis on origins or stores of knowledge, of particular situations, people and pursuits. Where do you go to find knowledge? Who gets that knowledge and who doesn't? How might we conceptualize knowledge less as ephemeral idea and more as located in particular places or, here, particular networks of people and things? In some sense, this is also where the term's irony comes into play. In English, enlightenment is both the word we use for religious awakening in terms of

Buddhism as well as for a movement in European history that propelled us toward the emergence and dominance of “Science,” individualism, and rationality explicitly over and above other sources of knowledge like religion, tradition, ritual, or custom. I use the same word here, however, to discuss science—or maybe more accurately, engineering—in a way that suggests that knowledge emerges not from individuals relying on their own rationality, but from networks of people and things motivated to particular (rather than universal) ends.28 It takes real work to

28 It takes work to get to the universal and even knowledge in a “universal” frame or form is only universal by following particular types of criteria and existing within particular sorts of networks. 66 translate such to particular knowledge into a form that appears as universal, though still resting in its own, different networks and contexts.29

I think this is the type of understanding of knowledge that Barth's (2002) article on the

Anthropology of Knowledge was working towards. For me, Barth's three faces of knowledge, each in different, yet interconnected ways, suggest that knowledge has a clear location; it is not free floating or universal, but rather is linked to—or it exists as—specific assertions, representations, and social organizations. I read him as taking knowledge not just in the passive terms of its content as “ideas,” but in terms of “assertions” made by particular people. These are claims to truth made (or performed) to an audience. Moreover, they are necessarily made in specific ways, riding within a great variety of media of representation available to the claimant.

That is, they do not flow in every which way, but depend on and are shaped by media infrastructures from the grammar of language to modes of proper speech, or from technologies of claiming like radio or writing to formats of data storage like digital, analog, tapes, or discs.

Barth's sketch of an anthropology of knowledge, lastly, emphasizes the knowledge embedded in and, in turn, affecting social organization.30 This is where Ian Hacking's work can

29 I hope, eventually, to spin this discussion of knowledge off into a wider frame of links between “science” and “indigenous” knowledge as two key strands of anthropological research. An earlier focus of anthropological work on knowledge involved attempting to make indigenous knowledge legible to science (and to the law) in two ways. First by seeking to translate that knowledge into scientific terms and proving that indigenous people really do have a handle on the medicinal and other benefits of various parts of their local environments. Second, there were also significant attempts to neutralize the complaints by scientists or legal professionals about indigenous knowledge as illegitimate due to it being wrapped up in/with cultural traditions, religious rites, or other mythological knowledge by showing the ways that science too is embedded in cultural assumptions. Part of the issue with this is not that these works were not successful, but that they were (cf. Paige West's work (2005) on value and translation). It is also uncertain whether the issue really existed in the first place. That is, the very fact of and those bioprospectors' use of indigenous guides suggests that important groups on the science side had been taking this cosmological/embedded knowledge seriously for quite a long time. I suggest the issue was less one of a need to translating knowledge across the indigenous/scientist divide, and rather more of a need to translate claims of control over this knowledge to make it legible to the law (of various relevant national legal regimes) in such a way that such rival claims of control exist on an equal footing to those made by the scientists. It is an issue not just of knowledge, but of property. This is especially so given that even “Science” (or perhaps, engineering), as I describe in Chapters 3 and 4, also is not recognizable to the law in its form in the lab. 67 both expand and give direction to Barth's model. The attention Hacking pays to the role of the experimental system and its apparatuses—tools for creating knowledge—encourages an expansion of Barth's idea of social organization to include not just people, but also the materials and the larger contexts of their knowledge pursuits. Knowledge does not come from within the mind alone (cf. Leach 2004), but rather comes via interactions both with and within a world that includes both humans and non (cf. Latour 1993, 1987). By focusing on intervention, Hacking also gives Barth's model direction, making it more a vector than a point or a line. Interventions create the very conditions for knowledge to emerge. Enlightenment here comes not from individuals' rational thoughts, but rather via the mobilizations of a dynamic set of actors, human and non, motivated for particular purposes31 and producing knowledge and representations of it.32

30 Here, in terms of its claims (necessarily made to an audience), its unequal distribution, and its widely shared aspects and assumptions that, in turn, shape the emergence of new knowledge through our interpretation of our individual experiences. 31 This motivation of networks of human and non-human actants is an essential part of the process both of “knowing” and of producing. In some ways, this motivated aspect is a counter to the webs of relations that tend to be described within ANT approaches—actants interact with one another, and these relations can be traced as far from a central point of consequence as desired, but there is little room for responsibility in the networks nor a clear test to know when to stop analyzing outwards. In the networks as I observed them in the Company, these were not passive relations, but rather constantly reorganized and forged sets of relationships motivated, in multiple, simultaneous instances toward particular goals. The movement of knowledge around R&D, out of materials and into mid-level frameworks of local, platform-based knowledge, and from R&D’s projects into IP’s translation of its materiality and sociality into words and logics all are part of these motivated networks whose very motivation hints both at responsibility and at the proper “bounds” of an analysis. Circulation occurs through these networked infrastructures. Building on Larkin’s (2013a) infrastructural approach to circulation as translation, I take the translation process that is described in more detail in Chapters 3 and 4, as a process where knowledge is molded by the requirements of the form it must take in the patent—the form it must take to enter the patent archive—much like the materiality of a film’s actual circulation, as DVD, VCR tape, broadcast, or watched locally all affect the message. Translators, too, are key here. It is them who write the technology (and negotiate its claims) in such a way as to make it commensurable (despite vastly incommensurable machine-material-engineer systems) with any number of other patents within the existing patent archive. This equivalence is founded on the claims section’s logical poetry and the examination process’s comparative attempts to determine and obviousness. As I describe in Chapter 3, the translators’ too are on a journey from the lab to the law, and it is their ability to see and understand both that enables them to do the work of moving knowledge toward equivalency and in effect, creating, new legally recognizable objects away from the lab that can now be owned. 32 Knowledge here is clearly both already social and always already embedded in the particular. 68

Finally, a study of knowledge does not end with its content. Rather, I suggest that it must continue on to understand how knowledge is circulated, controlled, and used as these are integral to the motivation of the social organizations (or networks) by which knowledge emerges.

Products are not just the result of knowledge but, like materials and people, they are also stores of it. While R&D relies on the controlled conditions of their “clean rooms” to produce new properties in their material systems, they must do it in a way that enables the preservation of these properties when they are removed from the lab and sold as lighting products.33 This is true enough that most companies in the LED industry routinely reverse engineer competitors' products to try to reconstruct the processes and materials the competitor used to get their particular results.

The product, however, is not the only second life of the knowledge produced in the

Company. There are also those patent applications IP produces that circulate apart from both lab and products as distinct embodiments of selected knowledge or properties created in the lab.

Embedded knowledge is extracted from the lab and re-embedded in the context of the law. When these applications later become patents, the process I will turn to in the next chapter, they will

33 In several of my interviews with R&D engineers, my interviewees brought up the concept of culture in order to talk about the difference between say TSMC and UMC (two of the largest semiconductor manufacturers in the world, both of which are Taiwanese owned). I would then try and turn the interview back to the Company asking them about the culture here. While many people discussed the importance of bosses in creating their working environment to be the way it is, they also, unexpectedly to me, brought up the division between R&D sections working on red as opposed to blue LED materials. They saw their “culture” (most likely analogous here to business culture rather than directly to an anthropological concept of the cultural) as rooted not just in their bosses management style, but also in the materials they worked with. At first, I admit I dismissed this as a misunderstanding of what I was asking. But as I spent more time with red and blue LED engineers I realized that this material difference did indeed mean a different set of practices. Working with Gallium Nitride (blue LEDs), for instance, means that there are very few issues with getting the light out of the LED structure. Red materials on the other hand taught an engineers to pay particular attention to temperature during the growth process, while pressure changes became instinctual for those working with blue materials. It turns out that this materials shorthand of red and blue divisions actually stood in for a quite sophisticated understanding of habitus, bodily practices, and orientations to working life that really do look like “culture” in an anthropological sense. In short, for engineers and operators working with them, LED materials are key. They not only constrain what you might do with a particular product, they also instill somewhat different bodily practices and they directly determine and enable the light that is produced in a variety of ways. 69 provide a significant degree of control not only to slow or stop flows of knowledge, but also over the movement of engineers by removing their right to take those particular technical abilities along with them to another company. Patents are a legal method of maintaining a technical advantage beyond the time when, on technical grounds, that advantage has long gone.

Enlightenment is therefore only the beginning. The anthropological study of technical knowledge's creation, circulation, and control in this longitudinal sense can lead us to better understand the construction and conditions of the global divisions of labor (profits, and environmental risk) between manufacturing and design work that we all live within.

70

Interlude 1:

The Anatomy of a Patent Document: Hybrid, Process

A patent is both a claim to property rights in an intangible object34 as well as an actual tangible document. This document can be thought of archaeologically as the artifact that is left behind by a much longer term set of processes. As with material artifacts found in an excavation, there are aspects of the artifact that allow us to determine much about the human activities that surrounded its production and use. A knife for instance may show particular wear patterns depending on what it was used for and these may appear to be layered as the use of the knife changed over time

(cf. Chan 2006). The molecular composition of the used in a pottery sherd can suggest trading routes either for raw materials used in production or for the finished products themselves

(cf. Bishop et al. 1982). There are traces of the processes behind the patent's formation that can be read from the document itself. In addition to the patent as artifact, beginning with the filing of the patent application and going on through its circulation as a commodity much of this longer term process of claim-making is now itself also preserved (in the case of recent US Patent applications at least) in separate, publicly accessible databases. Throughout my fieldwork and interviews in the Company, then, I was able to gather data that connects this publicly accessible information with the work that goes on prior to and aside from the public record. I suggest that patents are not only documents or certificates of ownership rights, but also a process of claimmaking: the production of property is the first chapter in the social biography (cf.

Appadurai 1986) of this relatively new sort of intangible commodity.

34 Or, instead, a claim to a set of rights over a vast, open-ended set of tangible products that are rendered “mere instances” of an “original” by the patent's language and official existence itself. 71

One of the things that makes patents particularly interesting as potential ethnographic documents is that they are hybrid documents. Figure 2.6, on the next three pages, shows the four main parts of a patent using a selection of the pages from a Taiwanese company's US LED patent as example. Patents include a portion carrying the patent's identifying information (1), a portion for figures and charts illustrating the invention's embodiments (2), and a prose portion that lays out the boundaries of the invention (3) and stakes out claims to its ownership (4).

72

Figure 2.6: The Anatomy of a Patent (Figures on the following three pages by the Author based on US Patents 6,914,264 and 7,615,796).

73

74

75

Having multiple parts, however, is not what makes the patent a hybrid document. Rather, the various sub-portions of the patent are crafted by different people at different times and under different circumstances. The first page of the patent, for instance, appears to be the result of a more or less standard fill-in-the-blank style data gathering form. As with the forms Riles (2006) describes, such forms are automatically hybrid. One part, crafted first, lists the categories of data required and determines the types of possible answers. This part is quite distinct from the second part, the part waiting to be filled in with the requested data some time in the future. In the case of patents, this first part is a result of the particular rules and requirements of each national patent office. Nearly every field is then also assigned its own international numerical code that links like fields (and distinguishes similar but not identical fields) across each of WIPO's member countries' patent forms.

The patent's hybridity, however, it is not just composed of the distinction between form/question and content/answer. The answers put into the blank parts of the form are also hybrid in voice and in time:

76

77

78

79

80

81

Beginning then, with the patent document as an artifact, reading it engages us in the pursuit of these traces of its creation. From the first page on through the Specification, Claims, and Figures, it contains an array of different kinds of information that were written at different times and by different actors. As documents, these are publicly accessible (either via Internet databases, special order CDs of the files, or actually visiting a government patent office to print or photocopy them). Though they circulate globally as “knowledge” (cf. de Laet 2000), as I show in Chapter 3, they are not necessarily the “knowledge” that we think they are. That is, the invention they describe is, in subtle but important ways, not the same technical idea that emerged from the lab. They are therefore also more than just knowledge. The process of the creation of this document is thus also the process of the creation of property and of an object to own. Patents do not just “flow” as knowledge, rather, as property they are also part of a global infrastructure of stoppage. The document is a hybrid artifact of the process whereby a technical document (or a set of materials, skills, and narratives) outlining a portion of an R&D project is turned into a legal one that clearly delineates and claims exclusive rights to a single invention. It is, at its most basic level, like all forms of property, a process of claimmaking and counter-claimmaking

(Demian 2004, see also, for instance, Benda-Beckmann et al. 2006, Hann1998). In the next two chapters, I will zero in on the specifics of the creation of this type of property, in practice.

82

Chapter 3:

Representation:

Translation and the Decoupling of Property from Knowledge

In Chapter 2, I began to mark a distinction between invention ideas and technology in the context of research and development in the Company. In that case, “technical knowledge” is best understood as something embedded in multiple particular projects, each of which aims at incremental improvements in future products. Whether you see such knowledge embedded in people (as City did) or in materials (as City's engineers did), patent ideas, by contrast, emerge from yet another distinct sort of network: one motivated from beyond R&D to extract pieces of that knowledge. Extraction is key here. Patent ideas are not generally apparent within the normal context of a project. Even when apparent, they certainly are not claimable while still within such contexts and particular networks. Rather, once “found” and extracted, they must be translated into a form recognizable to the law. They are pulled out when patent engineers see something that might be patentable, when products actually are ready for test production, or when City requires a new set of brainstormed “ideas” as homework from each of his engineers. The technological process is one of incremental changes based within particular platforms built on particular sets of materials; invention ideas, on the other hand, are ripped out of this gradual, sometimes serendipitous, process and redelineated as potentially “new enough.”

In this chapter's focus on translation, then, the distinction between the technology and the patent becomes even clearer. This is because the shift from being handled as an idea within R&D and as one within the IP department involves not just a delineation to set it apart from the

83 incrementality of other technological knowledge, but also a dramatic change in medium. Where the last chapter focused on intervention's role in the creation of knowledge and internal patent ideas, this one focuses on the role of representation in creating an object available for ownership distinct from tangible particularity.35 It focuses on translation and on the patent's translators: on how patent engineers translate material properties and personal skills into a form of stand-alone knowledge that will enable claims to it as property. The ideas go from being understood and developed in a variety of materials, numerical data, charts, and pictures, to being described in texts and images alone. Moreover, where in R&D there was no need to ensure that the materials, data, and pictures somehow describe the idea exhaustively (present knowledge of and skills with materials are always underdetermined in relation to future circumstances), the words that are written into the patent's Specification and Claims for all intents and purposes are the idea in its entirety.36 In this sense then, these representations too are interventions: they change the technology by delineating it in such a way that it can be claimed as property.

This transformation from materials into words is important for us for two reasons. First, it completes the process, begun by IP in R&D, of delineating and, indeed, creating the “invention” that is to be owned. Second, it is this translation process that imagines and effectively establishes an intangible object of knowledge that can be owned in the first place. It does so by decoupling it from tangible products, material properties, and any particular engineer's abilities. I suggest here that the primary components of this writing process involve deliberate diversification and careful genericization of the patent idea.

35 Here, as in the chapter 2, I draw on and play with Ian Hacking's use of the terms “representation” and “intervention” in his description of the practice of science (1983). I have adapted both to a different context based in even more product-oriented engineering science and the process of turning some of that into property. 36 Even the figures in a patent must also be explained completely in words as the pictures are assumed to be “not to scale” and to represent merely a potential embodiment rather than all potential embodiments. To see the limits of all potential embodiments, you must look to the text. 84

Translation is here not just about moving from the materiality and skills of the lab to the text and images visible to the law, but also necessarily about the translators themselves. They work with R&D's engineers employing their own knowledge of the lab's unspokens to make the invention legible to judges in often foreign courts of law. This is therefore, not just a gap between things, between the technology as a part of future products and the invention as part of future patent documents, but also a difference between people and departments. Though patents are accessible as documents and thought of as property in an intangible object, from a perspective of patents as practiced, the patent document is more like an artifact revealing the traces of its own construction and anticipating its future use. Its creation through translation necessarily spans a large gap between knowledge existing in situ in a lab's materials or in the skills of its people and the final words in the patent itself.

Translation: Additions and Omissions

Most academic articles that focus on a patent's Specification and Claims sections (see Interlude

1) place these immediately in the context of the rules and regulations set for them by the US

Patent and Trademark Office (USPTO) or the Taiwan Intellectual Property Organization (TIPO).

These are the rules of the game within which everyone jockeys for position and by which the examiner attempts to find or other issues that will allow them to reject a new patent application. In Myers' (2001, 2004) and Appadurai's (1986) sense, these rules and their application make up a “regime of value” within which patents come to be seen as valid or invalid, valuable or valueless. Seeing this set of rules first was also the perspective of most of my interlocutors; they focus on understanding in greater detail the PTO's formal requirements in

85 order to discover their opposite, the spaces within which powerful patents can be written. This perspective is due as much to my patent engineer interlocutors' own personal trajectories—they stand facing the law with the lab at their backs—as much as it is due to the destination to which they wish to bring the technical knowledge that they are writing.

In this respect, the Specification section is mostly linked to questions of adequate

“written description,” “enablement,” or disclosure of the invention's “best mode.” All of which involve questions related to whether or not the claims to ownership that are finally allowed can be fully supported by the disclosure that was originally written in the Specification.37 These rules, therefore, are geared toward the economic bargain, toward ensuring that the Specification describes the invention “in sufficient detail that one skilled in the art can clearly conclude that the invented the claimed invention." (Regents of University of California v. Eli Lilly &

Co., 119 F.3d 1566 (1997), internal citations removed).

For the patent engineer writing the application's Specification, then, these rules and the spaces they leave guide attempts to find a balance between revealing too little information such that claims to only a narrow slice of technology are supported and revealing too much information such that information beyond that which is needed to support the claims is made public. I will expand on the claim-making process that the Specification enables in the next chapter. Rather than starting with the rules here, however, I start instead with the practice of patent writing.38 The following sections will focus on the process by which these intangibles and the ownership rights in them are created. It is through iterative interactions between the patent

37 At a larger level, this translation is the start of the process by which the rules of the various patent archives and potential future court systems begin to shape the emerging intangible property. 38 While the rules were different for the different jurisdictions that the Company was seeking to patent their ideas in (and while some of those jurisdictions' rules (ie. those of the United States via both recent new laws and ongoing precedential patent decisions) were constantly changing), the contours of the practices I focus on here were in place regardless of the final particular destination. 86 engineer and the inventor that the technology is translated into a form recognized by the law, comparable to its prior art, and decoupled from its tangible, particular origins and kin.

Iterative Cooperation: From Diachronic Narrative to Synchronic Description

In the summer of 2010, after I had been with the Company for several months, Aviva invited me to join her as she sat down with Ohm, an R&D engineer I already knew, about a couple of internal patent ideas he was proposing. As an informal meeting, we couldn't reserve a meeting room and didn't want to try to fit all three of us in one of our single-person cubicles. We met near the Company convenience store so we each had somewhere to sit and something to sip on. Prior to meeting with him, Aviva had received a copy of the powerpoint slideshow he had presented in R&D that showed the idea within the context of his current set of projects. Despite this, she started us out asking Ohm to explain the invention.

Instead of pulling out a printout of the slides, Ohm

began by sketching an LED structure on a piece of scrap

paper. The idea was meant to increase the brightness of a

current LED product that his team had been working on.

Their first thought was to alter one of the roughly

rectangular layers of the structure that would normally have

ended in a right angle at the top edge by cutting the corner

diagonally so that it roughly resembled a dogeared page in

Figure 3.1: Ohm’s Invention Drawing a book. As he spoke, he would draw the structures on his (Figure by the Author). paper, scratching out the parts that had been taken off in the new structure and drawing in the new version. The problem was that this first solution left the 87 structure more fragile at the two new angles such that the points might break off. He now was proposing to make the “diagonal” surface with multiple, separate, right-angle steps rather than a single smooth line.

At this point, Aviva jumped in, pointing at his drawing, “Will it actually break off at these points with the diagonal plane structure?” “Well, we'll make it with steps because it would get too thin.” “Can I get a more complete structure?” “Well, this is a proposal (yuqi), its only a plan (yuxiang) so far, but I can write up how we do it for you.” “So if you do it with steps, couldn't the corners of each step actually end up looking like...” She trails off as she redraws his steps with their protruding corners rounded off into quarter circles. “Or couldn't it just end up looking more like a slightly rough diagonal plane because of the materials you are using?” “No, not like a diagonal plane, because this cut is actually relatively thick so you will still be able to see the difference.” “Ok, I'm just asking because of that other idea Jeff had.” “I'll get you some real pictures so you can see the result.” They went on to discuss some of the other possible manufacturing processes he could use to produce similar style results and what each of these different processes would produce in the way of traceable clues in the resulting structure. Then Aviva shifted to the next patent idea she wanted to discuss with him. “So, whose idea was this one?” “Hm, well, we're all Red so we all proposed something like these...” “Oh, so you're not sure?” “What is its distinctive point (inventive step, tezhen)?” He said trying to help anyway. “What?” She laughed, “Now I'm the inventor?! I don't know...” Aviva then brought out a German patent she had found in a quick prior art search to show him. They concluded that, as far as they could tell, it really looked to be exactly the same as the second patent idea. Unless someone else were to step up with new information to explain it further, this idea did not seem to have anything new to stand on and probably would not even make it as a formal internal proposal. Our entire meeting lasted only ten minutes or so and, after a bit of chatting, we all went back down to our respective cubicles.

To someone hearing one of these conversations for the first time, overall, I imagine it reads a bit disjointed, as though the answers and questions do not quite match up. First, this is partially because the conversation was primarily structured around the visual, around Ohm's

88 drawings and Aviva's additions to them. This was something I found engineers frequently relying on both in conversations with me and in their own conversations around technology.

Second, it is also because of their rather indirect way of speaking: Aviva and Ohm took the fragments of what the other had said, jumped immediately to what they assumed the other was actually asking, and then answered accordingly. This indirectness stemmed from their repeated interactions with people from the R&D and IP departments respectively. Like Ohm, many of the inventors in R&D in the Company had already been through a bunch of these exchanges or, at least, had had a lot of previous interactions with people in IP. Despite the fact that inventions were almost always the result of a team effort where all members were listed as inventors, it was generally the mid-level managers who were forced to actually do the internal R&D presentations and to handle questions from IP. For her part, Aviva, like other in-house patent engineers, saw this conversation as a part of an iterative cooperation with Ohm that would guide her thinking and writing of Ohm's team's idea: each meeting, phone call, or emailed question will allow a more complete search of examples already in the public domain (prior art) and each will help her to hone their idea down to the parts that are “new enough.”

Even though she had already seen the idea in Ohm's email to her, Aviva explained to me afterward that she likes to always ask inventors to start off with an explanation of it. This helps her to be certain of what the inventor sees as the main features and the main problem the idea solves. It also helps her to separate out those parts of the original powerpoint slides she saw in the email that speak more to R&D concerns than to the of this specific improvement. In this case, the slides were copies of Ohm's presentation from R&D on his group's overall product research progress in the last few weeks. They focused on a particular process Ohm's group was proposing to use and the results they expected from it. In his

89 description, however, Aviva saw not one structure but three: Ohm himself mentioned at least two quite different structures (a diagonal plane and a stepped plane) and Aviva suspected a third (a roughened diagonal plane) was also possible. Moreover, although the details of the particular chemical process Ohm would use to make the structure along with its interactions with other parts of Ohm's product were important details that would help Aviva write her description, as they spoke, she realized that the structure could also be created using a second or third process that would leave slightly different clues in the final structure.

While Ohm focused his explanation on a sequential narration that explained the problem to be solved and the process that they had gone through to get to their current solution, Aviva's questions were instead focused on pulling out more specifics relating to the actual potential structures and processes themselves. Luke, another patent engineer, explained to me at another time why Aviva and Ohm had such different foci. In writing the Specification of the patent, and specifically in writing the section on the background of the invention, Luke purposely avoided

R&D's narrative style descriptions of problems and solutions. Though this way of presenting the idea would be relatively easy to write, not to mention easier to read and more faithful to Ohm's style of description, its danger was that it might be written too well. If the way the problem is presented, itself, suggests the solution, or if the writing transitions from problem to solution too smoothly, then this might be taken as evidence that the inventive step forward was actually not all that large. It might suggest that the solution was obvious once the problem had been defined.

In either case, Luke suggested, the application would be doomed. Aviva's questions, therefore, focused instead on cutting through Ohm's diachronic description in search of a synchronic understanding of the invention.

90

In preparation for her writing, for instance, Aviva followed up on Ohm's comment that a diagonal plane version of the structure would leave it in danger of breaking off at each of its three corners. Here, she wanted to see if this was something they just were worrying might happen, or if it was something that they had actually already seen in the lab that she could cite in her writing as another benefit of their invention. Moreover, if the smooth diagonal plane was severely flawed, Aviva might not need to include it in a description of the extent of their invention at all. If, on the other hand, this was just a suspected flaw that Ohm wanted to avoid so as to push his team's product to mass production more quickly, then it was possible that given the luxury of more time another R&D team might get the smooth version to work as well. In this case, Aviva would need to take care to ensure that it remained part and parcel of their application. In short, was this just a part of the narrative, or something that merited being in her own explanation of the final structure either as part of the “invention” itself or as a part of its inventive advantage.

Much of the rest of the conversation was aimed at helping Aviva decide whether this invention idea would be more suited to being written (and therefore owned) as a structure or as a process. Generally speaking, the Company's IP department prefers to write structure rather than process patents because this makes it much easier to catch someone who might be infringing it.

To prove that someone is infringing a process patent you need to know what process they used.

Processes, however, are generally a closely guarded secret, something that may not even be known to customers who buy the products or in its entirety to the workers working each individual station in its manufacture. For a Taiwanese company to find this out it is often necessary to sue in the United States where they could compel “discovery.” Discovery is a legal process most of the world's courts do not have which would force the accused company to allow

91 the Company's lawyers to see (or read detailed descriptions of) how the accused products were made. To initiate this, however, you must first have enough evidence to convince a judge that the accused company really might be infringing. While it may not quite be a catch-22, finding even this initial evidence (without access to their factories) certainly adds an extra barrier to future enforcement actions of process patents. Infringement of a structure patent, on the other hand, is immediately apparent upon detailed analysis of the physical product itself. All that would be needed would be a properly documented chain of custody to prove which company was responsible for the infringement.

Due to this calculation, when presented even with what is clearly a process, IP will first look for a way to express that process also as a structure. For instance, with a new technique for cutting LED chips from their wafer, the patent engineer may focus on the signature edge shape that a particular cutting process leaves behind. If such an edge could be shown to be in some way beneficial to the production of light or use of energy, then it could be patented separately as a structure, protecting the process behind it by proxy. Returning to Ohm's case, then, if their improvement ended up looking more like a roughened diagonal surface rather than a series of independent descending steps, given the abundance of “roughened structure” patents, it might be necessary to go the process route anyway.

Finally, Aviva always asks her R&D interlocutors whether there is already a product that uses this invention or, if not, if there are already plans to use this in a product. Patent engineers ask this for two reasons. First, if there is already a product being produced using this idea, the entire patent application process will need to be expedited so that the first sale of the physical product (by therefore becoming publicly available knowledge) does not become its own patent application's prior art. Second, an answer to this will also suggest the extent to which the patent

92 engineer will need to check back in with the inventor to be sure to capture any later adjustments to the structure or process that occur over the course of R&D testing, trial production, or early stage mass manufacturing, but prior to the submission of the application. This last issue is what had happened to the idea submitted by Jeff that Aviva mentioned to Ohm. Between the time of her first meeting with Jeff and the time the application was drafted, the product had run into unrelated production problems that, nonetheless, still required adjustments to be made to the area of his invention. As an R&D engineer, however, Jeff had already moved onto his next project, handing this last one off to the factory engineers. This meant that the Specification as Aviva had written it no longer matched up with the form the invention would take in the Company's own final product. Luckily, Aviva had found out about the changes in time to edit her description before the application went out. Once sent to the patent office, the Specification (as opposed to the Claims section I describe in the next chapter) is set in stone; changes may only be made for clerical errors that do not bring any “new” content into them. Reminding Ohm of that was meant as a way to ensure he would keep in mind the actual final physical shape that his idea would be produced as and keep an eye out for changes in that to pass along to her.

Diversifying and Genericizing the Idea

In this cooperation within the Company that produces the Specification, therefore, R&D engineers provide an idea that has been extracted from their project, product, or technological context by networks motivated from IP (a deterritorialization) and present it to patent engineers in the lab's language: through narration, pictures, project goals, and data. The patent engineer then begins to write this into its new context of neighboring prior art patents (a reterritorialization), working together with the inventor(s) to think of distinguishing features. At a 93 working life level, this involves a shift from spreadsheets and colorful powerpoint presentations to word processor programs with black and white line drawings. It finalizes too the divorce of the idea from particular engineer's skills and from the particulars of the materials and lab conditions they work with and within. In this sense, then, this is a translation between genres wherein in the patent's genre, words reign supreme. It is this process of iterative representations that creates the actual “invention” by slowly changing it into the words that will represent it, in its entirety, to the law. It is a combination of words and the logical relations between them that actually delineates the invention. They are what render parts of it visible or invisible. When originally proposed as a product specific improvement it may be quite detailed, but, as a broader invention, it must be made more open-ended. Being “incomplete” in specific ways will enable it to be applied to other quite different particular products when wielded in a courtroom. It is this process of questioning I laid out between Ohm and Aviva and the subsequent process of actual writing that recreates the technology as ownable apart from projects or products in its patent application.

Standing as a bridge between technology and the law, their job requires patent engineers to have a certain skill with words, and specifically with words as they are used in the legal/patent genre of writing. For the Specification, this reterritorialization process occurs through the patent engineer's successful navigation between two somewhat contradictory goals. On the one hand,

Aviva must diversify Ohm's idea, adding details of a wider range of possible forms it could take.

One the other hand, she must carefully genericize it, removing from it unnecessary details that would hint at the Company's specific, still secret practices.

94

Diversification

Drafting the Specification involves expanding on the patent idea in a way that shifts it away from the specific product toward a broader conceptual level that can encompass multiple different embodiments. It requires a somewhat radical shift from thinking of the lab's idea as itself the invention to writing it, instead, as merely one potential embodiment among many of a larger, more encompassing idea that will be the actual invention to be owned. As Franklin put it,

I think a good patent is one that is written from a lot of angles. So if you write a patent like [your] dissertation, well that's a horrible patent. But if you can think through a technology, from as many aspects as possible, if you can think of the ways that a competitor might try to use the technology in the future or of what a future product will look like, then that is a great patent. So its not just about writing the best possible, that's what R&D do. They try to get the best possible result out. The factory floor has resource constraints though, so maybe you can do it [like that] in R&D, but they only do one or two or three, maybe four, and get the best [one]. But if you actually try to mass produce it, do ten thousand or a hundred thousand, then its not necessarily the best. So, in this case, your original (原始的 ) prototype won't be the same as the final product that comes out. How, then, does your patent still protect you? So to write a good patent, you are basically trying to take a technology and think of all its possibilities, diversify it. This is the most interesting part of the writing. (Franklin, in-house patent engineer, April 2010)

In Ohm's case, then, if Aviva were only to describe39 a set of 90 degree angle steps in the

39 An example of this style of writing can be found in the excerpts from US Patent 6,914,264's Specification reproduced just above this note. On the left is a section of Formosa Epitaxy's description of the “background of the invention.” On the right, an excerpt of their “summary of the invention.” Notice that, though they describe a problem and an improvement, the two are not linked together. Furthermore, in the rest of these two sections there is no description of the process by which they went from the one to the other. They have chosen to avoid narrative in exchange for a synchronic description first, of the state of the art prior to their invention and then separately, second, of their own invention.

95

Specification, the Claims would then only be able to claim that specific embodiment. This means that when, in reality, what comes out of the process are relatively rounded edges or a set of

“steps” that are so small relative to the slope of the line that they just look like a misshapen diagonal plane, neither would be covered in the patent's scope. Once Ohm agreed to supply an actual picture of R&D's resulting structure (this would, most likely be a picture taken with a scanning electron microscope rather than one taken with a normal camera or even an optical microscope), Aviva could be confident in at least writing a Specification that would cover R&D's current ways of making the product. But this is not enough to cover changes that might be made over the course of their product's mass production let alone to accommodate a competitor's slightly different processes, materials, or machines.

Diversification therefore revolves around finding a way to describe the inventors' idea as a “genus” rather than a “species.” What “genus” level words or descriptions could describe not only this embodiment, but also the others you want to claim? At the same time, however, as you broaden it, you must be certain that you still cover the most important parts of the invention, the most likely embodiment to be used, in sufficient detail:

To write it well, when someone tells you a patent idea, you need to be able to see what its foundation is, what its most important point is, and try to write that in detail. Use your logic, do not just describe some event. Then you can write the Specification very broadly. You write it broadly, but what you write is the very middle of the [technological] path. This way, even if someone uses a different method, all you need is for them to still use the spirit of your invention, and he'll be covered by you[r patent]. It's quite a mind-challenging game. (Aviva, in-house patent engineer, March 2010)

While Aviva envisioned this diversification process as a distilling of an idea to its center or foundation and I prefer to speak of it as a move from species out to genus, the move is the same. Her drafting process, as she described it to me, involved successive movement from a

96 single R&D example to multiple embodiments, through these multiple embodiments to a phrase or expression that captures another “core” (or genus level) idea, and from that core back to fill out additional embodiments. In direct contrast to genericization, as I describe in the next section, this is a matter of adding, not subtracting details.

To accomplish this diversification, in addition to the questions Aviva asked above, I often also observed patent engineers pushing inventors on whether an idea aimed at a red LED product might also work for blue LED products or vice versa. If it could, the two engineers would then try to ascertain together what types of adjustments would have to be made to it and how these might change the structure or process to be described. Despite the fact that the distinct properties of Red and Blue materials often engendered very different structures and even different practices, skills, and assumptions among their respective engineers, these necessary adjustments would now each suggest a new potential embodiment of the “same” idea. New embodiments might also be found by outlining alternative materials or processes (along with their structural consequences) that theoretically might achieve the same result. For instance, a mirror to be inserted between two layers of an LED structure to direct light out of the structure might be made of aluminum, silver, , or even non-metals like layered silicon. Moreover, that mirror might be placed not just between the two layers where R&D's product required it, but also between other layers instead. It even might be placed in multiple places simultaneously in yet another embodiment. Regardless of their cost or current difficulty of enactment, the patent engineer must imagine each of these embodiments and include their details in the patent's

Specification to ensure that these, too, would be covered. Wherever possible, R&D engineers were constantly asked for summaries of any experimental results on any of these embodiments

97 that would give a better handle on how much improved the genus level “invention” (in each of its imagined forms) might make a theoretical LED.40

Failure to properly diversify the patent with such additional details could render a patent useless, even if the patent office allowed it to issue. In one of the weekly IP meetings I attended, the boss brought up an example of a badly written patent whose claims the USPTO had just allowed. Unfortunately for the Company, the in-firm engineer who had written its Specification, wrote it only in general terms. While this was enough to support the then current claims, the writer did not focus enough on the key, most important embodiment as it was known at the time of the invention, let alone diversify it with detailed alternative embodiments. Even in only the three or four years since then, technology had shifted to favor a different route that the Company felt should have been within the scope of their patent as another embodiment. This meant that now the Company was running into trouble. They wanted to use this application as a parent application for a descendent patent (a Continuation Application). The rules for this meant that the Company could add new claims so long as they relied entirely on the technology originally disclosed in the original Specification. The Company wanted this new set of claims in order to more directly challenge the particulars of a competitor's product and later filed patent. While the

Company's own files from the time of the in-firm application held enough detail to support the new claims, they worried there was not enough detail in the Specification the law firm had submitted to back up their ownership claims to the new embodiment. Filing a new application (or even a Continuation-In-Part) with the additional details would fail because it would not have the advantage of being earlier than their competitor's disclosure. Following this incident, the IP

40 These involved a “theoretical” LED precisely because the invention had to be compared to a generic LED without it. However, the percentage increase in actuality might be a quite a bit smaller as other that would be included along with the one in question might overlap in their improvement effects. 98 department instituted a formal policy of reinspecting all in-firm applications and all translation applications to ensure that their Specification sections properly describe the main embodiments in adequate detail.

Genericization

The draftsmanship involved in the Specification is not, however, only an exercise in forever broadening the “invention.” It is also an exercise in omission, in selecting or limiting what is revealed. During my time in R&D, I observed a case where R&D, IP, the factory engineers, and the product planning department cooperated in analyzing one of the Big 5's LED products using a range of different analysis techniques. One particular analysis technique, SIMS, showed the composition of the structure this competitor company was actually using through a graph of the concentration of elements at a set of particular layers of the device. The Company's engineers, at the time, attributed their competitor's advantage to this particular structural portion.

Of course, this analysis technique has its limits. The technique required slicing the LED apart and therefore, like excavation for archeologists, this analysis destroyed its object even as it gave information about it. The analysis also comes out differently depending on where you slice the sample and it is unable to show variations that occur horizontally (as opposed to vertically) within the same layer. Most importantly, SIMS only records the concentrations of the elements you ask it to detect. If you did not think to ask it to trace the amount of indium in the layers, for instance, you would have no idea that its layers had been doped with vertically increasing concentrations of that element.

Prior to receiving the chip to analyze, IP had already searched through this competitor's patent portfolio to try to understand the direction in which their R&D had been heading. Having 99 read the patents, however, was not enough. It was only after analyzing this product sample that

IP could be certain that some of the particular inventions described in these patents had actually been put into practice. Moreover, it was only after analyzing it that R&D could be sure that the structures the patents described were even possible to do with success in the first place. The application for or issuance of a patent on an idea provides absolutely no necessary indication of an intent to use the patented idea nor even of the idea's actual feasibility. Despite all of the information on the structure's composition and several patents disclosing its construction such that a “person having ordinary skill in the art” could reproduce it, producing their own prototype to mimic their competitor's effect was not at all easy. As with the SIMS analysis, the patent's

Specification also has critical omissions and absences.

First of all, most patents, including the competitors' in this case (as well as many of the

Company's own patents), only include a general “best range” of temperatures, pressures, times, and density of constituent gases within which the process must be conducted to obtain the patent's results. While the disclosure requirement of the law requires the best method to be within these disclosed ranges, finding it takes considerable effort. Making things even more complicated, the best mode may have changed in the time since the patent was submitted. It may even require changing the temperature at a particular point in the process or even doing so at different rates depending on the pressure. The patent engineer drafting the application made a decision that these details should remain trade secrets. As a result, though the competitor could not claim these secret details as property (and anyone else discovering them on their own might successfully submit their own application for a patent which could block the original company from using them), they did not need such in-depth details in order to adequately support the claim scope they wanted.

100

Furthermore, there are factors beyond the ranges of temperatures, pressures, time, and concentrations of elements that play into the production. There is a lot of information and expertise that goes into growing layers epitaxially (or even to various bonding technologies) that is revealed neither in the patent Specifications nor in analysis techniques like SIMS. For instance, the machines used by the competitor and those used by the Company are different.

Even if they were not completely different types of machines (almost all Taiwanese LED companies use MOCVD machines at this point), they would at least be different brands, be from different model generations, and have significantly different customizations. Even among different sections of the Company's own R&D (not to mention differences between R&D and the factory, let alone between the Company and some other company), the same brand and generation machines will often still give slightly different results (like tuned only slightly differently). These differences can, in many cases, continue for years with the Company unable or unwilling to tune them further. Ideally, these machines produce different lines of products and therefore need not be directly comparable. Engineers moving between them must relearn the production process, altering it to fit with a particular machine's quirks or “accent.” Expertise on particular machines with particular processes is thus also included neither in SIMS charts nor patent Specifications. Finally, the product platforms used by the Company and their competitors are different. This means that the layers adjacent to the new structure will also be different.

Mastering an advanced structural piece while simultaneously compromising the efficiency of the other layers would be close to useless.41

41 Even more problematic is that it is very difficult to tell whether a drop away from expected efficiency or brightness is due to not yet mastering the new structure, to its interactions with pre-existing layers, or to everyday sorts of troubleshooting problems with any one of the old or new layers. 101

Returning to the Company's own patent drafting process, over the course of their discussions patent engineers will try to elicit each of these types of specific production and process related knowledge from the inventors. It is up to the patent engineer, however, to determine which of these is an important detail that will, unlike the miswritten in-firm application described above, allow more specific claims to be issued in the future and which ones are best kept as trade secrets within the Company.

Perhaps the best place to see this exercise in deliberate omission at work is in the peculiar role that images play in the patent's Specification. Though they are a part of the Specification, of the disclosure and description of the invention, they are not really within it. This final part of the

Specification, the pages containing the figures themselves, actually comes prior to the prose parts directly following the patent's front page data.42 They not only occupy a somewhat ambiguous visual position in the document as read, but also play a somewhat ambiguous role in patent as property. On the one hand, they are generally necessary to show mastery of the invention and to be certain that its possible embodiments are well laid out. Such figures, as the Company had aimed to do in the case above, can even be drawn on to support the later addition of “new” claims. If this “new” information can be proven to have already been included in the original illustrations and described in the original description of them, then it can be argued to count as

“old material” in a continuation or CIP even if the original full description did not emphasize these parts. These figures are also the first part of the patent that most R&D engineers flip to when they read them, and they play an essential role in the actual process of writing the patent as might be expected from Ohm and Aviva's reliance on the visual in their own conversations. Yet, despite all of this, all that appears in the pictures must also be described in words in the prose

42 In a Taiwanese patent, the claims section and the figures sections are reversed with the claims included on the front page and the figures in the last pages. 102

Figure 3.2: Removing Details from a Patents Figures: A scanning electron microscope (SEM) picture (top left) showing considerably more detail than that shown in a different SEM picture as edited for inclusion in a patent (top right). Similarly, a secondary (SIMS) graph showing considerable detail in its sharply oscillating curves as compared to a different SIMS graph prepared for inclusion in a patent and showing only those smoothed out curves that best show the specific trend needed for the patent's argument. portion and vice versa. In the event of any discrepancies between the two, it is these word-based descriptions that take precedence.43 The pictures, in the eyes of the law, are repetitive and, for patents,44 somewhat extraneous.

43 See Playtex Products, Inc. v. Procter & Gamble Co., 400 F. 3d 901 (Fed.Cir.2005) (“Similarly, in this case we find that in claiming "substantially flattened surfaces," Playtex claimed more than flat surfaces. The drawings do not compel a contrary result. By its reliance on the figures, the district court improperly limited claim 1 to a preferred embodiment. We have consistently advised against this approach to claim construction. Claims of a patent may only be limited to a preferred embodiment by the express declaration of the patentee, and there is no such declaration here. Claim 1, properly construed, is not limited to the flat surfaces depicted in the drawings.” - internal citations omitted.) 44 Note that while there are other parallels between the two, the pictures play a very different, more influential role in design patents, where they often serve, essentially, as the claims themselves. 103

Where we might generally think of a picture as worth a thousand words, these particular ones are specifically designed and assumed to say much less than that. In those cases where they may still visually over-specify, the text can make those details irrelevant either by not mentioning them or by mentioning them as only one of a range of possibilities. Though they delineate some of the possible complete embodiments of the invented technology, any limits to the invention-as-owned are to be found only in the claims section. These pictures, therefore, may seem to be more disclosure than argument. Yet, they are also misleading in the information they visually impart. For instance, it is standard in patents to assume (except for the rare cases the patent explicitly states otherwise) that all pictures are not to scale. This means that although they illustrate the rough placement of the parts of the structure or method, touching parts need not necessarily be touching. Relatively larger or relatively smaller parts of the picture need not actually be larger or smaller. And just because it appears that one piece is opposite or placed above another does not mean that it actually need be. Any of these visually suggested limits or particularities only apply to the extent that they are written into the text of the Specification and spelled out in the claims.

The danger of these visualizations of the written embodiments is not just that their visualization might be taken as the full extent of the invention, but also that the visual “truth” a photograph reveals may be more than the patent engineer desired to reveal. In keeping with the drafter's efforts at genericizing the written invention, most pictures found in this section purposely have little detail in them. In fact, in the United States, the patent office discourages applicants from submitting actual photographs within applications, preferring instead specifically drafted black ink drawings. As can be seen in Figure 2, photographs and graphs are often redrawn specifically for their use in the patent to comply with USPTO regulations and to ensure

104 that extra information is not accidentally disclosed to competitors. The scanning electron microscope (SEM) photo on the top-left, for instance, imparts a significant amount of information about the internal consistency of layers, the presence or lack of defects or voids, and of layers formed at different times or of different materials through subtle differences in its greyscale. A skilled engineer might even be able to tell something of the processes used to form each layer based on the these additional clues. This fine grained, greyscale dependent information, however, is completely erased in the pure black and white SEM photo that was included in a recent patent (top-right). Similar subtle, yet revealing details are also erased from the example of the SIMS graph included in a different patent.

These pictures, therefore, are crafted not purely for description, but for argument. They are not mean to represent too closely any specific embodiment, nor do they strive for a holistic portrayal of the invention. They are symbolic, not iconic, representations crafted less toward description than toward making particular points regarding patentability. Any information beyond that needed to make such points is not only extraneous, but may unintentionally give away valuable information.

Thus these images, as with the Specification's text, are designed to be ambiguous. In an important sense, visual parts of the application's ambiguous position stems from the fact they face, more so than the rest of it, the direction of technology rather than the law. Their visual aspects, and especially the complex subtleties of their visual cues, are difficult to fit into the logical verbal structures that law in both Taiwan and the United States require. Beyond this, however, they introduce the same potential disclosure of unintentional information as the words in a badly drafter patent. For the visual, this under-determined aspect is something desired neither by the courts nor by applicants. While they serve as key shortcuts representing the

105

“invention's” embodiments, like the words of the patent, they also must be carefully drawn to omit as much as they add to it. In this sense, though they are somewhat peripheral to the patent once written and claimed as property, they are key holdovers within it from the technical perspective of R&D and are key to the translation of material or skill into intangible object of ownership. As such, they give perhaps the most clear illustration of this dual drafting process of diversifying and genericising that, in effect, is the creation of an invention out of R&D's idea:

You know there's a lot of draftsmanship in [a patent]. That's the room we can play with. So say we have an invention as described by the inventor. Basically he is actually talking about what is inside the product he is developing. But the draftsman would use his general understanding of patent drafting, of the [technological] art itself, to encourage or to interlink what the inventor is actually talking about with some other implementations or embodiments that could come out; so as to sort of boost the content of the patent. So when people are doing that, can you say, can you really say that it is the original invention that the inventor actually invented? That's subject to debate. (Max, in-firm patent engineer, August 2009)

The Occlusion of Translators in Translation

During my fieldwork in the Company, I was constantly struck by how similar my own work as an anthropologist was to that of my informants. Even as I was there learning about them, they spent portions of their weekly IP department meetings trying to understand the dynamics of

R&D: everything from which engineers worked well with (or might refuse to work with) which others to discussing what exactly the timeline of R&D's product and project cycles were. As I interviewed them, they were interviewing R&D engineers. As I was working to understand IP's role in extracting and then translating inventions from R&D, they were wondering why it was that the inventions they suspected were abundant in R&D just weren't making it across the departmental gaps. In some significant ways, it also seemed to me, too, that their translation

106 work and my anthropological work had a lot in common.45 We were both working on rendering the practices and knowledge of one group legible to another.46 We both were interested in the what’s, how’s, and why’s of the production of property from knowledge. And we were both trying to understand the articulation of two quite different sets of practices: the changing precedents and procedures of patent law and the changing practices and people of R&D.

On the other hand, there were also significant differences that in some ways echo the differences Riles (2004) describes between legal anthropologists and lawyers. For the lawyers, knowledge of a case is a means or tool to wield for their clients in future cases. For anthropologists, that same court case is itself the end to be studied. For lawyers, the analysis of the case focuses on finding the new “rules” that can be read from the case-as-precedent. For anthropologists, the case, its “rules,” and its social contexts will be grist for making analytical interventions elsewhere. My writing about the Company and their production of patents is not a matter of perfecting a translation of their practices into a language that anthropologists will understand. Rather, it involves selecting portions of my experience and interviews and analyzing those for what they might say about a larger system, be that patents, property, globalization, or the law. Though these were all issues my friends were interested in, they were not a part of the work they were to be doing. My work is in no way meant to be an iconic representation of theirs.

Yet, for their translations to be accepted they must (at least) claim to be a faithful representation of the original. It needs appear to be materiality as words.

45 I have been told on separate occasions by several anthropologists more senior than I that often what makes a great interlocutor is someone who is of the culture, but is in some way marginal to it, perhaps having been exposed to other ways of being or of finding meaning. By having one foot in the culture the anthropologist is studying and one foot elsewhere, these people have a sort of critical distance from “themselves” that allows them to see and analyze the things that “their” people do. In some ways, this makes our interlocutors the perfect complement to us. Both have one foot in each world, but each have one foot more solidly in opposite worlds. The dancing between these two is what fills our ethnographies and enables us to perform our “translations.” 46 See Paige West (2005) on translating for and from one group to another and its ambiguous relationship with anthropology. 107

Given the need to transition from the lab's regime of value towards one grounded in the practices of a variety of global patent offices, it is no coincidence that this work of description is done by people like Aviva, someone with both an engineering background as well as now significant training in patents and patent law. What I want to emphasize here, however, is not just that patent engineers in the Company tended to be hybrid in this way, but that their life trajectories reflected the same movement they achieved in their writing: a movement from the lab to the law.

When I met Eric, an in-house patent engineer, he had already been at the Company for several years. I asked him about his work history and how it was that he came to work at the

Company. After completing his military service, Eric found his first job working as a process engineer for Vanguard, a semiconductor company located in Taiwan. He worked in their dry etching department in the late 1990s taking semiconductor wafers and working with the department to carve away specific pieces of the layers of the semiconductor according to the chips' design pattern.

After that, I entered my second company because I was tired of that kind of…that style, it feels like you have to fight every day. You always forget to eat your breakfast. When you first enter the company you put your breakfast on the table and start work. After one or two hours, or even not until lunchtime, you come back and, 'oh, there's my breakfast, I don’t even [have time for that].' I had that kind of life, but eventually there was a transition: I worked in my first company for five and a half years and I…I didn’t make much money. I thought, I'm spending so much life, so much of my time here and I haven't made as much money as I expected. So I looked for a better company and I entered UMC. UMC was a better company. Unfortunately, I entered the best…the most high-strung department in UMC. They had to fight even more because they, that team was developing and manufacturing a very important product for Texas Instruments (TI). But TI also had five other sources, five manufacturing sites. One of the most famous was TSMC [UMC's direct Taiwanese competitor], and UMC was behind TSMC in yield rates by 20 or more percent. So we were, our team was pushed very hard. So again, you fight more and you just…we would fight in this part of the process and then find another area and fight more. It was even worse than my

108

first company. I lasted three months and I…I had to quit. I had to totally quit that kind of job. I started to talk to my friends. One was a Patent Engineer in another company, it’s an IC packaging house and he...He was the same with me, he first worked as a Process Engineer and then transferred to the IP Department. He said ‘I can leave my office right at the quitting time, its a good job, you should go ahead and transfer.' Another friend also said it was good, very good. But my concern was that I didn’t want to totally drop my…the technology. I am still very interested in technology. He said that technology also is a very important part of intellectual property. So I sent some résumés around to companies that were looking for a patent engineer…I was very lucky at that time because my third company they hired me…I had quit my job before they hired me so I was in a very dangerous situation because I might have lost the chance for any job. (Eric, in-house patent engineer, September 2010)

Patent engineers in the Company generally got to work around 8 am and began, one by one, to leave starting around 6 pm. The boss and a few longer working engineers would stay later and, moreover, would be “on call” if anything urgent came up, but on most days their work was done by 7:30 or 8 pm. In R&D, on the other hand, the start times were the same but on a typical night most engineers wouldn't finish before 9 or 10 pm. When their project was behind or when they had to work around other projects to get time on particular machines they might work through midnight. While the office portion of the Company was quiet at night, the factory portion ran constantly on a day and a night shift. R&D could therefore always find machines or process engineers working if they needed to get something done. Eric's story of getting tired of always having to “fight” seemed to be a fairly common comment among my R&D and Process

Engineer friends as well. I imagine his three months in a nerve-racking department at UMC must have meant very little time for sleep or family. Even though the Company (as with nearly all of the LED companies in Taiwan) was known for being less stringent than the IC industry's TSMCs or UMCs, it could wear on you. Due to the difficult hours, one of key benefits the Company advertised to prospective employees was help meeting potential friends and spouses through

109 arranged group outings with other companies or teachers from local schools. Moreover, as Eric suggested, the legendary riches that could be had working in the IC industry—rumors at one point swirled that due to stock options even the janitors in some of these companies were millionaires—had begun to dwindle by the time he was working there even if the hours had not.47 Making the move to patents seemed like a great way for him to lower his hours while still keeping a connection to his ongoing technological interests.

Eric's story was not at all an outlier. Many of the people I spoke to in R&D envisioned themselves out of the Company in ten years time, using the money they had earned and saved to open clothing shops, music schools, or their own (smaller) competing company. Many found the health dangers and the length of the work days just were not conducive to a life that had come to include a family. Among these second career options was attempting to make the shift from

R&D or the factory floor into the product planning, sales, or IP departments. All but the newest patent engineers I spoke with had previously worked either on factory floors or in R&D departments and, unsurprisingly, all had Masters degrees from related science and engineering departments. Before Nicole came to the Company, for instance, she worked in ITRI's chemical engineering department producing products and perfecting manufacturing processes which would then be transferred to the private sector. Franklin had worked in the R&D department of a

47 On one of my first days in the Company, I sat with some R&D folks as they exchanged tales of early retirement gone wrong. One engineer on hearing I was in a doctoral program lamented that he should never have gotten his Masters degree. After graduating from college with a degree in electrical engineering he was offered a starting job at a high tech company at the same time as he was offered a spot in a prestigious Masters degree program. Being the good son he was, he followed his family's advice and took the education. A year and a Masters degree later, he entered the same company and began working, with a slightly bumped salary to boot. At that time as stock options weren't taxed the same way as salaries were for the employer they were a common part of everyone's salary in such high tech firms. The job was difficult with long hours and some health dangers, but the industry was expanding, the market kept going up, and for three years he was indeed fast becoming rich. He figured only another year and, as his options began to mature, he would sell them and could honestly retire. That next year just before he could start to cash in the options, the Asian Financial Crisis hit and his company's stock dropped from nearly 400 down to 4. The lesson, he said laughing, was not that we should be wary about the stock market, but that if he hadn't gotten that damn Master's degree he'd have cashed out at 400! 110 company that produced notebook computers. And Luke worked for years in TSMC's engineering department most recently managing a team of engineers responsible for maintaining the factory's machines.

One of the things that attracted many of them to the Company was the attention its IP department paid towards teaching each other to be better at patent prosecution and to slowly gain experience in other legal areas related to patents. This was essential to help them along on their own trajectories toward the law. As opposed to the rather strict division of labor in many in-firm patent agencies where some people specialized in only drawing figures, in-house patent engineers also gained experience with prior art searches, patent portfolio management, product analysis for infringement, patent licensing, technology transfers, and preparation for infringement actions. The education system in Taiwan funnels students into specializing tracks— a humanities or one of two sciences tracks—as early as their entrance into high school. Due in part to the take-off of Taiwan's industry and the long term prestige of doctors (as one of the only higher education professions open to Taiwanese during the Japanese colonial period), many parents push their children towards engineering and science tracks. As college applications in Taiwan are made to individual departments rather than to universities as a whole, if their college entrance exam scores are high enough, many students will also gravitate toward engineering and science departments when applying to college as well. As a result, science and engineering students may graduate with little experience with literature, history, or social science and lawyers will graduate with even less experience with science or engineering. As judges are drawn entirely from the ranks of lawyers, this has also meant that though well trained in the logics of the law, they have difficulty understanding the technological intricacies of semiconductor patent cases that are brought before them.

111

Patent engineers, then, are indeed the rare case in Taiwan of people with some understanding of both knowledge areas, due to their ongoing work to transition from one back towards the other. It is this rarity that makes them uniquely situated to make ideas from the lab legible to the law. To make the transition, however, meant learning a whole new set of practices and unlearning some of what they had learned in R&D or on the factory floor.

What an inventor thinks is important and what IP's perspective thinks is important are different. This thing, from IP's perspective, maybe it's just garbage. It doesn't have patentability. Now something he thinks is not at all important, maybe more likely than not, it actually does have patentability. Because most of the time inventors are from R&D, they come from a technological perspective to look at an invention to see if it is or isn't really a good invention, completely looking from a technical view. But the IP department is not the same. IP looks at it from a legal point of view, he just has to decide that it has a difference from other [patents] and then he can help him apply for a patent. (Franklin, in-house patent engineer, March 2010)

As I laid out in the last chapter, the key is not that some technology be “new,” but rather that it be “new enough” to have a logical difference from other patents. The process of finding this difference will be the focus of Chapter 4. To find such gems, however, requires someone who can identify what may be a small, perhaps largely irrelevant, piece of a project that has promise; it requires someone with one foot in the lab and one in the law. This kind of person is necessary to “write it up” not just as a description, but through strategic additions and omissions as claims to ownership that will have a chance in court.

In addition to weekly internal meetings to study new patent-related legal decisions or new patent prosecution tactics, several of the patent engineers I met (in the Company and in other companies) were also enrolled in postgraduate legal degree programs. Max, for instance, told me that though he wanted to continue to engage with technology, he found somewhat late in life that he is really good at logic and writing. He enjoyed wielding his pen, expressing an invention in

112 ways the inventor may not have thought of, and devising new ways to argue for the scope of its claims over anything patent office examiner tried to throw at him. Moreover, he sought a degree in business law that would enable him to transfer from writing patents to the relatively more prestigious department in his company that deals with infringement threats, lawsuits, and IP related contracts. As Franklin explained, “patents are only a very very small portion of the law.

So, actually, in the process of dealing with patent issues, you will definitely run into some fundamental, rather more basic [legal] concepts. Now these basic concepts are things that [a course on] patent law alone will not have. So you need to go through some more fundamental course to get that kind of knowledge.”

The process behind the creation of this form of intangible property in Taiwan has therefore not just been a process of translating materials into text, but also a larger process of translating engineers into patent professionals. As it turns out, however, one of the clearest differences between my anthropology and their translation, is apparent on the face of the patents themselves. On the cover of what I write, I will be noted as the/an author of the work I write. By contrast, on a cover sheet filled with entries pulling into its purview all manner of related connections or allusions relevant to the invention as property—including the names of its inventors, the company they first assigned their rights to, the lawyers who submit the applications, the patent examiner who allowed it to issue, and even the inventors of patents used to challenge it or referenced in the patent's text—only the names of these actual writers of the patent are missing. The patent's claim to iconicity requires, effectively, the erasure of the very work that was done to achieve this translation in the first place. While this re-emphasis of the original by downplaying the translator may happen in literary works as well, it is especially important for a patent. The patent owner must be able to claim to a court of law that the patent is

113 a direct result, a faithful representation (or delineation) in words, of the invention as it was known at the time it was invented. Ironically then, a good translation not only requires, as I explained in the last section, a great deal of skilled additions and omissions in its content, it also requires the omission of translators themselves.

Translations are always incomplete in their transfer of meaning from one language to another. It is not so much the meanings that cannot translate fully across languages, but language's ability simultaneously convey more than denotative meaning. Translators often must choose between translating purely for meaning of giving up some of the accuracy of the translated meaning in exchange for conveying somewhat more of the original text's simultaneity: its textures, rhythms, rhymes, allusions, and word plays. Translating properties from materiality into text is a process perhaps even more fraught with such omissions of simultaneity based on its dramatic shift in medium. Given the process as described in these past three chapters, it makes sense to wonder how much of that original “thing” is left in the patent as issued.48

Yet, translation by its nature must also depend on a claim to exactly such authentic transferral. Translators, with their own positionality located between the original and the final product are the silent guarantors of equivalency just as much as they are also the ones most aware of the job's necessary omissions and additions. Perhaps luckily for them, their non- inclusion anywhere in the patent's public record, in the traces of the process of its creation left in the patent as a document, also frees them from being called to testify at infringement hearings.

Inventors, lawyers, and patent examiners all are included as a part of patent document's trace of

48 See Pottage 2006 for an intriguing discussion of a similar translation from one medium to another, from the biological to the digital, as a method of rendering biological life (or at least bioinformation) “[compilable, conservable, replicable, and transferrable] […] in ways that generate quite different units and vectors of commodification” (95-95) from their former biological (whole-organism) existence. This same process not only makes biology knowable in new ways and, to a degree, controllable at a distance, but also is a step in the direction of isolating biological material to prepare its novelty for description in a potential patent application. 114 the process of claiming property and all of them (patent examiners represented by the patent office in hearings beyond it), in turn, can be called to testify to their role, and therefore the validity of the property and the invention, in Administrative (Patent Office's Appeals Court or the ITC) or Judicial (District or Federal) Courts. To a certain extent, this anonymity of the translator completes the critical erasure of the process I describe here. It allows both claimers and their various audiences to forget that patents are deliberately constructed documents and that the equivalency between properties and property they testify to is, in some way in all cases, a lie. It also allows us to continue to see patents as the ownership of inventions created in the lab rather than recognizing them as built beyond the lab extending the lab's single embodiment into a full fledged, patentable invention.

Decoupling Commodities: Translation, Translators, and Property

In his work on the creation and circulation of property within and among families (jia) in

Meinong, Taiwan, Myron Cohen (2005) discusses system of property in land that allowed the same piece of land to be split into three different commodities. As a system of corporate ownership, land was owned by the family, rather than by any one individual. One family, for instance, might have purchased the right to farm the land by paying yearly rent to a landlord.

That landlord family, however, may have only owned what were called the “soil rights” and not the “sub-soil rights” to the land. These soil rights had been purchased, generally for a term of three to five years, through a lump sum payment and an agreement to also pay relevant government taxes to the family that owned the subsoil rights, a second landlord. Cohen discusses this one field, two landlords system as, effectively, the creation of multiple commodities that

11 5 could be bought and sold independently of one another out of a single physical thing. Looking at the same system in terms of property, this is a prime example of property as a bundle of rights that can be split and subdivided in any number of ways. The right to farm the land and the right to rent the land to a tenant (or to sell that right) have both been decoupled from the right to actually sell the land itself.

In some ways, this process of creating a second, new commodity from a single tangible thing is also what is going on in the patenting process: the material configurations and skill of the engineers will give birth to both a product and a (set of) patent(s). These distinct objects, one tangible and the other intangible, can circulate separately from one another both as commodities for exchange and as property through which to claim or exert control. Neither the materials in the lab nor the skills of the lab's engineers, much like the land itself, are naturally inclined to being owned. Rather it takes a deliberate process of delineating the object and claiming it in a form that will be recognizable to others who may seek to make counterclaims to it. In Meinong, this process was performed through detailed contracts that, in words, walked the boundaries of the property, often going so far as to list which betel nut trees or other structures were included in the particular commodity being transferred. For patents, this process meant the translation of material property into the text and images of the patent, but more than that it required a skilled drafter knowledgeable about both the lab and the law as distinct regimes of value to make the one intelligible to the other.

As I mentioned at the beginning of this chapter, the Specification is the portion of the patent most clearly identified with the disclosure part of the patent system's economic bargain.

However, as I have laid out here, what is being “disclosed,” or in the terms of Cohen's commodity creation “delineated,” is not the idea from the lab. This is, in no small part, precisely

116 because the idea as it existed in the lab was thoroughly tied up within a particular product platform, a particular project with its engineers and its customer's requirements, and a web of other interrelated ideas that were to push the tangible product toward completion. To own only that very specific thing would most likely give control over only a single lab, one that the

Company already controlled both physically and fiscally. When the Specification does describe something of this original idea, it does so as merely one among many potential embodiments of another broader “invention.” Moreover, to prevent competitors from learning anything more than the patent will give the Company control over, this “invention” will simultaneously also be less specific in terms of the very details of temperature, pressure, and time that would tie it directly to the particularities of the lab and engineers it originated in.

While the courts of law prefer to see the patent's description of the invention as a pure window or simple conduit back in time and space to the lab's knowledge at the time of the idea, it is instead the depiction of something new that has been decoupled from the ongoing evolution of the tangible products that R&D focus upon. This necessary decoupling was achieved by patent engineers through their translation of material properties into words, multiplied embodiments, and abstracted details and then completed with the removal of the translators themselves (along with their particularly dangerous expertise) from the patent as a document. While the

Specification gives enough detail so that a “person having ordinary skill in the art” could, with a fair amount of tinkering and previous expertise, practice it, this does not mean that they will end up producing what was originally being produced in the Company's lab. Often it is only from a set of products and patents that both descended from the combination of a group of engineers's technological capacity and the properties of the materials they worked with that one can begin to triangulate back to the something close to the original idea.

117

Finally, the importance of argument and of the words of the patent themselves in the representation of technology as discrete and ownable is an essential difference between patents and copyrights, another supposedly kindred form of “intellectual property.”49 There is even less a need for me to treat that Writing as raw material, part of which I must delineate, describe, and claim as that intangible which I assert ownership over. For patents, on the other hand, the entire application process brings this claim-making to the fore in a way that it is not for most other forms of property.50 Best of all for researchers interested in property, the back and forth process of claims and counter-claims are all stored in easily accessible, public, online databases.

Unlike copyright, then, the intangible object to be owned in a patent is not in an iconic relationship with the tangible product from that same knowledge. What I own in a copyright is laid out in the form and content of the Writing I (co-)authored. There is no translation involved.

For me to gain copyright in my writing or painting, I need only to have those words or brush- strokes take physical shape (digital files now counting as physical “Writings”). There is no need for me to apply and little need to even register the work as copyrighted in order to “own it.” For a patent, on the other hand, it is precisely these separate words and arguments that set the shape of the object owned and, at the same time, render it ownable. As I expand on in the next chapter, in the move from describing (and thereby creating) an invention to claiming ownership over it, the choice of these words becomes even more significant. In the patent's Claims section, the words of the patent define the invention in place of, more than in representation of, the

49 While trademarks, unlike copyrights, do have an application process that requires some degree of argument, that process requires little transformation, as what is to be protected by the trademark is itself also linguistic in nature. 50 For land too, this process of delineation and claiming is difficult to see. Yet, in this case it is not because it is not there, but rather that we rarely stumble upon cases where “ownership” has not already previously been established. Often we negotiate only over the “sale” of the land and the rights (from the property bundle) that we will take over following the sale. 118 knowledge of the lab. While a good translation may make this relationship seem like looking through a window, it does so only through deliberate, careful labor and the erasure of it.

119

Interlude 2:

Written Descriptions:

Toward the Logical from the Techno-Logical

To give an additional taste of the kinds of changes that take place over the course of this translation from the lab to the law and toward logic from the technologic, this interlude offers a series of three “written descriptions” of a particular owned piece of knowledge at three distinct times during the process. These descriptions parallel the points in the process analyzed in more depth in Chapters 3, 4, and 5: detailing the knowledge as known in R&D, in the patent's

Specification, and in the patent's final issued Claims respectively.

In May 2006, SemiLEDs, an American-listed company based in Taiwan, submitted a patent application to the USPTO for examination (US Application Number 11/382,392). The second and third descriptions that I relate here are quoted excerpts from the patent (US

7,615,789) that resulted from this application. Though there is considerable technical language in each of these, I have excerpted them to reflect and highlight the kinds of changes that patent engineers effect in their translation between one description and the next. In reading them, I encourage readers to focus on the differences in wording and expression rather than getting stuck on the technical meaning of the compounds and processes. In keeping with my agreement to keep both the name of the Company and its technology anonymous, the first description is, necessarily, a composite description composed of one part narratives from within the Company and one part technological details from SemiLEDs' instant patent. While, due to this agreement, I

120 cannot follow any single story of invention from within the Company all the way from internal

R&D narratives through to the public negotiations over the patent's claims at the TIPO or the

USPTO, this composite reconstruction is informed by my 20 months of fieldwork and interviewing in the industry. Its style, on the other hand, closely follows actual conversations I observed during my time in the Company, albeit, with technological details taken from the public patent instead. Most importantly, it has the benefit of being a description whose technical details parallel those in the directly quoted second and third descriptions thereby allowing readers to more clearly note and follow the differences in translation.

Description #1: R&D's Description, Embedded in Particular Projects, Materials, and Machines - “SemiLEDs” R&D Engineer (Composite Description)

In February 2005, my group was assigned a new project based on a customer order for a blue vertical-style chip. We proposed to use the B35 product platform as a base, but to try to reach the customer's Specs with a 33 mm square chip rather than the normal 35 mm size of the platform. This would save cost and allow us to get more chips for each wafer we run in mass production. But we estimated that this new “B33”'s total light output would not be enough so our team worked on modifications to it that would improve its light extraction (reducing the amount of light that stays trapped, internally reflected or reabsorbed, within the LED). First, we changed the material we had been using for the chip's top electrode to a better conducting material that allowed us to reduce its total size. We also added to the design a reflective coating underneath the electrode where it attaches to the LED to ensure that light hitting it from inside the structure is reflected rather than reabsorbed and therefore has another chance to exit the structure and be seen. Finally, we decided to try to change the amount of dopant we used for the p-type GaN (gallium nitride) layers we grew on top of the active layers. Like everyone at that time, we used Mg (magnesium) doping combined with a high temperature, high pressure annealing phase in order to make p-type GaN. We thought that perhaps by starting with lower concentrations of Mg and moving up to higher and higher concentrations as the layer grew, that we could alter the path of the emitted photons of light. The machine that we were using to grow the p-GaN layers, however, could not easily change the concentrations of dopant as we desired without disrupting the growth itself. I therefore ended up suggesting we go with a two step process, one with lower dopant, the other normal (higher) levels. Because

121

the first layer would be especially thin, we decided we could not perform an annealing step as the high temperatures could damage the active layers beneath it. This meant that this lower dopant layer would have to remain n-type or at least relatively neutral in charge. Once we had to have two different steps anyway, this allowed us to also experiment with adding Al (aluminum) and In (indium) into the low dopant layer. It turned out that the Al addition actually gave us significantly better results. We tried a couple of different ways to put all of the new platform's configurations together and came up with the version that was sent to the Fab and, with a few small changes here and there during mass production, was sent to the customer. Along with the new electrode, the product has a new layer that is 850 Angstroms tall of low Mg-doped AlGaN where the Al concentration is about half of the Ga concentration.

This first description of the knowledge that is now owned in SemiLEDs' patent is clearly presented in the form of a narrative of actions over time. As a part of this structure, it is a bit unclear what the “invention” actually is. Yet, even this narrative is a step or tow away from and more “cleaned up” through hindsight than the actual reality of the material interactions that were conducted in the lab. The addition of a new layer to the LED structure, while clearly important here, appears as only one part of a longer-term project that also included changes to other parts of the LED. Moreover, the layer structure idea itself was changed several times over the course of the production of a more efficient product on an already existing product platform. Some of these changes were deliberate attempts to improve the extraction of light from the device while others were simply the result of problems they encountered with the particular machines they were using. Which of these iterations was “the invention”? Or, rather, where in the narrative did the actual invention start and where did it finish? How do we separate one piece of knowledge from the rest of its technical context?

While I only heard this type of all-at-once narrative of a project process a few times—and only ever in response to my own specific prodding—bits and pieces of such “whole” stories often came out in interviews between R&D engineers and patent examiners seeking to write their patent

122 applications. Over time, and as City himself did, I also was able to build up examples of this type of narrative by compiling together the progress report powerpoint presentations that project managers gave weekly to the head of R&D. This narrative style allowed engineers to explain (and often to draw) the place of their invention idea within the project they were working on. For them, the process of getting to the “new” was the important part; this process was something that made it make technological sense as part of the lab.

Description #2: The Specification Section's Genus Level Description

SUMMARY OF THE INVENTION

One embodiment of the invention provides for a vertical light-emitting diode (VLED) structure. The structure generally includes a metal layer that may have a p-electrode for external connection, a reflective layer disposed above the metal layer, a p-doped layer disposed above the reflective layer, an active layer disposed above the p-doped layer, a means for separating the p-doped layer from the active layer, and an n-doped layer disposed above the active layer, wherein the n-doped layer has an n-electrode for external connection. For some embodiments, the means for separating the p-doped layer from the active layer may be a spacer comprising undoped, n-doped, or slightly Mg-doped chemical compounds of Al, Ga, In, and N in the ratio of AlxGayInzN where 0≦x, y, z≦1. Some embodiments may also include a housing for encapsulating the structure.

BRIEF DESCRIPTION OF THE DRAWINGS

So that the manner in which the above recited features of the present invention can be understood in detail, a more particular description of the invention, briefly summarized above, may be had by reference to embodiments, some of which are illustrated in the appended drawings. It

123

is to be noted, however, that the appended drawings illustrate only typical embodiments of this invention and are therefore not to be considered limiting of its scope, for the invention may admit to other equally effective embodiments. [...]

DETAILED DESCRIPTION

Embodiments of the present invention provide a vertical light-emitting diode (VLED) structure that may impart increased luminous efficiency over conventional LEDs and VLEDs. As additional benefits, some embodiments may have less susceptibility to electrostatic discharge (ESD) and higher manufacturing yields than devices in the past. […]

An Exemplary VLED Structure

FIG. 5 is a cross-sectional schematic representation of a VLED structure according to one embodiment of the invention. […]

The spacer layer (506) or other means may be exploited to increase the distance between the active layer (504) and a reflective layer (508) that may not have been formed on the VLED (500) yet in an effort to increase the luminous efficiency. Even though the physics are not fully understood, the use of a spacer layer (506) may change the phase of the photons generated in the MQW active layer (504). Having a thickness of 1 Å to 10000 Å, the spacer layer (506) may comprise a single layer or multiple layers that may comprise different materials. Materials suitable for the spacer layer (506) may include undoped, n-doped, or slightly magnesium-doped chemical compounds of aluminum (Al), gallium (Ga), indium (In), and (N) in the ratio AlxGayInzN where 0≦x, y, z≦1. For instance, AlN, GaN, InN, AlGaN, InGaN, AlInN and AlGaInN may be suitable spacer layer materials. Slightly Mg-doped layers of these materials should still maintain n-doped layer characteristics.

Above the spacer layer (506), a p-doped layer (510) may be deposited and may comprise p-GaN, for example. With the inclusion of the spacer layer (506) for some embodiments, the p-doped layer (510) may be thicker than the thin layer deposited in conventional LEDs and VLEDs. As such, the p-doped layer (510) may possess a thickness between 10 Å and 10000 Å. […]

In contrast to the style of the first written description, the patent engineer who wrote the

Specification section of SemiLEDs' application had to reconceive the idea in synchronic rather than diachronic terms. As I mentioned before, a too-well-written story might actually make the move from problem to solution or from step to step to step “obvious” and therefore not

124 patentable. As can be seen in this second description above, at the time of the application

SemiLEDs clearly did not know why it was that this particular configuration of a “spacer” layer was beneficial to the LED, they just knew that it was. They suggested that it may have caused anything from a shift in phase of the emitted photons to an additional spreading of current that could prevent electrostatic discharge. The key to patentability is in establishing the fact of improvement, not in detailing how the advance fits into the product as a whole, the process by which it was thought of, or even knowledge of why the improvement occurred. Rather than focus on the wider context and origins of the idea, the author here sought out details on the actual structure itself as well as on any related “potential” structures or processes. As the dramatic shift between the first and second descriptions of SemiLEDs' technology should show, it is not just the style or genre of description that has changed. In the Specification, the shift from materials and projects into words also has meant a shift in the content of the technological idea. Here the patent engineer has zeroed in on the part of the R&D engineer's narrative that will be the

“invention,” then worked to diversify and genericize it. More specifically, the patent engineer added in a whole range of other elements that “might” make up the layer, suggested it could be undoped or slightly n-doped in addition to the original low Mg-doping the engineer described, and converted both the chemical formula (AlxGayInzN where 0≦x, y, z≦1) and the thickness of the layers into wide ranges (“between 10 Å and 10,000 Å”). Even the description of the drawings includes a common disclaimer that what is explicitly included are merely examples of potential embodiments and should not be taken to be either exhaustive or as limitations on the knowledge as property to be owned. Though these details are an essential part of what made the invention in

R&D, they are not essential to obtaining the patent and their inclusion would unnecessarily make public information that may help competitors.

125

Description #3: The Claims Section's Logical Poetry

First Independent Claim as Applied: First Independent Claim as Issued:

The invention claimed is: The invention claimed is: 1. A vertical light-emitting diode (VLED) structure 1. A vertical light-emitting diode (VLED) structure comprising: comprising: a metal layer; a metal layer; a reflective layer disposed above the metal layer; a reflective layer disposed above the metal layer; a p-doped layer disposed above the reflective layer; a p-doped layer disposed above the reflective layer; a spacer disposed above the p-doped layer; a spacer disposed above the p-doped layer, wherein the spacer comprises a slightly Mg-doped chemical compound with n-type conduction characteristics; an active layer disposed above the spacer; and an active layer disposed above the spacer; and an n-doped layer disposed above the active layer, an n-doped layer disposed directly above the wherein the n-doped layer has an n-electrode for active layer, wherein the n-doped layer has an n- external connection. electrode for external connection.

The shift between the second and third written descriptions is a completion of a shift from technology to logic. Where the Specification of the patent aims to describe both genus concept and species level embodiments in detail, the claims are minimalist to an extreme. This third written description is more poetry than prose; each claim is a single sentence composed of a series of elements as phrases arranged into stanzas. It is also more logical than technological; the order of the elements depends not on the order they are placed in the structure but on the simplest logical ordering. Traditionally, the element of the claim that is the invention's primary “inventive step” is written as the final element no matter where in the actual LED device it is grown. Most importantly, in the claims, each and every additional word is an additional limitation: claiming all “light emitting diodes” is a larger claim than one claiming all “blue light emitting diodes.” As a result, unlike the Specification which describes all of the potential layers in an embodiment, the claims will only describe those layers that, logically rather than technologically, will necessarily

126 be in any embodiment of the invention. It is this logical description that defines, in the eyes of the law, what exactly is the invention to be owned. As a result, it is this third written description rather than either of the others (or even the product itself) that is the invention.

Unlike the Specification, excerpted in the second description, these claims, however, are not set in stone when they are submitted to the patent office. The process of prosecuting a patent application, of getting it accepted recognized as your property by the government, is a process of proving that what you have invented is both “novel” and “non-obvious.” In actual practice, this involves a back and forth series of negotiations between the government's patent examiner and the company's patent engineer (by way of the company's lawyer) over the exact wording of the claims. I have included here the first independent claim of SemiLEDs' patent both as originally applied and as it finally issued after four rounds of back and forth negotiations. Notice that the patent engineer who wrote the initial claims claimed layers that were merely “disposed above” other layers, thereby leaving open the possibility that any number of other layers might or might not be inbetween them. As a result of prior art found by the examiner, SemiLEDs was forced to narrow this claim to only those structures whose n-type layer is “disposed directly above” the active layer. Where the Specification suggests that the spacer layer may be neutral or n-type and may or may not be doped with magnesium, SemiLEDs was later forced to limit their claims (as seen on the right) to ownership of only LEDs with n-type, Mg-doped spacer layers. I will explain this prosecution process and analyze some of its ramifications in more detail in the following chapter.

What began as a narrative description of the process of invention embedded in materials and customer-oriented projects is, in the end, owned as defined by the contours of a genus level statement of logic. It is a legal document, whose representation of “their” invention many R&D

127

Figure 3.3: SemiLEDs Patent engineers may not even recognize. To get the inventors' final approval—certifying that the claims that will issue are, in fact, a representation of their invention—IP engineers often must walk R&D engineers through the claims line by line, showing them which parts of the patent's figures correspond to each phrase in the claim. The extent of the translation that is necessary to move the knowledge from its form in the lab to a form that is recognizable to the law effectively means that it is the patent engineer (and, in part, the government's patent examiner) who creates

128 the invention-as-owned. This is not to downplay the work done by the original R&D inventors, but rather to point out that the demands of the system as practiced require the separation of the knowledge from the inventor and from the lab's technology in order to become property.

Moreover, as I explained in the last chapter, it is not only the inventor and the lab that have to be removed from the knowledge as owned in the patent, but in a different way, the very legal professionals that performed the translation itself are also erased. There is no way to know who wrote a patent, to know the author of the invention, without access to internal company records. The patent's cover sheet, a page filled with seemingly exhaustive entries to all manner of related people, patents, or papers relevant to the invention as property, includes the names of everyone from its inventors, the company they first assigned their rights to, the lawyers who submit the applications, the patent examiner who allowed it to issue, and even the inventors of patents used to challenge it or referenced in the patent's text. It is only the names of the actual writers of the patent that are missing. It is this occlusion of the translators that, finally, enables us to see the invention as owned in the patent as an authentic (even perhaps, iconic) reproduction of the technical knowledge from the lab.

129

Chapter 4

Negotiation:

Claimmaking and the Production of the Means of Ownership

Ethnographically, this chapter takes us through the final two steps in the translation of technology into property: first, a shift to logic and second, another toward the interests of the

Company as a whole. These two shifts can best be seen in the process of writing and negotiating the claims of the patent. The claims are themselves a reduction of the prose of the Specification into a sort of minimalist, logical poetry: out of the words that strategically describe a genus level technology in the Specification, patent engineers draft carefully worded clauses whose logical construction argues for ownership over the intangible object within the bounds they define. It is these final few sentences in the patent that, in the end, are the invention; logic and words rather than technology or products define what is to be owned.

For our understanding of globalization, then, these two shifts that emerge in the claim- making process help us to begin to understand the sort of control that patents enable both within companies and between them. The construction of the claims provide the legal infrastructure to stop the creation and flow of both knowledge and people by enabling two kinds of dispossession.

First, patents enable dispossession at a distance. Where in Chapter 2 the original technology was overwhelmingly oriented toward and embedded in the particularities of materials, products, and platforms, the process of staking a claim to property in that knowledge occurs through negotiations that serve instead to reorient the intangible object of property into relations with other intangible objects: incommensurable technologies are rendered

130 commensurable and quantifiable. As a part of their admission into the patent archive, patents become more closely related to other patents than they do to the requirements of the products that, like them, will equally descend from that same original technical idea. With its emphasis on logic, patents enable action and control at a distance in time or space from the particularities of the lab. Once knowledge is expressed in this form, and accepted into a national patent archive as a delineation of ownership, it can then be applied to a wide range of potentially infringing products. Even if a) someone else independently cultivates the same technical capacity, or b) someone figures out how to do something similar with materials the original inventor had never used, it is the power of this switch to logic that enables these “unrelated” inventions to still fall

“within” the scope of the patent's property. Effectively, patents dispossess later arriving engineers of their own skills simply because they come later. This powerful, distance-neutral effect is something that mere control of knowledge through secrecy or its encasement in a black box style machine cannot provide.

Second, the claim construction process enables the delayed dispossession of the very people who invented the technology owned in the patent. The reduction of the technological specification to logical claims (as much as the shift in the last chapter to a genus level invention) abstracts knowledge from the people and materials of the lab and renders it alienable: expressed in “universal” logic it is, at this point, quite unlike an embodied skill or the property of a material. During this process and at the same time as the knowledge is rendered alienable, it also shifts from the control and interests of its engineer-inventors—concerned with their own futures and with the production of particular products—to those of the Company as a corporate unit— concerned instead with its own position vis à vis other companies in the industry. We see this shift in this chapter's description of the definition of a single invention as well as in its

131 description of the process of negotiating issuable claims. While patents make knowledge alienable, they do not immediately dispossess their inventors of the skills the Company now owns. Because the Company is a corporate owner, engineers will continue to be expected to practice the skills now owned through the patent in their ongoing employment as a part of the owning corporation. Many engineers may not even realize that they no longer control the legal use of their own skills, until, that is, they (or the patent) leaves the Company. It is at this point, when they are separated from the patent, that the control it provides to prevent the practice of knowledge begins to apply to them in the same way it does to other later coming engineers. This is what I mean by delayed dispossession. By limiting the practice of skills, patents provide a measure of control to prevent the movement of engineers to new companies by diminishing the value of the very people that they depended on to emerge in the first place.

The Claims Section

Over the course of the iterative cooperation between inventor(s) and patent engineer from the last chapter, the patent engineer gathers together enough details about the technical idea to enable her to translate it into words and images. The choice of these words is governed by the necessities of the law much more than those of the lab. In the Specification, this translation process involved not just describing the technology, but also the genericization and diversification of that original, project-embedded idea. The engineer selectively discloses details, perhaps even converting those she chooses to reveal into ranges, and imagines new potential embodiments that will be a part of this same “invention.” This translation process effectively decouples the intangible object that will be owned in the patent from the materialities and particularities of the project within which

132

Figure 4.1: The Scope of Claims after Genericization and Diversification (Figure by the Author).

it originated in the lab (See Figure 4.1). At the same time, its validity depends on the erasure of the translator and the work that was necessary to turn material properties into property in favor of the presumption of a direct iconic relationship between patent-object and technological idea.

This chapter continues to follow this translation into words by detailing the creation of the patent's Claims section, another representation of the original idea, that takes the

Specification's range of detailed possibilities and reduces these down to a single “invention” claimed clearly and explicitly in words and logic. Despite our general understanding of inventions as technological, in the legal terms of property, it is this latter thing of logic that is the “invention.” It is in the Claims section that what originated as technological knowledge difficult to understand beyond the networks of engineers, machines, and materials is finally turned into the logical form it must take to be ownable. As such, the Claims section is also the part of the patent document that is the most overtly legal in its form and wording. Though the

133 claims depend on the description in the specification for their support, they do not “build on” the

Specification. Rather they form a parallel, distinct, and itself whole representation of the invention in a sort of logic-poetry that exists alongside the more technological (but also “whole”) representation in the Specification. The claims make complete the shift from a diachronic narration of technological or product development (Ohm's description) to both a synchronic description of technology (Aviva's Specification) and, finally, an argument for invention and ownership (the Claims section).

As with the Specification, however, the inventor is not the author of this part of her own invention. Just as the original writing of the claims finalizes the shift from the material particularities of the lab to the logic of the law, so too does the process by which these claims take their final form finalize the shift of the idea from a technical capacity created and possessed by individual engineers to an asset of property owned and controlled by the Company as a corporate entity. The claims themselves are written through competitive negotiations between patent engineer and government patent examiner(s) that, along the way, also recouples the invention to other patents already admitted into the government's patent archive.

All of this is to say that though the claims are the most important part of the patent as property, for the same reasons, this is also the section most R&D engineers are least likely to read:

As far as the two sides go, I think engineers and patent engineers are quite different. One difference is that if the engineer happens to look at a claim, he thinks the claim...actually the patent, he thinks it's a legal document. If he starts to look at it from the claims, he really may not look at it in all that much detail...that is, he thinks, “I don't understand this.” You know what I mean? Back when I was an engineer, back then I always started reading [patents] from in the specification. Or I'd start looking at the figures. Now, for us [in IP], we start reading from the claims. Only if there's something we don't understand in the claims, that is, if there are some terms that we don't get, then you go back to the

134

specification. You only go back to the specification to see what its embodiments are like, you know? Its only then that it's necessary[, or desirable, to read]. This is because these two sets of eyes look at things completely differently. This means, for instance, that if that engineer has a good invention, I think it means there must have been a good patent engineer who helped him package it well. Then there must be one to make sure his invention is protected completely. This is very important. Otherwise, well...[...] You have to protect the invention well, that is you have to protect it as completely as possible: from big to small or from smallest to biggest [in scope], only then can it all be very carefully protected. (Nicole, in-house patent engineer, April 2010).

The patent is a legal document, whose representation of “their” invention many R&D engineers may not even recognize. To get their final approval—certifying that the claims that will issue are, in fact, a representation of their invention—IP engineers often must walk the inventors through the claims line by line, showing them which parts of the patent's figures correspond to each phrase in the claim.

The claims section is, in some sense then, simply a reduction of the specification's technology to the genus level “invention” performed in such a way that it will protect as many of its embodiments as possible. There are, however, several tricks involved in performing this reduction. The first is that the claims must be written not just in words (as in the majority of the

Specification), but in a unique logic-based form of “poetry.” Second, the invention delineated by the claims must be one that the patent engineer is confident could (in some form or other) actually pass its examination. At least in the Company, this often required the merging of internal patent ideas together (for reasons of logic and law) that may or may not seem the “same” from the technological perspective of R&D. Finally, unlike the Specification section which cannot be changed once it has been filed, the original form in which the claims are submitted is relatively rarely the form they will take when the patent issues. The final scope of the knowledge

135 the patent can claim to own is determined (authored?) only through a sometimes multi-year claim and counter-claim negotiation with the government's patent examiners.

Writing Exclusivity for an Audience of One

After I presented some of my early thoughts on patents as property in one of the IP department's weekly meetings, Aviva approached me to talk through how it is that she goes about writing a patent. She thought I should hear it because her approach to the patent's claims seemed almost opposite to the one I had just presented. Where I was trying to make the words and logics already existing in a patent visible and understandable, she had to move in the other direction.

She had to make a move towards words and logic from something already quite visible, in the form of the drawings on which her discussions with the inventor(s) centered. My presentation had focused on the logaical relationships between elements of the claims and their effect on the scope of the claims. Her work, on the other hand, meant seeing the claims' logical structures as emerging out of the drawings of structures or processes that she received from the lab.

When she writes a patent, Aviva begins not with the Specification as I did in Chapter 3, but with its claims. The benefit of starting with the claims, she explained, is that you can be certain that you will not write any claims that are not supported by details in the Specification; the Specification, in turn, will be written specifically with regard to supporting the claims. This also means that, early on in the process, she must think not only of what to write into the claims

(imagining those additional embodiments that will go in the Specification), but also how to write them. This question of how presents itself in at least two ways.

136

First, an LED can be written not just as a physical structure or method of manufacture, but also as a resistor (or other functional component) within an electrical circuit. Aviva must determine, early on, how she plans to delineate the technology the patent will claim as this will change the sort of details that will be necessary later on. Choosing this last format for the claims, for example, requires the inclusion of a very different set of figures, elements, and explanations in the Specification even if the invention itself is the same. Later in the process, Aviva will periodically return to the Claims section to double check her word choices and the scope of the claims to see if they need tweaking or merit expansion based on new details or new embodiments that come up as she writes the specification.

Second, while words are paramount in both the Specification and the Claims sections, the concentrated role they play in the claims means that Aviva must take extra care with each word she chooses to deploy. In the specification, as I described in Chapter 3, the description of additional details provided support to a wider range of potential future claims. This wider range of support had to be balanced only with the fact that such details, as included in the patent, would be made public. In terms of property, then, the more embodiments of the invention that were described and the more detail disclosed for each of those described embodiments—the more words, that is—the wider the range of ownership claims that could be asserted and the stronger the patent's position will be. On the contrary, the opposite is true for the Claims section.

In the claims, every word is a limitation.

Every additional detail that is included shrinks the scope of the invention as property by a corresponding amount. A claim to all “light emitting diodes” is clearly a wider claim than one to all “red light emitting diodes.” A bit more complicated, a claim to all “optoelectronic emitting devices” is a considerably broader claim than one to “light emitting diodes” because both “light”

137 and “diode” are more specific instances of “optoelectronic” and “device” respectively. To be found to have infringed a patent, no matter what the Specification describes, your product or process must satisfy each and every limitation in the claim you are alleged to have infringed. If your product or process is missing even a single word, then you did not infringe the patent; there is no such thing as “partial infringement.”51

One way to further understand the significance of words as logic-based limitations on the scope of property is to see them in motion: to see how they evolve as successive claims to ownership made to a particular audience. Unlike the Specification, the Claims will not stay the way that Aviva, or any other patent engineer, writes them. By submitting a patent application, the Company makes a claim to the ownership of that delineated technology through the claims that its patent engineers wrote. These claims to ownership are not made directly to the

Company's competitors, nor to other inventors who think of the same innovation (either in the present or imagined in the future), nor to any other potential infringer of the property rights sought. Rather, they are made to a single examiner in the government's patent office whose task it is to find previously public knowledge, “prior art,” that would suggest what the Company claims to be new was already known and therefore not patentable. This is known as the prosecution of the patent application and it results either in the eventual issuance of a patent by the government patent office or the abandonment of the application by the applicant. With each such rejection by the examiner, the Company will be forced to modify their claims to a more narrow “invention” that may indeed be new.

51 Note that there are lawsuits that can be filed for “joint infringement,” but even in this case, all of the steps (read “limitations”) must have been performed and both parties must be aware of and linked to the performance of all steps (such that a company that outsources a few of the steps to an OEM would still be sue-able, but the same Company that sold the product to an unrelated customer who happened to perform the rest of the steps would most likely not be in danger of losing the lawsuit). 138

Figure 4.2: Claim 1 of ITRI's US patent number 7,586,126 Claim 1 of the patent as originally submitted to the USPTO (left) and as it looks in the patent as finally allowed (right). The red squares highlight words that were added to the claims during the prosecution process.

One way to quickly assess the extent of this evolution as well as the impact of changes in wording, and of the prior art, on the scope of a particular patent application is to compare the final issued claims with the original claims as submitted. An example of this can be seen in the two versions of a first independent claim assigned to Taiwan's ITRI in Figure 4.2. As it was originally proposed (on the left), this first claim claims a structure where elements are each

“disposed on” other elements. This language allows for a wide range of quite different connections between each of the elements and does not suggest that the type of connection between, say, the electrical insulation layer and the heat pipe need be at all similar to that between the circuit layer and the electrical insulation layer. “Disposed” also does not suggest whether or not it is “above” or “below” or “to the side of.” Nor does it suggest the relative sizes of the two elements, or whether the edges of the two elements (if of equal size) need to match up with one another. By not suggesting these details, this type of wording also does not limit the scope of the claimed invention to any one (or to any two) of these possibilities. Over the course of the prosecution of the patent application, however, the patent examiner proposed prior art references that described some of these specific formations as having already been publicly disclosed. This then forced ITRI to narrow their claimed scope to structures that had not yet been

139 disclosed by replacing “disposed on” with “directly formed on” and adding a third “directly” to specify the relationship between the LEDs and the electrical insulating layer.

In effect, the addition of only two words (“formed” twice and “directly” thrice) to the claims significantly changed the size of the invention that ITRI could claim as property. This is because, in the patent's claims, as opposed to its specification, the words limit what is claimed by defining it more specifically. Each additional word shrinks the range of possible structures or methods to be owned. Not only this, but different words may cause the claimed invention to be more or less narrowed, or to be narrowed in different ways. Thus an element that is “directly electrically connected” to another element need not be “directly physically connected” to that element; it can have any number of other layers or elements between the two, provided that all of them conduct electric current. On the other hand, while the “direct physical connection” seems to be the larger limit, it does not require any specific sort of conducting relationship between the two elements and therefore could encompass structures that a “direct electrical connection” limitation could not. One of the primary tasks of the patent drafter, then, is to choose words carefully. This careful choice applies both to the original application and to every argument responding to rejections by the patent examiner.

Thus, again, the more words and the more specific the words in the claims, the harder it is to prove infringement and the weaker the patent will be. This logical structure was one that many R&D engineers did not understand when they first began to deal with patents:

When an engineer sees a patent, he'll think that you must be sure that its technology's most detailed parts all have to have coverage, that you have to lay all of it out, that it all must be written in the patent. Because at the beginning of my time at ITRI [in R&D], our boss told us that you have to make every single detail of all of the technology clear, make sure it is all laid out there, that it's all spoken out loud. Then you also have to call the IP department and make them write all of it on the patent. He said the claims also need to be very detailed, that

140

is, every element all needed to be inside them. At that time, looking at it all from the perspective of an engineer, this is how it was. But over here in the IP department, of course, this is not how they think. Of course, as far as the claims go, they should get the largest scope possible, right? […] On the contrary, it is the specification where the more particulars you ferret out the better, but the claims, in this place you certainly don't want to do anything like this. You put [only] these necessary elements into it, then as long as you can escape (迴避掉) those parts of the prior art [that are brought up against you], then that's enough. (Nicole, in-house patent engineer, April 2010)

Where, in her earlier life as an R&D engineer, Nicole was concerned with ensuring that all of the details of the patent idea or technology were transmitted to and then written into the patent by the patent engineer, when she became an IP engineer she realized that this type of approach is actually counter productive. In regard to the specification, as I described in the Chapter 3, there are certain types of knowledge that are best not written and therefore not made public. This avoids giving away too much knowledge while also continuing to protect a future final product whose production temperatures may change with the requirements of mass production or those of cost reduction phases. In the claims, however, she explains that details should only be added in when they are necessary to overcome the prior art, otherwise you give up on obtaining the largest claim scope allowed by your specification.

As compared to some of the technological structures she had written into patentable inventions in her previous work in the LCD industry, Aviva explained that LED patent structures are relatively simple. It is often easiest just to draw the structures on paper and use that to see where the claims will fit. In order to craft the words and logical structures that will define the invention to which the Company will claim an exclusive right, Aviva told me that she begins with the figures that she and the inventor(s) had drawn. These included both ones that will be in the final patent application as well as additional internal figures, both the embodiment that R&D currently prefers as well as her own notes and sketches of other possibilities.

141

As an example, I asked her to go through an LED patent (the '302 patent) I had recently found in the USPTO's patent archive to show me how she would have gone about drafting it. As

I mentioned earlier, patent claims are written more as legal poetry than prose. Their form and language are constrained by strict rules and sometimes difficult to understand conventions even as the drafting of them leaves tremendous room for creativity. Each claim, for instance, must be only a single sentence. Therefore, in order to fit all of the details necessary to get the patent allowed (this is especially the case for pharmaceutical and chemical compound patents) the clauses can run on and on.52 As with poetry, the words used in the claims refer not only to standard dictionaries of the time, but also may call upon particular meanings laid out elsewhere in their Specification or may allude to the meaning a court of law found them to have in a previously litigated (though completely unrelated) patent. As with poetry there are no footnotes to say which meanings each claim term alludes to. Rather we (as much as courts of law) must learn to “read” them based on the conventions we assume their authors to have relied upon to write them.

Aviva began with the '302 patent's first independent claim while also flipping through its figures to get a handle on its other embodiments. To explain how she might have gotten to the

52 One law blog's contest for readers to find the longest independent claim ended up giving their prize to someone who found a pharmaceutical patent (US6953802) whose first claim ran over 1700 words. This is actually an example of a claim that did not get significantly shorter with every new word added. Many of the words in the patent are lists of elements and compounds that make up a “single group” (as defined by this patent) and of which might be a part of the structure being claimed. Beyond these elements in the group clauses, however, the other pieces do successively narrow the scope of the claim. See Aaron R. Feigelson's blog http://www.1201tuesday.com/1201_tuesday/2009/09/longest-claim-ever.html or the comments on Stephen Schott's guest post on Dennis Crouch's blog http://patentlyo.com/patent/2009/09/an-appeal-to-the-new-patent- office-director-repeal-the-single-sentence-rule.html for more. As for non-chemical patents, US 5,887,363 has over 2500 words in its independent claim and, as a result appears to have a horrendously small scope of ownership. It would be nearly impossible even for their own company to produce a golf shoe that meets each and every one of the patent's conditions let alone a competitor's shoe. 142 limitations in the first claim, she tore the main embodiment out of my printout to consider it directly alongside the patent's claims:

Figure 4.3: Aviva’s sketch of the ‘302 patent’s first claim (Figure reproduced by the Author from fieldnotes).

She then pointed to the parts of this particular embodiment that she felt, at first glance, were essential to the invention in any of its potential embodiments (the embodiments' lowest common denominator) and crossed out the portions of the figure that could either be absent or might have several different versions in any particular embodiment (these are marked with black Xs in the figure above). Finally, she marked (in gray Xs above) those parts of the structure that other companies might not necessarily have in their own version. If these latter, such as the LED structure's two electrodes, were included as

limitations then a company that did not add the electrodes Figure 4.4: Generic version of the ‘302 patent’s first claim to their device would not be able to be prosecuted for direct

143 infringement. The result of this process was the reduction of the figure to something more like the generic LED illustrated in Figure 4.4.

As it seemed to us that the invention's main inventive steps were to introduce the sidewalls covered with dielectric material (to increase the amount of light emitted) and the

“opening” (which both holds the LED together and allows for electricity to be conducted vertically from the top all the way to the substrate regardless of whether or not the ohmic and reflective layers are good conductors), Aviva suggested that early versions of the independent claim might leave out only one of these two so as to stake out a broader claim scope. The second would be put in a dependent claim instead. If the examiner brought out especially difficult prior art, then the second inventive step could be brought back in to further distinguish the invention.

Turning then to the claims as they were issued in the patents, Aviva showed how the first independent claim claimed a figure that was essentially our generic LED with two key additions and one subtraction. As illustrated in the top left of Figure 4.5, the claim had added as limitations both of the two primary inventive steps that we identified and removed any details about the make-up of the light emitting diode's epitaxy structure (ie. 102, 104, and 106) to a dependent claim.

The rest of the dependent claims continued to add essential details to various parts of the main figure, building up to a picture that looked just like the patent's main embodiment. As each dependent claim also includes all of the limitations of the independent claim it depends on, these

144

Figure 4.5: Drafting the Claims An illustration following Aviva's description of how she drafts patent claims. The independent and dependent claims of the '302 patent are here described in terms of which parts of the LED structure they provide details on (Figure by the Author adapted from the ‘302 patent’s figures). additional details make the dependent claims successively narrower in scope as well as more and more difficult to infringe. Each layer of the LED, for instance, has at least a position in the structure and a composition or content. Both of these two properties can be specified for each element, one or another can be left out to allow coverage of more variations, or they could be split into earlier and later dependent claims to vary the relative scope of each. Looked at from this figure-based perspective, each of the logical chains of dependent claims in the patent describe the details of a specific part of the structure. Claim 2, finishes off the description of the sidewalls begun in the first independent claim. Claims 3 and 4, finish off the description of the placement and materials of the independent claim's adhesive conductive layer. The chain of

145 dependent claims beginning with Claim 5 and culminating in Claims 10 and 11, for its part, spells out the preferred embodiment's precise positioning of its first electrode with respect to the size and position of its opening. The logical structure of this set of claims allows the patent to protect everything from a very specific embodiment (that perhaps only that one company might actually produce) to something in the independent claim that has a much broader scope. Should one of the more broad claims be found invalid in court, the owner could (potentially) still sue for infringement of one of the other, more specific dependent claims.

The claims section, therefore, is the place where the outlines of the intangible object to which the patent will claim exclusive control over are written. It is the culmination of the shift that I have been describing from the people, machines, and materials in the lab to being conceived of entirely in terms of words. As I hope the example above shows, though Aviva writes her claims based on the drawings that the inventors gave to her, the choices she makes in how to represent that technology and therefore the shape of the “invention” itself are made based on logical rather than technological requirements. For instance, the order in which each element of a claim is described does not in any way relate to the order in which those actual layers are grown in the lab. Rather the order is determined by the most economical way of drafting them, their necessary logical connections, and the patent engineer convention of placing the newest inventive step as the final element in the claim. Moreover, for the inventors it makes no technological sense to describe an LED structure without electrodes, for instance, as the independent claim here does. If you recall from Chapter 2, each change made in an LED structure might require changes to be made to any or all of the structure's other layers. For them, only the full, most detailed embodiments make sense even as “potential” complete products. Yet, the patent engineer had to include the intermediate logical reductions as wider dependent and

146 independent claims, despite these logical structures' technical impossibility. The broader structures these less specific claims delineate serve as a way to ensure that when another company only performs a subset of the full embodiment they can still be sued for infringement.

For instance, perhaps another company found a new material not mentioned in the patent to use for the sidewall. They would therefore not infringe Claim 2. But because Claim 1 is not limited to any particular materials, they would still infringe that independent claim. It is thus this thing of logic, rather than that original thing of technology, that is the invention as owned.

Defining a Single Invention

The second trick to reducing the Specification's technology to a genus level invention is that, as required by the USPTO, each patent may only claim a single invention. From the Company's perspective, however, they had to make certain that each of their patents had enough of an inventive step that the examiner, eventually, would allow it to issue. In order to ensure this, the

Company often required inventors to merge their separate internal patent ideas together into a single external application. As with the conditions for the writing of exclusivity in the last section, these mergers are made for reasons of logic and law regardless of whether the merged ideas may or may not seem the “same” from the technological perspective of R&D. In addition to reaffirming the ongoing shift towards logic and the requirements of the Patent Office's particular regime of value, I argue that these mergers also highlight the culmination of a shift away from either the control or preferences of the inventors to the desire and control of the

Company as a larger corporate unit.

147

On its face, this requirement that one patent may only cover one invention seems to converge with a general understanding of patents that I have found prevalent in conversations, patent advocacy rhetoric, and news stories. For me, it coincided nicely with the imagination I had of patents when I began this project: one patent should (at least roughly) correspond to one idea, one technology, one invention, and one product. I suggest, however, through the examples of merging internal ideas below that it does not, in the end, converge with this common understanding. Moreover, I argue that the very reason they do not converge in practice is key to understanding the translation between technology and the law that is performed within the patent as process.53

The single invention requirement seems to provide the foundation in patent law for frequent popular discussions around “who owns the patent on X”—whether “X” is the light bulb, the , the touchscreen, or . Here, we habitually think of each of these products as encompassing only a single technology, a single key idea, and often a single brilliant moment of truth. They should, it seems then, be covered by a single patent. But this is not how the patent system works. This is also not how the restriction of a patent to a “single invention” works in practice either. Instead of focusing on a single technology, product, or idea as the basis

53 As a result of this translation, what had been a specific improvement to a particular product has been generalized first to describe the way that such improvements could be made to a wide range of structures and then, in the claims, to convert this generalized technical description into logical limitations of property scope. R&D engineers, as a result of this, tend to skip the claims part of the patent, preferring to read the spec or glance at the pictures to understand the technology the patent describes. But as the merging application discussion suggests, a patent need not be technologically related very closely to still “read” on a product one would like to produce. This “reading” technique is one based in logic and the rules of the PTO (and later of the court) system. It is something that the Company has repeatedly attempted to teach to engineers, offering numerous courses for them on claim language and the importance of the claims in patents. Indeed, some R&D engineers in the company, especially those that have frequent contact with IP, have gotten much better and writing their own initial claim sets. Most, however, remain so seduced by the familiar technical language and drawings in the spec that the logics of merging applications together makes little sense. 148 for defining what counts as a “single” invention, the patent system, as one based in law that attempts to deal simultaneously with vastly different technologies, relies on structures of logic.54

As such, the process of “reduction” described above is actually a matter of expansion outward from particular embodiments to a genus level that encompasses all of them. At this expanded level, all of the very different particularities of embodiments in the specification now appear simply to be examples of the one invention: the one claimed in the independent claims. If the patent engineer is unable to find and defend a level at which all of the embodiments can be described as a single thing, then chances are they will not be seen as a single invention. If this occurs at the beginning of the negotiation process it might result in a “restriction requirement”: an examiner request to divide the claims (and the application's embodiments) into sets that can be single inventions and which will be examined separately on their own merits. Thus, for instance, if a particular structure can be made by more than one process, or if a process can result in more than one structure, then the same patent cannot claim both a structure and a method.

Regardless of the specifics of the technology or of the products that are to be produced by these technologies, the one to one-and-only-one logical correlation is what matters.

If, on the other hand, during the course of patent prosecution, the examiner finds prior art that anticipates a portion of the genus level claim, then the patent engineer will be forced to retreat to more specific claim language. In modifying the claims to emphasize what is new beyond the prior art cited by the examiner, the patent engineer may be forced to leave particular embodiments or portions of them out of the “invention” as claimed. While these elements will

54 This emphasis, often also results in frustrated or exasperated comments by R&D engineers involved as witnesses or observers in lawsuits that the entire process has little to do with the technology and everything to do with semantics. 149 continue to be disclosed in the specification (as a part of the “technology” set in stone at the beginning of the process) they would no longer be owned as property when the patent issues.

Where the writing of the specification is performed through internal cooperation, the decision of which invention will be initially claimed (and later retreated to) involves strategy aimed at surviving competitive claim and counter claim negotiations with the examiner. In the

Company, this involved guessing where one's broader claims might be countered and ensuring that the specification provided adequate detail to support an orderly retreat to more limited claims. In doing so, as I suggested above, one must ensure that the finally allowed claims still, at best, protect the “center” of a technological path or, at worst, at least still cover the Company's own potential products. In the Company, therefore, claims were crafted with regard to the

Company's overall goals and their understanding of the directions their competitors were most likely to take. They were not crafted only with regard to technology. This practice echoes general practice as described to me by Max:

When you draft a claim, that is again a place where the creativity of the draftsman would come into play. They can choose to use language that is broad, that is vague, that is genus rather than species. So when that again comes into play that could have the effect of including more than what the inventor originally had in his mind. And that is why I say it takes on its own life. Because that's out of the hands of the inventor. It is out of the hands of the inventor because the whole process of getting a patent issued involves a lot of contributions from various people and quite frankly the inventor himself, right after the patent has been filed, he would consider his job done. So for that part, I would say the further the language in the patent is being transformed through the process [of negotiations with the examiner], the further away the patent (for this I am referring more to the claims part) would become estranged from the actual invention that the inventor was actually thinking about when he had that idea in his mind. And that thing, with its own life, really becomes something that does not really matter for the invention invention, it really becomes something that people would view as something, would value it as something as far as whether I can use for my revenue purposes, whether I can create a license fee from it, or whether I can win a battle in the court room...that sense. (Max, in-firm patent engineer, August 2009)

150

Where Aviva, in her conversation with Ohm in Chapter 3, attempts to sort through and narrow down his idea in order to zero in on what is new—the patentable subject matter as opposed to less relevant project details—there are also many cases in the Company where IP does the opposite. Instead of narrowing an idea down to a single invention, they merge internal patent ideas together to create a broader, more viable, or more patentable invention. This process is known internally as merging applications (bing'an). As a place of relatively more friction between IP and R&D, merging helps to highlight some of the different ways of constituting or defining what exactly a “single” invention is. While both IP and R&D engineers generally come from technological backgrounds, they see things quite differently in some particular cases and this can affect the shape that an R&D patent idea takes in the claims section as filed. Some of these differences stem from a difference in approach, as Franklin and I described earlier, between

IP engineers legal perspective and R&D's technical perspective. While the occasional controversy over merging internal patent ideas together does reflect some of this difference in approach, it also brings to the fore the importance of personal ties, larger company concerns, and sometimes quite different ways of organizing or categorizing knowledge.

In October 2010, Dao-Hsuan an engineer and upper-level manager in R&D brought an internal patent idea in to the IP department to check on its patentability. As John had been working with Dao-Hsuan on a cross-department project and he was in the office that day, he offered to run through the idea with Dao-Hsuan (much like the discussion between Ohm and

Aviva above) and do a preliminary search of the prior art. Before he dove into the various sets of databases armed with a range of possible keywords gleaned partly from his initial talk with Dao-

Hsuan, he pitched the idea informally to a few more experienced IP colleagues. They quickly

151 thought of a prior Company application—one that had left the Company before John had joined it—telling him to look through it. Depending on how it was written, they thought it might turn out to be pretty devastating prior art. After reading it, John indeed thought there was an obvious problem and planned to sit down with Dao-Hsuan to explain the issue and discuss other options.

I had sat in on John's discussion with the other patent engineers and afterward glanced through the earlier application—one by Nathan, an R&D engineer in a different division of R&D from Dao-Hsuan. In my own reading, however, I did not see any issue; the two applications seemed to cover very different sorts of structures. Nathan's patent application claimed a solution related to the use of LEDs in the IC industry; Dao-Hsuan's, on the other hand, related to LED products that were to be used directly in white light LED bulbs for general lighting. Not only

Figure 4.6: Merging Patent Ideas into a “Single” Invention (Figure by the Author).

152 were the two applications different, but so were their figures: Nathan's was of a single LED, while Dao-Hsuan's was more concerned with the connection between LEDs. Not only were the product applications and figures different, but the Company also used quite different materials and LED structures in order to satisfy the very different requirements of these different types of clients. John, however, had immediately seen a problem and had already moved on to considering how he might rewrite Nathan's already submitted claims in a way that would also encompass Dao-Hsuan's new idea. In short, he had decided the two ideas would be best if merged together into a new “single invention.”

As it turned out, Dao-Hsuan also did not see either any patentability issues or even all that much similarity between his idea and the one proposed two-plus years earlier by Nathan, at a time when the Company was not nearly as involved in white lighting as they had become. On my request, John sat down with me and walked me through the claims he imagined he would need to write for Dao-Hsuan's new idea. As he read the elements of the claim, he asked me to see if I could find an equivalent structure for each in Nathan's application. This process of “reading” one patent's claims onto another's disclosure is the same performed by examiners in the prosecution of the application as well as similar to the way plaintiffs (and judges) “read” a patent's claims onto a product accused of infringement.

We worked our way through that imagined first independent claim with me finding equivalents in Nathan's Specification and figures for a substrate, a positively doped semiconductor layer, a negatively doped semiconductor layer, and an active layer. While none of these therefore could differentiate the two, this was not all that surprising. Almost all LEDs have these portions and an application relying on one of these without much additional limitation would have had to have been applied for decades ago to avoid relevant prior art.

153

I then suggested the side structure that Dao-Hsuan had added to the LED to make it easier to be linked electrically (and physically) to a neighboring LED. This was the key part of his idea and it allowed for building better, more cheaply connected strings of LED chips that could emit different wavelengths of light but still take up a smaller footprint. Nathan's figure, on the other hand, showed an LED without any additions to its side. When I pointed this out, somewhat triumphantly, John suggested that the hole running through Nathan's structure was its counterpart. The key, he said, is to remember that the figures are never assumed to be drawn to scale. Moreover, though LED chips are certainly 3D products, the figures in their patents are generally flat, 2D representations. Even though Nathan's feature appears in its primary embodiment as a hole tunneling through the middle of a single LED, a smart examiner could choose to define the left side of the hole as a “first” LED and the right side as a “second” LED.

Now, rather than being in the middle of a single LED, the feature is between two LEDs, just as it is in Dao-Hsuan's figure. There is nothing in the technological disclosure in Nathan's

Specification that would limit his scope to only a round hole rather than a linear trench that could completely bisect the LED chip into two. Unless Nathan's specification contained language suggesting that this hole necessarily had to be in the middle of one LED, there is nothing in the picture to prevent the examiner (or the Company when trying to sue for infringement, for that matter) from “reading” this part of Nathan's structure as a prior anticipation of the key feature of

Dao-Hsuan's idea. Furthermore, written as a structural claim, there would be no way to insert a limit that would distinguish between a “hole” created by digging (Nathan's) and one created by building two sides with a gap left between them (Dao-Hsuan's).

While they may appear to be different in the figures and while they perform different functions, when written in words the two are almost identical structures. Even their internal

154 compositions turn out to be the same. Both “holes” are filled with electrically insulating materials and both have an electrically conducting material running through their center. While

Dao-Hsuan's as opposed to Nathan's idea was specifically designed to allow multiple LED chips to be connected together, the writer of Nathan's original specification had done their job quite well and included the fact that, if desired, his chip could also be connected to other LED chips.

Without finding and adding a limitation describing how these chips had to connect together, this too could not differentiate Dao-Hsuan's idea from Nathan's prior one.

Due to the claims' focus on logic rather than technology, unless Dao-Hsuan's claims specifically bring in strong limitations based on the use of particular materials, processes, or shapes of components, then there would be no reason for the examiner to restrict her search to patents that happen to “look” similar or “do” similar things. In this case, while John might be able to write such very specific claims and thus avoid Nathan and any other prior art, this would therefore give only an extremely narrow scope to its property rights. Such a small invention runs the risk of not having enough of an inventive step to warrant issuing a patent; the examiner could reject it saying that such a small step would have been “obvious to one skilled in the art.”

Finally, even if a narrow patent was issued, the Company might not consider it worth the expense as other companies could simply alter one or two of the specific limitations and produce the product without worry of infringement lawsuits.

Although Dao-Hsuan's invention was, therefore, too small to apply for a patent on its own, it was a critical structure in a new line of Company products and the Company wanted to be sure to have a clear legal right to exclude others from making competing copies of it. A decision was therefore made by IP to merge his idea with the existing application by Nathan by filing a Continuation-In-Part (CIP). This was only possible because the same points that made

155

Nathan's prior invention a dangerous prior art also made it a possible parent patent. Of course, it also helped that Nathan's application was still entirely owned by the Company had neither been abandoned nor yet been granted a patent. John would submit Dao-Hsuan's new invention idea as an additional “embodiment” of Nathan's original invention idea, add him as an additional inventor, and construct new claims at a level that could encompass all of Nathan's embodiments as well as those of Dao-Hsuan. This way, while the new parts would have a later priority date,

Nathan's old portions would still retain their date from their original submission to the PTO several years ago. Furthermore, the patentability of Nathan's application (strengthened by its early application date) could carry the total application through the process relatively unscathed.55

While R&D engineers I knew in the Company normally had little problem adding other names onto their applications when they felt these people made valuable contributions to the final invention idea, each name added means a further division of the bonus they are due for filed and granted patents. It also is a matter of professional pride that an engineer receive sole credit for invention ideas that they produced on their own. When they are later forced to add another person's invention into their own and, therefore, split credit for the new single invention, this can cause friction. In non-merger cases, the additional people on a patent application might include the inventor's bosses who made key critiques or suggestions during their project presentations or simply other people from their project working groups. In cases of mergers, however, the extra people generally work in different groups and, beyond IP saying so, there often appears to be little reason for one to share credit with the other. Adding to this, is the fact that often, as in this

55 The new matter is indeed seems “new enough” not to have been anticipated, and though its inventive step is not enough on its own, by piggybacking on Nathan's larger inventive step and earlier priority date John felt the patent should pass. 156 case, the proponents of neither merged idea readily see their respective ideas as technologically related. While it took several meetings where John “read” his proposed idea onto Nathan's prior art to convince him, eventually Dao-Hsuan agreed that there was a logical issue even if neither he not Nathan saw a technological one.

In the second half of my time in the Company, the number of these merger cases rose precipitously due, in a large part, to an organized, several day brainstorming session R&D held on solving certain long running technological problems. In one evaluation committee presentation, the presenter was asked by a senior Company officer what, exactly, his inventive step (tezhen) was. While this is one of the main things he would have been discussing with the patent engineer in the time leading up to the presentation, he claimed not to know one. The reason was, he said somewhat derisively, that IP had merged three different ideas together resulting in what he saw as a dispersed (fen san) set of embodiments linked together only because all happened to have to do with filling holes. After the meeting, the patent engineer received a mild upbraiding. He responded saying that he had gone over the reasoning for the merger with each of the inventors and tried to draw the presenter's attention to the embodiments from the perspective of the potential claimset he had written. He felt that the R&D engineer, for whatever reason, had just refused to see beyond the technological aspects of the invention ideas to the logical aspects that allowed them to be combined.

In another case, two engineers objected to the inclusion of a third merged idea because, though IP felt it would be good for the Company, they told me the original two (also merged) ideas effectively contributed 55% and 44% respectively to the total final invention. While the third only made about a one percent contribution, that third inventor would get a third of the bonuses and of the credit in the list of inventors on the application. The situation was frustrating

157 to the patent engineer as well since the third invention idea would only add an additional three words to the independent claim based on the way he wanted to draft it. As it made the other inventors upset, he would just assume not include it; maybe he could find a different application to merge it into so that it still would be protected. The problem was that his IP boss and colleagues, as well as the patent engineer himself, felt those three words would allow for a significantly stronger patent. Further, it was clear that those three additional words and the small modification to the patent's embodiments that they represented simply were not to be found in either of the two original contributors ideas. Adding to all of this, the third idea's inventor was a boss of one of the other sections of R&D and his idea, on its own, was too small of an inventive step to pass on its own. This gave added pressure to find a way to get a patent on it issued.

Though there are ways to merge ideas together without the consent of an inventor (given the Company's employee contracts), IP much prefers to preserve the best working relationship possible between themselves and each of their (once and future) inventors. In this case, the other engineers were placated with a promise that IP would try not to let this type of merging happen to them again. Of course, neither side really had much control over this, IP had to pick and choose these mergers as fit with the Company's interests. As one of the managers in IP explained to a relatively new patent engineer,

If you have to merge them, then merge them (要併就併)! We want to maintain good relations with the inventors, [but] we have to do our jobs first. If it really comes down to real problems between engineers, [the R&D department head] will handle them. We have no power here.

As relations between the two departments are quite positive overall, though, IP was able to eventually find a resolution in all the situations I witnessed.

158

Observing a series of these sorts of examples made it clear to me that the “single invention” requirement actually has little at all to do with our normal sense of inventions as related to technology, ideas, and products. In fact, it turns out to provide another example of how, over the course of the patent application process (which has now moved from within the company to external negotiations over claim scope), what the invention is has moved further and further from its roots in technology. What defines the single invention is the logical results of the wording of the claims as combined with the various rules governing what exactly serves as

“prior art” and how it is to be “read.” From my perspective comparing the descriptions and figures of these invention ideas or even from Dao-Hsuan's perspective as an R&D engineer, his and Nathan's two patent ideas had very little in common. I would not have thought the one would have been prior art to the other, let alone a devastating example of prior art. And I certainly would not have considered the possibility of merging the two together as a “single invention.”

Negotiating Claims and Counterclaims

The third trick to the reduction of the Specification to its claims is that, unlike the Specification or the Figures, this critical section for the patent as property is actually a co-authored piece forged through external negotiations. As can be seen in the merging examples from the last section, not only was there a shift from technology to logic in the consideration of what the invention is (and therefore what should be patented), but these cases also illustrate how much the process has moved away from the concerns of R&D engineers and toward those of the Company.

In this third exploration of the Claims section, I follow one particular patent's publicly archived

159 claim negotiations from application all the way through to issuance, giving a second chance to visit many previously mentioned themes in more concrete fashion.

First, even more than the Specification section, the Claims section's hybridity places it out of the control of any one party, including the patent engineer and the Company, let alone the inventor (who, by now, has long moved on to other projects). Where the specification was created by translating R&D ideas, embedded in people and specific projects, into word-based descriptions with legal potential in a cooperative iterative process, the claims are written externally, in the search for differences with the prior art as found and read by the patent examiner:

When we come to the exclusivity portion of the patent, [the claims section,] I would say, at least in my view, that it would have its own life. It would not necessarily cover what is actually being invented. Because what would eventually determine what is claimed in the patent is actually a series of negotiations between the patent office and the inventor (and the applicant). When you file a patent application, what you have with the disclosure will be fixed at the time that you file it. But the scope of the claim, no, it is still being negotiated. So what will come out as a result of the negotiations is a wildcard. Of course, people want to get as broad a claim as possible, but it will not necessarily cover what they want it to cover in the end. In some rare cases, no not rare cases actually, in some cases, it may even cover more, more than people would have thought the invention is (Max, in-firm patent engineer, August 2009).

It has passed out of the control of the owner into a public arena where claims must be argued according to rules set by others (especially in the case of Taiwanese companies applying in the United States). Where claims to “new” technology in internal patent applications are countered with prior art within the company, this is done in a friendly manner to spur the inventors to think more clearly about their invention in the hopes that they can zero in on the details that distinguish what they have done from this prior art. The process is therefore aimed at extracting significant details that previously were not emphasized or, perhaps, had not even

160 previously been mentioned. In the external negotiations, however, no new details can be introduced. The process is rather one where claims are countered by their equals. Company claims to property in the technology as laid out in their application's specification are countered with identical claims written by the examiner relying on details in previously disclosed patent specifications, papers, and common knowledge.

Second, this extended example illustrates how this claim and counter-claim negotiating process effectively re-territorializes the “invention,” already decoupled from the materials and people in the lab and molded according to a company's priorities, into the larger patent archive through “readings” of its claims in relation to prior art technologies. The translation from R&D's focus on projects, materials, and numbers to IP's focus on words in their “broadest reasonable interpretation”56 is in this way an attempt to make fungible an extremely diverse set of platform, product, and material specific knowledge. Similar to money's role in exchange systems, the rules of the patent archives seek to write all technologies, whether for semiconductor growth processes, baking sweet potatoes, or interacting with customers over an online shopping interface, into the same format, placing them above a common denominator of sorts. This is what enables them to circulate as exchangeable commodities separate from the products they cover. In the archive, each is on the same level—all are equally patents and equally cover only one single invention—thereby allowing searching, comparison, and the quantification of owned technology in countable units. Unlike money, however, the archive's rules do nothing to solve the question of value. A patent's technology is rendered fungible precisely through these logical negotiations,

56 This is the standard that is to be used by the USPTO when examining patent applications (though it actually also should include the limitation, “in light of the specification as it would be interpreted by one of ordinary skill in the art” see Phillips v. AWH Corp., 415 F.3d 1303, 75 USPQ2d 1321 (Fed. Cir. 2005)). It is different from that for use by courts in their own later interpretation of those same claims (see In re Morris, 127 F. 3d 1054 - Court of Appeals, Federal Circuit 1997). 161 by comparing it to and altering it based on those patents that are already a part of the patent archive.57

I now return to the '302 patent I discussed with Aviva above. Instead of Aviva's account of how she would have written its claims, however, we can now dive right into the public records of the actual negotiations between Epistar Corporation's patent engineers (via their patent lawyers) and the USPTO's patent examiner. While changes to several of the dependent claims also occurred over the course of this process, for our purposes here it is enough to focus on the changes made to the primary independent claim. This is because changes sufficient to allow the independent claim to issue, necessarily, are also enough to allow any of its dependent claims (recall that dependent claims are, by definition, always narrower in scope than independent claims).

In its original form, the '302 patent, then known as application number 11/108,966 (here after referred to as the '966 application), was submitted with both structure and method claims to the USPTO in April of 2005. In fact, at this time, it did not even belong to Epistar Corporation.

The application was originally submitted on behalf of its inventors by their employer, the United

Epitaxy Corporation (UEC). The patent was then acquired by Epistar when it merged with UEC later in 2005. As submitted to the USPTO, the patent claimed priority back to an original application to the TIPO that was filed three months earlier in January 2005. As a second filing, this US patent (as most Taiwanese LED patents are) was filed via the Patent Cooperation Treaty

(PCT), an international agreement which allows second (and more) filings in second (or more) member countries provided these are completed within a year of the filing in the first country.

57 Patent examiners can also use academic papers and even, in some cases, sales advertisements to reject claims, but for LEDs, at least, patents tend to be an easier focus and are the overwhelmingly most frequent prior art. 162

After waiting its turn for examination in the USPTO for more than two years, the application received its first response, a restriction requirement, from Samuel Gebremariam, the

USPTO examiner assigned to the case.58 In this action, the examiner determined that the application did not represent a “single invention” and required the applicant (by now, Epistar

Corporation) to choose either the process or the structure invention—claims 1-9 or claims 10-18 in the '966 application respectively—to be examined first. In the action, the examiner recited the legal statute underlying his restriction requirement and then claimed that the structure claimed in claims 10-18 could also be made, for instance, by combining two LEDs together and not just by the etching method claims 1-9 described. In its response, Epistar elected to first prosecute the structure claims, therefore initially withdrawing claims 1-9. Though the method claims could have later been prosecuted on their own, for whatever reasons, Epistar chose not to bring them back in a divisional application prior to the issuance of the structure claims and they were thus abandoned. The first independent claim, as originally applied, is reproduced below.59 Note how specific even this first claim attempt is; by 2005 when this application was submitted, a huge number of patents on more basic LED structures had already been claimed, leaving only such relatively narrow intangible objects left to be claimed.

10. A light emitting diode, comprising: a conductive substrate; an adhesive conductive complex layer on the conductive substrate; a reflective layer; an ohmic contact layer on the reflective layer; a light emitting diode epitaxy structure on the ohmic contact layer, and the light emitting diode epitaxy structure including at least one sidewall; and a transparent dielectric layer on the at least one sidewall of the light emitting diode epitaxy structure; wherein the ohmic contact layer and the reflective layer are secured on the light emitting diode epitaxy structure by the adhesive conductive complex.

58 Remember that, other than the actual writers of the patent, all other actors in the process are identified by name. 59 The same claim, as issued is reproduced earlier in this chapter next to figure 4.3 on page 138. 163

In September 2007, following the election of the structure claims that began with this first “claim 10,” Gebremariam issued his first on the merits (FOAM), a non-final rejection, based on reading the '966 application's remaining claims onto the specifications of two previously issued patents, Chen's US2003/0164503 (now at least US 6,797,987) and Iwata's

5,665,985 patent.60 The use of two references suggests that the examiner was unable to find a single application that, on its own, disclosed all of the '966 application's claim limitations. Using a single application would have meant rejecting the application as “anticipated” via 35 USC 102 rather than as “obvious” via 35 USC 103. While “102” rejections speak to an application not being “novel” enough, “103” rejections suggest that the application may be “novel,” but is not

“non-obvious.” The two references the examiner cited here are also interesting because the Chen application is another, significantly earlier, application also applied for by UEC. Previously filed applications by the examined application's inventors or issued to the application's assignee are often easy places to quickly find very similar prior art; the Company kept track of applications they had submitted which were rejected based on their own prior applications.

Most interesting to this discussion of patents as property, however, is less the content or technology of the patents combined to reject the '966 application and more the type of language that is used in forming these rejections. Essentially, Gebremariam's role as an examiner in rejecting the claims the patent engineer wrote in the assignee's name is to, himself, counter-claim the very same invention in the name of a different set of already public knowledge. In some sense he is literally “claiming” the same property for a “public” that includes owners of

60 Gebremariam also rejected the patent on the grounds that its specification and drawings were incorrect. In the original submission, the patent engineer, did not label all of the elements on the figures described in the specification. This was also corrected in their response to the first rejection by providing new figures with all of the necessary labels. 164 previously filed patents and future companies wanting to make use of that technology.

Gebremariam, therefore, rewrote the text of each claim, describing as he did, which patent's specification (and which element of its figures) disclosed each particular feature of the invention:

“Regarding claim 10, Chen teaches (fig. 6c) a light emitting diode, comprising: a conductive substrate (120); an adhesive conductive complex layer (119,124) on the conductive substrate (120); a reflective layer (116); an ohmic contact layer (110) on the reflective layer (116); a light emitting diode epitaxy structure (108,106,104) on the ohmic contact layer (110), and the light emitting diode epitaxy structure including at least one sidewall (fig. 6c, sidewall of the structure in fig 6c); wherein the ohmic contact layer (110) and the reflective layer (116) are secured (fig. 6c) on the light emitting diode epitaxy structure (108,106,104) by the adhesive conductive complex (119,124). Chen does not explicitly teach that [sic] a transparent dielectric layer on the at least one sidewall of the light emitting diode epitaxy structure. Iwata teaches (figs. 14-17, col. 12, lines 12-22) a transparent dielectric layer (58) on the at least one sidewall of the light emitting diode epitaxy structure (fig 16) in order to provide electrical separation between adjacent light emitting devices. It would have been obvious to one of ordinary skill in the art at the time the invention was made to incorporate the transparent dielectric layer taught by Iwata in the structure of Chen in order to provide electrical separation between adjacent light emitting devices.”

Figure 4.7: Gebremariam’s First Non-Final Rejection On the left is an excerpt from Gebremariam's first non-final rejection of the '966 application dated 9/26/2007. On the right top and right bottom are copies of the figures referred to in the rejection belonging to UEC's 6,797,987 patent (invented by Chen) and to Company's 5,665,985 patent (invented by Iwata) respectively.

As we saw also in Dao-Hsuan's example above, this act of reading new claims onto old specifications means that the words in the new claims will generally not match up exactly with those in the earlier patents' specifications. As long as the element in the older specification can, justifiably, be characterized as a possible representative of the language in the new claims, however, then the examiner can use it as anticipating that element. Thus while Chen's Figure 6c and its specification refers to 119 as an “optional” “diffusion barrier layer” (Col. 6, Lines 1-8)

165 and to 124 as a “metal bonding layer” (Col. 5-6, Lines 64-1) the two layers do also perform as an adhesive that conducts electricity. Similarly, in Iwata, Figure 16, element 58, rather than being a

“transparent dielectric layer” is named an “ layer” that is also “transparent to the light of the light emitting diodes” (Col. 12, lines 18-20). Due in part to the broad language that was used in the '966 application's original claims, neither of these prior art patents look much like the '966 application's primary embodiments (beside the fact that all are LED structures, of course).61 As such, it turns out that many of the '966 application's original claim elements are quite easy to find in the prior art; aspects such as the “sidewall,” unless given further details for limiting them, are part of any LED structure simply by virtue of their having an edge.

In their response to this first rejection, like the examiner himself, Epistar's patent engineers did not directly refute the examiner's counter-claims. Rather, they made modifications to their original claims and then reasserted these new claims as having limitations or elements that the examiner's two citations (Chen and Iwata) never disclosed.62 In the amended version of

61 It is also worth noting here that Chen's Fig 6c also has significantly more layers than the examiner makes use of here, to match up with the '966 application's claims. These other “unread” elements include, among others, element 114, arguably Chen's own primary inventive contribution. As above, the “reading” here involves finding a patent with at least all of the elements of the claims, not one that has exactly the same number. Could therefore be thought of as a xiawei patent (see Chapter 6 with respect to the claims as presented in their original form. 62 “Claims 10-18 are rejected under 35USC103(a) as being unpatentable over Chen (US 2003/0164503) in view of Iwata (US 5,665,985). The applicants respectfully traverse the rejections at least for the reasons set forth below: Regarding claim 10, the applicants respectfully submit that claim 10 as currently presented is not obvious over Chen in view of Iwata. Claim 10 has clearly presented that [sic] a reflective layer with an opening filled with the adhesive conductive complex layer. The applicants respectfully submit that neither Chen nor Iwata discloses the feature that [sic] a reflective layer with an opening filled with the adhesive conductive complex layer as recited in the present invention. […] It is clearly shown that [the reflective layer 116 of Chen are not formed with an opening to allow the diffusion barrier layer 119 and the metal bonding layer 124, which the examiner asserted as the adhesive conductive layer of the present invention, to fill the reflective layer 116.] Accordingly, the applicants respectfully submit that Chen fails to disclose the feature of "a reflective layer with an opening filled with the adhesive conductive complex layer" as recited in claim 10 of the present invention. […] [As to Iwata, t]he applicants respectfully submit that there is nowhere showing the feature of “a reflective layer with an opening filled with the adhesive conductive complex layer" as recited in claim 10 of the present invention.

166

the claims, the patent engineer removed the limitation that required the adhesive conductive layer

to secure the ohmic and reflective layers to the LED epitaxy structure and added a new

restriction describing an “opening” passing through the reflective layer and being filled with the

adhesive conductive complex.63 These changes partially narrowed and partially broadened the

scope of the independent claim by introducing the structural way that the adhesive layer connects

the reflective and ohmic layers to the LED layer while also removing the explicit functional

requirement that it “secure” them to the LED. As can be seen in the excerpt included here in

Footnote 15, the patent engineer felt that, by introducing this new “opening” element from the

Specification into the claims, they could differentiate

their invention from the combined knowledge in Chen

and Iwata even without specifying that the adhesive layer

need function in a

particular way.

Following the submission of Epistar's response

63 Claim 10 (as originally proposed): Claim 10 (as amended in response to first rejection):

A light emitting diode, comprising: A light emitting diode, comprising: a conductive substrate; a conductive substrate; an adhesive conductive complex layer on the an adhesive conductive complex layer on the conductive substrate; conductive substrate; a reflective layer; a reflective layer with an opening filled with the adhesive conductive complex layer; an ohmic contact layer on the reflective layer; an ohmic contact layer on the reflective layer; a light emitting diode epitaxy structure on the a light emitting diode epitaxy structure on the ohmic contact layer, and the light emitting diode ohmic contact layer, and the light emitting diode epitaxy structure including at least one sidewall; and epitaxy structure including at least one sidewall;and a transparent dielectric layer on the at least one a transparent dielectric layer on the at least one sidewall of the light emitting diode epitaxy structure; sidewall of the light emitting diode epitaxy structure wherein the ohmic contact and the reflective layer wherein the ohmic contact and the reflective are secured on the light emitting diode epitaxy layer are secured on the light emitting diode epitaxy structure by the adhesive conductive complex. structure by the adhesive conductive complex.

167 and their amended claims, the examiner again searched the prior art and again rejected the application's claims. This second time the examiner continued to use Iwata for the transparent dielectric sidewalls but replaced the UEC/Chen patent with Sano et al., a US patent application

2005/0035364 (now at least US patents 8,030,665, 7,049,635, and 6,946,683) belonging to

Nichia. The main difference between Chen and Sano et al. in the examiner's reading of them is that Sano et al.'s Figure 3c (right) also discloses the “opening” restriction that the patent engineer had inserted to get around the first rejection. The inclusion in the claims of the opening element, by making the claim scope more closely shadow its specification, also pushed the patent examiner to find prior art that more closely reflects the embodiments disclosed in the '966 application's own figures.

In Epistar's response, the patent engineer amended independent claim 10 by adding a restriction from a dependent claim (16) into it. This added two further narrowing additions to the claim which limit the potential locations of the adhesive layer and of the opening it fills. Where the previous version only required that the opening pass through the reflective layer, the new version requires that it pass through both the reflective and ohmic layers. They also amended the claim to specify that the adhesive layer is “on” the reflective layer.64 In a more subtle shift, the

64 Claim 10 (as amended in first response): Claim 10 (as amended in second response):

A light emitting diode, comprising: A light emitting diode, comprising: a conductive substrate; a conductive substrate;

an adhesive conductive complex layer on the an adhesive conductive complex layer on the conductive substrate; conductive substrate;

a reflective layer on the adhesive conductive a reflective layer with an opening filled with the complex layer; adhesive conductive complex layer;

an ohmic contact layer on the reflective layer; an ohmic contact layer on the reflective layer;

an opening passing through the reflective layer and the ohmic contact layer; 168 newly amended claims also move the “opening” from being a characteristic of the reflective layer to being a required element of the structure on its own. The language of the response again focuses on the way that the invention as defined (post-amendments) now contains elements not found in either the Sano et al. citation nor the Iwata citation put forward by the examiner. This is because the opening in Sano et al. does not pass through the layer the examiner defined as its

“ohmic contact layer” (3) which Sano itself calls instead its “first terminal.”

As this was a response to a final rejection, the patent engineer had to file a request for continued examination (an RCE) with its required fee to ensure prosecution would continue. At the same time, however, they took the opportunity to also introduced a new set of 14 claims roughly paralleling claims 10-18 and taking the place of (and then some) the already paid for, but then withdrawn method claims. As with all amendments made to the claims or specification sections, the patent engineer included a note to the effect that “the basis for the amendments can be found in the specifications drawings and claims of the original application. Accordingly no new matter is introduced by way of the above amendments.” With the new claims set, this note took on rather larger importance. This new “old” matter included two new claims depending indirectly on claim 10—these introduced new details on the placement of the first electrode relative to the opening—and a second independent claim with its own dependent claims. The major difference between the two independent claims was that the new independent claim

a light emitting diode epitaxy structure on the a light emitting diode epitaxy structure on the ohmic contact layer, and the light emitting diode ohmic contact layer, and the light emitting diode epitaxy structure including at least one sidewall; and epitaxy structure including at least one sidewall;and

a transparent dielectric layer on the at least one a transparent dielectric layer on the at least one sidewall of the light emitting diode epitaxy structure; sidewall of the light emitting diode epitaxy structure wherein the ohmic contact and the reflective layer wherein the opening is filled with the adhesive are secured on the light emitting diode epitaxy conductive complex layer. structure by the adhesive conductive complex.

169

(known as claim 21) removed the sidewall and transparent dielectric layer restrictions into its first dependent claim (22). We can speculate that this was done due to the examiner focusing effort on the “opening” aspects of the invention.

In the next (third) round of rejections, the examiner rejected the twice amended claims in two parts. The first was a 102(e) “anticipation” rejection using a single prior art—Doan, a US patent application 2006/0154389 assigned to SemiLeds Corporation (and now at least US

7,432,119), to reject both independent claims and eight of their dependent claims. Specifically, he read all of the elements and limitations of the independent claims on to

Doan's Figure 8 (right). Although this figure shows a set of three LEDs and the '966 has only a single one in its own figures, the examiner defines the “opening”—as he did by using Iwata in the first rejection and as he suggested in his restriction requirement—as the space created and then filled between two LEDs. He then used this same reference, in combination with a second reference, Yoo et al., US patent application 2004/0248377 (at least US patent

6,818,531) assigned to Samsung (which primarily is used to provide an LED with a second, vertical-style electrode), to make a 103(a) obviousness rejection of the remaining dependent claims. In the text of his rejection he suggests that the rejection is possible at least because of the continued lack of detail restricting the opening vis à vis other layers (and especially in relation to the first electrode) in the claims.65 By merely limiting the relationship between the opening and the first electrode to a “correspondence,” Epistar left open a vast number of different possible

65 “Regarding claims 19 and 28, Doan teaches substantially the entire claimed structure of the [dependent] claims above including wherein the position of the first electrode is corresponding to the opening (there is a spatial relationship between the first electrode and the opening)” (from Gebremariam's third rejection (first non-final after first RCE), p. 5, dated September 14, 2008). 170 location combinations that they hoped to include in the scope of their patent. One of these potentially infringing combinations includes the relationship between the “opening” and the electrode (70) that can be seen in Doan. By pointing out an already existing case of the genus language Epistar was using, the examiner meant to force them to assert a more limiting, species level language instead.

This third rejection's inclusion of a 102, anticipation, rejection when it was proceeded by a 103, obviousness, rejection is a bit strange. The normal course of prosecutions is to move from claims that can be entirely anticipated by a single prior art reference to those which need several pieces of prior art to be combined together in order to successfully reject all of their elements and limitations in amended (and narrowed) claims. In this case, however, it seems that the examiner failed to find the Doan reference earlier in the process. This was a product of the examiner performing his search for prior art based on the invention as originally claimed. As with the single invention, the claims' logic, and not the specification's technical description, are what define the invention. The originally submitted claims did not limit the invention to an LED with an “opening” at all. Instead Epistar preferred only to limit it based on the transparent dielectric sidewall layers in combination with its other more generic elements. As the claims were later narrowed to include both the sidewall and the opening over the course of the negotiation process, the examiner's search zeroed in as well, finding Doan.

In response, on December 16, 2008, Epistar's patent engineer again submitted an amendment to their claims. In it, the engineer specifies that, rather than just filling the opening, the “adhesive conductive complex layer fills the opening such that the adhesive conductive complex layer is in contact with the light emitting diode epitaxy structure” (Applicant's response to first rejection after first RCE, p. 7). As Doan's structure involves the creation of an “opening”

171 filled with adhesive between LEDs, the patent engineer says that it therefore is not in “contact” with the LED epitaxy structure. The amended claims thus define an invention that can be differentiated from this prior art and so should be allowed as a patent. As before, this change to make the independent claims “traverse” or “define over” the prior art also brings all of their related dependent claims over the prior art as well.

Following a back and forth over “mistakes” made by Epistar in the formal numbering and descriptions of their claims (a mistake that, as Epistar pointed out in response, by explicit

USPTO regulations should not have required correction), the examiner chose to reject the amended claims a fourth time using the same prior art as he used in his third rejection. The written rejection itself is basically copy-pasted from the third rejection with the addition of the amended wording of the “wherein” limitation as also reading on Doan.66 In this way, the examiner suggests that the amended inclusion of “contact” between the adhesive conductive layer and the LED epitaxy structure through the opening is not enough to overcome the knowledge disclosed in Doan. In the context of LEDs, at least, “contact” presents itself as a generic term rather than an especially specific one. As such it might include all sorts of different kinds of “contact.” As he explains more explicitly later in the rejection:

Applicant's arguments filed 1/27/09 have been fully considered but they are not persuasive. Applicant argues that the thin metal layer (53) [in Doan] that is referred to as the adhesive conductive complex layer is not in contact with the epitaxy structure (44). As stated above, the conductive complex layer (53) is in electrical contact with the light emitting diode epitaxy structure (44) via layer

66 “Regarding claim 10, Doan teaches (fig. 8) a light emitting diode, comprising: a conductive substrate (60); an adhesive conductive complex layer (53) on the conductive substrate; a reflective layer (52) on the adhesive conductive complex layer; an ohmic contact layer (46) on the reflective layer; an opening passing through the reflective layer and the ohmic layer; a light emitting diode epitaxy structure on the ohmic contact layer, and the light emitting diode epitaxy structure including at least one sidewall (sidewall of the structure); and a transparent dielectric layer (50, also refer to claim 33) on the at least one sidewall of the light mitting diode epitaxy structure; wherein the adhesive conductive complex layer fills the opening such that the adhesive conductive complex layer is in contact (electrical contact via layer 52) the light emitting diode epitaxy structure (44).” (excerpted from Gebremariam's fourth rejection (post first RCE final rejection), p. 2-3, dated May 24, 2009) 1 72

(53). The claim does not require that the adhesive complex layer be in direct physical contact with the light emitting diode epitaxy structure. (excerpted from Gebremariam's fourth rejection (post first RCE final rejection), p. 5-6, dated May 24, 2009)

Without limiting the claims to a particular type of “contact,” the '966 application can still be defeated by a variety of different types of prior art (including Doan). On its face, this seems to be nit-picking and many applicants complain of exactly this sort of argument based on semantics.

Of course, this also means that, were the patent to be allowed without such changes, it might be possible for Epistar to claim that structures merely meeting the “electrical” contact (but not

“physical” contact) limitation infringed their patent. Were such a situation to arise, you can be sure that the semantics would then be argued in the owners' favor as well.

In response to this fourth amendment to the claims the patent engineer took the hint and limited the “contact” between the adhesive conductive layer and LED epitaxy layer occurring at the opening to “direct physical contact.” In its July 29, 2009 response, Epistar directly outlines

Figure 4.8: UEC’s ‘966 Patent’s Four Embodiments The four structural embodiments included as figures in both UEC's original '966 patent application Specification and in the published version of Epistar's '302 patent. Note that Figure 5B is not covered by the claims as finally negotiated (it was ruled out, at the latest in Epistar's response to the Examiner's second rejection when they first included the “opening” as its own claim element).

173 the way their amended independent claim reads onto the embodiment in their own specification as well as how it does not read onto Doan's Figure 8. It was only after this fourth round of negotiations (and the submission of a second RCE with fees) that the application was finally allowed. A notice of allowance was sent to Epistar on September 27, 2009 and the patent itself issued (following the payment of fees) on January 26, 2010. Despite the patent's own

Specification section seeming to focus at least as much on potential variations in the form of the sidewalls (see the differences between the '966 embodiments 5A, 5C, and 5D in Figure 4.8), the patent was allowed due to the way its “opening” feature distinguished it from the prior art:

The prior art of record does not teach or suggest, singularly or in combination at least the limitation "an opening passing through the reflective layer and the ohmic contact layer..., wherein the adhesive conductive layer fills the opening such that the adhesive complex layer is [in] direct physical contact with the light emitting diode epitaxy structure" as recited in claims 10 and 21. (excerpted from examiner's Notice of Allowance, p.2, September 27, 2009).

Due to the course that the negotiations took, the final claims do not encompass all of the embodiments that UEC originally disclosed in their Specification. The largest of examples of these now out-of-scope (but still publicly disclosed) pieces are the method claims that the examiner's restriction requirement ended up removing and the exclusion from the final claims of any embodiment with the sidewall portions of the invention, but without the opening (such as 5B of Figure 4.10). At the same time, however, by including these out-of-scope embodiments and details in the disclosure, while Epistar cannot claim to own them, they also do not need to worry that someone else will later file a patent that could block Epistar them from performing them. By choosing to go with the “direct physical” limitation, the patent engineer was able to avoid other restrictions such as importing restrictions on the relative locations of the opening and the first

174 electrode from the dependent claims or explicitly restricting the opening as not continuing past or into the LED epitaxy layer (which it does in Doan).

The entire waiting and claim negotiation process, from application in Taiwan through to the issuance of the US child patent took five years. Of course not all applications go through so many rounds of back and forth, but so too do very few applications get through with no rejections at all.67 This particular case is also interesting precisely because it has examples of so many different types of communications between examiners and applicants, from these more or less standard 102, 103, and 112 rejections to things I did not mention like a non-compliant response to the third rejection (first non-final after RCE), a notice of additional time due to rules instituted post-Wyeth, and numerous pre and post issuance certificates of correction for grammatical and spelling errors. The entire thing began as a Taiwanese application written and submitted by patent examiners working for UEC (in-house or in-firm), was brought over by way of PCT (despite Taiwan not being a recognized country), and prosecuted through the US process by Epistar, its new assignee.68

The claiming and counterclaiming, rejection and response, process in relation to

“readings” of the prior art that this example illustrates is the central, defining component of nearly every patent issued in the LED industry. It is what finally turns the technology into state-

67 Some applicants may even have moved from rejections to an appeal to the USPTO's Board of Appeals instead of continuing on through two separate RCEs, a process that could extend the prosecution another 4 or 5 years due to the Appeals Board's current backlog of cases. 68 For individual inventors, too, this patent happens to be an interesting jumping off point. Of the four inventors named on this patent, it seems all made the transition, at least initially to Epistar as UEC was merged in as they are named on later Epistar patents. However, Way-Jze Wen is the only one of the four whose later patents all have Epistar as the assignee (and he has not been a prolifically named inventor on US applications). Chiang Chang-Han is a named inventor on 3 US patents, two belonging to Epistar around the time of the merger with UEC and one filed in 2008 and assigned to High Power Opto. Chang Chih Sung, is named inventor on one patent unassigned beyond he and his co-inventors, 3 for High Power Opto, 12 for Epistar, and 24 for UEC. Tzong-Liang Tsai, the lead inventor on this patent has continued to be named on patent applications, having a total of at least 26 US patents to this name (9 with UEC, 6 with Epistar named as direct assignee, and 11 with Huga Optotech). Of course, these results are only partial as Taiwanese romanizations have a tendency of changing every once in a while making the tracking of inventors as they move companies that much more difficult when done in English. 175 recognized property. It is also this negotiation which ensures that the final patent, as a singular

“invention” defined not by its Specification but by its Claims, is beyond the control of even the patent engineers who write and defend it let alone the inventor(s) who created the technology— technology embedded in a project that, from the perspective of this negotiation process, seems almost foreign. The process is less a direct way of speaking about the viability of particular aspects of the claims than it is an indirect claim versus counterclaim negotiation. The process only continues contingent on 1) the ability of the patent engineer to continue to find and assert claims with at least one limitation not yet disclosed in the prior art, and on 2) the examiner's ability to find further public knowledge that would support a counterclaim to the exact same phrasing.

It becomes a back and forth effort aimed at winning the formal process itself, not on something more abstract like proving a novel, non-obvious invention. You do not necessarily win based on the “invention” as it was understood to provide improvements in the lab. Rather your invention as technology is important, but it may be some other aspect that allows you to differentiate your application's claims from the prior art. Often examiners do not give much clue

(unlike Gebremariam did in this case) as to how one might amend the claims to overcome the prior art they found. The Company, for instance, often called on the services of an outside patent agent they referred to with reverence as “Mr. Interview” to call the examiner, lay out the

Company's case for patentability, and extract from him a possible path to allowance (or at least juicy hints as to where that path might be). In any case, with or without interview help, the patent engineer modifies the application's claims, narrowing them or moving them with respect to the specific examples of prior art that the examiner used most recently to reject them. The direction and nature of the changes to the claims in the patent therefore depend equally on the choices

176 made by the patent engineers in crafting their response and on which prior art examples the examiner finds and chooses to assert.

Here, again, we return to the overwhelming importance of words and logic. When the patent application leaves the Company, it is thrust into a new arena in which it must make and justify its claims according to the procedures and formats of the PTO rather than the presentation rules and priorities within the Company. Where the patent system's overall justification focuses on the role that patents are supposed to play in innovation at a general level, in practice the PTO

(and behind this, patent law, itself) must work those ideals into workable procedures for examining patents case by case. It must operationalize requirements for novelty, non- obviousness, and full disclosure. It is this operationalization that has produced the examiner's

102 (anticipation), 103 (obviousness), and 112 (indefiniteness) rejections based on the comparison of the current application with particular other prior applications. The system does not, thus, directly evaluate the invention “in general” to determine the presence or absence of absolute “novelty,” “inventive step,” or contribution to “innovation” within an industry. Rather, it relies instead on a much more functional, almost one on one, comparison between inventions that, through the formatting requirements of the PTO, have been transformed into equivalent entities that can be compared. Each describes only a single invention. Each has its own inventive step. Each has both a complete, properly formatted, unchangeable disclosure and a specific set of claims. Furthermore, each has translated its technology, disembedding it from the particularities of materials, the demands of specific product platforms, and the nuances of individual machines into a fungible form based on words and logic. While this enables both comparison and quantification of “inventions” issued, it reduces the evaluation of these claims to technology-as-

177 property into a world where “difference” rather than overall novelty counts.69 Each application is given and compared to “its” prior art one or two at a time just as property claims in land, though purportedly held “against the world” must be enforced, defined, and enacted again and again against each particular audience.

In this sense, the patent system is not set up to reject forever. Provided an adversary who wants the patent enough and is willing to spend the money, the examiner will eventually give in when the patent engineer finally finds some element that no other found prior art has. Though the notice of allowance must, by rule of format, cite the element of the invention that allows it to

“define over” the prior art as both novel and non-obvious, remember that these requirements are defined in operationalized terms. Thus, by definition, overcoming all 102 and 103 rejections provides a detail (a claim limitation) that is “novel” and “non-obvious.” Within this process and the archive that is a result of its cumulative, ongoing decisions, patents are all equal, each entered only having established its own difference. As the system's logic dictates, then, it is the explicit representation of this “difference” that enables the ownership of intangibles.

Of course, neither as representation nor as property does the issuance of the patent document signify an end. As a representation, issuance is rather the start of a whole new set of chains of representation as the patent can now be wielded in sales negotiations, in establishing the identity and reputation of a company as “high tech” or “innovative,” and in future court cases or other enforcement (or assertion) actions among others. As property, like property in land, gaining the initial rights does not mean a lapse into a relaxed state of “ownership,” rather the claiming continues in a wide range of circumstances, from clauses in general purchase

69 In effect, this is a deliberate shift from a Peircean sign tied via a chain of representation to an object (though in the Specification this long chain of representation is itself presented as a much shorter and more direct “iconic” representation) to a Saussurean sign whose meaning (and value) lie in its relation with other signs in the archive rather than a connection to the object it represents (the materials in the lab). 178 agreements, to licensing agreements, manufacturing contracts, non-disclosure agreements, cease and desist letters, and court cases. Patents, like all property, are best understood less as a state than as an ongoing process.

Enabling Dispossession: Representations, Technology, and Property in Knowledge

If the study of factories and of the relations between wage labor and capital is about uncovering the intricacies of the ownership of the means of production, then this study of patents, those legal instruments that structure current global divisions of manufacturing and design labor, offers insight into the production of the means of ownership. Understanding how patents are created from knowledge in practice gives us a better idea of the kinds of relationships this means of ownership can enable. Control of the sort that is offered by patents cannot be created through technological barriers or wage laws alone and these other forms of control are not themselves commodities that can be easily transferred and accumulated.

Delayed Dispossession

For better or worse, patents solve one of the fundamental problems that confronts the commoditization of knowledge: it is easily shared, but not easily alienated. That is, with a tangible commodity like a milking cow when I give her to you, I then no longer have her.

Knowledge, on the other hand, is more like a 's flame than a cow as Thomas Jefferson reminds us (Jefferson 1854 [1813]: 180-181).70 Though I can teach you something I know (and

70 Jefferson played a key role in the first US patent law and was one of the first head's of the patent office. As such, he was also its first examiner. The relevant section of Jefferson's letter is as follows: 179 even do so for a fee), my giving you that knowledge does not mean that I have any less of it myself. The law, of course, cannot make someone unknow knowledge already given away, just as it cannot change the properties of the candle's flame such that sharing extinguishes the original. But via patents, the law instead creates a legal method of artificially alienating knowledge from the giver, now a seller, by preventing them from practicing the sold knowledge.

Knowledge is thereby “freed” to circulate like any other commodity: being bought, sold, licensed, and stolen.71 The story of the past few chapters then, have also been the story of how knowledge is legally alienated from knowers and the materials they came to know.

“It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space without lessening their density in any one point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is something done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.” 71 Though this is one of the primary ways that technical knowledge circulates as a commodity, it is not the only one. For patents, such knowledge also circulates embedded in machines and skilled labor. This is one of several critical ways that patents are radically different from copyrights or trademarks. Not coincidentally, this legal creation of control over knowledge separate from control of people and machines is also what makes patents so important for current divisions of labor. It can be controlled at a distance and licensed out for selected uses and not for others. Patents allow a separation of designing from manufacturing work by allowing designers to share designs even while restricting the manufacturer from using their production processes for other customers. 180

Thinking back to Chapter 2, patents enable the separation of technical knowledge from the people and machines that it was originally embedded within. While they were produced with the participation of these materials engineers and while the patents emerged from and staked claims to the properties of materials in particular configurations, the creation of the intangible object of property was best characterized as a process of distancing the technology-as-claimed from the technology-in-the-lab. It was this shift to words and then to logic that effected the alienation of the technology from the engineers that knew it. The process created a third thing— knowledge as owned—separate from knowledge embodied in the engineer's skills with materials and knowledge embodied in the product/materials that were produced via those skills. In this way, having now been abstracted from them via the commodity creation/property claiming process, patents enable the control of the very machines, materials, people, and products that they emerged from by controlling who can make use of knowledge. As Paul Rabinow's bioscientists explained to him and as I heard from my own interlocutors in chorus, “Conception, development, and application [in the sense of applying theories] are all scientific issues— invention is a question for patent lawyers” (1996:8).

This creation of the “invention” as a third thing (knowledge as owned), alienated from the engineers as well as the materials and machines that it emerged from, however, is not in and of itself, dispossession. As opposed to instances of dispossession by way of the privatization of a

Commons, this is an instance where private possession is turned into corporate property held in common within a company. Although the technical knowledge was transformed into a form separable from skilled engineers and controllable by the Company, as long as those engineers still work in the Company that owns the patent, nothing has been removed from them. Like

Jefferson's flame, just because it is now owned by others does not necessarily mean that Ohm's

181 own flame has either been extinguished or rendered unusable. Indeed, they will probably be expected to make use of those skills in the course of their work in the Company. However, if the patent gets sold to a different corporation (without a license given back to the original company) or if the inventor finds a job at a new company, their own patent could then be asserted by its owner against them and their new company. I suggest, therefore, that for intangibles like patents dispossession is delayed; alienation requires not just the creation of knowledge as a commodity, but also its removal from the knower.

Dispossession at a Distance

The second type of dispossession that the knowledge's conversion to logic in the patent's claims enable is dispossession at a distance. What I mean by distance is that for patents, as opposed to the dispossession of tangible things like land or chattel, there is no need for anyone to come into your presence (or the presence of the intangible thing you possess) to take the object away from you. Through the logic of the claims, patents give ownership rights over an entire category of things and because of this, a transferal of ownership also can occur at a “distance” in the sense that you may not even know that it has been removed. In this case, however, this is a bit different from inventors who may simply have forgotten that they signed away their inventions in employment contracts or patent assignment contracts.

In order to prove a product infringes a patent, and in contrast to copyright, there is no need to prove that its maker had “access” to the original in the United States.72 That is to say,

72 For a hypothetical example of how copyright is different, think of the proverbial 12 immortal monkeys locked away in a cave with typewriters. Given an infinite period of time, those monkeys will have typed up, in the exact word order and formatting, the first book of J.K. Rowling's Harry Potter. As long as this book came out prior to the 70th year following her death, Rowling's estate (or her publisher, depending on who held the copyright) could sue for copyright infringement. Even though the book is exactly the same as Rowling's first blockbuster, because 182 that there is no necessary connection between copying and patent infringement. If I have a patent in the United States and did not choose to patent it in Taiwan, then there is no reason why someone else cannot deliberately read my patent, learn from it how to make the thing, and produce and sell it anywhere I do not have a patent. There is not only nothing wrong with this, but the idea of spreading more immediate learning about the patented technology exactly through the vehicle of the patent itself is an integral part of the justification for the patent system. This type of copying, as well as copying after the patent has expired, was a part of the design of the system, not an infringement of the property rights it offers. On the other hand, if I patented my technology in both the US and Taiwan and you, without any knowledge of my patent, also come to the same technical solution, I can sue you for infringement with goods odds of success even though you knew nothing of my ownership claims. Not knowing does not protect you from infringement claims.73 To be found infringing a patent, and therefore to be dispossessed of your own use of that technical capability, there is no requirement that you were ever in the presence of the original. In such a case, while I may have found the solution first, your solution is no less

“new” to you (and probably to much of the rest of the industry). You know the solution no less than I do. But because I have a patent on it, I can prevent you from using it. Thus, while allegations of copying may be essential rhetoric for press releases these days, patents stake claims to technical knowledge without regard to it.

the monkeys never had access to the original, it is an independent creation and therefore cannot be found to infringe her copyrights. Copyright infringement requires copying in a way that patents do not. As such, for you to be dispossessed of your writing, you would have to have come into the presence of the copyrighted work that the owner claims you've infringed. Despite its more global reach, copyright does not work “at a distance.” The question of whether or not it could, itself claim a competing, identical copyright is somewhat more murky (not least because these are monkey authors)—although there is no examination requirement prior to gaining a copyright (it requires only that the work taken on “Written” form), there is, presumably a requirement that only “new” works could actually enforce that right. 73 It does, however, prevent you from being called a willful infringer and having to pay treble damages—one reason why many people I interviewed purposely did not read patents in their direct area. 183

Moreover, there is nothing about the technology that tells you it is already owned and nothing about the owned knowledge that would tell the owner it has been “stolen.” Beyond doing exhaustive searches of patents in the patent office databases of every country in which you desire to produce, import, sell, or offer your product for sale, there is no way to know if some part of what you want to produce is not already owned by someone else. There can be no “no trespassing” signs here. You may be dispossessed of knowledge assets that you researched on your own, the same as me, just because I did it earlier and successfully claimed it through the patent office first. Chances are, you don't even know that what you thought you had invented was already owned, until (and unless) I sue you for infringement.

While I was in the Company there were several cases where they filed a patent application only to find that another company had filed just before them. Since the earlier application was not filed more than 18 months before the Company's, the prior application had still not been made public and they had no way of knowing. In these cases, the priority goes to the earlier application and the Company's patent engineer must attempt to save what can be saved by finding something that the Company's application disclosed, but the earlier applicant did not. Since the new bar for patentability now includes a very similar patent, the patent engineer must reconstruct severely limited claims to ownership of only those details of particular embodiments that still distinguish it from the other application.

Where in delayed dispossession, the focus was on dispossession occurring within companies, dispossession at a distance highlights the fact that for patents, claims to ownership are made to governments rather than to potential counterclaimants. Unlike the act of fencing off the

Commons, there are no physical assertions of ownership and thus also no easy (legal or illegal) ways for neighbors to dispute the claims (cf. Hofmeyer 1993). In this sense, the granting of a

184 patent not only involves a process of dispossession from the engineers that created the properties in the lab, but also from anyone who figures out the “same” (given its diversification and genericization in the form it takes in the patent) effect within the monopoly period of the patent.

The patenting of the technical knowledge of a company's engineers or factory workers not only removes the knowledge from their control (and, eventually from their use), it also removes it from everyone else in the countries in which a patent was issued.74 The fact that it works at a distance is one of the primary benefits of patents over other ways of controlling knowledge that remains embedded in materials, machines, and employee-engineers. Preventing an employee from leaving the company through non-compete clauses in employment contracts or from revealing secrets through non-disclosure contracts may stop leaks, but neither provides any control over the chance that some other company comes up with the same idea on their own.

Patents thus extend the advantage (and profit) a technological advance gives to a company beyond the eventual return of technological parity; as other companies catch up in their technical capacities they continue to be blocked by legal means from direct competition. Patents recreate technical knowledge as a commodity that, itself, and not just the products produced with its knowledge can be bought and sold, licensed and refused license. In essence, patents construct the means of ownership itself as an alienable commodity, one that can be accumulated apart from

74 Some might protest this point due to my failure to privilege time. I suggest that a first inventor obtaining a patent dispossesses a later inventor of something that, by the fact of being later, she could not yet have even possessed. In effect, one might argue that no dispossession occurs so long as the requirements for patents being “new inventions” are adhered to. I suggest, however, that no matter when the non-patent-holder acquires this technical capacity, it is no less their technical capacity than it is that of the patent holder. Regardless of when she learned it, the other owns a patent that covers her knowledge and while the patent cannot force her to forget it, the paten owner can sue to stop her from practicing it. A somewhat less controversial example of this dispossession is the fact that anyone who first invented the technical capacity, but kept it secret by not filing for a patent (as Coca-cola has done for their recipe) would also have been dispossessed of this capacity by the issuing of a patent to the first inventor to file. 185 factories and production. In this process of construction, patents are also born of and enable dispossession at a variety of levels. As discussed by David Harvey (2003) and others this sort of dispossession is not a precursor to capitalism that has now disappeared, but rather is an integral part of how capitalism operates in practice: creating (through extra-economic means) “new” commodities that enable value to continue to be accumulated in ways that enable control over the production of (present and future) surplus value. What is critical here is that the particular sorts of dispossession enabled by patents produce globalization in the forms we see it today precisely through their ability to work at great distances in time and space from the objects and people they provide a measure of control over.

Patents, here, are implicated not so much in expanding the scope of capitalism or the amount of resources available to capital (as in enclosures of the Commons), but rather in enabling the consolidation of those resources and control over them. Their creation of alienable commodities from embedded technical capacities is the first step of a legal dispossession of skills from the personal possession of employees to the ownership of the companies in which they work. While from the outside, the company stands as a single legal person and the patent a piece of private property, from the inside, the company is a corporate group and dispossession is only final when either the patent or the engineer leaves it. Patents here give additional control over the skills of labor to a company above and beyond its existing control through wage and employment contracts.

Beyond the relations of control within individual companies, patents are also instruments to control competition that have allowed for the creation and maintenance of a global division of labor in the LED industry between the Big 5 who design products and control the lion's share of profit, and the rest, who must work with low end products or as

186 contract manufacturers. Working at a distance, patents enable the dispossession not just of the skills of those engineers in the patent owning company or of any contract manufacturer who produces the product for the patent owner, but also of that technical capacity as a whole, even if independently invented. It is to some of the ramifications of these sorts of dispossession that we will turn in the next chapter by enlarging our focus from the production of a single patent to the construction and deployment of portfolios of patents within the LED industry.

187

Chapter 5:

Property as Weapon:

The Philips-Epistar Patented Infringement Case

In November 2005, Philips Lumileds (hereafter, Philips), a US subsidiary of the Dutch lighting and electronics company, sued Epistar Corporation (Epistar) and United Epitaxy Corporation

(UEC), two Taiwanese LED chip manufacturers, in the United States International Trade

Commission (ITC).75 Before the beginning of the ITC hearing, Epistar and UEC completed a complicated three company merger76 leaving only “new” Epistar to respond in court. Over the course of the investigation, Philips would eventually allege that 6 lines of Epistar's LED products each infringed at least one of the claims in 3 of Philips' patents. By August 2007, the

Administrative Law Judge presiding over the investigation at the ITC found that 2 of these 6 lines of Epistar products had infringed two claims of only one of Philips' asserted patents, here referred to as the '718 patent.77 Based on the judge's recommendation, the ITC issued an order

(to be signed by President Bush) to prevent any of these products from being imported into the

United States. In August 2009, after an appeal to the United States Court of Appeals for the

Federal Circuit (CAFC) that both Epistar and Philips claimed to have won—and which sent the

75 The investigation was titled “In the Matter of Certain High-Brightness Light-Emitting Diodes and Products Containing Same, Investigation No. 337-TA-556” and there were originally three patents involved including and US 5,376,580, US 5,502,316, and US 5,008,718 (in this paper known as “the '718 patent”). 76 The third mergant, South Epitaxy/Epitech, was not named in the suit. 77 He thus also found that four of Epistar's other product lines infringed no asserted patents and that even these two lines that were found as infringing did not infringe either any of the claims in the other two patents or any of the other 12 more specific claims of the infringed patent. To win on infringement you really need win on only a single claim. To defend successfully you have to score a shutout. 188 case back to the ITC to (re)consider several key issues78—the two companies reached a settlement agreement. While the terms of the agreement were not made public, it included a license allowing Epistar to legally produce and import its potentially “infringing” products to the

United States. The '718 patent that Epistar was found to have infringed prior to the Appeal actually expired at the end of that year in December 2009.

All of the products that Philips had accused of infringement in this case were High

Brightness LEDs (HB LEDs) emitting in the red, orange, and yellow wavelength range. As I will discuss in Chapter 7, the move towards higher brightness products was a critical one both for individual companies and for the industry as a whole. For the industry, along with the race toward the production of blue light emitting materials, the shift toward high brightness meant becoming “Greener”: it enabled the replacement of an increasing range of existing, less efficient, lighting technologies. While Taiwanese companies had already made a dent in markets for HB

Blue LEDs by the turn of the century, their longer experience with red, orange, and yellow materials meant that the center of global production79 for these had already shifted significantly toward Taiwan. For individual companies, like Philips, Epistar, and UEC, developing high brightness products meant moving into more specialized markets with, as yet, fewer competitors

78 In May 2009, the Court of Appeals for the Federal Circuit (Judge Rader writing the opinion with Judges Archer and Dyk joining him) issued a ruling that affirmed-in-part (on claim construction) and reversed-in-part (on Epistar being estopped from arguing the '718 as invalid and on the inclusion of Epistar's clients in the exclusion order) the original ITC ruling and remanded the case back to the ITC for further (re)consideration of the issues and a new ruling. The affirmation of the judge's claim construction meant that the basis for the earlier infringement analysis remained and, therefore, the infringement finding would most likely be upheld (a “win” for Philips). The two reversals, however, were significant “wins” for Epistar. The first gave them the chance to challenge the validity of the '718 patent. If they could argue the patent should never have been issued in the first place (for instance, that it was not novel and obvious at the time of its invention), the patent claims in question would be rendered useless (not just for use against Epistar, but for use against anyone) and the infringement analysis would no longer matter. The second reversal on the exclusion order meant that while Epistar would be prevented from importing any of the infringing products, Philips would need to sue Epistar's customers in a separate action in order to prevent them from importing products containing Epistar's chips. This severely limited the power of the “damages” Philips could inflict on Epistar's bottom line by protecting Epistar's customers from the impact if the remanded case is still decided against Epistar. 79 In terms of value (if not volume). 189 and higher profit margins. The sooner one entered, the longer one could reap those additional profits.

Though press releases on both sides extolled the importance of “innovation” to the company authoring each release, it should be clear that the stakes were set first and foremost on the grounds of market competition over tangible products. For Philips, this lawsuit was an essential part of protecting their market share from the advances of two Taiwanese companies who had recently also become the third and fourth leading producers of HB LEDs worldwide.80

No matter their release language, lawsuits are rarely launched merely to protest “copying” or

“stealing,” but rather to protect or gain a substantial economic advantage; they are simply too expensive, especially for companies fighting from overseas in the United States, for pride alone.

As a Taiwanese LED manager told me:

No matter if we're talking the lawsuit fees or the lawyer fees, both are expensive. I remember hearing that in the [recent] past, at least as Taiwanese say, to litigate a patent lawsuit in the United States they say if you aim [only] for a draw, only to fight until its even, then you need about 4 million USD. If you actually want to try to win, well, that'll cost you 8 million. There's a price for everything. If you want to fight just enough not to be deliberately screwed then you maybe can do it for only about a million. But the thing is that kind of money means that your company in the meantime...well not every company can afford that.” (Dr. Blue, RD management, the Company)

Infringement in Writing

The hearing for the case was held August 2nd through the 11th of 2006. In the excerpt from

August 7th below, Epistar's President, BJ Lee, is questioned by his own company's lawyer, Yitai

Hu. Though there is considerable technical jargon in this section, what is important for us is that

80 In 2004 and 2005, Taiwan's LED industry held a 12 percent share of the global market with its total production value (though not volume) putting Taiwan (excluding off-shore, ie. China-based production) in third place in the world (according to Taiwan's Executive Yuan's Council for Economic Planning and Development's 2006 “Taiwan Statistical Data Book 2006” 2007). By 2006 and 2007, its share had risen to around 16 percent (again, by production value) and had risen to second in the world (“Taiwan Statistical Data Book 2008” 2009). 190 the two are sketching out, in a particular way, an account of the

“invention” of the use of ITO (indium tin oxide) on an LED.

The ITO layer on Epistar's products was at the heart of the infringement case that Philips was trying to make. The example gives us an opportunity to explore what sort of “tool,” “tactic,” or “weapon” patents actually are. Philips needed to convince the judge that this ITO layer was simply a technical variation on their own '718 patent's “transparent semiconductor window layer.” To prove infringement,

Philips had to link the specific words of their property claims as written in their patent to the tangible particulars of

Epistar's products. Epistar, of course, wanted to prevent this link from sticking. The differences between these two arguments are also illustrated in Figure 5.1.

Q. Now, during your research of the ITO over the AlInGaP LED device, were you aware of any other publications or patents directed to a window layer on top of an AlInGaP device? Lee: Yes. Q: Can you describe them for us? Lee: In 1994, there were two Figure 5.1: Philips’ (above) and Epistar’s commercially applicable products (Below) Arguments over the ‘718 Patent for this AlInGaP LED, one from (Figures by the Author). Hewlett-Packard [, now Philips- Lumileds], one from . They all used the window layer to solve the current crowding problem. Q: Now, if we look here at your [journal] article, on the right-hand column, the first page, about seven lines up, you talked about a thick aluminum gallium arsenide layer, do you see that? It says, “Therefore, employing a thick AlGaAs [Solution 1] or a wide gap GaP layer [Solution 2] to act as

191

the current spreader or window layer for the LEDs has been proposed.” Do you see that? Lee: Yes. Q: Who proposed [Solution 1,] the AlGaAs as the current spreader or window layer? Lee: Toshiba. Q: And who proposed [Solution 2,] the wide gap gallium phosphide layer? Lee: Hewlett-Packard. Q: Now, did you follow either method when you were doing your research on the AlInGaP LED device? Lee: No. Q: Why not? Lee: ITRI [, the Taiwanese organization where I worked at the time and who sold the patent to Epistar,] has to invent their own way or own IP rights to solve their problems, and also, especially [so for] the gallium phosphide layer mentioned here, they have to grow around 50 microns, 50, and if we use MOVPE [, our machine,] to grow that, that would take 20 hours to grow. It’s not feasible, so it was not our selection at that time. Q: Why did it take that long? Lee: Because MOVPE usually has very good characteristics [in] that it can have [fine] thickness control, but when you have [fine] thickness control, usually you have a problem that the growth rate will be low, so usually, when it grows two to three microns [at a time, then...] —so if you wanted to grow 50 microns, that would take too long. Q: So what was your solution? Lee: That’s why we invented [ITO,] the indium tin oxide, to solve this problem that other people had. (ITC Investigation No. 337-TA-556, August 7, 2006, No. 295481-260072, Pp. 960-963.)

In this excerpt, then, Mr. Hu directs Dr. Lee in portraying ITO not as a simple variation of Philips' invention, but as a distinct method of solving what happens to be a similar technical problem.81 Not only, he says, is the ITO solution distinguishable from Philips' solution, but it is actually one of three technical solutions that were available at that time (circa the early 1990s).

These three different technical moves were solutions to two of the critical roadblocks toward producing HB LEDs: spreading the electrical current that entered the device and extracting from the device more of the light the current produced. Moreover, to emphasize the incompatibility of,

81 I have edited this quote a bit to increase its readability. Hewlett-Packard's LED division (along with its patents) eventually became Philips-Lumileds through a series of spin-offs and mergers. 192 at least, Epistar's and Philips' approaches, Dr. Lee explains that Epistar could not have used

Philips' approach even if it hadn't been patented. The ITO approach made sense for Epistar because of the peculiarities of the machines that Epistar used (but Philips did not) in its production lines. In fact, well before the trial Epistar was granted a patent of their own on their

ITO solution (US 5,481,122). The USPTO, thus, backed their claim to an innovative step beyond

(if not beside) the set of previously public knowledge it maintained, presumably including the

Philips' '718 patent.

In short, Lee and Hu suggest that the three solutions are all equal and distinct. Not only is one not the derivative of the other, but they are technologically embedded in incommensurable machine-material systems. These systems require different solutions even if they solve parallel problems. As such it makes no sense to say that one solution fits within the range or scope of the knowledge supplied by the other or, thus, the range claimed as property in a patent on another particular solution.

This particular exchange was not the only one in the Hearing concerning ITO. It was, however, one of the only unredacted portions82 that focused on the connection between the various solutions and the separate machine-material systems each company used. The other exchanges about ITO focused more on issues of semantics, issues that turned out to be much more significant. While patents may be about claiming technology, in court (no matter

Taiwanese, US Federal, or the US ITC court), the key is not the technology in any sort of material sense, but rather the particular way that that technology was written in the patent.

82 Large portions of the testimony pertaining to the comparison of the patent to the particular processes and structures of the accused products or pertaining to company profits, production costs, and contract details were not made public as either Epistar or Philips claimed their publication would endanger trade secrets. Some portions of these technical descriptions even required representatives from Philips or Epistar themselves to leave the room, leaving only the lawyers and the Administrative Law Judge to argue and hear the case. 193

Though they begin and end with actual (often) tangible products and processes, as I have explained, a patent, and therefore infringement, is more about the logics of the writing than the logistics of problems and material solutions.

Deployments

This case helps to illustrate three main points for us about this particular type of property and about its deployment within an industry that I will expand on below. While practitioners may find these points fairly obvious, patents are commonly misunderstood and, perhaps as commonly, misrepresented even by companies with frequent dealings in them. First, patents can only prevent production, never enable it. Second, patents have everything to do with the logics of the law and little to do with that of the lab. Third, patents are a potent tool or weapon for preventing new entrants from challenging already established players. Taken together, these properties of this sort of intangible property have separated the LED industry into a set of five large powerful players and a set of smaller players focused on creating and maintaining alliances and OEM contracts with them.

Rights

First, Epistar was found to infringe a patent in spite of the fact that they owned a patent on the LED structure that they had produced. This reminds us that patents give only negative rights, the right to exclude others from producing, selling, offering for sale, or importing any covered item (or the result of any covered process). They do not provide any positive rights to actually produce or practice the invention yourself. Even as Epistar was found to have infringed 194

Philips' patent, Epistar could still use its own patent concerning ITO to prevent others, including

Philips, from using it. As the judge determined, they themselves could not, however, produce the structure described in their patent themselves without infringing Philips' broader, earlier ownership rights. Though companies often advertise the patents that protect their products, in part due to patents' assumed connection to innovation, having these patents does not mean that the products may not also be infringing on others' patents. Companies that buy such products and resell them (no matter that the buying company may have modified or incorporated them into their own products) they, as much as the original manufacturer can be sued for infringement.

Thus while some patents may be equal and distinct, others are deemed to be improvements on and within the scope of previously existing patents. I will explore these relationships between patents in more detail in Chapter 6.

Most importantly, however, the original infringement ruling shows that Epistar was being prevented from practicing something that not only did they have the technical capacity to practice, but that they had “improved” to work on a completely different set of machines. Patents are a legal method of maintaining a technical advantage beyond the time when, on technical grounds, that advantage has long gone. In effect, patents slow down the entrance of new companies into a product area, slowing down the competition to the bottom in terms of prices that turns anthropological commodities into business's “mere commodities.”

Most Taiwanese I spoke to recognized and understood this competitive aspect quite clearly. For them, whatever patents may or may not have to do with innovation, they were primarily weapons used to attack competitors and prevent later-comers from catching up (even if these later comers performed better). Equally so, by building up a large cache of them, patents can also be defensive weapons that may serve to deter infringement lawsuits, induce cross-

195 licensing agreements, or force competitors that do chose to sue to sit down to negotiate a settlement more quickly. This was what the Company was trying to build up.

Words

Second, on words, the law, and the lab. Despite Epistar's attempt to explain the embeddedness of technology in materials and material processes, the case was decided largely on the basis of definitions of terms in the patent. Although the hearing was the first time that the judge was presented with actual evidence of infringement and non-infringement, the grounds for that decision were set much earlier. For more than six months, the two sides fought through , official motions, and counter motions over evidence gathering and interviews with relevant parties,83 over who could be expert witnesses and what they would be “experts” in, and, perhaps most importantly, over “claim construction:” the process whereby each of the terms of the patents are defined in detail. Prior to the hearing, all sides (Epistar, Philips, and the

Commission itself)84 submitted and argued for their partisan definitions of the critical terms in the patents' claims. The critical clause of the main independent claim asserted in the '718 patent, for instance limited Philips' ownership to LED structures that also had “a transparent window

83 In addition to fighting over depositions (the people who would be deposed, when they would be deposed, and what questions they would have to answer), the two sides also fought over discovery, the US court practice that allows accusers to compel defendants to produce certain kinds of evidence (and that allows defendants to compel the accusers as well). 84 One of the strange things about a court case at the ITC is that it is not adversarial in the sense of a traditional American court in the judicial branch of government. Technically, Philips requested that the ITC conduct its own investigation of the import into the United States of products alleged to infringe its patents. While as in a Federal District court case both Philips and Epistar constantly filed and responded to opposing motions, prepared briefs, hired expert witnesses, conducted (and delayed) interviews and discovery, and asked questions of witnesses during the Hearing, in the ITC, so too do representatives of the commission itself. For example, prior to evaluating whether Epistar's product lines fit within the scope of property defined by the language in the claims of Philips' patents, the court had to decide on the meaning of each of the key terms in those claims. In gathering together the opposing sides' views on how to construe these claims, three different versions with accompanying arguments were submitted: one each from Philips, Epistar, and the Commission's own investigators. 196 layer of semiconductor different from AlGaInP over the active layers and having a bandgap greater than the bandgap of the active layers and a resistivity lower than the active layers.”

Epistar wanted definitions of “semiconductor,” “transparent window layer,” and “different from

AlGaInP” that would be too narrow to include its products, while Philips wanted ones wide enough to place Epistar's products squarely in its scope. They each pulled differently on an assortment of common technical uses of such terms (from the time of the invention rather than the time of the trial) and their use in the rest of the patent. The judge then issued a ruling on which ones would be binding for the hearing. This pre-hearing claim construction determined the definitions of terms like “semiconductor” that would later be essential for the semantic arguments around ITO at the hearing. Expert witnesses from both sides then presented opposite opinions (both in written briefs and in in-person testimony) as to whether ITO should be considered a “semiconductor” or not.

In addition to its machine-material system difference argument and its definitional argument that ITO was more properly a “metal-oxide” or a “semi-metal” rather than a

“semiconductor,” Epistar also argued that Philips' own application for the '718 patent explicitly showed that its inventors had considered and rejected using ITO as their “semiconductor window layer” at the time of their patent application:

The ‘718 patent concerns a particular type of light-emitting diode (LED) which attempts to solve an LED problem known as “current-crowding,” wherein the LED generates most of its light behind an opaque electrical conduct. According to the patent, transparent indium-tin oxide (ITO) contacts did not solve the current- crowding problem because current was not spread through the LED properly. The claimed invention solves the problem by using a “window layer” in the LED that has better conductivity and lower resistivity” (Dulles 2009; see also US Patent 5008718, Background Section of the Specification, paragraphs 3-6.).

197

The '718 patent, it turns out, actually did refer to ITO, just not as a part of its own invention. ITO instead figured in as part of the “prior art” LED structures whose failure to solve the current crowding problem led HP (Philips) to invent its own window layer solution. By saying in its patent that ITO solutions had “shortcomings” and “were not completely satisfactory”85 because of their high electrical resistivity, Epistar argued that HP clearly did not think of an ITO window layer as a part of their invention at the time of the invention. When the case was appealed to the

CAFC, however, the court determined that such language within the patent (and the absence of any other mention of ITO as a part of the invention) were not explicit enough to count as a renunciation of the right to claim ITO within their claim scope. Without a direct, word-for-word, renunciation, the court decided that the logic of the claims themselves should stand.86

The problem for Epistar was that ITO, at the time of the '718 patent's invention, had a high electrical resistivity due to the way that it was being formed as an electrical contact at that time. This high resistivity, indeed, would have kept ITO out of the scope of the '718 patent's claims. However, in the time since the '718 patent was issued, Epistar (actually ITRI) in its own

'122 patent had discovered a new way of forming ITO on an LED structure which significantly

85 US Patent 5,008,718, Specification, Background of the Invention, Paragraphs 5 and 6. 86 This decision is one of the key ways that the case has been cited in legal literature and later law cases. Epistar v. ITC is seen as an example of the height of the legal standard that must be met for a patent applicant to narrow or hollow out the range of things that they claim in their patent. Epistar claimed that Philips' own application for the key patent in the suit (the “'718 patent”) had effectively disavowed ownership over exactly the structure that Epistar had used in its product. As I will explain below, the case as a whole came to hinge on this particular structure, its material properties, and most importantly the words that could (or actually were) used to describe them. Specifically, Epistar had used a layer of ITO, indium tin oxide, above the light producing layers in two of its LED product lines. Countering Epistar's argument, Philips argued that regardless of its disparaging mention of the use of ITO in its patent application, the scope of its claims still encompassed Epistar's use of it. That is, Philips claimed it still “owned” structures making use of ITO, at least in so far as patents provide “ownership” rights to anything. In its “affirmed-in-part, reversed-in-part, and remanded” decision, the CAFC held that: “Mere criticism of a particular embodiment encompassed in the plain meaning of a claim term is not sufficient to rise to the level of clear disavowal. Epistar Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1335 (Fed. Cir. 2009) (holding that even a direct criticism of a particular technique did not rise to the level of clear disavowal)” (Thorner v. Computer Entertainment America LLC, No. 11-1114 (Fed. Cir. Feb. 1, 2012)). 198 lowered its resistivity and, as a result, placed it within the scope of the '718 patent well-after-the- fact.87

Well-written patents give their owner rights even over things that they had not yet invented. Winning in court is, therefore, definitely about technology and material properties, but only in a very specific, time sensitive sense. While some aspects of the case depend on definitions of technology frozen at the time of the invention, other aspects, like the definition of

ITO's resistivity or of a “semiconductor” are assumed to be universal qualities of materials and therefore not subject to evaluation in terms of time or situation. The fact that well-written broad claims can lay stake to technology that did not even exist at the time of the patent application is precisely what made the '718 patent so valuable some 19 years later. This is also the part that made many of my Taiwanese engineering informants upset about the case:

The way the game is set up today it has become a game of lawyers. Because I have more money than you, I can get a better lawyer, or I can write a better patent with better, broader claims, then I will win. I mean look, its just that the early idea [of a patent] should really be so simple, so innocent. You're an inventor. Good. You grow a new chip like this. Good. This is really understandable. You let everyone come over to see it. Basically you copy it to let all of us see it, you even hope that everyone comes to look. This [tangible thing] is what you invented. Then you point out how this is different from that earlier one, and you show how this difference counts as an advancement, that it made an inventive step, so therefore you have not infringed his. This is not the same as his. This logic still seems fair to me. [It shouldn't matter how you write it up]. But right now there seems to be no way to get back to this way of doing patents. Now he sues...maybe he's not even suing to say, your thing and his thing are similar. No, he sues you saying, look, right here, there is a little here. And look, yours has a screw too! Patents are now always about such little details, right? Because now there's no other way, [it is how the game is set up]. But now look at how it is, even some tiny alterations to the shape of a rectangular plastic

87 Given the CAFC's inclusion of ITO within the realm of the patent's scope as well as the clear evidence in the patent that, at the time of the invention, the inventors did not know much less disclose in the patent how to make ITO with low resistivity, it is worth wondering whether a “Written Description” or “Enablement” invalidity defense might have succeeded. The argument would have been that the '718 patent claimed significantly more than its disclosure enabled (or that it failed to adequately describe a representative portion of the technology that it claimed). Epistar never presented an invalidity case during the original trial, however, and the parties settled before such a case was considered in the remanded trial. 199

housing for an LED, there might be hundreds of patents on all of these. Even thousands of patents that have something to do with the shape of a plastic corner. Speaking to the heart of it, though, theory is theory. That's all. In real practice it is already merely another tool given to companies, industries. There's no need to speak so elegantly (崇高) of it [in terms of “innovation”], patents really are just a tool provided by the government for industry to use for profit. If you use it well, then you make more money. If you aren't as good at using it, then you will end up losing money. Moreover, every one can play, but by these game rules. That is to say, he's not afraid and you know it, but this is how the game's rules are written. If you want to play you'll just have to do it like this. (Dr. Blue, RD management, the Company)

Weapons

Lastly, the Philips-Epistar case was just one of a whole wave of lawsuits that have aggressively shaped and continue to shape the LED industry's global structure.

This particular case was not even the first encounter between Philips and UEC or between Philips and Epistar. In fact, the

Figure 5.2: Philips versus Epistar and UEC Lawsuit History entity that would later become Philips- (Figure by the Author). Lumileds88 had not only separately sued

UEC (in 1999, settled in 2001) and Epistar (in 2003, settled in 2004) before, but had sued them over the same '718 patent at issue in this current case.89 Cases like these pitted companies with

88 During the UEC case, these patents were owned by Hewlett-Packard, the company that the patent's inventors had worked for at the time of their invention. By the time of the Epistar case, Hewlett-Packard had already spun-off that part of itself first as a joint venture with Agilent and then completely as its own company. Epistar was therefore sued by Lumileds Lighting U.X. LLC, a company that was then bought by Philips following the resolution of the case. For the UEC case see United Epitaxy Co. v. Hewlett-Packard Co., No. C-00-2518-CW (N.D.Cal. Sept. 7, 1999). For the Epistar case see Lumileds Lighting U.X., LLC v. Epistar Corp., No. C-03-1130- CW (N.D.Cal. Jan. 10, 2003). 89 This case gave the US Federal Circuit its current precedent on which contract controls when two companies, both 200 large portfolios of key patents against up and coming companies with fewer patents and many fewer patents over basic technologies. Philips was able to use its patent to preserve a technological advantage that it had, or rather that Hewlett Packard had, over Epistar, or rather

ITRI, from 1990 to roughly 1994. As we saw above, though Epistar had not only “caught up” technologically to HP's 1990 technology by 1994, but also had advanced past it to the point of meriting its own patent, Epistar's patent gave them no positive rights to produce that product, only negative rights to prevent someone else (including Philips/HP) from producing it. This is precisely what makes patents weapons. They do not enable owners, rather can only block others.

Following such lawsuits, the only way that companies like Epistar or UEC could produce what they had learned to produce was by doing it for one of the big patent holding companies as a contract or OEM manufacturer. While Epistar and UEC were the only Taiwanese companies sued in these instances, it is fair to assume that others received cease and desist letters, but chose instead to leave those markets or enter into contract production agreements. While window layers were one area of strength for Philips, the other big LED companies also had their key

of whom have licenses with the same third company, merge together. In its settlement, UEC received a license to produce its infringing products and signed a covenant not to challenge the validity of the HP (Philips) patents they had received a license for. Epistar's separate license with Lumileds (Philips) expressly reserved the right to challenge the validity of those same patents should Philips later sue for infringement. During the ITC investigation Philips successfully argued that (new) Epistar should be bound by UEC's restrictive settlement and covenant not to mount an invalidity defense. On appeal, the CAFC held that Epistar's merger with UEC could not remove its own expressly reserved right, at least in so far as infringement claims were asserted against products that had been produced by old Epistar. [The original Epistar-Philips license also did not institute any restrictions on invalidity challenges based on products not specified in that case. In the CAFC's opinion, the majority reiterated that this meant Epistar had reserved a right to challenge invalidity on the basis of later acquired products, exactly the situation with the product lines it had inherited from its merger with UEC. This additional reserved right clashed with Epistar's inheritance of UEC's agreement not to challenge validity in any court action based on its own products (and its successors), but because (old) Epistar's own products were also at issue the court ruled that Epistar could proceed with a challenge to the validity of Philips' patent based on its own accused products (Epistar Corporation v. International Trade Commission, 566 F.3d 1321, 1333 (Fed. Cir. 2009)).] In part because of this ruling, the CAFC remanded the case back to the ITC to allow Epistar to argue that the '718 patent should not have been issued and therefore could not have been infringed. It is safe to assume that this decision to allow Epistar to challenge what was an important patent for Philips' licensing revenue was a part of what drove Philips (and Epistar) to settle the case after nearly 4 years of litigation.

201 areas and would pursue companies that threatened their sales with lower priced versions.

Without a license the Company could not sell any of those products under its own name.

Moreover, at the time, licensing agreements, even expensive licensing agreements, were nearly impossible to come by without a significant patent portfolio of one's own that might force the big companies to the negotiating table. I will return to explore the creation of such portfolios in the next chapter.90

When you hear of a new patent, I suggest that it is best (both analytically and practically) to think of it first as my informants did: in terms of competitive tactics, tools, and weaponry rather than innovation. This metaphor of property as a weapon or tool is one of the dominant metaphors in Taiwan in part precisely because of Taiwan's Figure 5.3: Lawsuits filed by Epistar against Taiwanese Firms (Figure by the Author). longer term position on the receiving end of lawsuits.

The metaphor seems quite apt as well, well fitted for patent's business environment of ever changing global structures of competition and cooperation. In recent years, Epistar and other companies who used to be primarily on the receiving end of lawsuits have, themselves, begun to wield patent portfolios against established players as well as against smaller and less established companies than they. At least in the case of the Epistar lawsuit against Huga Optoelectronics, the settlement led to an investment in Huga by Epistar and, eventually, to Epistar buying Huga outright to manufacture Epistar's lower end products.

90 Philips did not enter into cross-licensing agreements even with Osram or Cree until the mid-2000s. 202

The Law as a Weapon

One of the key contributions of legal anthropology to our understanding of law, legal structures, and legal actors has been its insistence on evaluating rather than assuming the “fairness” or

“neutrality” of the law. The development of an understanding of law as a tool or weapon of the powerful in a great diversity of situations has been a critical rejoinder to a tendency by many judges, lawyers, and often the general public to see law as a neutral set of rules built on logic that simply need to be applied in any particular dispute to enable justice to prevail. This even in the face of widespread recognition of partisan political divisions among those political representatives whose power plays are exactly what makes laws in a democracy. Law can be deployed as a weapon in several quite different ways. For context, I will suggest three of these here.91 First, its enactment itself can be seen as a deployment (or as the result of deployments) to defend the interests of those in or with power. This has been useful in providing a quite different perspective from which to approach “tradition,” laws, and cultural norms in a wide variety of state and non-state societies. It has also been a very useful perspective for analyzing the spread of formal intellectual property laws from England and Continental Europe to the United States and onward around the world. As such laws inherently favored those companies, countries, industries, and individuals who already possessed IP assets, their enactment in new places, like

Taiwan and China, can be understood as weapons that served to reinforce existing technological and economic power structures. Second, law can be deployed as a weapon in the sense that individuals may call upon different laws (both in the sense of different statutes as well as in the sense of different local, regional, national, and international law) to legitimize or de-legitimize

91 See also Comaroff 2001 on “lawfare.” 203 particular behaviors. In Taiwan, this approach has been taken up, for instance, in Simon and

Mona's (2015) discussion of how indigenous hunters (as well as those opposed to their hunting) themselves practice law by navigating a complex overlapping set of conservation and indigenous rights law at both the national and international levels to further their cause. Explorations of such legal pluralism and the negotiations between and among such different Laws both by actors from a variety of publics as well as by the judges, lawyers, and politicians have proved an abundant locus for recent anthropological interventions.92

In this chapter as much as in the dissertation as a whole, however, I focus instead on a third way that the law can be seen as (or deployed as) a weapon. Beyond the statutory laws that create and govern the possibility of owning intellectual “property,” are the multitude of instances where each piece of intangible knowledge is claimed as property and, as a result of or in the process of such claims, is asserted against someone who may also have been using that knowledge. In the Philips-Epistar case we see that the sorts of translations and negotiations described in earlier chapters can create a weapon enabling a particular sort of stoppage. By successfully threatening to have a large portion of Epistar's products banned from import into the

United States, and despite the fact that the CAFC ruled that such a ban could only apply to

Epistar and not to Epistar's customers' own importation of products containing the accused

Epistar chips (without also suing them), Philips was able to push Epistar to agree to a settlement and, most likely, an agreement to continue to serve as a contract or OEM producer rather than as

Philips' direct competitor. I see this focus on the practice of property and on the people who practice it as one of the key contributions that legal anthropology brings to our understanding of the relatively recent and dramatic expansion of a diversity of intellectual property regimes.

92 See also Simon 2013. 204

Given the circumstances of the Philips-Epistar case as presented here, I hope the weapon metaphor seems particularly apt. If we step back from the context of this case, however, and remember the patent system's justification in terms of innovation and its oft presumed

“naturalness” as just another kind of property, it may suddenly sound somewhat stranger. Is this weapon-like characteristic unique to patents? Why do we not commonly speak of property in land, for instance, as a weapon? Certainly, it has been wielded as such. The issuance of certificates of property and of laws mandating that such government-issued certificates prevail over other traditional claims to property or even long term occupancy and use of land was one such effective use of property as a weapon of eviction and dispossession (often a tool of colonial governments). But while this is thus a possible metaphor, the metaphor's effective life, in the case of land, lies at the beginnings of new property regimes (or the clash between regimes) much less than in the “normal run” of such systems (but see recent work on accumulation by dispossession as an integral part of ongoing capitalism). In part, this is because of the irreducible connection between intangible property rights in land and the land itself as a tangible thing. This means that acts against claimed land are also acts against claims to property and vice versa.

Patents, on the other hand, lay claim to objects well beyond the possible limits of the claimer's possession. If, like copyrights, a patent only gave rights over particular manifestations of an idea and derivations directly from it, then they would cover only copying. Patents' strength as a weapon for competition, however, lies precisely in the fact that they also lay claim to both independently produced (“re”)-inventions and, provided the patent is well written and the court sympathetic to a particular interpretation of its claims, to different, later invented, but somewhat parallel solutions to the same universal technical problems. A structure patent might even lay claim to a solution of a completely different problem that happens to have solved it using such a

205 parallel structure. The mere protection of “invention” need not protect against another party who equally, albeit at a distinct time or in a distinct place, also invents the same concept let alone someone who invents something with a difference. To have the effect they do as tools or industrial tactics of global stoppage, however, patents must be able to work at a distance.

In the end, then, it didn't matter that Philips and Epistar's two approaches were produced and embedded in technologically distinct systems, that Toshiba had still a third solution to the same problem, nor even that Epistar had received their own patent on their own solution. In early

2007, the administrative law judge decided that two lines of Epistar's products had infringed the

'718 patent. Regardless of how the case ended post appeal, this initial judgment helps to illustrate a key point about this particular type of tool and its deployment within an industry. On the one hand, Epistar was found to infringe a patent in spite of the fact that they owned a patent on the formulation they used. This is precisely because of the negative exclusionary rights that patents give. On the other hand, once issued, every patent, regardless of the relationship between their technologies (or of the incommensurablity of their approaches) is equal, giving the same exclusive rights. While Philips was able to use the '718 patent to block (and extract rents from)

Epistar's sales and even though, according to this judge, their patent was within the scope of

Philips' patent, Epistar could equally have blocked Philips from producing the same product.

That is, if Philips were to produce the Epistar product that was found (prior to appeal) to have infringed the '718 patent, then Epistar could legitimately sue Philips for infringing Epistar's own

'122 patent. Some patents, therefore, have what my interlocutors referred to as a “genus”-

“species” (shangwei-xiawei) relationship. This occurs when one of the two, a later filed patent, is entirely within the scope of the other earlier patent. As with the Company's example above, the later patent must have a considerably more narrow scope of ownership claims and reveal more

206 advanced details in order to issue. As I will go into in more detail in the next chapter, these relationships between patents can very quickly multiply the stoppage effect of this sort of property-weapon.

The processes of translation and negotiation that made this patent into an effective weapon for Philips, a designer and seller of LEDs (if not generally a direct manufacturer of them) was also the same process that necessarily removed its connection to a lab, to particular materials and machines, and to particular inventors. This same process also rendered the new ownable object of knowledge alienable, moved it into the company's control, and enabled it to be broadly, logically, applied regardless of the similarities or differences of materials, machines, and products (across both time and space). It is Philips' stock of these property weapons that, more so than any current technological advantage, enables it to focus on a “knowledge economy” while sitting at the top of one of several global chains of outsource and contract manufacturers in the LED industry. As one of my Taiwanese patent engineer informants told me in response to a question about the Taiwanese government's own ongoing attempts to promote a

“knowledge economy” in Taiwan:

I myself think that we now are still a manufacturing industry. That is, we are indeed moving from a traditional manufacturing industry toward becoming a high technology manufacturing industry, but in actuality our IP is very limited. Of course there are some companies where this [lack] is not so definite [meaning her own]. But Taiwan keeps saying it wants to go toward a “knowledge economy.” So we hope to gain some more fundamental IP, then we could depend on this IP to go make money. Then we wouldn't have to do it through a manufacturing industry where it seems each dollar is earned only bitterly, right? But I think there's still a long way to go. Because for LEDs all of the fundamental IP has already been blocked up by other big companies, so actually we just aren't in that kind of position yet, right? No matter if we are afraid that someone else will come and threaten (威脅) us, or we say we want to go threaten other people, I think right now our weapons... [Weapons?]

207

Yeah, weapons, I think we just don't have enough. (Nicole, in-house, patent engineer, 2010)

In this sense, practicing entities like Philips rely on patents (and trademarks) rather than manufacturing to make their money. While many in the United States and Taiwan now readily see “non-practicing entities” that sue “practicing entities” (companies that do produce actual products for sale) in order to gain a percentage of their profits as patent “trolls” (or “patent cockroaches” 專利蟑 螂 in Taiwan) who are perverting the system, for engineers in Taiwan a parallel argument can be applied to American brand name companies who outsource their manufacturing. In both cases, patents are wielded as weapons of stoppage. For “trolls” they are used to threaten stoppage in exchange for royalties that serve to stand in for their lack of products. For non-“trolls” patents are used to stop potential competitors from advancing too far and thereby preventing them from competing directly in terms of price and product demand.

Once we shift away from seeing patents only in terms of “innovation,” and instead recognize them as “tools” of competition, then it becomes clear that the very same aspects that enable a company to take control of a worker's skills or a material platform's characteristics are the same ones that enable other companies to take control of the same things from a manufacturer or any other “practicing entity” for that matter. Rather than seeing trolls as some sort of perversion of or exception to the system, they instead are a rather “natural” extension of the translation process that creates knowledge as legally alienable and therefore subject to accumulation beyond its origins. The shift of control over this means of ownership from engineers to companies and from practicing companies to designing/brand-development companies or non-practicing entities parrallels larger shifts in global economic formations that scholars in a range of disciplines (cf.

Van der Zwan 2014) have termed financialization. Like the shift toward financial companies or

208 investment firms controlling companies via a reorganization of their stock shares, here patents allow companies unrelated to products, manufacturing, or development to control those companies that do produce the products we consume. Both consist of new practices and legal vehicles that enable control from a position further removed from the actual running of production and thus also not only from the needs of the people who do the producing, but also from the needs of traditional “capitalist” factory owners. While this control is not in any sense absolute, it has had a further tendency to manifests itself in the creation and maintenance of unequal geographic distributions of labor and profit. In the next chapter, I explore further how

Taiwanese companies have begun to use portfolios of patents to try to challenge this control.

209

Part II:

Deployment and Consequences

Chapter 6

From One to Many:

Hollowed Landscapes and Defensive Patent Portfolios

Becki arrived as a new employee in the IP department at the Company about three or four months after I did. Her arrival marked what was a rather odd occurrence for me as an anthropologist in the field: suddenly, I was no longer the newest person sitting in the department and, to her, it actually seemed like I knew a whole lot about the Company's patenting and R&D processes. Where for everyone else in the Company it was an odd thing to have an anthropologist joining their meetings and watching them work, that was the norm of the

Company as she joined it. Where I was used to going up alone to employees in the department to ask my questions, Becki began to join me in those discussions, adding her own questions to the mix and posing them not just to the other employees, but also to me. This mere difference in time of arrival meant that this was the first time in the field that I experienced being placed in somewhat more of a “mentor” relationship rather than my typical “mentee” position. Of course, compared to the other people in the office who actually wrote and dealt with patents for a living, my multi-month head start on her own experience was rather limited and dissipated rather quickly.

In terms of my fieldwork, however, Becki's arrival gave me a unique chance to her

“learn the job” and for me to learn how the department teaches engineering graduates to be patent rather than process (or product) engineers. In effect, I got to watch the beginning of the process of a translator herself moving from the lab towards the law. Becki's introduction to the

211

Company and its processes was much different from what my own had been. Where I dropped myself directly into the middle of things93 submerging myself in a deluge of twice weekly meetings in both the R&D and IP departments while simultaneously also trying to both get my bearings and conduct initial interviews with numerous IP and R&D employees, Becki began her work entirely in the IP office following a written schedule of informal training courses and gradually increasing responsibilities. In order to minimize the leaking of internal Company information, she would not begin to interact formally with R&D until she passed her initial 3 month evaluation period as written into her employment contract.94 Though she began in IP, and was hired to be a patent engineer, this meant that her learning process did not start with finding an initial patent idea proposal in R&D.

She, and other new patent engineers, did not, therefore, begin where we might think the

“beginning” of the patent creation process is. Rather, Becki was first tasked to 1) write up the

Company's response to rejections of the Company's claims by a patent examiner (office actions) on previously submitted patent applications and to 2) translate previously written Chinese applications into English for their second, main submission to the USPTO. The choice to start her off on these two tasks was neither arbitrary nor, I believe, merely a result of needing to give her tasks that were less related to R&D. Following on the discussion of translation and negotiation of property in the last few chapters, I suggest that these tasks highlighted some of the foundational things that the IP department felt a new patent engineer had to know. This was not only a matter of training her, but also enabling them to evaluate her performance on tasks that would give the bosses of IP a good way of knowing her potential as a patent engineer.

93 This was partly by design and partly because I simply did not fit into any of the Company's categories of new “employees.” 94 Interaction with the actual mass production portions of the company would have taken much longer and most patent engineers did not ever have close relations with people there. 212

Coming as she did from an engineering background and having already worked for a short period in an LCD company, they were already confident that Becki could learn the

Company's LED technology when guided by R&D inventors. The trickier part was seeing if she had a knack for the logical poetry of patent claims and the stylistic imperatives of the specification's English prose. Working on responses to office actions was a way to quickly teach her the importance of words and logic within the claims and to push her to get a handle on the essential differences between this kind of writing and the narrative or material-focused understanding of technology she already had. Similarly, working first on translating already written Chinese applications into English was a way of forcing her to interact deeply with models of good Specification writing.95 Moreover, beginning with writing English applications

(rather than the Chinese ones) was also a way to train her to think about patent writing, first, as primarily an English task. This way, when she did begin to write the initial patents, she would write in a way that would translate easily into English and in a way that already took into account the logical requirements of the USPTO. Due to the emphasis in the

Company on the US application as its primary focus, the Company's patent engineers' Chinese patents, though coming first chronologically, were actually written by translating the key concepts they planned to use in the eventual US application into Chinese, not the other way around.

Rather than reflecting the chronology of an individual patent, this training reflected instead the priorities of the Company in larger terms of patent strategy. For the company, the key

95 The Chinese application had to be translated into English and submitted to the USPTO within a year of its submission to the TIPO in order to retain the right to the priority date of that original Taiwanese application. During the course of the writing, Becki was encouraged to lean on Tom for help with wording or questions about the technology she was writing about. After finishing a draft, she emailed it to her boss to be corrected and then met with her to go over the grammar, word choice, and style issues that had come up. 213 was not to introduce a patent engineer to patents by way of a deep look at the entire process of application for a single patent. Instead, the goal was to get them to learn the legal language and logical patterns of patents that superseded the individual technological aspects of any particular one. This is why Becki's early training focused on working through the same two stages of prosecution (the English translation and responding to office actions) for multiple patents. Since the process of application—from the initial internal patent idea proposal to the patent application, the English version submitted to the USPTO, the claim negotiations, and the issuance of the patent—would take at least 4 years (and perhaps closer to 6 years) patent engineers cannot learn patents one at a time. In fact, many of the patent engineers I spoke to in Taiwan had only been in the business in this particular industry for 5 years or less and would only just have started to see their early work coming out as issued (and therefore actionable) patents. Rather, patent engineers learn each part of the process through work on a mix of several distinct cohorts of “patents,” simultaneously evaluating, writing, and negotiation separate sets of contemporary patent proposal ideas, somewhat older patent applications, and several year old submitted applications96 respectively. Becki did not need to learn, as I have presented the process in this dissertation, the ways that a particular set of technical knowledge changes as it moves from the lab to the law, and therefore, from R&D practice to Company ownership. She needed rather to see patents not as one, but as many; she needed to see how each patent fit into an overall logic of patent prosecution as well as into the overall priorities of the Company.

When understood in the context of a company then, patents are actually only rarely understood on their own as individual things. This is true as much in terms of the deployment of patents as it is in terms of the practice of writing or learning to write them. In keeping with this

96 These will often involve juggling negotiations over the same application as evaluated by separate patent examiners in the United States, Korea, Japan, or the EU either concurrently or consecutively. 214 emphasis and beyond these two patent prosecution tasks, therefore, Becki spent the majority of her time working her way through the companies' previously issued patents and in-prosecution patent applications in order to get a feel for a “whole” of this accumulation of property claims.

This familiarization also involved dipping into the various sets of prior art patents that other engineers had culled over the course of their searches. Finally, soon after her arrival, Becki was also assigned a specific competitor company as well as a wider technological area (LED electrical structures) for her to follow, collect, and report on. This combination of Company patents, relevant prior art patents, and knowledge of the ongoing particular stream of a competitor's property claims began to give Becki a deeper understanding of what patent practitioners call the LED industry's patent “landscape.” While I have thus far focused in on the creation of single patents, Becki's introduction led her quickly to a different understanding of patents that situates them less in terms of origins in the lab and more in terms of portfolios of many patents classified both by technology and company. She was taught (as I was through her training) to see patents not as individual pieces of property, but rather as pieces of portfolios of patents whose value was related not only to the success of the patent engineer's writing of their original technology, but also to their relationship to other patents: both those of the Company and those of the Company's competitors. The creation and augmentation of specific portfolios of patents deliberately oriented toward particular technological areas and particular competitors was a major focus of the in-house patent engineers in the Company and served as a key Company

“defensive patenting” strategy.

215

Shang-Xiawei Patents and the Curious Case of Overlapping Intangible Property

As I described in Chapters 3 and 4, the fact that one patent may cover one and only one single invention does not mean that each patent lines up directly with one technical idea. At the very least, this assumed one to one relationship is disrupted by the tendency of companies to merge patent ideas strategically and by examiners' willingness to require divisionals of patent applications during prosecution. In looking at portfolios of patents in this Chapter, too, we see that the converse is also untrue. A single technical idea or, more importantly, a single technical area can have dozens and possibly hundreds of relevant patents. Untangling these relationships between patents on related technologies will take us much closer to understanding how they are wielded and, ultimately, some of the peculiarities of their power to stop particular flows of people and products within the wider LED industry.

One key type of such relationships, one that patent engineers try their best to avoid falling into, is the sort of relationship that we saw between the Philips (the '718) and Epistar (the '122) patents in the last chapter. In that lawsuit, both companies held patents on the technologies at stake in the case. Philips' explanation was that Epistar's product (which relied on the technique described in Epistar's patent) was within the scope of their '718 patent, while Epistar argued that the two patents covered different ways of solving the same problem, that they were essentially parallel, non-overlapping technologies. The administrative law judge (at least prior to appeal) effectively ruled that Epistar's technique was an embodiment of the logical boundaries set by

Philips' patent (albeit unforeseen at the time of the initial invention) and thus that the two companies owned patents simultaneously on overlapping technological areas. Yet, each of these patents had previously been examined by the USPTO's patent examiners, had been found to be

216 novel and non-obvious, and each had issued with the same, equal rights as the other not to mention any other patent within the US patent archive. This seemingly contradictory mixture of equal rights and overlapping rights is a deliberately designed aspect of the patent system intended as an incentive to promote innovation. It is built on the fact that patents only provide rights to exclude others rather than the right to practice the invention oneself. While American patent engineers do occasionally refer to “improvement patents” to mean a patent whose scope is entirely within that of another, earlier invention, this does not capture the sort of logic-based relationship occurring here. Epistar's patent is not just an “improvement” on Philips' invention.

Rather it is an entirely different technological process resulting in a quite different product that, nonetheless, was found (due to the semantic battle in court) to be within the logical and legal scope of the earlier patent.

My Taiwanese informants were well aware of this sort of potential relationship between patents, referring to the one with a wider scope and earlier application date as a shangwei (上位, genus) patent and the one with a more narrow scope and a later application date as a xiawei (下

位, species) patent. While xiawei patents like Epistar's do not provide a right to exercise the knowledge they claim and while patent engineers engaged in negotiations with patent examiners trying their best to avoid this result, as I will explain below, xiawei patents were nonetheless an integral part of the patenting strategy of the Company. In some ways, we might understand the relationship between two different patents as analogical to the relationship between claims within the same patent. When Aviva described to me the way she writes the patent's claims, she described it as a “building” process wherein the first independent claim is a reduction down to only those elements necessary in any the patent's embodiments. Dependent claims are then appended onto that initial claim to add the remaining, rather more “optional,” elements back in. 217

Figure 6.1: Epistar Corporation's US 7,652,302 patent claim chart The '302 patent is here drawn from the perspective of someone writing it with dependent claims branching out from its first independent claim. The green (including the yellow claim), blue, and red sets of dependent claims link back to the main independent claim (purple). (Figure by the Author).

Figure 6.1 shows an illustration of this initial way of thinking about claims based on the same

'302 patent I had Aviva react to in Chapter 4. This visualization reflects not only the “building” metaphor, but also both the logic and visual arrangement of the claims on the page of the patent itself: the independent claim is set apart and “first” by its particularly complete phrasing; then the dependent claims attach directly or indirectly to it via logical referents. This particular patent was written with three primary “branches” of claim sets that begin with the three claims (2, 3, and 5) that directly rely on Claim 1. Each of the subsequent dependent claims along these three branches provide further details about the materials and other structural features of particular potential embodiments. In this perspective, additional claims “add” details and “expand” the number of technical things claimed in it as owned.

Yet, when these same claims are evaluated at the PTO, the perspective of patent engineers shifts to discuss not “building” or “appending” elements to make the claims more

218

Figure 6.2: The '302 patent from Figure 1 (top) turned inside-out emphasizing the relative scope of its claims (right). The first independent claim (purple) has the largest scope as it has the least number of limitations. The dependent claims are included within the independent claim's scope and are colored just as in Figure 1 to aid comparison. (Figure by the Author).

“complete,” but rather expanding or limiting the “scope” of the claims. This was the sense of patents that Becki was learning in her early work responding to office actions. Figure 2 shows what happens when we shift from the perspective of the patent engineer as drafter to that of the patent examiner, patent infringement lawyer or the patent engineer as negotiator each of whom are focused primarily on the relative scope of each claim. The picture that results from this second perspective, on the right of Figure 6.2, turns out to be exactly what would happen if we were to take the illustration in Figure 6.1 (repeated in miniature at the top left of Figure 6.2) and flip it inside-out.

Rather than seeing the first independent claim as a core to which the subsequent dependent claims are added, this perspective shows the independent claim as drawing the largest possible boundary of the claim to property. The dependent claims each now reside clearly within the bounds of this independent claim. As I mentioned in Chapter 4, from this second perspective, every word in the claim is a further limitation that reduces, not expands, the size of the object of property. As dependent claims include not only their own limitations, but also those of any dependent or independent claims they rely upon, from this perspective the dependent claims' 219 scope is necessarily smaller than that of the independent claim. As with the two patents above, the dependent claims are thus also located entirely within the scope of the independent claim.

Those dependent claims located further along a branch, in turn, accumulate more and more restrictions and thus their effective claim scope becomes smaller and smaller. Claim 7, the one in yellow for instance, relies on a chain of reference to two other dependent claims in addition to the first independent claim. A product infringing claim 7 would therefore necessarily need to have all of the elements in claims 1, 5, and 6, in addition to its own additional restricting details. There are certainly, therefore, fewer products that infringe claim 7 than that infringe claim 6. Claim 7's scope is therefore relatively smaller than that of claim 5 or 6. Dependent claims are xiawei to their own shangwei independent claim as well as to any other dependent claims they rely upon.

Describing these dependent claims as xiawei, however, does not imply that the technical features they describe are necessarily more advanced or even more rare. In fact, in this particular example, it would be rather more rare to see an LED that infringed claim 1, but did not also include the electrodes not described until claim 6. Electrodes, first and second semiconductor layers, and p- and n-type semiconductor layers, none of these are strange features for an LED to contain. But by not including them in the first independent claim, the writer of the '302 patent was able to stake a claim to a slightly larger piece of intangible technical knowledge. If, due to some unforeseen future technique (perhaps wireless of electricity), LEDs of the future no longer include electrodes, it is still possible that some of these will infringe claim 1 of this patent. If, on the other hand, the drafter had included the restrictions from claim 6 in claim 1 because he assumed that “all LEDs must have electrodes,” then such a future technique would render the patent largely useless. Claim scope is necessarily a logical not technological matter.

220

As such, when the patent engineer “appends” an additional dependent claim or claimset onto an independent claim she is actually not building outwards, but rather building inwards, reasserting a claim to particular technology already covered by the independent claim. But if a product that infringes any dependent claim (say, Claim 4) necessarily also infringes the patent's independent claim (Claim 1), then what is the point of writing and defending the dependent claims at all? I will return to this curious question a bit later in this section.

Shifting now to relations between two different patents, as illustrated in Figure 6.3, the same sort of relationships obtain here as well. This figure shows the independent claims of two patents (along with their respective dependent claims) illustrated to show their relative scope of ownership. The xiawei patent here is the '302 patent, appearing as above with its independent claim drawn in the same lighter shade of purple as in Figures 6.1 and 6.2. Surrounding the '302 patent is an imagined shangwei (genus) patent—whose independent claim appears here in dark

Figure 6.3: A Shangwei (Genus) Patent Claim In this illustration, the '302 patent is seen as a species level set of patent claims in relation to a patent claiming elements 1, 2, 3, 4, 5, and 6. The genus level patent's independent claim (shown in dark purple) also has its own set of dependent claims. The orange claim is unrelated to any in the '302 patent. The green and yellow set of claims are identical to claims 5, 6, and 7 in the '302 patent (Figure by the Author).

221

Figure 6.4: Once Hollowed Out In this illustration, the issuance of the '302 patent has effectively removed a portion of the shangwei patent's former claim scope. If the shangwei patent's owner wishes to produce an LED with elements 7 and 8 and without being in danger of patent infringement, they would have to negotiate with the owner of the '302 patent despite themselves owning an earlier, more fundamental patent (Figure by the Author).

purple—that claims all of the elements of the '302 patent except for its sidewalls (7) and their transparent dielectric layers (8). Because this genus patent has both the same claim-elements as the '302 patent, but also fewer of them, its scope is wider than the '302. Any product that infringes the '302 patent would necessarily also infringe this shangwei patent. However, there are plenty of products (those without sidewalls or with sidewalls, but without a dielectric layer, for instance) that would infringe the shangwei patent but not the '302 patent. This shangwei patent also has its own set of dependent claims including one unrelated to any claims of the '302 patent

(in orange) and three that are identical to claims 5, 6, and 7 in the '302 (in green and yellow).

This second set of claims 5, 6, and 7 that attach as dependent claims to the genus level patent, are shangwei with regard to claims 5, 6, and 7 in the '302 patent, but neither shangwei nor xiawei with regard to Claim 1 of the '302 (a simultaneous logical relationship that is difficult to illustrate visually). They are not shangwei because they contain limitations that Claim 1 of the

'302 patent does not contain. At the same time, however, and in contrast to claims 5, 6, and 7 of the '302 patent, these claims also are not xiawei to the Claim 1 of the '302 patent because they do

222 not include all of its limitations (elements 7 and 8). Like claims 5, 6, and 7 of the genus level patent, the orange claim is neither shangwei nor xiawei in relation to the '302 patent's independent claim. It just occupies is a separate owned area, if covering only a slightly different technology. The only reason both of these patents can exist is because the shangwei patent was applied for before the '302 patent and, at that time, the LED structure it describes was determined (through one-on-one comparisons and negotiations) to be new enough.

Due to the fact that patents provide a negative right to exclude rather than any positive right to practice the claimed knowledge, the issuance of a xiawei patent like the '302 patent (with the same right to exclude) effectively removes a portion of the shangwei patent's former scope

(see Figure 6.4). While the owner of the shangwei patent can still sue anyone for producing a product based on the technical details revealed in the '302 patent, so can the '302 patent's owner.

Moreover, the '302 patent's owner can even sue the owner of the shangwei patent. Just as Philips' patent was able to cover technology (the ITO window layer) that was not possible at the time its own patent was invented due to the logical structure of its claims, so too was technology that used to be logically within Philips' patent removed from their sole control by the issuance of

Epistar's subsequent patent. Later patents are issued because they provide some sort of advance

(an inventive step) beyond that knowledge already in the public domain, but in doing so, effectively these later patents serve to “hollow out” the property of shangwei patent owners. As time goes on and as long as the shangwei patent covers an active technological area, this type of xiawei patents proliferate, steadily removing more and more technical knowledge from the control of the original owner.

Figure 6.5 shows what happens when a third xiawei patent is issued whose independent claim adds a novel ITO window layer formation onto elements 1 through 6 of the original

223

Figure 6.5: Twice Hollowed Out A third patent on a novel ITO layer added onto the LED epitaxy structure has now issued. This third patent removes yet another piece of technical knowledge from the sole control of both the owner of the original shangwei patent as well as from that of the owner of the '302 patent (Figure by the Author).

shangwei patent. In a dependent claim, this third patent includes elements 7 and 8 from the '302 patent. It therefore removes a chunk of technical knowledge from the sole control of each the two patents that came before it. Though this third patent (like the '302 patent before it) may improve on the original technology, without permission from all of the other patent owners, each with an equal right to exclude everyone else, no one will be able to practice the improvement without infringing.

Figure 6.6, then takes this same set of patents illustrated in Figure 6.5 and re-illustrates them to show their changing relationship over the 20 year span of each patent's exclusive rights.

During the time that the most shangwei of the three patents (in dark purple) is in force, Period 1, we can see a steady accumulation of black, hollowed out areas. These areas denote areas of technology that, due to the overlapping claims by multiple entities, out of which no company can safely produce products. The more overlapping owners, the more separate licenses one would need to obtain to produce LEDs with those particular technological features. During Period 2, after the expiration of the earliest patent, suddenly a wide swath of technology is now available for anyone to produce. At the same time, due to their xiawei patents, some areas are still in the exclusive control of a patent owner. Having waited out the expiration of its shangwei patent, the

224

Figure 6.6: Hollowing out over time This figure shows the same set of relationships as Figure 6.5 re-configured to show the relationships among these patents over time. The vertical height of each patent corresponds to its 20 year patent term. The third patent (the novel ITO layer one) is split in two to illustrate its hollowing out effect on both of its shangwei patents.

owner of the '302 patent, for instance, is now the sole king of a portion of its patented technology

(though a portion of that technology is still controlled by multiple patent owners). While Period

2 appears to be a period of time where more and more technologies “return” to the public sphere without any owners, chances are that technology has not advanced uniformly in all of the original directions of the now expired shangwei patent. Rather, its is most likely the case that the then current best practices and most efficient LEDs will be produced using technology that is still covered under any of a number of xiawei patents. Effectively, this means that the system of patents, as practiced, results not in a single 20 year term over a single “invention”-product- technology-idea, but rather an ongoing set of overlapping claims of exclusivity to technological areas. Expired patents for cassette tape players, for instance, were quickly rendered moot for most consumer purposes (magnetic storage systems are still used for data storage applications) with the widespread to CD players thereby negating the promised benefits to “the public” of

225 their return to the public sphere. Since any particular LED product will include more than one of these technological components, an LED's production must navigate a range of separate such areas of distributed exclusive property rights. This is one critical reason why it is essential to understand patents not as one, but as many: as always already a part of a pre-existing and still expanding set of patents.

This type of hollowing out of previous property is a kind of dispossession that is purposely designed into the patent system as a way to force the original owner of the shangwei patent to continue to “innovate.” Worries over later-comers gaining their own patents that might stop the Company from producing their own products was indeed one the primary impetuses for the Company's willingness to patent even small changes to their structures if at all possible, especially if they were planning to implement those changes in actual products to ship to customers. This was also one reason behind the Company's inclusion of numerous dependent claims in each application, despite these claims covering “territory” already covered by their own first independent claim (remembering the discussion of Figure 6.2). By claiming such xiawei areas of their own patents, the Company could ensure that their products (along with those products' improved versions) could continue to be produced without later requiring any additional licenses.

At an analytical level, the shang-xiawei relationship is one way of figuring out which patents are key patents: a patent that is shangwei to a larger number of later patents must be occupying an area of particular importance to the industry as it's companies expect it to progress.

Of course, it is very rare to find any two patents whose claims use the exact same claim language and thus determining which patents are xiawei (let alone how many of them exist) to any other

226 patent is difficult.97 Both prior to a patent's issuance during the negotiation with government examiners and after its issuance when it is contested in court, the existence of such a shang- xiawei relationship between two patents or between a patent and a product is a critical object of logical, technological, and semantic contestation. This is why the style of a patent examiner's rejection from Chapter 4 is to re-phrase the prior art's elements (as disclosed in its specification, regardless of its claims) in the exact language of the current application's claims. Effectively, this style of writing definitively establishes a xiawei type of a relationship and forces the applicant to either show how their current application is different from (ie. alongside rather than within) or an advance upon (xiawei to, but still worthy of a patent) the prior art. This is also why we saw such a fight over the semantic meaning of the words in Philips' patent during the Philips-Epistar case.

The “reading” of either one patent's specification onto another application's claims or of one patent's claims onto a product accused of infringement both consist of the same process of contested conversion of one description into the logically restrictive language of the other. Had

Philips been unable to render ITO a “semiconductor,” Epistar's product (and therefore its parallel patent) would have been instead established as next to, rather than within the '718 patent's scope.

This means that the relationships between any two patents may be in a relatively undefined flux even up until a judge rules on the interpretation of their claims much later when one is asserted in court. As the vast majority of patents are never asserted in court, their precise relationship to

97 Then there is also the added difficulty of “finding” relevant patents. Many companies will use different language to describe the same technology thereby rendering whole sets of patents invisible when searched for using the wrong terminology. Thus Osram, for instance, tends to patent “optoelectronic devices” rather than “light emitting diodes.” This language is not only broader (thereby potentially giving Osram a broader claimscope), it is also not found if someone searches for “light emitting diode” patents. Given that the USPTO alone has over 8 million issued patents and that over 2 million of those are still within their 20 year active period, it is quite easy for what might be critical patents to just get lost in the sea of patents, or to be hidden by deliberate, careful wording. This is one reason why the careful tracking of competitor patents, as a way to at least be aware of the patents most likely to be asserted against the Company, was a practiced instilled in new patent engineers like Becki from the beginning. 227 one another and therefore relative significance (and value) are exceedingly difficult to pin down.98

Returning then to plural patenting practices, the Company's patenting strategy was aimed in two simultaneous directions. First, in order to secure the widest scope of claim logic possible

(based on their specification's disclosures), patent engineers at the Company argued to the government's patent examiners that their own applications were parallel to rather than xiawei to any prior art patents the examiner asserted in order to reject their then current claims. Of course, nearly all of these patents would be xiawei to some patent, the goal was to only be xiawei to very early patents that would therefore expire more quickly. It would therefore be better to be directly xiawei to the '302 patent's shangwei patent and parallel to the '302 itself rather than being xiawei to both the '302 and its shangwei patent. Second, the Company actively searched for and wrote patent applications for technologies that they knew would have claims that eventually would be negotiated into a xiawei position relative to primary competitor patents. The first strategy would augment the number of patents that the Company owned around particular technological areas that they (and others) frequently used in LEDs such as roughing, mirrors, window layers, multi-

98 Because of the difficulty of actually finding and mapping out the relations between patents, many scholars use the number of times a patent is cited as prior art by an examiner or an applicant as a proxy measure of its importance. Unfortunately, I suggest this approach is fatally flawed as it is not patents that are cited most that are most powerful, but rather those which are most hollowed out. Examiners often will search for prior art, first by looking at the applicant company's and inventors' prior patents as these often have at least some of the same claimed elements or approaches. These can then be combined with others to make an obviousness rejection and save the examiner time from doing a wider search prior to the applicant having to better focus their claims. These citations, however, do not make the earlier patents any more important. Similarly, some examiners will cite applications that never became patents simply because their Specification and Figures are easy to apply to a variety of new application situations. Finally, citations are a poor proxy for hollowing out precisely because, as I related in Chapter 4, the prosecution process has been operationalized not to establish absolute “newness” (absolute novelty or non-obviousness over all prior knowledge), but rather that an application is “new enough” to overcome rejections one by one by one. There is no need for an examiner to cite all shangwei patents in any particular prosecution case. In fact, the examiner would be best off to find and cite the most immediate shangwei patent as it would have the most elements in common with the new application. This immediately shangwei patent, however, though cited more, would clearly not be as powerful as its own shangwei, but less cited, patents. 228 quantum well (active layer) formulas, electrical circuit designs, and methods for attaching or detaching a variety of layers.

The second strategy would successively hollow out the scope of sole ownership that the

Company's competitor had based on its earlier patent. While this strategy would not yield a usable right to produce the technological advance they had patented, by building up a portfolio of patents that hollowed out a series of patents owned by a particular competitor, the Company hoped to convince that competitor to agree to a cross-licensing agreement. Such a cross-licensing agreement would most likely give the Company immunity from lawsuits over the shangwei patent in return for giving the competitor immunity from lawsuits over their own (probably more numerous) xiawei patents. By patenting any new xiawei claim within their own shangwei patents, the Company was also seeking to defend itself against its own competitors using the same hollowing out tactic against them. The threat to the Company of this designed dispossession from competitors' later patents as well as the promise to the Company of the edge it gives vis à vis its competitor's earlier patents both drives and explains the focus of patent engineers not only on patent prosecution (and on negotiating patent claim scopes with these competitor patents particularly in mind), but also on discovering and engaging the LED industry's overall patent landscape.

Defensive Patent Portfolios and Hollowed Landscapes

It was not just new engineers like Becki who spent time exploring these patent landscapes. Each of the patent engineers in the Company were assigned a particular competitor to watch, reading and reporting on both their newly public patent applications and newly issued patents. Nicole

229 and Franklin, two more senior patent engineers in the IP department for instance, were almost exclusively focused on understanding the overall patent landscape and improving the position of the Company within it. They spent much of their time managing the Company's portfolios of patents. This zhuanli buju (專利佈局, strategic patent planning) work focused not only on finding patents within R&D, but also on purchasing patents from outside the Company. As a part of this effort, Nicole was the point person from the IP department for a wide variety of cooperative projects with local and international professors and with ITRI, Taiwan's semi- governmental institution aimed at promoting its national industries. While not all of these projects would result in either important technological advances or significant patents, Nicole told me that CEO thought the ongoing links that they maintained were important for long-term cooperation. By cooperating with high profile professors, labs, or departments, not only could the Company improve its own reputation as an innovative company, but also promoting such long term relationships would make those professors, departments, and labs think of the

Company first when they did develop technologies they wanted to sell to the industry. In terms of human resources too, these relationships helped to identify potential future Company employees among the graduate students and employees in these academic and government labs.99 Finally, they provided academic placement locations for the Company's own employees to pursue advanced research for master's or doctoral degrees while continuing to work for the

Company. Such arrangements allowed the Company to keep more of an eye on the employees in order to encourage them to then return to the Company (and not to a competitor) after they finished their Company subsidized degrees. Here, again, we see how patents, people, and

99 Note that this was generally not considered poaching of employees as the general expectation not only for graduate students but also employees in ITRI, was that they would eventually secure a place in industry or, in ITRI's case, possibly be spun off into a new private company as an entire department or sub-department. 230 technological knowledge are tied together with patents standing out as the most easily alienable and thus the easiest to wield in control of the others.

In the middle of the summer, I joined a conversation where Eric and Franklin were trying to ascertain how interested R&D might be in acquiring a particular set of patents that Franklin had found and which might be available for sale.

“So we've found some pretty good patents,” Eric began, while showing City some of the figures from the patents in question. “They're early on, pretty strong, pretty broad. From 1997. Actually they are super broad on mirror use. Are these...How important are these for us now?” “We now do a fair amount with mirrors [in our horizontal chips] actually, even doubled mirrors in our vertical chips,” City replied. Before continuing, City flipped one of the sheets over and began to sketch out a chart of the Company's current lines of products (current for R&D meant as expected over the next couple of years), circling those that had mirrors or doubled mirrors. “In the high brightness category, 2 of the 3 vertical products and as well as their next generation brightness versions are all doubled mirror vertical ones. So is the K- series...” “Others aren't doing this, though? Why?” Franklin interrupted. “Well, Osram was, but they don't need to now, since we're using it primarily to solve [our structure's] light extraction and current spreading issues. Others just aren't here yet.” “Ah, so it's [all because of] the Company's R&D, eh?!” Eric said, laughing at City's pride in his department's technical capacity. “So you look at these circled products,” City said smiling, pretending to ignore Eric's gentle interdepartmental ribbing and returning our attention to the proliferation of now circled products on his chart. “You look at this and you tell me...do you think this is important?! Yes, very important. If someone else buys these they could be very painful to us!”

Clearly, City felt that this set of patents would be important and that Eric should proceed to see if they could be bought. Interestingly, though, these patents seemed important not just because City knew that other companies might eventually catch up to the Company in this area and begin to need such mirrors, but also because these same patents could hurt the Company quite badly should one of their competitors acquire them instead. The value of a patent is not only in terms of a company's ability to wield it themselves, but also in terms of the potential

231 damage it could do to that company if acquired by someone who wanted to wield it against them.

Similarly, the same patent in the hands of a direct competitor whose products the Company could not threaten with their own patents would be much more dangerous than it in the hands of a company further downstream or even in a different industry. If they missed out on the purchase, those same patents in the hands of a competitor could force an almost complete reshuffling of the Company's entire product line up. As such, these were a critical purchase less due to their direct value to the Company, than to the fact that if the Company purchased them it meant they could not be deployed against them. This aspect of a patent's power not just to extract rents but actually to block entirely makes them “nuclear.” Whether you want them or not, you have to have them.

At the same time, finding such a cache of early patents that were fairly well written, was the kind of move that would provide the Company key shangwei patents to deploy against later comers that would supplement and undergird the Company's existing set of xiawei mirror patents. With such a robust portfolio of mirror-related intangible property, chances were that no matter how different a material platform a competitor used, so long as they employed a reflective layer, the Company could find one of their patents that that competitor was infringing. The

Company could then choose to either sue or simply to use the patents “defensively”: that is, they could hold them at ready, as a deterrent in case a competitor launched a patent infringement suit against them.

Franklin and Nicole were thus on the lookout for internal applications for patents and potentially purchasable patents to augment the Company's defensive portfolios both in areas of current strength for the Company (like “mirror” technologies) and in areas where their competitors had particular strengths. For the latter, they sought both the rare, forgotten shangwei

232 patent to purchase and, more frequently, strategically placed xiawei patents in technological areas into which they felt these competitors might, eventually, wish to expand. Decisions on merging internal patent ideas together in order to ensure that particular technological areas could be protected, as I described in Chapter 4, were often guided by exactly these understandings of the wider patenting practices of companies beyond the Company. Whenever an application arrived within the Company on such key areas, it could be fast-tracked for internal review and application in order to preserve as early a priority date as possible.

Paul related his own work in one such key area to me when I went to visit him in his cubicle one day:

“I'm working on some patent searches to see if there are patents on some things.” [What kinds of things?] “Oh, I'm looking at different ways of doing patterned substrates, they want a way to do it that is not patented.” [Who, R&D?] “No, no. For the factory.” [Oh?!] “Yeah, they want to find a non-patented way but there are so many patents on these things! Everyone uses them and with only these same materials. I mean, the patents can be divided up based on temperature, thickness, and materials, but they are all accounted for it seems. I could give them some options, a safe path, but they won't like it. Like we could do it at a temperature under 100K or over 2000K, but what good is that?! I kind of think we should just go ahead and do it. Everyone does it despite all of these patents.”

Patterned substrates were one of the oft-discussed technological areas of concern for many companies in Taiwan in the years leading up to my fieldwork. Most blue LEDs in production use a layer of (factory produced) sapphire as a solid base that allows the GaN epitaxial crystals to successfully grow into the LED's p-type, n-type, and active semiconductor layers. Early LEDs used smooth sapphire for this job. However, if you use a set of chemicals or photolithography to etch out a pattern of ridges and troughs into the sapphire substrate, even without any other changes to the light producing parts of the structure, you can increase the

233 amount of light the LED puts out by some 20 percent. The “roughing” on the sapphire changes the pathways of light produced within the active layer in ways that enable more of it to exit the structure (often through the transparent sapphire itself) to be seen by our eyes. This 20% increase makes an enormous difference in the relative competitiveness of any product since nearly any blue LED materials can be modified to grow on such a patterned surface. Moreover, there were several manufacturers of sapphire substrates in Taiwan who could produce these etched substrates for not that much more than you might buy the flat sapphire version. The Company could not, however, produce its LED structures on these patterned sapphire substrates (PSS) because they could be sued by Nichia or one of the other companies with early patents on them.

If we were to take the hollowed out illustration from Figure 5 and then turn it inside-out, we would get a good view of the type of clustering of patents that proliferate around key

Figure 6.7: Clusters of Patents around Patterned Sapphire Substrate Technologies (Figure by the Author).

234

technologies. Figure 7 is an illustration of what this might look like for patterned substrates.

While some of these will be parallel technologies, like the idea of adding a layer of one or more other transparent materials with the same mesa formations on top of a flat sapphire substrate, many will be xiawei inventions whose claim scope is entirely within that of the earliest shangwei patent. In the time since the first etched sapphire substrate patents were granted in the 1970's more generally (see US 4,008,111) and for use in LEDs in the late 1990s (see, for instance,

Sony's US 6,232,623, Nichia's US 6,870,191 and Mitsubishi's US 6,940,098, and US 7,115,486), a huge number of other patents have been filed covering as many variations on the originals as possible (for a few examples of these in Taiwan, see Formosa Epitaxy's US 7,173,289, Epistar's

US 7,825,577, and Tekcore's US 7,598,105).

While, Nichia and Philips were able to leverage their PSS and other early patents on other technical areas to gain and maintain their positions at the top of the LED value chain, other companies, too, sought their own leverage for cross-licensing or defensive ammunition to increase their chances of survival in case they themselves were sued. These companies then added their own exclusive areas to the landscape. Paul's goal had been to map out which variations on patterned substrates had already been claimed so as to then find the holes

“between” them that might still be open for use. Unfortunately, he found no openings. Patents covering not only dry or wet-etching techniques, but also lasers and any other method of producing troughs (recesses) or “mesas” (protrusions) on a substance as hard as sapphire had all been issued. Other xiawei PSS patents include specifications of the “best” size (both of the mesa's horizontal footprint as well as height), shape, and angle of these protrusions vis à vis later layers as well as particularly useful spacing or patterns of spacing among multiple protrusions.

235

Some of these have also included diversifications that allow them to logically claim similar structures on substrates beyond sapphire (such as using silicon carbide, silicon, or GaN itself as substrates) which might become more prevalent as technologies change. Each of these separately patented variations claim to have particular improvement effects on light extraction or on the stability of later grown layers in a variety of structures and each successively hollows out the original PSS patents. Especially given the tremendous overlapping rights to exclude that such clusters of patents create, this type of situation pretty much guarantees that, no matter how one works to design around particular key patents, chances are that those products will still infringe others.

If, as a result of this dense cluster of patents, the Company had decided simply not to work with patterned substrates at all, however, they would lose the opportunity to improve on these structures or to integrate them into the Company's own material platforms by working closely with them. The extraction of light from inside an LED, for instance, is an additive process where improvements are designed to extract the light that earlier improvements were not able to extract. Two improvements that essentially help the “same” light leave the device, if put in the same structure at the same time, would not extract much additional light at all. Without the chance to optimize the combination of structures within the platform, the Company would find itself well behind its competitors once the early patents began to expire. As a result, the

Company produced at least two different sets of products. The first used only a flat sapphire substrate and could be sold anywhere. The second used a patterned sapphire substrate and could only be sold via contract manufacturer contracts to one of the Big 5 companies who had cross- licensing agreements with Nichia. While this meant that the Company could continue to hone their expertise awaiting a time when either the patents began to expire or they managed to

236 negotiate a cross-license agreement, in the meantime, it also meant that the patterned sapphire products sold with very little to no profit (despite being significantly brighter).

Paul's frustrated suggestion to “do it anyway” was a reflection of the calculation that, despite all of these patents or, actually, because of all of these patents, there comes a time when you just have to produce the product in order to stay competitive in the market. A few years before my arrival at the Company they might have done this. Now, however, Taiwanese companies have, for the most part, gotten too big to get away with infringing their big competitor's patents under the . The Company I observed in 2010 was quite careful and deliberate in trying to avoid other company's claimed territory. That said, I was often told by patent engineers in multiple companies in the semiconductor industry that given the sheer number of patents currently in force (over 2 million in the United States alone) and the ease of missing some even in exhaustive keyword searches, it was impossible not to infringe on some patent. The trick was, at least, to ensure that you did not infringe on patents of competitors who were most likely to sue. This then was the goal of the IP department's ongoing tracking of new patents by technological area and by company. Beyond that, and given that this clustering of patents for patterned substrates is echoed in nearly every key technological area for LEDs, infringement is a cost of business. Having your own portfolio of patents to threaten a counter suit, and thus, a sort of “mutually assured destruction,” was the best one might do to minimize lawsuit expenses. Of course, this defensive patenting strategy only works if the company that sues you is also a practicing entity that you could hurt with a counter suit. Non-practicing entities can sue without fear, without their own production they cannot have infringed anyone's patents.

In this way, we can see how key early patents tend to attract clusters of later patents and that,

237 together, these present a formidable barrier of overlapping ownership to any company wishing to put out products that incorporate similar technologies.

Conclusion: What Patents Beget

When we conceptualize patents in terms of encouraging innovation as opposed to creating stoppage, this is in part because we focus first on a single invention and then on its patenting.

But for the most part, just as people are always already born into worlds filled with prior people

(see Berger and Luckmann 1966), so the patent on any particular invention is born into a world already filled with property. In the LED industry, at least, patents are not inspired by

“invention,” but rather by other patents. As we saw in Chapter 2, the finding of patents is less motivated by technological research or by the normal process of product development than it is motivated from outside of the technological, from the needs of the Company as determined by its patent engineers. This chapter then expands this to also include the lead that patent engineers in the Company take in their mapping of the patent landscapes around key technical areas as well as in searching out the occasional “lost” patents that belong to companies no longer active in

LEDs that might be purchased.

Phrased instead, then, in the way they are presented here—as many rather than one— patents first and foremost beget other patents, not new knowledge. The pursuit of new knowledge is driven by competition over products for customers; that for patents is driven by the proliferation of other patents among competitors. In order to save a space for a time following the expiration of earlier patents or in order to try to induce cross-licensing agreements, later comers begin to fill the area around these early patents with their own claims to property. This is

238 why, despite Taiwanese companies often being at the receiving end of patent infringement lawsuits in the past, companies like the Company see the patent system as a key to eventually changing their positions in the global division of labor. They aim to use patents to prevent

Chinese companies from catching up too quickly, while also leveraging their own patents for cross-licensing agreements with the Big 5. This clustering effect that key patents produce, however, means that the overall temporal impact of the patents that will matter can not be thought of as simply 20 years. Rather they attract a host of overlapping property claims that both hollow out and extend the amount of technological knowledge that companies can be excluded from. That initial 20 years is thus extended considerably, at least for those smaller pieces of technological territory that come to be important in the industry, well beyond the initial 20 years.

The patent system thus takes seriously Locke's “wild west,” “enclosure” idea of property rights adhering to those who make improvements to existing land. Yet, in the process, patents do so in a way more radical than Locke himself may have even envisioned. The default for property in land in the United States and Taiwan is that new things discovered within the bounds of the land also belong to the owner (though in Taiwan this might be the subsoil rather than soil owner). Thus a landowner who knows nothing of minerals beneath her land or of their value has a right to force others to pay her to extract them once discovered. In the early days of in the United States, there was even a short dispute over whether or not airlines would have to request, pay for, and receive prior permission before flying over any particular landowner's land.

This was the first time that real property was limited to actual land rather than a column extending infinitely upwards and downwards from the property's limits (Lessig 2004:1-3). For patents, however, Locke has prevailed. Anyone who discovers an improvement to an existing technology, no matter if that technology was patented or not, can apply for and receive their own

239 patent. Anyone who recognizes a “hole” in the current property landscape, too, can back it up with results from experiments or simulations and fill it with their own claims to exclude. Where

“progress” in terms of new claims to property in land (so called “real” property) generally means a horizontal expansion in the amount of land claimed through successful claims made on neighboring (or other) land, successive claims to property in knowledge via patents occurs primarily in a vertical manner. New claims are staked to advances on older knowledge. New property is then often staked out within the scope of previous property claims even though, at a technological level, it can also be said to be “expanding” the boundaries of the old knowledge.

This sort of nested, vertical growth in patents is a result both of the nature of the intangible object of property—knowledge is, itself, cumulative in a way land cannot be—as well as in the nature of the negative, rather than positive, rights this kind of property bestows.

Clearly this is not your normal “landscape.” In patent landscapes, new hills can grow within and not just at the edges of existing things. Despite the prevalence of metaphors to space and to real property in terms of patent “maps” or patent “landscapes,” this metaphorical thinking has clear limits. In the Company's periodic patent brainstorming sessions or in a cooperative project I observed between ITRI and a local college's physics department, engineers were encouraged to envision technology in spatial terms, charting out areas with many patents in order, like Paul, to find the “holes” between them where one's own intervention might prosper.

Yet in the end, technology is not spatial. There is no reason why any two or more technologies, say patterned sapphire substrates and mirrors, need be thought of as contiguous and there is no reason to think that the next “open space” will be in one “place” as opposed to another. City's goal for his R&D department was that, one day soon, they would breach the forefront of LED technology in a few areas, breaking out into wide open space where no patents had yet been

240 granted. Their hope is, at least when the Big 5 companies' earliest patents begin to expire, that their own patents will be king and their place within this global division of labor may finally be negotiable. Of course, this hope depends on these technologies still being useful (and the products produced through them still being in demand) at the time that the early patents on them expire: a hope that did not help, for instance, fast-following CD or VCD player makers at least.

While in technological terms this appears to be possible by accelerating past the Company's current fast follower positions with completely new products,100 in patent terms, the continued accumulation of xiawei patents around key technologies (not to mention their successful diversifications and genericizations) suggests that these open spaces may only exist in our imaginations. Thinking in terms of the physical may actually prevent one from thinking of the actual “places” for new work that exist within rather than between technological areas.

This vertical, nested growth pattern also happens in a context where each patent, regardless of its shangwei or xiawei, position bestows an equal right to exclude others. The landscape that this accumulation of patent clusters creates is then a hollowed out one where each additional xiawei patent removes another piece of the property its shangwei patent had a logical claim to. This type of extra-economic transfer from one private owner to another is dispossession designed into the system itself. The dispossession of private property by other private owners that is designed into the system itself places the entire structure on a moving treadmill of sorts whereby early owners see their ownership steadily hollowed out by later comers even as they continue to be able to block these companies from direct competition. The patent system's dispossession by design thus forces the owners of early inventions to continue to submit patent applications on improved areas or risk losing their own ability to produce such improvements.

100 One problem they have already begun to encounter in this push is that rather than meeting already expressed demand by customers, the Company has to instead convince customers that they need such truly new products. 241

This characteristic of patents is perhaps the most important as concerns the system's creation of an environment that enables a continued stream of new commodities and property that can readily circulate and realize capital. Yet, despite the production of patents improving on key technologies and due precisely to the overlapping exclusionary powers these patents create, this does not generally result in new products that reach consumers, at least not without being in danger of infringement lawsuits. As I suggested in Chapter 2, since much new knowledge in a complex product like an LED comes from interactions and interventions in the actual materials, companies like the Company are effectively forced into lower profit OEM positions for at least a portion of their product set. In order to manage to improve and optimize such new structures within a for profit company's R&D environment, the Company had to have an outlet for products produced in the course of research and tuning mass production capacities, at least for a price that covers some of their costs. This is doubly true for smaller companies or “innovative” start-ups.

Rather than a “linear” improvement style of innovation that builds advances one on top of the last, the kind of “innovation” that this stoppage creates is more of a horizontal type that may even entail steps backward. It proceeds in terms of filling out the variety of possibilities of doing the same thing in ways not covered by existing patents. Unable to use patterned sapphire substrates in all of their products, for instance, the Company explored a wide variety of other, generally less efficient ways of extracting that same light from within its LED chips through roughing, window layers, mirrors, and other technologies. While some of these paths-not-taken may end up being better than the easy primary route, the vast majority would quickly be abandoned if patented routes were opened up.

Patents are most valuable when they cover technology that is easy and essential for most products, not when they only cover cutting edge technologies (as we might think if their value

242 was related directly to innovation). While all patents must be “new” at the time of their application (though how “new” I discussed in Chapters 2 and 4), their value hinges on a time in the future when that technology is ubiquitous. Patents as weapons for competition are therefore time dependent: their future legitimacy in court depends on a reconstructable past “state of technology” wherein they can claim the technology “new,” even as their power and value depends on a future where that same technology becomes generic and would be used pervasively. To win a you need patents on the most generic technology possibly, not the most cutting edge.

Finally, many of my discussions with Taiwanese patent engineers would eventually come around to the threat that Chinese companies might pose in terms of their own efforts toward accumulating defensive patent portfolios. The Chinese national government as well as many of its local governments have focused their pursuit of a knowledge economy on incentives for companies that apply for and receive patents. My Taiwanese informants, however, felt that the vast majority of patents that were being applied for in China were being written by patent agencies unfamiliar with the LED industry's particular property terrain. As such, the result very much appears to be an increase in quantity rather than quality, much like the Chinese government's subsidies for MOCVD machines has led to a huge expansion in the LED production capacity of mainland factories without much of an increase in the quality that would allow these to be more effective in global markets. Patent engineers in the Company all emphasized the need to be strategic: to acquire a large arsenal of patents—a defensive (or offensive) patent portfolio—that was balanced in the right areas, but also to do so paying extra attention and care towards the drafting and prosecution of quality patents. While having many patents certainly will give you more shots to chance upon on an area your competitor is active in,

243 if these are poorly written, then they are useless. As in the Epistar-Philips case, it only takes an infringement ruling on a single claim of a single patent to get an exclusion order on an entire line of products.

244

Interlude 3:

Return to the Field (The Company Speaks Back):

Ownership, Time, and Value

A conversation between [the author] and the Company's IP department boss, September 19,

2011:

[So one of the things that I have been thinking about in my writing so far is how the process of writing a patent application is really one of the separation of knowledge from property and the process of shifting it away from the lab toward the law. It's moving something, a technology, from R&D to a form that will make sense to a court. I'm arguing that this is also moving it away from “innovation” toward “competition,” like you all say, patents are weapons...]

For inventors, a patent is an idea or a concept, their invention. But for us, when we're drafting them or doing office actions on them, it is more of a legal issue. Like a contract [and a contract negotiation] between the company and the PTO. So, yeah, unless you have been trained in the language of patents, you don't understand why the claim is totally different from what you/they said in the beginning. [You won't understand] why the PTO views it in a different way, what the legal aspects are that make it or force it to be different.

[Right, so along those lines, one of the things I've been working on, thinking through, is seeing whether I might analyze the Company's patent evaluation meetings (pingshenghui) as that pivotal moment when knowledge is pulled out of individuals or R&D alone and taken up by the company as something that can be owned. Ownership in some ways is simple, right? The Company owns it. That's it. But in an anthropological sense it is also complicated: which people exert ownership? The CEO, The President? Who chooses to start a lawsuit? Who decides what should be owned and in what way?]

No, I think [what you are talking about] is not ownership. In the pingshenghui, if they say no, it is still a , we still own it. What you're talking about is a decision mechanism, but it does not affect ownership of the property.

This is something that most engineers are confused about. They go elsewhere and think it is theirs, they invented it, so they can still do it there. But they can't. When they signed their employment agreement, that agreement determined that they can't

245 use their knowledge for 2 years, maybe 3 years. This is because they used Company resources, machines, discussions with other [Company employees), all of these contributed to it (the invention). Without these maybe there would be no invention at all.

[Right, I think I understand what you mean. This is also about the NDAs. But I think what I am getting at is something a little bit different. Before this time, before the pingshenghui the knowledge was embedded within R&D or as an implicit particular skill of an employee wielded in a particular project. From an anthropological perspective, the pingshenghui process formalizes the knowledge, brings it out as an explicit “object” of knowledge. And not just for R&D, but for all the members of the committee it brings it up within the objectives of the company as a whole. Without, this process, though the company might claim it as a trade secret, for a lot of cases, the Company would not really even “know” of it and so would be unable to claim it. I think this is a key part of “owning” something, how knowledge becomes Company property.]

R&D has its own [internal] knowledge sharing mechanisms with their own records: the R&D presentations files, [chip] recipes, discussions between R&D engineers, the people who do the test runs on the manufacturing side, and the mass manufacturing people. So it is already formalized. Patents are just a way to make this more enforceable, legal. So, it’s put into a legal format. But this is only one way. So I would say that every report or analysis or written record are [doing this], or will already be contributing to [ownership].

[So what about, for instance, of the use of a dial on a machine, knowledge of how long to turn it, how to make that machine do exactly what you want it to, an “each time” work around to “tuning it” to match the results of another machine. It is less formalized knowledge as a person's skill with a particular machine or process. Because others don't know this, then this knowledge is not owned except trivially so, until there is a conflict with that employee and only then would a claim to that knowledge be asserted.]

Each engineer owns their own knowledge, but the combination of them makes it difficult. Ownership may have different meanings in different fields (ie. Anthropology), but when we have to tell them that they must avoid using what they did in previous companies, what they published in patents…Other companies may claim it as theirs or as resulting from their resources. Always, when you change to another company, they will use it as a chance to harass you or sue you, even if it was a “skill.”

It is still the Company's property even if it is trivial or not, because we always know that, due to the development of tools or processes, skills like that [over time] might be useful. finishing steps for instance. Even an easy thing like that,

246

well you might want to leave it as a trade secret, but now we see many companies using this type of process. In the future it may even be more important.

So as a company or as a worker you must be aware of this, so we need to have good knowledge management, because we never know what will be important. I mean, 20 years ago, LEDs were low-end products, everyone wanted to do DRAM!

[[We laughed. This was just after the spectacular 2009 DRAM industry collapse in Taiwan]].

Then on value and its connection to innovation:

For intangible assets it is difficult because you don't know where it comes from. A building, you can see it, you can track the records. But for knowledge, from the Internet it looks like there are A, B, and C technologies. But then person A will look at [that terrain] differently from B. It’s not like the size of the land limits the size of the building. You never know for intangibles. It’s difficult to draw the line, to say who owns what. This is all a matter of defining the scope, but there is also overlapping property.

Frankly, people see patents as commercial weapons, not as tools to promote technology. Even the new [US patent (“America Invents”)] Act, lots of people say it’s no good because it will just help big companies. So [they/we] think that it is marching away from encouraging invention, it’s a tool for helping competitiveness of the commercial world.

So patents are very difficult to evaluate their price. Value is always a big question mark. Yes, there are equations and papers, but none can be practically used in the real world, they are just for reference.101 You still have to make your own judgment, case by case.

[So how do you do it?]

We tell them that we want them [a patent portfolio] to be worth X, then they work the equation to get to our number. Lots of new models are possible, just not practical.

I then described my thoughts on patents having two pasts and two futures that they are dependent on:

[…The first past is the time of invention and of the prior art at that time. The second is of the time of the writing or prosecution of the patent. The first future is the time when it might, someday be used and upheld (or invalidated!) in court. The

101 We had an ongoing joke on traffic laws in Taiwan actually being for reference only that the boss was referring to here. 247

second future is based on where technology may go, along which paths. Oh, then a third future might be based on changes in patent law itself, especially in the US based on Supreme Court rulings.]

This is why [patents] are a game for big companies [to play]. Both of your “pasts” and “futures” need resources to deal with right. To deal with the futures, you need more claims to help to cover possible future variations. This is expensive though. You need to get everything from big all the way to narrow claims scope, get it all protected. Small companies can't do this or don't know they should do this. Or they may only know their own country's system and not others. So when you try to expand out, you are stuck. So invention is not tightly combined with patents [[due to the “pasts”]], whoever catches the trend, wins.

Many people are already trying hard to make the system more fair. But you never can compete with those companies. Patent value always depends on who you are speaking with. Models are of no use. Our accountants want a rule that all of the Companies patents can follow, but I can't give them one. They are all different.

[Accounting told me that their style of setting patent value is like this, if it is the Company's invention, then it is a cost, if the same patent were bought from outside, then it is an asset. This figures into their focus on cost-centered versus profit/asset making departments or moves.]

This always leaves us trying to prove that it will have value, something that may never occur. Via royalties? Perhaps, but that’s only in the future and it depends on future trends and agreements with other companies. If you're in a dispute, the other side sees our patents and they retreat. Isn't that good for the company? Of course, but you can't tell accounting how much you saved. There's no way to know that they got cold feet due to the patents or something else. So you NEVER know. We just know that if you don't have any patents, they come to your door and stay there. I just know one thing that you said is right. If you want to know the real value of a patent, you must go to court. But is this the only way to wield a patent?

[Or to gain value from a patent?]

That I'm not sure of.

I hope that in your dissertation you can point out some of the difficulties that “in- house” [patent engineers] face, especially as opposed to the [R&D] engineer's point of view, the law's perspective, or lawyers perspective, these perspectives already have a lot that has been written on them. In-house though is a very limited access group. You can describe the mysterious aspects of this group, so that outsiders can start to learn.

248

Many companies rely on outside firms a lot. This can sometimes—if a small company has a close, long term relation with one—be more similar to in-house style of interaction, but always only up to a point. So often their technology is good, but their patent is downright awful. Sometimes even people in our office forget, not only the litigation or negotiation [for patent sales or licensing] is important to have in-house for. New folks all want to get into these two, but this is only for a daily thing for HTC [she smiles an ironic smile]. You need to think highly of prosecution. Respect the inventor/R&D. You must be good at prosecution. Having good law experience (meaning court experience or licensing experience) can help prosecution, but lousy prosecution damages a lot [again with extra emphasis]. You can't just go out and buy this stuff [[meaning patents]]. In- house and R&D's chemistry is very important.

[I understand that not all companies organize their IP department within their overall company structure the same way. How common is it to combine in-house IP with the legal department?]

In some like Philips or Toshiba, the IP do all of the legal stuff to do with patents even though they are “legal” issues. For smaller companies though…You should talk to Nicole about it. Ownership of patents-wise, legal can do it, they can manage deadlines for payment of fees and submission of materials etc., but they don’t have any engineering [background]. So you still need people who have this specialty in R&D to bridge the two and to let you do office actions and such. Many companies' legal departments think they can do it themselves, and for contracts or litigation, no argument here. But for prosecution, I don't agree. In-house patent engineers are important for good prosecution and valuable patents.

249

Chapter 7:

Green Technology Deployed:

Patents and the Making of a Global Division of Labor

This chapter and the next take the discussion of the creation of patents and the deployment of patent portfolios back to the larger question of globalization and green capitalism that I began the dissertation with. Both take up the question of how it was that LEDs came to be “Green” as an entrance into understanding the consequences of the practice of patents at the scale of an industry's global division of labor, the environmental and economic struggles of a nation (or two), and global control over the movement of people and products. While the next chapter will highlight the necessary discursive developments that allowed LEDs to be considered “Green,” especially within Taiwan, this one takes up this key question in terms of the technological. What technological changes made up the conditions of possibility for LEDs' “Greenness” and how did the pursuit of patent portfolios surrounding these technological conditions result in patent battles that shaped the industry into the form it takes today?

Technologically Green: Commodities of White Light

The Race to Blue: From red and green to blue and white

In the beginning, there was red. And only red. The early days of “digital” products in the

1970s and the 1980s saw a plethora of new products nearly all of which were lit by what were then amazing, red LEDs. Red LEDs found their way into , , alarm clocks, 250 cassette players and boom boxes, and even into the soles of sports shoes such that they light up when your foot hits the ground. These amazing products were largely the result of a core group of researchers in the United States including the work of Jr. at General Electric,

Herb Maruska at Stanford and RCA, and George Craford at Monsanto and HP. The dominance of red was a technological thing. While it may also be more arresting or more aesthetically pleasing, at the time, red was simply the brightest color that could be successfully produced using AlGaAs and GaP, the then most advanced LED materials available. While these same materials could be pushed to emit orange or yellow light, and a greenish light was also developed from GaP indirect bandgap materials, these took into the 1980s to reach levels bright enough to be widely used in consumer products.

The biggest difference from a

consumer's perspective between LEDs and

other lighting technologies is that LEDs

directly produce colored light of a

particular wavelength rather than first

producing white light and then requiring

filters to eliminate all wavelengths but the

desired color. Conversely, this also means

that, in order to produce white light,

multiple colored LEDs have to be

Figure 7.1: The CIE 1931 Chromaticity Chart combined together as shown in Figure 7.1. See http://en.wikipedia.org/wiki/Chromaticity While the primary colors for paint (for reflected light)—those colors that can be combined together in a variety of proportions to make

251 all other colors—are blue, red, and yellow, this is not the same for emitted light. To make white light (and all other light colors), you need to have red, green, and blue sources. For readers familiar with “pixels” or with disassembled older-style color this RGB formula will be quite familiar. In Figure 7.1, the black line within the chart represents the “blackbody curve,” the mixtures of blue, red, and green light that result in our seeing white light of different

“temperatures.” As you move along this curve from the blue side towards the red, the white light that is produced trades a bluish tint for a yellowish tint, going from “cooler” whites to “warmer” whites. As of the early 1990s, however, though the technology existed for red and relatively dimmer green LEDs (albeit with wavelengths closer to 560 nm than 520 nm), there was no comparable blue light source and, therefore, no white:

The task of generating light over the red, orange, yellow, and green parts of the spectrum was successfully accomplished by around 1975, at least to the point of achieving luminous efficiencies of about 1 lumen per Watt. The major problem that remained was that of obtaining a balancing performance from blue and violet emitters. The best available blue LEDs were made from SiC but showed […] luminous efficiencies of about 0.004 lumens per Watt” (Orton 2004: 304).

Research in the field of LEDs around 1990 was driven primarily by companies in the computer and electronics industries, not the lighting industry. In the late 1980s, the primary LED players included Hewlett Packard, AT&T/Bell Laboratories, Monsanto, Texas Instruments, 3M,

Matsushita, Sharp, , and Toshiba (Johnstone 2007: 55-56). While the race to blue was what enabled white light and the eventual entrance of LEDs into competition for the general lighting market, this research was also being driven by a much less distant goal much closer to these companies' familiar markets. Though they all sold LEDs (and all produced them early on), for the most part, their primary near-term goal was to produce either IC products with LED parts in them or to produce lasers with the same materials used for LEDs. Semiconductor lasers (also

252 known as laser diodes, or LDs) are essentially LEDs whose light is focused (“coherent”) rather than relatively diffuse.102 Early commercial laser diodes were the key component that enabled compact discs both as a new, storage medium and as a portable compact consumer product. For these companies, the race to blue was also, therefore, about a more distant goal: finding the next product that would replace CDs, DVDs, and their disc players. Data storage in an optical disc format is dependent on the wavelength of light that is used to read and record it.

The longer the wavelength (ie. the “redder” it is), the larger the storage location needs to be, and the less data that can be stored on each disc. The race to blue was, in this sense, an effort at developing new material platforms that would give the necessary shorter wavelengths. Mastery at this next level was supposed to ensure a vast future stream of profit. The development of blue lasers (with a 405 nm wavelength) eventually enabled Blu-Ray and HDDVD products that can store 25 gigabytes of data (per layer), a little over 5 times the data of a DVD (4.7 gigabytes using a 650 nm red laser) and over 35 times that of a CD (0.7 gigabytes using a 780 nm near infrared laser).

These near and distant goals drove research and development projects in these companies towards experiments with two distinct sets of materials: Gallium Nitride (GaN) and Zinc

Selenide (ZnSe). For nearly 20 years, however, from the mid-1970s until 1993, no one won the race. By 1993, the vast majority of researchers had concluded that GaN was a dead end (it was difficult to grow, difficult to dope into a positive charge, and, when grown, it had a large number of defects) and most dropped their GaN efforts to redouble their focus on ZnSe materials. While

ZnSe had serious lifetime issues (ie. LEDs made with it might only last a few seconds), it nevertheless was significantly brighter than GaN while it was on. Gallium Nitride, on the other

102 Or, from the perspective of LD researchers, LEDs are simply failed (that is, non-coherent) lasers. 253 hand, had only a handful of researchers working on it; GaN researchers describe going to international conferences at the time and only having a dozen or so of the same people there each year.

Then, on November 29, 1993, the LED world was shocked when , an

R&D engineer from a tiny Japanese chemical company, demonstrated a blue LED based on the

GaN material system that was bright enough to be seen in a well-lit room. His seemingly out-of- nowhere coup had not only produced a “brilliant” blue LED that was close to “a hundred times brighter than [any] previous blue LED” (Johnstone 2007:12), but even his early prototypes continued to emit light after a thousand hours of use. In comparison, the brightest of the (still relatively dim) ZnSe attempts by the established players only lasted for a few seconds of room temperature operation before burning themselves out.

The shock, however, came not only from the sheer size of his LED's jump in brightness nor only from the fact that Nakamura had used GaN rather than ZnSe, but also because he was from a company, Nichia Chemical Industries, that had only one person in their blue R&D department (him), that was located in a “backwater” province (Tokushima prefecture) not even on the main Japanese island, and that was without either any connection to one of Japan's keiretsu (large corporate conglomerates like Toyota or Sony) or any previous experience selling

LED products of any color. This was the holy grail of LED research for a large number of companies with significant resources at their disposal, yet Nakamura and Nichia had beat them all to it. In the next few years, they followed up this surprise with announcement after announcement of new milestones, including commercial production of blue LEDs, the addition of a yellow phosphor coating to blue LEDs to directly emit white light (removing the need for red or green LEDs), even brighter blue and deeper violet LEDs, and, finally, bright blue lasers.

254

By 1998, in the face of this continuing onslaught, nearly all of the ZnSe programs had been abandoned and the then big companies in the industry scrambled to catch up with Nichia by setting up Gallium Nitride programs in their place.

On the one hand, then, the race to blue was significant because of the vast investment in it, over almost two decades, by the largest of the companies in the field. It is remembered, too, because of the astonishment over who it was who won the race. The significance of Nakamura's blue is enhanced by the fact that he relied on a set of materials most big blue research programs had written off and abandoned; he took the path less traveled and Nichia was all the better for it.

Although Nakamura's “invention” was the first condition of possibility under which LEDs could be Green, the most immediate impetus for research into blue had little or nothing to do with the environment (let alone Green lighting) and the patents that resulted from that research did little to promote the immediate expansion of LED's potential energy savings. Being “first” meant that

Nakamura could apply for a series of patents, first in Japan and later in the United States and elsewhere, that prevented others from entering the blue LED market without powerful early patents of their own. Most importantly, for us then—and as I describe in detail below—the race to blue LEDs not only led to white light, but also to a division of labor wherein the lower-skilled, lower-profit manufacturing jobs were the only ones available in Taiwan (and now China) while the higher-end, higher profit design and limited manufacturing positions instead concentrated in the countries of the Big 5.

On the other hand, we should keep in mind that the race to blue is only significant to us precisely because red and green were already being produced both reliably and with relatively bright outputs. For us, astonishing or not, Nakamura's blue is significant not for its enabling of

Blu-Ray or HDDVD disks, but as the first of the final technological keystones that would enable

255

LEDs as a “Green” technology. More and more, LEDs, especially as “Green products,” are synonymous with lighting or general illumination products instead of the IC industry; in short, with white light. LEDs then are “Green” not because they are blue, but because they are white:

LED lighting in general illumination applications has the potential in the U.S. alone to reduce lighting energy consumption by nearly one half. Over the next twenty years, the DoE estimates cumulative energy savings to total $250 billion at today’s energy prices and reduce greenhouse gas emissions by 1,800 million metric tons of carbon. This historic shift would not be possible without the development of a manufacturable intense blue LED light source (Conner 2012:1).

We remember the first bright blue light produced by Nichia rather than the first green light LED precisely because blue was the last step to make white and therefore blue, rather than green-light, technology patents have had an inestimable impact on the industry.

Technologically Green: From Brightness to More

In addition to the race to blue, then, LED companies were also working to optimize their existing product lines by finding ways to get more light out of the materials they were already using. Where the first technological condition of possibility for LEDs to be Green, was focused on finding and growing new materials, this one was focused on finding ways to optimize existing materials by adding and modifying layers in companies’ existing product platforms. While all companies in the industry pursued this second goal, due to Taiwanese companies’ relatively later entrance into the market and their smaller profile, they concentrated very heavily on this second track as a way to push from low to higher margin products. This meant facilitating a move from, for instance, electronic watches, displays, or Christmas lights into lights, stoplights, and the backlights for or laptop screens. In this way, Taiwanese

256 companies focused on developing their red range (including orange, yellow, and green) products and avoided the ZnSe versus GaN battle. They only entered into blue LED production, along with all of the large companies who had had ZnSe programs, after Nakamura’s reveal made GaN the clear choice for the immediate future.103 This blue line of products, too, then quickly became a focus of optimization strategies.

The second technological condition of possibility for LEDs to be Green, then, was a shift in strategies of optimization from a singular focus on improving brightness to a new range of critical, saleable improvement factors including efficiency and the fullness of the white light emitted. This shift was enabled precisely by the emergence of product lines within multiple companies that met the threshold brightness for a new type of market: the general (white) lighting market. With the entrance into the well-differentiated general lighting market, LEDs experienced a subtle shift from component to core; they moved from being seen as a mere side- component of larger IC products—as a computer’s indicator light or as the sending component of a fiber optic device incorporated into that computer—to starting to be seen as the sine qua non

“engine” of lights produced to be used as lights. With general lighting, the LED itself was the product, and this was a product that could be Green by playing up its “efficiency.”

To get to this point, however, more than Nakamura’s blue was required. While blue, as we saw in the last section was the last necessary step toward white light, early blue LEDs as well as both their contemporary Red spectrum LEDs and phosphor technologies that allowed for white emission were only bright enough for certain limited applications at first. Early white light

LEDs found their way behind smaller sized LCD screens such as in (pre-smartphone) cellphones.

They were unable, however, to meet the specifications of larger laptops or other screens. Both

103 ITRI’s Optoelectronics Department for instance, produced a bright blue LED in March 1997 around the same time that a group from the Nuclear Energy Department did as well (Li and Cai 2010: 111-112). 257 blue and red spectrum materials needed significant technological improvements before they would be bright enough to even get consideration in the competition for these other larger screen markets, let alone for replacing general lighting technologies.

Getting brighter was not only necessary for LED companies that hoped to enter new upper-level white lighting markets from the early 2000s, but also for those aiming to improve the range of applications their single-color products were competitive within. Since the beginning of

LED production in Taiwan, brightness was the primary threshold (menkan) for any new set of products to meet. Of all the specs that a customer might give to the Company, for instance, brightness was the one that necessarily had to be met to even have a chance to negotiate advanced terms like price, size, compatibility, lifetime, efficiency, or precise wavelength. This was not only a matter of moving into new markets with higher potential profit margins (though that certainly was a large part of it), but it was also a fundamental condition of the LED market: the products it produced had such long lifetimes that, unlike the computer industry, they were not going to be selling very many replacements or updates for their own previous sales. To survive and expand, companies needed to continually find new markets.

One engineer I spoke to highlighted this overwhelming importance of brightness, and of optimization in terms of brightness, in response to a question I asked about the most challenging problem he had encountered in the LED industry. Joseph worked in upper level management during the early, critical start-up and scale-up stages, of at least four separate Taiwanese LED companies beginning in the late 1990s. Beyond management issues here and there, as he described it, each of these companies had the same problem: as a small financially strapped company, how do you develop new products while also selling enough products to support those development efforts:

258

So when I came to Spectrum, the strongest thing they did was: They really could grow good green [light LEDs], they really grew green epi very well. But for blue light LEDs…? The market for green ones was only for [three color outdoor] display [boards], there’s no way to convert it [to make white from it], so what are you going to do? There was no other way. So we also grew blue light LEDs, but our blue light ones were only half [as bright as] others’ LEDs. Now, for half [as bright], your price is not only halfed, the price you get maybe is only a third— You aren’t leading. So I said, we have no other way, we have to develop “ITO.” I’m taking this [ITO case] as an example…you just asked me what was hardest, well, here it is…Right now, my blue light’s brightness is not sufficient. I need to [find a way to] give my engineers, give them more time to develop wafers comparable to Epistar’s or the LEDs of whatever other “stars.” […] So I forced that team [to do ITO]: If you don’t get it out, I said, our green light market is still just too small. If we want to do blue light though, then we have to do it this way. […] We had to help the epi people, give them enough time to develop [better light production within their crystal growth] because Epistar had already been doing it for so long, doing it for at least two or three years, and we still hadn’t even started [sales]. So we still had only [poor quality] blue epi, but with this [additional layer] we finally could finish it off, and also could sell it. So that meant that as we were in the process of developing it, we also could at least be selling [something], so we could continue to survive.

“ITO,” or Indium Tin Oxide, is the material Philips-Lumileds and Epistar fought over in the court case I described in Chapter 5. It is a layer now commonly used to “top-off” LEDs that serves multiple functions: it serves as a good ohmic contact to facilitate the movement of electricity from outside wires into the LED structure itself; its conductive qualities help to spread the electric current more evenly throughout the LED structure increasing the chances that electrons and holes will meet and produce light; and it provides a transparent “window” for light, once produced, to have more chances to exit the structure. At the time that Joseph’s team developed a way to add ITO into their existing LED structure only Epistar was already using it.104 For us here, what is important about ITO, was that by solving the challenge of adapting it into their structure, it gave them a way to stretch their poor quality epi’s competitiveness.

Although their epi layers produced less blue light than all of their key competitors, the rest of

104 Note that Joseph's company would have been in danger of lawsuits for infringing not only Epistar's patent, but also Philips' shangwei patent as well, given the ITC's ruling in the United States. 259 their structure actually enabled a significantly larger percentage of light produced to successfully leave the structure due to their optimization work with ITO. This optimization was apparently enough to allow their products to find a market in spite of their (still) poor epi quality. As a start- up company, Joseph told me similar stories about the other companies he worked for, Spectrum needed to find a way to 1) increase their brightness enough to 2) make the sales that would provide 3) the cash to enable them to 4) keep their blue epi research going. This was the only way to survive.

Through the mid-2000s, prior to a dramatic period of mergers (see Li and Cai 2010),

Taiwanese LED chip companies were almost entirely small to medium sized companies, with a majority being relatively recent start-ups. Being both smaller and relatively later entrants to the industry, as Joseph’s story on ITO and blue LED production suggests, optimization was largely a structural issue for Taiwanese firms. If your products were not bright enough, you may not even have access to compete within a particular market. If you could compete, a product with half the brightness would need to supply double the chips to meet the standard, but it would be paid at most a third of what competitors would be paid. Joseph knew that he was, most likely, violating

Epistar's patent, they had little choice if they wanted to survive in those markets. Moreover, they applied for and received a patent on their own, xiawei, adaptation of the ITO layer. In addition to

Joseph’s turn to ITO, similar efforts aimed at adding mirrors of a variety of types, introducing roughing techniques, or changing the substrate, size, shape, or orientation of chips all frequently appear in Taiwanese patents. While none of these would increase the amount of light produced in

260 the epi-layers, all made a significant difference in the amount of light extracted from the device as a whole (and therefore the amount of light visible to us).105

My emphasis on brightness here is not to suggest that ITO (and nearly all of these other improvements) did not also increase the structure’s efficiency (in terms of the amount of light emitted per unit of electricity used). They did. The point is rather that efficiency was not, in and of itself, saleable. Having a more efficient structure did mean that your products could emit more light with relatively less chip area, thereby reducing your costs and increasing profit. While brightness and efficiency are thus certainly linked, if your products were the most efficient on the market, but only so when run on very low current (and thus with very low light output), this would not enable you to compete in higher margin markets no matter how many chips you were to string together. Optimization was therefore long focused on brightness as the primary concern.

Even today the binning of mass manufactured chips in the Company (sorting them into Grade A,

B, C, and D bins) is primarily done based on flux rather than Lumens per Watt: how bright the chips emit light rather than how efficient they are. This is the primary determinant for whether a product will be sold to spec for any particular project or for determining if lower bin products might be sold later in a less demanding project.

By the mid-2000s, when Philips Lumileds sued Epistar and United Epitaxy Corporation

(see Chapter 5) over their high brightness red-range LEDs, the key brightness thresholds had been passed. To some extent, this lawsuit was filed precisely because the two Taiwanese

105 Though this was not their primary effect, one of these changes might also affect the number of electron-hole pair recombinations in the epi-layers, thereby adding somewhat to the amount of light produced. The primary variable in light production, however, lay in the epi quality and the patterns of wells and barriers within the active layer's multi-quantum wells. By the time I did my fieldwork, several Company engineers told me that though Japan excelled at internal quantum efficiency, that is, getting a high ratio of photons emitted to electrons/holes already in the LED structure, Taiwanese companies excelled at light extraction, that is, ensuring that a large percentage of the light produced in the epi actually gets out of the LED for us to see. These technological capacities were a direct result of early brightness-centered optimization efforts. 261 companies' products were competing directly with those of Philips Lumileds. Brightness levels were reached in white LEDs that enabled not only backlighting for large flat-paneled televisions, but also direct competition with commercial and residential lighting applications. In some cases

LEDs were even becoming too bright: some add-on brands of red brake lights in Taiwan and some of the flashing green lights advertising betel nut shops could momentarily blind drivers traveling on the roads at night.

With these brightness thresholds passed, a whole new set of criteria emerged with efficiency chief among them. It emerged as one of the key selling points that differentiated both between LED and CFL/incandescent alternatives as well as among competing LED choices. In my early time in R&D meetings at the Company, one of the key aspects of technology-focused projects was to raise the number of lumens of light produced per Watt of electricity in the product platform. Whereas before, efficiency would enable you to sell a product at a lower, more competitive price, now efficiency was itself a selling point that could enable you to get a higher price for your products.

Beyond efficiency, the Company, for instance, began research into the proper wavelengths of light for growing particular plants indoors. They also sought to differentiate their products through research into how to produce the best “warm white” products by emphasizing not just brightness, but also CRI. CRI, or color rendering index, is an evaluation of how closely the white light emitted from a particular device resembles the mix of wavelengths of light that reach the Earth from the Sun. This is a measure of the light’s “fullness.” A light with a CRI of

100 would exactly match the visible spectrum of sunlight on Earth. LED products moved in the late 2000s from CRIs below 80 up towards highs of 90 or 95. Higher CRIs enabled significantly higher selling prices as such products were also more likely to be accepted into high end

262 applications by lighting designers and architects—jewelry display lighting, for instance, was one market that demanded the highest CRI possible. For R&D now, it was no longer just about producing “white” or even about “warm” versus “cool” white, but understanding the different compositions of such whites. Optimization was clearly no longer focused on brightness alone and, in turn, LEDs’ push further into the general lighting market was no longer about brightness, but about efficiency, CRI, and much more.

As this shift in optimization occurred alongside an emerging government-embraced

Green discourse in Taiwan (described in detail in the next chapter), it was this efficiency of

LED’s conversion of electricity into white light that got LEDs swept up as another “next” Green

Technology. LED’s are Green not because they produce light, but because, in relation to other existing lighting technologies, they produce light more efficiently. Moreover, the kind of light that they produce to be Green must be white; the energy savings they promise are premised on wide adoption by general consumers (both in residences and businesses). LEDs thus were not

Green prior to their shift from IC component to light engine; LEDs used in backlights, as computer indicator lights, or any number of other earlier (and continuing) uses can only even mildly be called Green because LEDs became bright enough to be sold as everyday light bulbs.

Finally, as opposed to the development of GaN as a new material platform in the race to blue, this optimization focus involved a much larger set of companies, a much wider range of technologies, and a second, significantly larger, wave of patents, many of which are owned by

Taiwanese (and Korean) companies.

263

“Green” Patents and a Changing Global Division of Labor

The Emergence of the Big 5

Though the race to blue and the shift in optimization goals both were necessary conditions of possibility for LEDs to become environmental commodities, their pursuit was clearly not driven by environmental concerns. There is little inherently “Green” about either the pursuit of lasers to be used in CDs or data storage, or in LEDs to be used in digital watches and computer communications. Similarly, the effects of these pursuits, though introducing efficient lighting options were also not nearly as “Green” as they might have been. The patents that were produced around these very same technologies served competitive capitalist rather than Green goals: they enabled a different, more extensive control over supply chains and competitors than efforts at directly owning the means of production themselves would have in the past. Green

Capitalism, in this case, was more Capitalist than it was Environmentalist.

Following Nakamura's ongoing early wins in the race to blue, Nichia, a company who previously had discouraged its employees from publishing papers or filing patents quickly accumulated a slew of new property that, for its part, it refused to license to anyone. Nichia's chairman explained that he knew Nichia could not compete directly with the mass manufacturing expertise of the then dominant large IC companies and, given patent licenses, Nichia would quickly be pushed back out of the new lucrative market they had opened up. They couldn't win in a price war. He therefore wielded the legal inventions produced through and embodying

Nakamura's skills, machines, and materials to force anyone who wanted a blue LED (and thus a white one) to buy through Nichia. Johnstone (2007), for instance, tells the story of how, the very

264 next day after seeing Nakamura's success (in a bright conference room), Cree sent a team to

Nichia to enquire about a license or alliance agreement. Located across the globe in North

Carolina, Cree had been the leader in low-light blue LEDs based on its own silicon carbide products up until Nakamura's reveal and its engineers and management immediately recognized the way the wind was shifting. As with others, Nichia refused any offers beyond purchase orders.

More important for this understanding of patents as logical rather than technological things, the fact that Nakamura's win had been in a material system that few of the dominant IC companies had been working proved critical. It meant that his win provided a set of powerful, wide-scope shangwei patents.106 Had his win been in ZnSe instead, regardless of the still impressive and still surprising technical nature of it, Nichia would have only had a set of xiawei patents which would have been restricted by the earlier, albeit much less advanced, shangwei patent portfolios others had already accumulated. Nakamura's early research, working alongside a growing R&D team there, provided Nichia with critical early, and therefore relatively powerful patents on technologies including the growth of GaN via buffer layers (a technique that helped to overcome the lattice mismatch between sapphire and GaN), the machines he created to grow his

LEDs, patterned sapphire substrates, and the application of yellow-emitting phosphors to blue emitting diodes such that the light they emit is perceived as white.

These advances, however brilliant they were at the time, did not represent an at all insurmountable technical lead. Even if Nichia had not revealed the “how” of their process in

Nakamura's patent applications,107 as soon as they began to sell extremely bright GaN-based

LEDs, their competitors would have quickly begun to devote resources to GaN R&D programs

106 See http://tinanthropology.blogspot.com/2013/07/property-as-process-nakamuras-839.html for one example. 107 As with the Company, Nakamura never did reveal some of the critical details of his process and famously developed all of his prototypes on machines he made himself which, therefore, were not available to his competitors. 265 as well. Keeping it “secret” would have only given Nichia a few years more of a head start at most. As it was, other companies quickly began to launch their own blue LED production lines and, by 1996, Nichia was aggressively threatening and filing a series of lawsuits to stop further production. Patents, as practiced here, were clearly being deployed as weapons to stop competitor products. They gave their owner the legal power to maintain a technological advantage long past the time of actual technological parity (a relative legal advantage for close to

20 years, as opposed to less than 3 years of technical advantage for early generation products).

The first of these major lawsuits to go to court was filed against Toyoda Gosei in August

1996 in Japan. While this may not have been Nichia's first use of its patents, it was certainly the first to run up against spirited opposition. Even though there had only been a handful of people working on GaN before Nakamura's big reveal, there were some. Toyoda Gosei happened to have worked closely with two of these Japanese scientists and quickly counter-sued Nichia.

Incidentally, these were Nakamura's other two co-winners of the 2014 Nobel Prize for Physics.

Including Toyoda Gosei's countersuits and Nichia's counter-countersuits, this battle involved some 11 lawsuits in Japan alone. As this battle raged still unresolved, Nichia also sued Osram

(part of the Siemen's group that also includes Sylvania lighting) and Cree as well. These two lawsuits, too, quickly found Nichia running up against owners of the handful of early patents that did exist in the GaN material system.108

While Nichia's lawsuit against Osram ran into Osram's own phosphor coating patents, its suit against Cree seemed like it would be on better footing. Though Cree had been the world leader in blue LED production, its research had focused on silicon carbide and it was a late

108 Osram countersued Nichia claiming Nichia was infringing Osram's own patent on a white-light making blue- LED phosphor coating. While Osram's phosphor was different from the phosphor that Nichia held a patent on, the danger of a jury finding definitively for either side (thereby stopping the other in its tracks) was enough to prompt them to settle the lawsuit. 266 entrant into GaN research. This lawsuit, however, gives us a reminder of the significance of the alienability that the creation of patents provides to technical control. Sometime during or just prior to Nichia's lawsuit, Cree was able to find and strike an agreement with Boston University

(BU), the owner of patents filed by one of the other early GaN researchers, Theodore Moustakas.

Moustakas' patent on his own buffer layer technology, it turns out, was filed only a week or so before Nakamura's was. By entering into an exclusive licensing agreement with Cree, BU enabled Cree to counter sue Nichia with a potentially winning hand despite Cree, itself, not having developed any early GaN technology and BU never having produced any GaN products itself. If Cree had not found this early patent (or had not forged an agreement with BU first), it would have been very difficult for it to force any sort of cross-license with any other leading patent-holders and the Big 5 might have been 4. Not only was Cree lucky to have found BU first, they were also lucky that this particular patent (US 5,686,738) was so well written. Of the 5 GaN patents that had issued off of Moustakas's work by the time of the lawsuit in 2000, only this one was useable to sue most commercial manufacturers of LEDs. This is because the other four patents focused on methods rather than structure and thus included details like the use of

“molecular beam epitaxy” or “molecular gallium” in their claims.109 As we now know, each of these additional words restricted the claim scope such that the use of any other growth technology would not have been covered by BU's patent. Since molecular beam epitaxy had been disgarded by industry in favor of MOVPE (or MOCVD) machines (which both Cree and Nichia used), this narrowing language rendered these patents useless. By leaving this aspect of the production out of the claims in the '738 patent, BU was instead left with an extremely potent weapon that Cree was able to use to protect itself from Nichia's lawsuit.

109 See US patents 5,633,192, 6,123,768, and 5,385,862. US patent 5,725,674 has a smaller scope due to the details included in its claims on its use/introduction of Nitrogen into the structure. 267

Finally, the Nichia-Cree lawsuit also provided a second reminder of the power of technical skills rendered alienable. The suit itself was triggered in part by Nakamura leaving

Nichia in 1999 for a position in the United States. While he had originally intended to join Cree in North Carolina, he was advised that that would leave him open to lawsuits and that he would be best able to continue his GaN LED research in an academic institution that did not, itself, produce any products. Instead, Nakamura took up a professorship at the University of California

Santa Barbara that was endowed by Cree. Alongside their patent infringement suit against Cree then, Nichia launched a trade secrets lawsuit against Nakamura (which was eventually dismissed) that accused him of selling “Nichia's” secrets to Cree and violating a non-disclosure agreement he had signed when he joined Nichia in 1979.

In anger over both of these new lawsuits, Nakamura counter-sued Nichia for “just compensation” for his own patents. It turns out that beyond his normal salary, Nakamura had only been paid a few hundred dollars in bonus money for his role in the creation of a set of patents and products that created billions of dollars in additional profits for his company. Though he won his case, the damages he received (some 8 million USD) were substantially reduced by

Japan's corporation-favoring high court's strong signal that the parties should settle (the original, lower court ruling gave him 190 million USD). While the details of this case are fascinating, especially for the precedent it set for worker compensation rules in Japan, for us, the lawsuit remind us that patents (much like trade secret law and non-disclosure contracts) are not just deployed to stop the movement of competitor products, but also to stop the movement of people.

Patents provided Nichia with a method of alienating Nakamura's skill from him such that the right to practice that skill could be bought and sold separate from him and remain with Nichia even long after he left. The patent applications of the Company were similarly one among

268 several other secrecy techniques directed at both of these purposes as well. Patents were one more tool that they used to try to prevent mainland Chinese companies from poaching their employees much like Philips (see Chapter 5) and Nichia used them against their own former employees.

By 2002, when the dust began to settle on this first round of lawsuits, the large IC companies who had formerly dominated the industry had nearly all bowed out of LEDs to focus on lasers and other more core areas of their electronics and computer businesses. Nichia finally relented and agreed to cross-license its patents with Osram, Cree, and Toyoda Gosei (among others). The fact that these three sets of lawsuits ended in cross-licensing agreements should not, however, leave us with the impression that Nichia's patents were not valuable or were not effective in fending off competitors. As is the case for the vast majority of patent infringement lawsuits it is safe to assume that the only companies willing to go to trial were those, which, like these three, had patents of their own they felt they could defend with. The Company, for instance, received a bunch more letters insinuating potential patent lawsuits than actually resulted in either the Company filing a declarative judgment lawsuit to confirm their non- infringement or the patent holder filing infringement lawsuits. The effect of Nichia's patents, however, is clearly visible in the vast reshaping of the LED industry that both the “silent” deployment of their patents as well as these lawsuits produced. With the retreat of the likes of

Sony, Matsushita, HP, 3M, and Xerox, these cross-licenses effectively created the Big 5

Japanese, European, and American companies—as shown in Figure 7.2—who, together, control the vast majority of fundamental patents on white-light LEDs.

269

Figure 7.2: Lawsuits and Cross-Licensing among the Big 5 patent holders in the LED industry (Figure by the Author).

While this was the beginning of the Big 5, this was not the end of lawsuits by any means.

In addition to these suits among the Big 5, the Big 5 also launched lawsuits against up-and- coming Taiwanese, Korean, and, later, Chinese firms. One good example of these suits was when Philips, who inherited Hewlett Packard's old LED unit, sued Epistar and United Epitaxy two Taiwanese firms in 1999 and then again in 2004 (this second one is the suit described in detail in Chapter 5). These two companies were Taiwan's leading Red, Yellow, and Green LED producing companies and, at the time of the first lawsuit, they had just cracked the list of the worldwide top 4 manufacturers of high brightness chips by volume (though not by value). A wide range of other lawsuits took place with many settled privately and all of which left damages and royalty fees flowing towards the Big 5 (see Figure 7.3).

270

Figure 7.3: Licensing and Lawsuits in the LED Industry This graphic focuses on the position of Taiwanese companies within the global division of labor that gravitates around the Big 5 American, Japanese, and European patent owners. The physical position of the companies in the chart is meant to correspond to roughly to their alliances with Big 5 and other companies as surmised by publicly available information including purchasing agreement announcements, licensing announcements, and lawsuits (Figure by the Author).

Also by 2002, Nichia and the other Big 5 had begun to outsource a good portion of the actual manufacturing of their chips to these same Taiwanese and Korean companies. While

Nichia also sued Epistar (and Everlight, one of Taiwan's leading LED chip-packaging companies) in 2003 over sales of blue LED chips in Japan, unlike Philips's lawsuits, UEC was not included in this suit as UEC had a close, productive relationship with Nichia. In 2005,

Nichia's suit against Epistar (though not its suit against Everlight over the same, then packaged,

271 chips) was settled when UEC merged with Epistar. These selective lawsuits were not, then, filed indiscriminately and the stoppage they provide is therefore more strategic than absolute. Rather they appear to follow two primary principles: first, to sue those companies who pose a competitive risk to the patent holder in the near future and, second, to sue those companies not already in (or starting to move beyond) the patent holder's allied network. One article on the

Nichia-Epistar case, for instance, recaps a recent settlement Nichia claimed to have reached with an “unnamed German LED marketing and distribution company” who had been marketing a variety of Taiwanese made white LEDs. This unnamed company agreed to stop marketing the

Taiwanese-made chips and, instead, to buy white LEDs made by Nichia (or, perhaps more accurately, made in Nichia's name). These selective lawsuits and settlements set up a global division of labor wherein the Big 5 relied on their patent portfolios to keep their allied manufacturers in line, control the global distribution of LEDs, and to add another layer of control over the movement of their own engineers. Even up until the present, with very few exceptions, while individual Big 5 companies have provided limited patent licenses to companies producing chips for them, there have not been any large scale cross-license agreements which would allow a Taiwanese or Korean company to compete with the Big 5 directly.

As these early patents begin to expire, a second wave of much more numerous patents like the series of ones on sapphire substrates described in Chapter 6 have begun to see action towards the same goals. As Chinese companies and newer Taiwanese start-ups have begun to reach technological parity on lower to mid range products, Taiwanese companies too have launched lawsuits to protect their positions. Epistar, formerly on the other end of lawsuits, filed lawsuits against up-and-coming Taiwanese companies like Epitech, Huga Optolectronics, and

272

Formosa Epitaxy.110 These Taiwanese companies therefore do not seek to get rid of the patent system, but rather seek to bide their time until the original patents of the Big 5 expire and, hopefully, theirs will become King.

Power, Taiwanese Fast Followers, and the Messiness of Globalization

This legal infrastructure of stoppage has resulted in a shift of competition from direct competition at the top levels with each company offering its own-branded product, to competition among Taiwanese, Korean, and now Chinese companies for outsourced Big 5 contract production. Even an enormous company like Taiwan Semiconductor Manufacturing

Corporation (TSMC), the largest computer chip foundry in the world, found its late entry into the

LED industry as a separate supply chain to be blocked by Big 5 patents. In short, potential direct competitors at a technological and price level are pushed instead into existing supply chains.

This means that price competition happens within the supply chains and with the resulting additional profits being captured by the Big 5.

To give a final example of the sort of strange co-operative competitive relationships that this system of property in knowledge has enabled, toward the end of my time with the Company

City arranged for me to shadow two particular R&D projects much more closely. While one was driven more toward technological progress and products the Company did not yet have customers for, the Company had also been involved in a massive cooperative project between one of the LED (light emitting diode) industry's “Big 5” companies and two distinct companies based in China. The LED chips in this project were produced in Taiwan, packaged in China into

110 Perhaps as another sign of the tendency to sue to stop potential competitors (and therefore to stop the successful sale of their products), Epistar would later merge with each of these three companies (with the Formosa Epitaxy merger coming only in the end of 2014). 273 a bulb structure designed in the United States, Europe or Japan, and then shipped around the world to retail locations in those regions. Essentially, the Company and the two Chinese companies were trying out to serve as Original Equipment Manufacturers (OEM) for the Big 5 company. Together, these companies were manufacturing some of the first sets of good quality, energy saving, white LED bulbs that were meant to effectively replace the Edison-style incandescent bulbs (20 W, 40 W, and 60 W equivalents) that consumers in the developed world's major consumer markets used in their homes and offices. This “X-Watt Project” provides us a way to return, to globalization and global supply chains by turning these patent-based LED industry relationships back “outside-out” again.

Once the Company's red and blue chips were manufactured in Taiwan, they were then sent to a first company in China where they were put into packages and coated with a mixture of phosphors that would ensure that the light emitted was not only “white,” but a white of the correct “temperature”: warm white (~2000-3000K) required more red light to show a color similar to a setting sun and cool white (~4000-5000K) required more blue light to give off a color similar to the sun at midday. These completed packages, the engines of the LED bulbs, were then sent to the second Chinese company where they were combined with the final electrical, heat reduction, and external aesthetic components of the light bulbs. The completed bulbs could then be shipped by the Big 5 company to its retail stores around the world. Once the initial numbers (say one million or so) had been completed, all three OEM companies would most likely need to begin to engage in their own partial outsourcing in order to quickly ramp up their production capacities to the necessary levels. From the consumer's perspective, however, all of these outsourced steps of making their branded LED bulbs were consolidated under the Big 5 company's name, from wafer or epitaxy production to chip processing, and from chip packaging

274

Figure 7.4: Globalization and the X Watt Project (Figure by the Author). to the incorporation of the final electrical, heat reduction, aesthetic and outer case components

(see Figure 7.4).

The cooperation, however, was a complex one not just due to the number of companies involved, but also to the relationships between them. I had heard rumors, for instance, that the

Big 5 company had also engaged at least one other set of Taiwanese, Korean, or Chinese companies on a similar internally competing project as a way to keep pressure both on the project's total costs and on the Company and its “partners.” Moreover, even as they cooperated on the X Watt Project, the Company was also working with the Big 5 company's competitors on a series of unrelated LED products. As for the Chinese companies, they were direct competitors of Taiwanese packaging companies that the Company had traditionally worked very closely with

275 and had their own alliances with Chinese chip makers eager to learn anything they could about the Company's own processes. At one point in the project one of the Company's own close allies, who was not part of X Watt, confronted their contact in the Company out of the blue with a chip they claimed was a Company chip packaged into the Big 5 company's product. They were angry that the Company was selling this product to that Big 5 company and not to them. While they were eventually able to smooth over the tension this caused, due to their production contract and regardless of whether or not that particular chip was actually one of the ones they had produced, the Company could neither sell the product to their ally nor tell their ally that they were even involved in such a project. Phil, one of the engineers I had been shadowing, suspected at one point that one of the X Watt project's Chinese companies had slipped the sample chips to the

Company's ally in order to cause trouble and, perhaps, curry favor for their own future projects.

When the Company, in turn, confronted the Chinese company about the situation, they claimed innocence, saying that they would never share chips with a company that was, effectively, their current competitor. They suggested that it must have instead been leaked by the Big 5 company.

As City once told me, one always had to be careful working in the LED industry: companies that are your customers today might easily be your competitors tomorrow and those who sue you today may just as easily be your customers or partners in a deal in a year or two. All of this is at least partially a result of the confining of competition within the Big 5's existing supply chains.

The Company, like many other Taiwanese companies,111 finds itself in this position between Chinese companies on the rise with lower costs of labor and the Big 5 patent holders in

111 One of the biggest difference between the equally export-oriented development of Taiwan as compared to that of Japan and Korea was the prevalence in Taiwan of an enormous number of small and medium sized enterprises (SMEs). While state-led development in Taiwan also resulted in large state-backed companies—including companies like China Petroleum Corporation, China Shipping Building Corporation (now CSBC Corporation, Taiwan), Taiwan Power Corporation, Taiwan Sugar Corporation, China Steel, and China Airlines—much of the 276 part due to its own successful work as a “fast follower.” As Liu (2001) explains, fast follower companies enter a new product chain just as it is ramping up into mass manufacturing and then leave again for their next product before the price of the first bottoms out to “commodity” levels.

As such, Taiwanese companies tend to occupy a continuously shifting, precarious structural position in the global supply chain. Companies like both Spectrum and the Company began by occupying (actually, carving out) a space between the originators of new products and those who later will produce it in massive quantities at very low per-product profit margins. As one interlocutor put it to me in a joke,

“You Americans take it from zero to one hundred, we take it from one hundred to one hundred thousand, and where do you think China takes it?” “From one hundred thousand to one million?” “No, China takes it from one hundred thousand back to zero.”

Where the first sets of numbers for the Americans and Taiwanese refer to quantities of product, the punchline is that the last zero for China refers instead to the death of the industry not just in terms of quantity, but also in terms of “zero” profits and “zero” quality. The Company likes to explain that it was Taiwanese LED producers like them who have been responsible for the wide spread adoption of LEDs. Their manufacturing ability and R&D have popularized LEDs within a steadily widening range of businesses, becoming the preferred backlight for mobile phones, then for laptops, and now for TVs. The Company plans to do the same popularization work for LED lighting as well. By finding a way to produce the newest products at high quality levels and at a lower cost, their entrance into an industry either on their own or as contract manufacturers drives prices down. These are the companies that make the next generation of product crowd out the last.

activity behind Taiwan's later economic “miracle” came instead from the manufacturing ability of these SMEs and their ability to quickly change products or even industries to keep up with global trends and shifts in demand. See Gold 1986 and Hsiung 2011. 277

This, then, is Taiwan's between. The Company is neither a Chinese massively mass manufacturing company, nor is it a brand name retail producer. Back in the 1970s and then again in the 1990s, Taiwanese companies' ability to compete in terms of product prices of particular segments of the overall production process—for instance, only doing the chip packaging (based on plastic injection molding experience), only doing the wafers that chips will later be cut from, or only doing the chips themselves—allowed them to break up what were then vertically integrated sets of production within then dominant companies. Effectively, the first of these packaging and then chip companies in Taiwan exerted their own agency to carve out niches that did not previously exist and, over time, they enabled the proliferation of an entire eco-system of companies in Taiwan (bound up with Taiwan's IC industry eco-system) specialized in nearly all of the technological parts of LED production.112 In turn, it is then patents rather than price competitiveness or technological advantage that has continued to force these companies into existing supply chains dominated by the Big 5. While this fast-follower position is not where the management of the Company I spoke with see themselves in the future, in order to shift ahead of the curve (and not simply onto the next product) they need not only the R&D minds that they have, but also licenses to those early, fundamental patents held by the industry's Big 5.

What surprised me most about the stories I heard from this project was the extent to which this “fast follower” company was being called on to do the technological, analysis, and problem solving work of the project as a whole. Though the Big 5 company was a part of the

112 In some ways, then, this earlier price-oriented competitive move of companies like Lite-On and Wanbang Electronics (as well as, in the 1990s, Everlight, United Epitaxy, and Epistar) was a more powerful sort of agency than that exerted through Nichia's GaN blue patents. While Nichia was able to up-end the balance of power in order to insert itself at the top of the next generation Big 5, in another sense this did not fundamentally change the industry structure: Nichia merely replaced companies that were formerly at the top. Though they left themselves a rather difficult position having to swim constantly to keep from sinking, these Taiwanese firms ability to break up production processes into specialized parts and an ecosystem of smaller companies who could adapt very quickly to new products as “fast followers” actually forced a change in the overall system. 278

“Big 5” precisely due to the number of chip (and other) patents they held, the technologies for producing the chips were entirely left to the expertise of the Company. The Big 5 company had set up a series of specs for characteristics like brightness, color temperature (warm versus cool white), chip or package size, forward voltage, lumens per Watt, and lumens per dollar. I assume that they must have also themselves designed the ultimate shape of the bulbs, the arrangement of the LED chips within it, and any additional elements that would dissipate the heat produced by the chips. Also, when asked, the Big 5 did arrange a limited license to a selection of their own patents, for an additional price. But the actual engines of these white lights were produced by the Company without technological cooperation with the Big 5. It was up to the

Company to invent an LED structure using mostly their own proprietary technology that could reach the challenging specs given to them by the Big 5 company at the price they had agreed upon. And yet, as a contract manufacturer the final products would be sold under the Big 5 company's associated brand name with no one the wiser as to who had actually produced them.

Globalization as in the X Watt Project is not just a matter of the global movement of products around the world, nor even just about the globally distributed nature of production that now predominates. Rather, these product oriented processes are bound up in relations of power—including shifting alliances, companies expanding their product offerings vertically and horizontally, and others jockeying for better positions within global supply chains—that determine which companies do the outsourcing and which remain. The pressure exerted on the

Company from their Big 5 partner meant that, in spite of the massive number of chips the project demanded, City estimated that the Company would at best only break even for this first generation of white lightbulbs. For him, this was an enormous case that “we could not afford not to win, even if we also cannot afford to win it.” Their goal was to gain valuable practice

279 manufacturing the chips and chip packages for white LED bulbs on such a massive scale while also gaining a valuable understanding of the Chinese companies' expertise and of the overall organization and procedures of the project. At the same time, they aimed to secure a longer term relationship within the Big 5 company's global supply chain for white LED bulbs that could, eventually, earn the Company a stable stream of profit. The Company's eggs were certainly not all in one basket, however. Running parallel to this first cooperative project, the Company also had a separate R&D team working on their own-brand version of an LED chip combination they would sell to a variety of package and other brand name luminaire makers around the world. By contract agreement with the X Watt Big 5 company, this product would come out several months after the Big 5 one did. It would also be a higher cost, somewhat lower efficiency version that, for the Company, would also yield significantly higher profit. This last was one of the

Company's tentative steps toward cobbling together, out of the ecosystem of specialty companies involved in other supply chains, its own chain that would first produce in and for sale in countries like Taiwan or China where the Big 5 may not have filed their for patents on some of their earliest legal inventions.

Conclusion

The LED industry's patent heavy nature is what prevents these companies from competing directly with the Japanese, American, and European name brand companies. The primary patents are all held by the Big 5 and their cross-licensing agreements allow each of them to produce without too much worry of lawsuits. Through multiple waves of lawsuits and counter-suits they have created and have continue to maintain a global division of labor and profits within the LED

280 industry. As a consequence of patents' creation and deployment in practice, Taiwanese, and now

Chinese companies, without powerful patents either get labeled “pirates” or remain contract manufacturers, outside looking in at higher-end, higher-profit research and design work controlled by these early patent-holding American, European, and Japanese companies. It is the patent system's ability to control even independent invention through the construction of patents, detached from the material and temporal conditions of particular labs, that allows this type of outsourcing and that maintains this global division of labor.

If we consider patents under a framework that assumes their positive impact on innovation, then patents should be an especially important piece of the green technology puzzle, promoting ever better commodity solutions to what are significant, global environmental challenges. In practice, however, patents are much more closely linked to competition and, therefore, their effects will be different both in different industries and in the same industry at different times. Patents work toward the accumulation of capital almost in direct opposition to way the way that price-based product/manufacturing competition works. Rather then increasing the number of products available and number of providers of them, patents significantly slow down product lifecycles by extending considerably a one-time technological edge. They streamline production chains, not allowing for the proliferation of streams, but only the movement of players from one stream to another.

Patents are weapons of competition through stoppage. Stoppage here can be seen not only on the micro level in terms of helping stop the movement of skilled engineers by rendering a portion of their skills (though not the marketability of their “innovativeness”) unusable. They enable their owners a level of control over the past technological skills of a set of engineers that can be bought and sold apart from those engineers, apart from the machines they used, and apart

281 from the materials they worked with. They stop the movement of products from places like

Taiwan into Japan, for instance, unless that movement occurs as a part of already approved and top-controlled OEM supply chains. They slow down the march “cost downs” by keeping new producers out, challenging OEM and contract producers' profit margins, and siphoning those profits back up to the patent holders regardless of whether the role they play in the designing or manufacturing of the actual products at all.

Perhaps most importantly, patents enforce a global division of companies and countries into particular niches of the industry and thus have an effect on the availability of particular kinds of jobs in places like Taiwan and China. Wages in Taiwan have, for instance, risen much higher than the levels necessary for Taiwanese LED companies to hire local labor to produce low-end products. Higher-end products might be sustainable, but to produce these Taiwanese companies must produce for the Big 5 at significantly lower prices. Despite having the technology, manufacturing skills, and productive capacities to produce higher-end green- technology products like in the X Watt Project, patents keep Taiwanese companies working as internal supply chain participants. As such, it is no surprise that Taiwanese companies have lobbied the government to increase the size of Taiwan's foreign workers program, effectively in- sourcing cheap, non-citizen labor. Patents provide early entrants with considerable power over later entrants no matter what the current balance of technology between them might be. They enable the continued extraction of capital from producers to the owners not of the means of production, but of the rights to produce.

The changing positions of Taiwan and China within this system no less than the outside perception of their “ability to innovate” depends less on their creativity and technical capacities and more on their ability to leverage the intellectual property system to allow them to take credit

282 for the higher end products that they have already been producing. Though the respective governments of Taiwan and China often talk about moving into the “Knowledge Economy,” this division of labor is the knowledge economy. They are actually already a part of it, just not yet occupying the structural positions they would like.

Finally, while the situation described here is reflected in many industries, it is significant that this case deals with a green technology proposed as one part of a solution to climate change: a problem that can only be understood fully at a planetary level. These patents were issued on the very technological capacities that allowed LEDs to be seen as environmental commodities.

Though both the race to blue and the shift in optimization provided the technological basis for white light LEDs, and therefore a necessary condition for LEDs' “Greenness” as more efficient replacements for existing lighting, this was not sufficient on its own for LEDs to overcome their semiconductor roots. Rather a discursive shift was also necessary and it is to this discursive shift in environmental discourse that I will turn in the Chapter 8. As it turns out, analyzing this discursive shift allows us to see how these same green technology patents not only produced a global division of labor and profits, but also an unequal global distribution of environmental risk.

283

Chapter 8:

Green Capitalism on Taiwan's Green Silicon Island:

Commodities of Light in the Shadow of Carbon

In 2010 when I finished the main portion of my fieldwork, LEDs were fast becoming the technology star of the international lighting industry. The European Union, Japan, China,

Taiwan, and the United States (among others) had all passed laws requiring the eventual phasing out of traditional Edison (incandescent) light bulbs (cf. McKinsey and Company 2011: 35). The

United States, for instance, did so by requiring new products, whatever their technological basis, to meet increasing efficiency standards. LEDs were the technological platform most clearly poised to take over in all sorts of lighting niches due to their advertised long lifetimes, low power consumption, and versatile set of products covering nearly the entire visible, and near-visible, electromagnetic spectrum. The only thing holding the product back, it seemed, was their relatively high price: old style incandescent 60 W bulbs cost less then 50 cents each while, by

2012, their LED replacements cost between 10 and 15 USD at the low end. Of course, numerous articles suggested that within only a few years, the significantly lower electric use of the LED

(LED replacements for “60W” bulbs only used around 10W of electricity to put out the same, roughly 800 lumens of light) would create savings to repay the initial outlay for the better bulb.

At a macro level, such energy savings should translate into massive potential reductions in necessary electric production and thus in pollution in the form of carbon compounds that contribute to global climate change. Even without such eventual micro and macro savings, prices, too, were also dropping rapidly from around the 30 to 50 USD range only a few years

284 earlier. Beyond manufacturing cost reductions, Taiwan (similar to other national governments) introduced an effort to subsidize the purchase of LED lights, especially in commercial-retail venues like Taiwan’s ubiquituous 24-hour convenience stores. China’s government also promoted the industry by introducing significant capital partnerships (50/50) to companies buying the MOCVD machines used to manufacture LED chips. In short, both the consumption and production of LEDs received a global spotlight as a significant Green technology:

“Lightbulbs guzzle energy, wasting 95 percent of their output in the form of heat; […] one in three bulbs needs replacing every year. Light emitting diodes, by contrast, […] consume 80 percent less energy than incandescents, […and] last for up to a hundred thousand hours, over a decade. […] Since lighting accounts for around a quarter of electricity usage, replacing conventional lights with LEDs would dramatically cut our energy consumption. In the United States, by far the world's largest user of electricity, energy consumption would decline by almost 30 percent. By switching to solid state lighting, consumers could expect to save $125 billion over the next twenty years. […] Fewer fossil-fuel electric plants would mean a reduction in carbon emissions of hundreds of millions of tons. In addition to this, LEDs are intrinsically environment friendly. They contain no toxic substances like , which is used in florescent tubes, and thus do not threaten landfills, groundwater, and ultimately our health.” (Johnstone 2007:10).

This Green technology, therefore, meant more than just long term cost-effective energy and monetary savings. On top of this, LEDs’ lack of mercury, a necessary component of compact fluorescents (CFLs, LEDs’ main energy efficient competitor), could appease those environmentally minded consumers who recognized the danger of pollution from the wide distribution of small amounts of mercury in landfills across the globe. Such distributed concentrations created through (improperly) dumped CFLs could potentially reach and pollute significant ground water sources. All this is to say, that, from the perspective of consumption,

LEDs truly were an all around “environmentally friendly” product; they very quickly had become the de facto “Green” light.

285

Green Technology as a Question

Technologically speaking, as I described in Chapter 7, LED chips are a kind of semiconductor technology; they are close kin to the silicon chips found in computer memory and other IC technologies; produced with different materials but via very similar sets of processes.

Silicon, in turn, stands for the very semiconductor industry, semiconductor associated plastics and other petrochemical industries, and science and technology parks against which Taiwanese environmental activists had cut their teeth protesting. Working as I was mostly in offices, meeting rooms, and the non-“clean room” portions of the R&D lab, I often forgot this dangerous aspect of the industry. Periodically, however, incidents that highlighted this potential for health hazards punctured the normal rhythm of collaboration and casual banter that was the variety of science park, cubicle-based culture within the Company.

First, a few months after my arrival, we had an earthquake. It was my first earthquake experience while “outside” at work rather than at home and was a relatively long one. During the earthquake everyone froze and looked at one another over our cubicle walls. Though it was relatively mild, afterwards nearly everyone was on their mobile phones reporting in to their families. The experience was strange, but not all that disconcerting―earthquakes had been a frequent occurrence during my time in Taiwan―until a ringing loudspeaker I didn't know existed announced that emergency protocols were in effect and demanded that all department heads immediately report on damages. It was almost an hour wait before the all clear signal was announced to confirm that there had not been any significant damage. In the meantime, I spoke with the guy in the cubicle across from me about it all, wondering if the emergency protocol siren and announcement wasn't a bit of an over reaction, I mean, nothing had even fallen from

286 shelves in our office. He replied that I felt that way because I was in the office all the time. Just on the other side of those far walls, he pointed as he spoke, are the pipes delivering production gases to and waste gasses from the production lines on the floor below us. You can hear them when you go use the bathroom. If the quake snapped any one of those and leaked the wrong gas, our health would have been in immediate, critical danger.

Second, one of the ways that I “participated” in the Company during my fieldwork was helping to correct English translations of Chinese copy for press releases, webpage content, or powerpoint presentations given to customers. At one point, I was introduced to a woman from human resources in charge of putting together a new employee recruitment site. Along with her,

I worked to translate into English the advertised benefits of working for the Company. I had particular difficulty translating one point related to healthcare. My understanding of the Chinese was that the Company imposed mandatory annual health checks on all of its employees and then would also give the employees a copy of the results. I figured I must have misunderstood the point. How could such an invasion of privacy possibly be considered a “benefit?” Even if the emphasis was supposed to be on the provision of the results to employees, wasn't that just expected; wasn't it a necessary part of the doctor patient relationship? My HR contact explained that being based in HR, she wasn't that familiar with all the details, but that it had to do with showing the Company's commitment to worker safety. The fact that process engineers and operators were dealing with dangerous chemicals (often in easily absorbed gas, liquid, or nano- solid forms) meant that all employees had to have health exams in order to ensure that their exposure to such harmful elements remained within the limits set for worker safety. This meant understanding both immediate exposure in terms of limiting accidents as well as longer term tracking of employee exposure to low doses of such elements in the working environment. For

287 her, the fact that the Company paid for and conducted these annual exams was something that showed how significant worker safety was to the Company. The fact that the Company was willing to release these results to the patients indicated to her that the Company was being open about potential exposure and willing to go the extra step to inform employees of their own health dangers. At the same time, the inclusion of the point about the results also suggested that this was a potential point of differentiation between the Company and other potential LED competitors for these employees. Later, when the health results came out, I overheard several

R&D employees chatting about how many categories (one or two) they were “in the red” on.

That was supposed to suggest that they should be spending less time in certain areas of the manufacturing process for a while. Both sort of laughed though as they still had to get their projects done and overseeing those aspects was necessary for completing their tasks.

Finally, after working for months to get permission, on my first chance at entering the actual R&D clean room, I was told I would need to borrow someone else's protective clothing (as

I would not have my own). My mood quickly fell. In Taiwan, I count as relatively tall and had already had quite a difficult time finding Company-issued anti-static slippers to wear around the office that fit me. I told the friend who was to show me around the clean-room that I was worried the borrowed clothes would not cover me, leaving my skin partially exposed. He just laughed at me. “These aren't for protecting you from the chips, they are for protecting the chips from you, from the dust, particles, and dead skin that are on your clothes. If something happened, do you really think these thin pieces of cloth would help you? If there's an arsenic gas leak, we're

[running] out that emergency door and you're out with us. You only have a few minutes before you'd get a lethal dose.” While these stories actually suggest caution on the part of the Company and are all also about worker health and safety rather than pollution, the same concerns about

288 potential leaks in pipes for production gases, waste scrubbers, or waste water are intimately related to LED production's potential impact on the environment. So how, then, did LEDs somehow escape this connection to the dangers of semiconductor processes? Beyond the technological, what were the conditions by which it became possible for LEDs to become

“Green?” What sorts of consequences, then, might this particular articulation of environmental discourse, commodity capitalism, and global divisions of labor engender?

Discursively Green: In the Shadow of Carbon

An Emerging Green Silicon Island: Act I, Environmental Opposition

Due to a split in the ruling KMT (the Guo Ming Dang or Nationalist Party) vote,

Taiwan's year 2000 presidential elections catapulted Chen Shui-bian, his Democratic Progressive

Party (DPP), and their pro-environment platform into the Presidency. This was the first transition of power in the history of the Republic of China on Taiwan and the first clear sign of a viable, national, political opposition (cf. Rigger 2001). As polarizing as the election (and Chen's later re- election in 2004) was, this also marked a time when those long denied, ignored, or suppressed by the formerly ruling KMT could jubilantly imagine dramatic change: from the solidification of democratic processes, to beginning to prioritize environmental issues and social justice, to re- addressing Taiwan's relationship with China. The DPP and its members were a part of a larger

“Tangwai” (dangwai) set of political activists (some of whom did not join the DPP) who worked against the authoritarian KMT for years both before and after the end of martial law in 1987.

They were an integral part of environmental, labor, democratic, and other social movements that

289 blossomed in Taiwan and these movements, in turn, were an integral part of the DPP's rise to power (Ho 2010).

In 2000, Chen Shui-bian and the DPP ran on a platform that re-imagined Taiwan's future as a “Green Silicon Island.” This campaign slogan was meant to preview a mating of Green concerns for the environment and social justice with economic concern for maintaining competitiveness within a changing global economy. Countering years of an approach that focused on the economy first, second, third, and last, this campaign promised to balance economic growth with “ecological preservation;” it promised to bring “sustainable,” “Green” development. As Chen put it in his inauguration speech:

Today, facing the impact of the fast-changing information technologies and trade liberalization, Taiwan's industrial development must move toward a knowledge- based economy. High-tech industries need to be constantly innovative, while traditional industries need to undergo transformation and upgrading. […] Apart from consolidating our democratic achievements, promoting government reforms, and raising economic competitiveness, the new government's foremost objective should be to adhere to public opinion and implement reforms, so that the people on this land can live in more dignity, more self-confidence and better quality. […] The government will have to bring up solutions for all issues relating to the people's lives, such as social order, social welfare, environmental protection land planning, waste treatment, cleaning up rivers and community-building. It will also have to implement these solutions thoroughly. At present, we need to immediately improve social order and environmental protection, which are important indicators of the quality of life. Building a new social order, we will let the people live and work in peace and without fear. Finding a balance of ecological preservation and economic development, we will develop Taiwan into a sustainable Green silicon island (Chen Shui Bian's Inauguration Speech, May 20, 2000113).

The “Green Silicon Island” moniker was striking precisely because it was, from a local perspective, an oxymoron. As I mentioned earlier, silicon stood for the IC industry complete with its closely associated plastics and petrochemical industries. These were exactly the type of

113 The full text of Chen’s inaugural speech is available at on CNN’s website at http://www.cnn.com/ASIANOW/time/features/interviews/feat.chenspeech05202000.html. 290 factories that environmentalists had been protesting for polluting local air, water, and soil resources. While the semiconductor industry itself, as opposed to its input petrochemical industries, had largely evaded public association with pollution due in part to government and industrial promotion of it as a “clean,”114 “non-smokestack” industry (Chang et al. 2001), that changed in the mid-1990s. In 1997, however, a dramatic fire at a semiconductor plant owned by

United Microelectronics Electronics (UMC, 聯電) in the Hsinchu Science and Industrial Park released significant concentrations of toxic pollutants into the air and shattered this veneer.

According to interview accounts, “the leader of the fire team did not know how toxic the air inside the factory was. After the fire, he walked into the factory without wearing a mask. He fainted, was sent to the emergency room, and was then hospitalized for a week. The toxic air pollution created by the UMC fire was the first shock needed for Hsinchu residents to realize how toxic the IT industry is” (Chang et al. 2001: 16). Only a few months later, in 1998, an earlier case of significant, deliberate pollution through illegal dumping of toxic chemicals at a Taoyuan

Radio Corporation of America (RCA) plant returned to the news (see also Williams and Chang

2008: 45). Former RCA workers publicly protested the pollution, the government's failure to prevent it, and its subsequent failure to force the companies to pay compensation. A large number of former RCA employees (who had lived, drank, and showered in the pollution) had been diagnosed with a variety of lethal ; some had already begun to die from them. As a result of such publicized pollution cases, these types of factories, too, came to be seen quite unambiguously as polluters, whether already in the act or just riding the potential for disaster to higher profits. The impossibility of Chen's vision highlighted the audacity of the dream.

114 The much advertised “clean rooms” that were required for semiconductor production may have fed into this image as well. Of course, though ubiquitous, such clean rooms were not to protect workers or the larger environment from the toxic processes needed to make the chips, but rather to protect the chips and processes from contamination via those same workers and environment. 291

To make something like an LED Green, therefore, it would take more than just technology. It required also a significant discursive shift within available Taiwanese environmentalist orientations. In order to understand why and how such a discursive shift occurred, three primary characteristics of Taiwan's environmental movements are important for us here. First, Taiwan's environmental movement was overwhelmingly a local movement. While there were significant translocal flows of encouragement, tactics, and select participants as well as a loosely knit overlay of national-level NGO intellectuals and activists who could mobilize media and add political pressure, the protests themselves were organized at the grassroots level and focused on local needs, fears, and desires (Ho 2010: 451; Ho and Su 2008). Second, the primary foci of environmental protest mobilizations were industrial sites of concentrated production, not dispersed sites of consumption. Finally, it was oppositional to the state, especially to the KMT national government. While each individual protest may have been focused on opposition only to a particular government or industry project, their cumulative effect115 as well as the narrative woven through them by national-level NGOs activists and intellectuals highlighted the devastation KMT industrial development had wrought on Taiwan's natural environment and living conditions.116 The most important reason for the oppositional character of the environmental movement was the thorough multifaceted integration of the KMT authoritarian (and post-authoritarian) state with Taiwan's large industrial powers. Not only did the KMT rely on the industrialist elite for political support and on continued industrial development for domestic “legitimacy” in the eyes of the public, but the KMT Party itself was

115 By one account, right at the end of martial law, such “local” environmental protests throughout Taiwan averaged one a day in 1987-1988 (Cohen 1998: 103-104). 116 Perhaps because its protests were locally bounded and its overlying opposition was rather more at a cumulative or discursive level only, the environmental movement was one of the few social movements that somehow evaded absolute repression during martial law (cf. Lyons 2009:59). 292 one of the biggest capitalists on the island (Wade 1990: 176; Chi 1994: 36). Slowing or challenging industrial expansion, let alone halting it, for the sake of environmental concerns was far from receiving any serious consideration even as increasing number of people recognized the problem (cf. Ho 2005a). As such, its pollution protests, the leaders that emerged from them, the nature of “Green,” and later opposition to nuclear energy in Taiwan all have been tightly bound up with politics, economy, and democratization.

In June 1987, to give an example, the residents of Houjin (northeast of Kaohsiung in the south of Taiwan) found out that the China Petroleum Company, a (national) state-owned enterprise, would be building an additional naphtha cracker plant in their town (cf. Weller 2006:

111-113, 105). Houjin residents had already long endured significant air, noise, and water pollution from the CPC's existing refinery complex (including a “black rain incident” in 1986 caused by a CPC oil leak mixing with steam), and feared the new factory would bring even more danger (Lu 2009: 57). Following a failed petition to the national government against this proposed Fifth Naphtha Cracker plant, local businessmen organized a blockade of one of the gates to the existing refinery. Over three years later, in November 1997, the blockade was finally taken down with the national government's promise of improved pollution controls in the plant, the establishment of a 1.5 billion NTD (60 million USD) foundation to benefit local residents

(Weller 2006: 105), and the plant's eventual removal by 2015 (Lu 2009: 51).117

Over the course of these three years, Houjin's temples performed a key role as rallying centers and their temple leadership served as organizational leaders that enabled ongoing re- mobilizations of residents. At one point, after the police had broken the barricade, the protesters organized a parade of coffins from the local temple back to the CPC gate. The powerful funerary

117 Chi (1994:42) summarizes this protest in a very different way. She emphasizes the failure of the movement based on the fact that, despite the three year protest, the fifth naphtha cracker was built anyway. 293 symbolism and the addition of performances by the temple's martial arts troupe upset the factory managers and intimidated the police left to man the former blockade. Just like that, the blockade had returned (Weller 2006: 111-112). Towards the end of the standoff, the national government organized a referendum in Houjin to settle the issue once and for all. The night before the referendum the local temple's God was asked eleven times whether residents should continue to the oppose the plant and eleven times the divination came up “yes.” Despite the government assuming it had wrapped the vote wrapped up as well as the intimidating efforts of the CPC hired thugs, the referendum results rejected the plant (Weller 2006: 112-113). Such religious based organizing highlights the locality of this protest movement. In Taiwan, the Gods of a temple rule over and protect only the people in their territory (or, perhaps, only those who present offerings to that particular temple). No matter the national level implications, this was a fight against this particular CPC refinery complex in the name of its nearby residents, not a fight against the CPC or industrial development in general. Moreover, the use of religious tactics with their assumption of protecting a nature for the benefit of its human population actually clashed with the more

“biocentric” environmental view of intellectuals in national-level NGOs who saw nature as needing protection from all humans (Weller 2006: 106). Of course, given the wrong results in its referendum, the government decided to try to go on with construction anyway. The blockade and its associated protests, both in Houjin and in Taipei, gathered interest and support from national- level environmental NGO activists and intellectuals. For college student activists at the time,

Houjin was a sort of “pilgrimage destination” (Lu 2009: 50) and its innovative tactics spread to other separate protests. Yet, despite repeated clashes with both national police and locally hired

294 thugs and similar to other protest actions in Taiwan, the leadership of the movement remained firmly local (Lu 2009; Weller 2006: 111).118

Within this local, production-centered environmental framework, the fact that the products produced by LED factories could save energy for their consumers would be largely irrelevant. Whether by accident, as in the UMC fire, or by deliberate action, as in the cases of

RCA or CPC, in the event of a pollution incident, it would be the semiconductor processes and their necessary hazardous waste disposal efforts that mattered, not what was produced by them for sale. Here, Greenness is dependent on production: on the factory's actual and potential danger posed to the local environment and local people's health.

Act II, The Government’s Environmental Embrace

Chen's election introduced the first major change to this formulation of the environmental movement simply by moving it out of the opposition. The mere inclusion of any Green demands

118 Locality was not just expressed in religious tactics, but also in the frequent participation of leaders of local political factions in the protest mobilizations. In 1988, a protest erupted in the Linyuan Petrochemical Industrial Zone (LPIZ) on the southern coastal side of Kaohsiung city in response to the China Petroleum Company's (CPC) dumping of thousands of gallons of polluted wastewater into the supply of water for local agriculture and aquacultural production. (Ho 2010). Prior to 1988, the LPIZ had already been caught and fined for illegally dumping wastewater many times by the Kaohsiung Environmental Protection Bureau. The Zone, however, brazenly refused to stop its practices and had its fines annulled by the national KMT controlled government. On September 23, local fishermen pushed their way into the LPIZ and set up a barricade after discovering their polluted harbor full of dead fish. The barricade preventing entry to the Zone shut down the CPC's factory (as well as non-state owned factories) for three weeks and the protest attracted more and more residents from villages surrounding the LPIZ. Ho (2010) explains how the leaders of local political factions who had not benefited from the initial construction of the Zone (as it was a national-level project) nor from the ongoing running of it led much of the mobilization efforts beyond the initial barricading action. Despite the work of environmental NGOs and activists to spread word of the protest nationally, “politicians of all factions united to reject the intervention of middle-class environmental organizations since they were determined to take credit for winning consessions from the LPIZ [for their constituents]” (Ho 2010: 453). After failed threats by national economic officials to call the police in the forcefully break up the protest blockade, the national government and companies agreed to pay 1.3 billion NTD (40.6 million USD) in compensation to be divided among all of the residents of villages participating in the protest. While the protest was a clear success, it did not shut down the LPIZ or the CPC factory within it. Nationally, public opinion of the protest, far from being moved by it towards a broader anti-industrial growth sentiment, “was largely critical of the Linyuan people, who were viewed as greedy and irresponsible” (Taiwan Environmental Protection Agency 1994: 40 cited in Ho 2010: 454). For a third famous case on protests over a proposed DuPont Titanium Oxide Plant in Lukang in 1986, see Reardon-Anderson 1992. 295 or concerns into the platform of an elected president promised a dramatic shift in power, platform, and, hopefully, effectiveness. Seen optimistically, this was the government itself taking up the anti-pollution, anti-nuclear, and pro-conservation pillars of Taiwan's environmental cause

(cf. Ho 2005: 342). It offered a chance to shift from protesting local pollution only once, by chance, it was discovered, to setting national policy that could prevent such events from ever occurring and being empowered with the means of the State to halt and remedy such pollution immediately if it did occur. This is not to say that DPP supporters were entirely naïve, but merely that they finally had a chance to make a start at changing Taiwanese governance of industry that, in opposition, they could only hope to publicize and perhaps slowdown case by case. After his election, for instance, Chen did indeed change the rules to allow the appointment of several environmental movement veterans to positions on the committee that approves Environmental

Impact Assessment (EIA) applications for industrial projects (Ho 2005b: 346-7). He also brought in a veteran environmental activist (and long time anti-nuclear proponent), Edgar Jun-yi Lin as the head of the Taiwanese Environmental Protection Agency, here abbreviated as the TEPA

(Williams and Chang 2008; Ho 2005b: 346).

Where the TEPA and its related branches under the KMT had been regarded by the environmental movement as, at best, lacking teeth and at worst a collaborator with industry, these new appointments from within the movement itself brought a new creditability and trust to the agency and enabled closer working relationships between the TEPA and NGOs on designing environmental policies as well as catching polluters (Ho 2005b: 346). The first sign of this new orientation in practice happened in the TEPA's response to the Sheng-li Incident in July 2000.

Sheng-li, a Taiwanese company legally licensed to handle toxic waste and ISO14001 certified, commissioned subcontractors to dump 100 tons or more of highly toxic organic solvent into the

296

Kaoping river, immediately killing fish, giving off an awful stench, and forcing the government to declare Kaohsiung city's water impotable for three days. Edgar Lin's TEPA reacted quickly with an investigation, stiff fines, prison sentences, and the removal of Sheng-li's waste disposal license. The severity of the TEPA's reaction was enabled by a recent international incident of similar but lethal toxic waste poisoning of a river in Cambodia. The waste was traced back to

Formosa Plastics, a large Taiwanese company (cf. Chang et al. 2001: 28; Arrigo and Puleston

2006: 169). This serious reaction was in stark contrast the previous norm, an example of which had the TEPA under the KMT actually annulling the fines levied by the city EPA on China

Petroleum Company for its repeated and blatant pollution of a river in the Linyuan Petrochemical

Industrial Zone (Ho 2010).

As Chen actually governed, however, the environment was necessarily again shifted toward the back burner in favor of sustaining economic growth and heading off the exodus of

Taiwanese companies to China (cf. Sum 2003) and Southeast Asia. Under him, his party's coalition never held a majority in the legislature and the 2001 economic slowdown shortly after he took office dramatically reduced his popularity and eliminated any leverage he held over

Taiwanese industry. Structurally, then, Chen presided over a weak government that, though able to make administrative appointments, was not then able to carry out the changes those appointees suggested, often due to opposition from agencies like the Ministry of Economic Affairs or (still remaining) KMT officials within environmentally related State organs themselves (Ho 2005b:

343). In office for only a year, Edgar Lin was replaced as head of the TEPA by Hau Long-bin a more moderate KMT affiliated academic supportive of nuclear power (Williams and Chang

2008: 96-97). From the environmental movement's standpoint, the DPP also moderated its environmental principles themselves in government, finding that it needed backing from industry

297 and pork industrial projects to retain power (Arrigo and Puleston 2006: 165; Williams and

Chang 2008: 118). Though vehemently opposed to the construction of Taiwan's Fourth Nuclear

Plant as a candidate and while in opposition (Hsiao 1999: 39), with executive power, Chen and the DPP never fully derailed the plant, failing to overcome a “constitutional” conflict between the power of the legislature to legally require construction and those of the executive branch to stop it and citing concerns over Taiwan's lack of electric resources (Williams and Chang 2008:

78). At the same time, as a consequence of being “in” government or at least closely connected with the DPP, it was also very difficult for activists to mobilize a serious critique of this politically necessitated retreat (Ho 2005b).

For us here, the important thing is that though the year 2000 transfer of power meant the entrance of environmentalism into government, this by no means meant a fundamental change in governing goals. The DPP, too, set about protecting and promoting a continued increase in economic growth within the existing global division of labor. Rather than the government fully taking up the three pillar issues of the environmental movement as its own, the government's

Green Silicon Island dream turned out to mean the construction of a fourth competing focus of environmentalism: one that spoke in terms of sustainability, promoted industries that it could label Green when convenient, built parks and cleaned up urban middle to upper class residential areas, 119 and otherwise continued the general policy of promoting Taiwanese companies' development within a global competitive environment and global division of labor.

Though in many ways, Ma Ying-jeou's election as the KMT candidate to replace Chen in

2008 meant a reversal of DPP priorities and policies (especially of those oriented towards

Taiwan's relationship with China), the Green Silicon Island vision was only expanded. Ma built

119 Arrigo and Puleston (2006: 174) refer to this as a “bread and circuses” approach to environmentalism. 298 his own Green policies around the subject of Carbon, building on a voluntary greenhouse gas emissions reduction bill that was revived late in Chen's presidency (it had been begun and then shelved shortly after the Kyoto Accord in 1997). With the rise of Taiwan's LED and Solar industries (Taiwan's wind and biofuels research and development projects never really took off

(Lee 2013)) on the back of Chen's Green Silicon Island promotional policies, governments around the globe instituting Solar and LED purchase subsidies or efficiency requirements, and the dramatic crash of the Taiwanese DRAM (IC) industry in 2010, these “Green” industries looked more and more like the best economic bet for Taiwan anyway. The promotion of industry through a candy-coating of sustainable, industry-friendly environmentalism could now fully embrace the shadow of Carbon.

As president, Ma has promoted a set of policies, together with industry, around his

“Reduce Energy, Cut Carbon” (節能減碳) slogan. In stark contrast to the earlier oppositional environmental movement, this government-industry push focuses on consumption rather than production and on global issues like climate change rather than local industrial pollution issues.

The table below provides a summary of Ma's current initiatives, many of which, like LEDs themselves, are both technological and commodity based solutions to global climate change. In

2010, while I was in the field, for instance, Ma was promoting a policy whereby all government offices and facilities would have to set their air conditioning thermostats at 27 degrees

(Zeng 2008). Though this initially included the Taipei metro stations, a few incidents of people getting sick and fainting seem to have brought an end to the experiment there. He has encouraged the replacement of streetlights as well as stoplights with LEDs and also encouraged individual families as well as businesses to convert their lighting to LEDs. While such energy efficiency based regulations of consumer citizens would have been seen as related to national

299 security (as during the 1970s oil crisis), under Carbon's shadow now it is taken as a form of environmentalism. This despite the fact that residential energy use in Taiwan is dwarfed by that used by industry. If there were a place to most easily cut carbon emissions based on numbers alone, industrial sources would be the most promising. The problem is that industry is productive and contributes to the economy where as consumer-citizens not only are not productive (in terms of their energy use), but by getting them to cut their electric use by consuming more, these policies also aide the economy by inducing the purchase of new Green products.

Low Carbon Community Promotion Initiative

Renewable energy Green and Energy Low Carbon Buildings Transportation Low Carbon Living Conservation System • Renewable energy • Low carbon building • Low carbon • Carbon planning management transport fixation/carbon • Wind power • Including foundation • Public transport sink, planting and • Solar thermal conservation, system green roofs replacing natural foundation water • (electric) • Low carbon gas conservation, water • Electric Scooters consumption – • Photovoltaic saving, waste • Hybrid cars energy saving and • Bio-mass energy reduction, waste water • Low carbon buses water saving labels, • Hydrogen energy and refuse (electric, bio-mass, environmental • Energy improvement hydrogen) protection labeled conservation • Green building • Smart transport products • Replacing air materials system • Low carbon – eat conditioners and • Life-cycle assessments • LED traffic lighting local foods, eat with (production, and traffic light seasonal foods in high efficiency processing, use, • Vehicle minimum season, reduce models demolition, disposal) efficiency standard disposable cutlery • Installing LED use and CFL lamps • Low carbon • Advanced education – metering promotion in infrastructure family, society, school, and office

Figure 8.2: Taiwan's Carbon Reduction Initiatives Figure reproduced from report by TEPA and ITRI scientists in (Chien et al. 2011: 16).

300

The ultimate fulfillment of the Green Silicon Island dream, thus entailed moving away from thinking about environmentalism in terms of production-centered pollution worries and toward thinking about it in terms of global, consumer-oriented concerns about climate change.

The latter sort of environmentalism is what has elevated Carbon from key element of all life on earth to a potentially dangerous pollutant that must be controlled. It has thus also elevated LEDs, as energy saving lights, from merely something that might save you money on electricity bills over the long term to a Green Technology that will help to save the planet.120

What makes a study of these articulations as they emerged in Taiwan particularly important is that not only was Taiwan's environmental protest movement production-oriented, so is its economic engagement with LEDs. It is not all that difficult for LEDs to be seen as Green from within communities in the United States or Europe because LEDs are now almost exclusively products of consumption there. That is, for these latter places, LEDs are manufactured elsewhere and then imported for retail sale and use. The “Greening” of LEDs in

Taiwan, by contrast, had to contend with the fact that Taiwan produced many times the number of this global energy saving consumer product for export than its people consumed. This has made a shift in environmental discourse toward consumption based reduction of carbon emissions all the more important as a way to obviate LED's semiconductor production and its environmental hazards.

The Green Silicon Island dream is thus somewhat ambiguous on its own, a political slogan now recognized as such. It is also, however, a perfect example of contemporary attempts

120 Living in an era where energy efficiency is so clearly Green, however, the contingency of this position might be difficult to remember. It was not all that long ago in the United States, for instance, that environmental concerns centered on “acid rain” (reducing sulfur dioxide and nitrogen oxide emissions), on the destruction of the Amazon rainforest (using less paper or wood products), on the hole in the Ozone layer (reducing CFCs), or on removing invasive species and saving endangered ones. Under these types of environmentalisms, energy efficiency is only indirectly related (if related at all) to Green. 301 at binding environmental concerns to those of economic development. It marked a shift within the environmental movement (and, at the time, many other social movements) from being purely oppositional to the State, to being pulled into governance both in terms of people and concepts

(cf. Ho 2005b). In the end, through an emphasis on carbon emission reduction, it offered an environmentalism molded into existing state priorities, an environmentalism closely connected to and constrained by industry needs.

Articulating Green, Capitalism: Green Regulation and Green Markets

In this chapter, therefore, I have argued that “Greenness” is not a natural, inherent characteristic of product or process, but rather is both technologically and discursively constructed. To be

“Green,” LEDs had to first move technologically from being minor red, yellow, or greenish components of the larger IC industry, to themselves being the “engines” of white lighting products. As we saw in the last chapter, this move here in terms of both the invention of blue

LEDs in Japan and the shift in Taiwanese R&D divisions from an emphasis on brightness to one on efficiency. Part and parcel to this move towards efficiency were a series of moves to claim overlapping portions of there “Green” technologies as property, structuring a global division of labor, profit, and power that separated areas primarily devoted to production from areas primarily involved in consumption. In this chapter, then, LEDs only became "Green," discursively, with the rise of an emphasis on reducing (global) carbon emissions as opposed to eliminating (local) pollution within Taiwan's environmental movement. I argued that the shift from local, production-centered protest discourse towards one focused on global consumption and carbon reduction was enabled by the entrance of the government into the environmental

302 arena. Through this carbon paradigm, environmental evaluations of LEDs could shift from the site of their production to the site of their consumption wherein Taiwanese companies are exporting essential products for a low-carbon future to and for the rest of the world. Without this shift, LEDs may have been good economic values, but due to potential environmental and health risks of their production they would never have been “Green.” While some lights are bright enough to see clearly in any lighting situation—such as outside on a bright sunny day—others work best if used only inside or, better still, in the dark. An LED's Greenness is, so far, not a quality that is visible no matter what environmental perspective we view it from, rather this

Green commodity's light shines brightest under the shadow of carbon.

What, then, are the consequences of a commodity being Green? Or rather, vice versa: what are the consequences of Green being expressed in terms of commodities and capitalism? In this section, I highlight three quite different aspects of this articulation of Green and Capitalism.

The first touches on the pursuit of new markets for Green products, the second on global and local regulations of Green, and the third on potential dangers to Green posed by its incorporation into capitalist commodity logics.

Expanding Green

As a commodity, the rise of Green LEDs meant the dramatic opening of a vast range of new potential markets and a ramping up of an ongoing race to occupy and control them via both products and patents. This continuous push to expand into new markets (and for control within old ones) has produced a further complication to achieving the goals of Green through the mating of environmental dreams with commodity capitalism. LEDs are not just replacements for existing lights, though this is where their claim to being Green is strongest. This is especially 303 apparent in the proliferation of new uses for light that the LED industry has enabled and encouraged. Driving on any of the major west coast highways in Taiwan, this proliferation of new light commodities was obvious, for instance, in the form of the replacement of traditional paint or paper billboards with similar sized full-color LED outdoor display billboards. Instead of having only one ad at a time on each board, these LED displays could be programmed to change ads every few seconds or even to run video as opposed to just pictures.121 More importantly for

Green, this was also a transformation from boards that relied on reflected light to boards that emitted their own light. This means that while traditional paint, paper, and plastic signs, even those that are internally backlit for additional effect, need no energy use during the day as their signs are visible via reflected light from the sun. In addition to this inherent energy disadvantage, a study of excessive light emission and energy consumption by Ho et al. (2011) points out that,

“in order to be conspicuous and legible in the daytime, signs that are excessively bright may result in considerable light pollution and energy waste at nighttime.” While their article recommends making the signs dimmable at night, this only blunts but does not solve the ultimate issue: they also found that LED outdoor display signs consumed 12 times as much energy as the more traditional style, internally backlit signs, let alone traditional paper, paint, and plastic signboards.122

This increase in the use of emitted light instead of reflected light or of the use of light in places that did not previously use light is driven, in part by the long lifetimes of LEDs: to

121 While this change has also occurred in the United States, it has occurred much more gradually there than in Taiwan and China (and perhaps the rest of East Asia). 122 Other examples of this type of new roadside lighting can be found in Taiwan in the form of occasional “updated” speed limit signs. Here, the black painted “100” or “90” on a white background are replaced by bright white LED lights arranged in the shape of the numbers. Rather than depending on reflected light from car headlights or existing street lights—both of which are always already on—the signs put out their message in their own light. Other large signs conveying information about major splits in the road ahead, too, had been “updated” to include flashing lights whose “flow” indicated each option's relative amount of traffic congestion (on the “smart” versions) or simply added distracting movement (on the majority). 304 continue to sell LED chips and packages, companies cannot rely on selling replacements for previous sales as the computer industry did and phone/tablet industries continue to do. It just takes too long for those previous products to wear out. Instead, they must create new, creative ways of using light and convince consumers (from individuals, to businesses, and governments) that to desire these new products. In addition to outdoor full color display boards, very few office or apartment buildings go up today that do not include significant LED based lighting in order to accent their architectural features at night. In China, because of a strong desire to demonstrate the modernity of any particular locale and in spite of the relative darkness of the rest of the landscape, many local governments have installed beautiful colored accent lighting on their bridges. While all of these lighting additions can make for a colorful and “modern” feeling nightscape, no matter how efficient they are, as they are not replacing existing lighting none of these LED markets can be thought of as conserving energy. Due to its capitalist concerns, the pursuit of new markets necessarily pushes LEDs away from those arenas where their efficiency does provide a positive environmental impact when considered in terms of Carbon.

Finally, LEDs' Greenness, as I mentioned in the section on technological conditions of possibility, is premised on it being comparatively more efficient than existing options. What happens, then, to the idea of Green when LEDs have sold widely enough that they are themselves the comparison? Are LEDs, then, still “Green”? Or will only each new generation of improved LED be “Green”? What if, before the end of the lifetimes of the current generation of

LEDs, companies or consumers could be convinced to replace their existing LED bulbs with new, even more efficient ones (much as they have already replaced their incandescent and CFL bulbs). For LED companies, as with new lighting markets, this too would be a significant boon and may be exactly the kind of decision that could be affected by additional outlays on

305 advertising. As LEDs' positive impact on the environment depends on their long lifetimes to overcome energy use (and other potential harms) of production, however, cutting short their term in use will have made them, retroactively, much worse for the environment than they could have been. As was also seen in efforts to expand the LED market, companies have to find some way to sell each of their next generations of products and these efforts are currently dictated less by environmental and, necessarily, more by capitalist goals.

Regulating Green

Green is not just an environmental term or a word to market a commodity, but also a term linked to particular public and private regulation and certification programs. As LEDs produced in Taiwan are exported globally, the global regulations governing Green in each company's primary markets have an impact on the products these companies sell. LEDs the Company sold to Europe, for instance, were marked as compliant with “RoHS” (Restrictions on Hazardous

Substances) requirements prohibiting the presence of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB), or polybrominated diphenyl ethers (PBDE).123 Due to the need to keep even trace amounts of these chemicals out of the European products, the

Company's Taiwan produced LEDs were all RoHS compliant even if their final destination was, for instance, China.124 In addition to restrictions on hazardous substances, other Green oriented regulations included qualifying products for the United States' Department of Energy's “Energy

123 See the “Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment” Official Journal of the European Union Feb. 13, 2003, L 37/19-23, Last accessed Aug. 18, 2013 at http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:037:0019:0023:EN:PDF. 124 Company products were also labeled “CE” compliant confirming that they had passed a Company run audit to ensure that they adhered to all relevant EU rules and procedures for LED products) one of these was RoHS compliance. 306

Star” program. While this qualification would be done only by the producer of the final, branded retail product rather than by Taiwanese LED chip makers or packagers themselves, the program's emphasis on efficiency was a driver of demand for higher end, more efficient chips. While these types of consumer product oriented regulations were a major part of the definition of Green commodities and were meant as a way to balance Green with Capitalism, they did not deal directly with pollution at the point of production. The regulations' focus on energy efficiency and limiting hazardous chemicals in the products themselves were actually both strengths of LEDs and served as key marketing points vis à vis incandescent and CFL alternatives respectively. The potential for hazards to health or environment at the site of production that were not transferred along with the product to its consumer and ultimate place of disposal were largely irrelevant to these standards.

In Taiwan, on the other hand, environmental regulations have focused on production. Yet they were also the type of laws that were built with significant exceptions to them already in mind (and often in text).125 This weak and relatively pliable environmental regulatory situation will not change significantly so long as the articulation of Green and Capitalism continues to favor economic development as it long has in Taiwan. Ever since the start of environmental movement pressure, various governments on Taiwan have sought to make strategic use of environmental regulations to promote economic growth by discouraging sunset industries and encouraging sunrise industries.

In the 1980s, Taiwan instituted an overall policy of encouraging select companies to make a change from labor intensive manufacturing operations like textiles into higher value added, skill intensive industries like electronics that they saw as better for Taiwan's overall

125 Pollute For Pay, to Play and Pay, to Pay to Play. 307 economic development. As Gereffi explains, the beginning of environmental regulations meant that “medium- and small-sized enterprises without sufficient capital to invest in pollution abatement equipment were motivate by the government to move overseas, and many did just that. As a result, these relocated enterprises effectively escaped from domestic environmental regulations and transferred the social costs of industrial pollution to less developed countries with lax regulations” (1990: 273-274; see also Hsiao 1999: 43-45, 273-275). Larger petrochemical industries bargained for exceptions, protection from protesters, and the right to pay to pollute (cf. Ho 2010). This entire process emphasizes the predominance of economic development even within environmental regulations. Taiwan's sunset policy, ironically and perhaps deliberately, echoes the retreat of American petrochemical, electronics, and semiconductor companies to Taiwan in the 1970s. The emergence of the “knowledge economy” has thus been intimately tied up with global divisions of labor and environmental risk.

On the other end of the spectrum, delayed environmental regulation and a suite of exceptions were also important tools the governments on Taiwan used to promote what they saw as sunrise industries. Although the semiconductor industries had been active in Taiwan since the early 1970s, “The Air Pollution Control and Emissions Standard for the Semiconductor

Industry” was not passed until 1999. Furthermore, as the industry was in recession soon after it passed, these standards did not come into effect until the mid-2000s. Given international competition and restrictions through bilateral and multilateral trade treaties, Taiwan is limited in its ability to hold back foreign competitors to its nascent industries. Instead, “it uses a strategy of

'legally' releasing Taiwanese hi-tech firms from environmental duties […] to earn some time for the industries to [...] gain a foothold in the global hi-tech markets […These] loopholes or lagging legislation could be viewed as another version of developmental strategy” (Huang 2012: 298).

308

This act was the first time that high tech-specific pollutants like volatile organic compounds (VOCs) were actually regulated (Huang 2012: 291). Earlier checks did not find pollution, despite serious pollution concerns by locals, in part because semiconductor firms do not produce the same types of pollutants—sulfur and nitrogen oxides—as petrochemical or other more “traditional” industries. Even these new regulations, however, remain incomplete as they do not regulate all of the chemicals used in semiconductor processes and what does get used (and how it gets used) changes constantly due to competition over price and patents (Huang 2012:

295-6). As for LEDs specifically, the optoelectronic industry was excluded from these semiconductor regulations and it wasn't until the mid- to late-2000s that optoelectronic-specific air pollution and effluent (in 2006 and 2010 respectively) controls were passed (they went into effect in 2012). While these controls added regulation of gallium, indium, and other frequently used optoelectronic chemicals (Huang 2012: 292-293), the act explicitly excluded “diode element manufacturers”—ie. Light emitting diode makers—from regulations as a way of assisting this emerging industry's growth (Huang 2012: 299).

Finally, besides governmental regulations, there are also voluntary production based environmental standards. With the rise of Carbon's shadow and the emergence of LEDs as

Green, several LED companies have joined these types of voluntary Green manufacturing certification programs. Environmental management programs like ISO 14001, for instance, are advertised as win-wins for companies. On the one hand, these programs require an independent audit of pollution prevention programs and processes to help the environment. On the other, they also offer potential monetary savings by encouraging a systematic look at company processes to pinpoint places where energy use can be cut or resources could be recycled (Cushing et al. 2005).

While an increasing number of LED companies joining ISO 14001 as a voluntary program is

309 encouraging, this certification is only a certification of a planned environmental management system tied to conformance to those same problematic governmental environmental requirements.126 It is neither a way to force compliance with such self imposed procedures nor a way of confirming a company's environmental commitment in practice. One notable example of this gap between written procedures that have been voluntarily certified “Green” and actual practice was the Shengli toxic waste dumping incident mentioned above. Shengli not only had proper Taiwan government authorization to handle and dispose of toxic waste, but also had achieved ISO 14001 certification for its environmental management system even as they were engaged in deliberate pollution subcontracting (Chang et al. 2001:28).

Endangering Green

When I first arrive at the Company, several engineers thought it was odd that I was there to study Green technology. While they knew (better than I certainly!) about the efficiency of

LEDs, those who had been with the Company the longest still had trouble thinking about LEDs as, themselves, a product rather than as a component of other products. Historically too, the

Company had focused primarily on making their products brighter and brighter. For these employees, the Company's corporate image was one that revolved around “light” and on making the world brighter through a full range of colors. Newer employees who hadn't been around in those earlier years, predictably, were more likely to see LEDs in terms of Green, though many

126 According to the ISO 14000 standard's “Introduction” on the ISO's website, “This International Standard does not establish absolute requirements for environmental performance beyond the commitments, in the environmental policy, to comply with applicable legal requirements and with other requirements to which the organization subscribes, to prevention of pollution and to continual improvement. Thus, two organizations carrying out similar operations but having different environmental performance can both conform to its requirements.” Last accessed Aug. 19, 2013 at https://www.iso.org/obp/ui/#iso:std:iso:14001. 310 hesitated in thinking of the Company as itself Green, given the potential health dangers they were well aware that its processes posed.

Nevertheless, a change was occurring alongside the rise of Carbon focused discourse.

Some LED chip companies, for instance, have begun to change their web presence to re-orient their image towards Green. Huga Optoelectronics, for instance, had a fairly standard, blue-tinted front page for its website circa 2006 that delivered an impression of technological sophistication, semiconductor attention to “clean-room” detail, and the brightness of their products. As Figure

8.3 shows, some time in 2007, they changed the page to reflect a much more environmentally focused image complete with a green golf course framed by mountains and an LED light whose reflected light shimmers in a nearby lake when lit.127 Epistar added a section on its (Chinese) site emphasizing its “Environmental, Employee Safety, and Health Policies.” Among other information, the section highlights their relatively recent ISO 14001 (environment) and ISO 9001

(employee safety) certifications as a way of promoting their processes and waste procedures as environmentally sound.

This entire shift, however, is much more apparent on the downstream side of the industry, closer to retail sales, where marketing Green is a way to increase desire for their products.

Companies here not only emphasize their product's brightness or CRI, but also point directly towards their product's Greenness. BrightLED's advertising for its T8 replacement LED light bars, for instance, includes not only the lightbar itself, but also a green leaf dropping into clean, reflecting water to index the environmentally friendly nature of their product. Taking this a step further, Everlight's advertisements for its LED light bulb products (as sold online through

127 This shift in Huga's website historically is accessible through the Internet Archive's Wayback Machine. The earlier, 2006 version is available online at http://web.archive.org/web/20060514023023/http://www.hugaopto.com.tw/. The post-change 2007 version is at http://web.archive.org/web/20071011020036/http://www.hugaopto.com.tw/home_ch.html. 311

Figure 8.3: Huga Electronics Website The top version shows Huga’s pre-2007 emphasis on its semiconductor nature while the bottom version shows Huga’s post-2007 re-branding as a Green company.

Taiwan 7-11's website) not only includes a grassy green background, but also a set of green colored environmental information buttons that summarize how good LEDs are for the environment (see Figure 8.4 below). Delta Electronics, a company producing both LEDs and solar power, has gone perhaps the furthest in this direction by restructuring their entire website

(around April 2005) around an environmental theme. Besides the visual changes, they also included an incredibly long section outlining their commitment to energy conservation and environmental protection.128

While this type of transformation suggests that these companies now, at least, have a

128 See http://www.deltaww.com/about/csr_Environment.aspx. 312

stake in ensuring that customers

continue to see their products as

environmentally sound, the

strategy of knitting Green into

advertising can present distinct

dangers. In their respective

works on coffee, West (2012)

and Doane (2010) trace the

emergence of “organic” and “fair

trade” as potent signs signifying

both a positive attribute that can

be harnessed to advertise and sell

food commodities and very real

social movements oriented

toward solving ongoing

structural problems within the

global division of food labor.

Figure 8.4: Everlight Electronics’ Green Facts Sheet From left to right, the pictures and text denote: 1) RoHS compliant, Environmentally Friendly, 2) the globe, Saves Energy, 3) “We Care,” Healthy, 4) a full battery, Long Lifetimes, 5) the sun, Convenient (immediate light once you turn it on), 6) an LED bulb, Safe, 7) a tree, Durable and 8) a picture of Taiwan (with Made In Taiwan on it), Guaranteed.

313

As with the description of global consumer rather than producer oriented Green regulations above, there is always tension between the goals of the social movement and the “authoritative” definitions of what being “organic” or “fair trade” entail (cf. West 2012: 150). For instance, one goal of fair trade certifications are to improve poor farmers' lives, to find ways to distribute more profit to the original farmers by enabling a corresponding raise in price on willing consumers.

Certification of farms as fair trade, however, cost money and generally require cooperative or corporate operations thereby privileging certain factions or existing power relationships over more socially isolated individual small-scale farmers (West 2012, Zeigler 2007). Organic as a sign has indeed come to represent health and is something that many first world consumers are willing to pay extra for, but it has also now come to signify more about the consumer's health than any ongoing concern for the health of the producers (West 2012: 49-51, 231).

In addition to this, as with all other sign-concepts that get swept up into the cycles of stimulating desire for commodity consumption (cf. Goldman 1994, Haug 1986), these signs will eventually begin to lose their effectiveness at mobilizing people to buy their commodities, especially as they get used more and more broadly. Think about the difference between new ad techniques when you first see them (like Old Spice's Isaiah Mustafa ads, for instance) and the same technique once it has been run for several cycles. You get fed up with it. You expect what is coming. It loses its “wow” factor and, therefore, it is no longer able to transfer its “coolness” into positive vibes for the product to be sold. For most advertising concepts, this “hollowing out” simply means the time has come to drop the concept and find a new way to stoke desires. Yet, for signs that also signify attempts at creating real change, however, this “hollowing out” can have a devastating effect on the ability to mobilize people to continue to support the original social movement itself (West 2012: 47-51, 239-255).

314

For the both the LED industry and the Taiwanese (and other) governments, “Green” has become this type of doubled sign: both signifying a commitment to real change in human actions vis à vis nature, as well as ongoing attempts to stimulate positive feelings around particular commodities and government practices. How the government and industry use “Green” in terms of technology, innovation, and commodities for market does not easily match up with ongoing

Taiwanese environmentalist concerns with pollution and worker health. As with “fair trade” and

“organic” products, as “Green” begins to lose its power to mobilize people's opinions of the government or their desire for these new, modern, “activist” products, the advertising cycle can simply move on. The environmental social movement itself, however, may not as easily move on from such a potential hollowing out of some of its core values.

Conclusion: Commodity Lifecycles, Environmentalism, and Global Divisions of Labor

An acquaintance of mine from the Company's sales department cornered me outside the bathroom in a hallway away from our cubicles one April afternoon. We started off talking about a mutual friend who had gone on a business trip to Europe and had gotten caught in the Iceland volcanic ash cancellations. We joked that, though “trapped” there, we both thought he must be enjoying his unexpected vacation. I kind of expected that to be the end of the conversation, but he continued after a pause on what I belatedly realized was a much more serious note.

129 “You research humanity, right?” Without waiting for a response, he went on, “So, I have two questions for you that I keep wanting to ask you. [pauses] Are we normal (正常)?” “What do you mean? I mean, I'm not trying to see if you are abnormal, if that's what you mean,” I chuckled. “No, I mean, with Taiwan's birthrate so low...[pauses] and our population

129 Anthropology in Chinese is 人類學 (renleixue) which literally means the study of humanity and has an almost philosophical ring to it. 315

going down... [pauses again] This society just doesn't give me any feeling of security (這個社會沒有給我安全感). My wife and I don't want to have any kids...” “Oh!...Ah...well...” I stumbled to say anything, having first thought his question concerned my research objectives, and now realizing it was instead more of an existential one, I felt badly for having nothing for him. “...I'm not sure, I mean I think these are questions that people in a lot of the world are wrestling with now, I don't think you thinking about them makes you somehow abnormal...” Not seeming to mind my failure too much, he went on, “...well and we keep selling them things they don't need. You know, when I'm talking to a customer [an LED packaging business most likely], pushing this, recommending that, and on and on. But do they really need it? [pauses] Are we just wasting resources?”

Having responded completely inadequately at the moment, this chapter is, in some ways, a complicated answer for a friend.

As my sales friend's questions illustrate, many of the people I met and got to know in the

Company cared very deeply about the environment, about Taiwan's future as a place for a next generation, and about how their own job may be affecting that. None of this chapter is, therefore, meant to say that people in the Company simply do not care about protecting the environment.

Like much of the rest of Taiwan's middle to upper class, there has been a dramatic shift in their leisure-time activities towards hiking, mountain climbing, bicycling and otherwise spending time out of doors communing with nature (Weller 2006) and breathing in “fenduojing” (芬多精, phytoncides130). Perhaps precisely because they worked in an environment with microscopic dangers, my informants were very sensitive to potential environmental or health dangers. They often berated me for using my mobile phone too much, preferring that I protect myself from potentially hazardous radiation by using a landline. Several had also been trying to be more healthy by switching to be vegetarian, for at least a meal a day, and all worried about issues of

130 See the wiki entry at http://en.wikipedia.org/wiki/Phytoncide that also mentions “forest bathing” as a leisure activity of growing popularity in East Asia. 316 food contamination (like Mad Cow disease from US beef or fake products from China) that they saw stemming from commodity production pressures. Like a majority of the Taiwanese responding to Hsiao et al.'s (2002) survey, the importance of protecting the environment is something many of my informants told me they valued highly. For the sake of their jobs, though, they also hoped that Taiwan would continue to develop economically and that the government would better support their industry (especially in the face of massive direct Korean and Chinese government aid to their respective LED sectors). Moreover this is not just at the level of employees, companies across the LED industry have pushed to get ISO14001 certifications and many have reoriented their websites and corporate images to reflect not just “light” but also

“environment.” At the very least, these changes mean that they are well aware that a pollution incident would seriously damage their reputation and, possibly, industry-wide sales. I am not, therefore, suggesting either that LEDs do no good for the environment or that the people in the

Company are merely cynically using Green to sell something that they think is not.

What I am suggesting, is that those environmental goals related to LED production have been largely overwhelmed by the requirements of both the capitalist present and desires of an imagined capitalist future. Is is important that Green is—here, and increasingly overall—being expressed in terms of technology and the commodity. We could perhaps even better save electricity by cutting our use of light or directing it only where it is needed (see the Dark Skies

Movement): that is, by cutting consumption and production. The story of the LED industry's rise as a Green technology thus reminds us of the importance of understanding the specific ways that capital articulates with environment. Neither the meeting of the technological or of the discursive

317

Figure 8.5: Relative environmental impact of LED, Incandescent, and CFL bulbs These US Department of Energy web diagrams illustrate the relative environmental impact (on a range of factors where being further from the center is worse) of different lighting technologies over their entire lifetimes. The yellow, red, blue and green regions of each diagram reflect “resource impacts,” “air impacts,” “water impacts,” and “soil impacts” respectively (Scholand and Dillon 2012). conditions of possibility, in this particular case, involved deliberate work towards an environmental goal. Rather, the technological conditions of possibility were constructed by companies seeking to advance their profit making abilities by moving into higher margin markets. The discursive conditions were created through the Taiwanese government's attempts to negotiate an emerging environmental commitment with a more powerful need to promote and support Taiwanese industry even as the make-up of those industries itself was changing. Green, in this case, then had everything to do with the twists and turns of LEDs as a commodity, of

LEDs as a growing industry within a capitalist framework that might also be a potential technological answer to environmental questions.

A final point to make concerning LEDs' Greenness is that, even as they get more and more efficient their benefits and risks will most likely remain geographically unevenly distributed. The US Department of Energy recently released a three part, comprehensive study on the environmental impact of LEDs as compared to other lighting solutions over the course of

318 their entire lifetimes. The goal of such lifetime studies is to take into account the environmental impact not just of a product's consumption (here, in terms of energy savings relative to comparable replacements), but also of its production, transportation, and ultimate disposal. As you can see for the DOE's diagrams reproduced in Figure 5, while the current models of LEDs fair roughly equal to their CFL equivalents (red and green in the charts), the next generation bulbs (which are currently being perfected in R&D) will provide a dramatic, overall environmental benefit to the planet. Even so, the environmental positives of LEDs will still remain concentrated in their consumption and their negatives in their production.131 That is, even as, they get better and better for the global environment under our carbon-emissions, consumer- oriented environmentalism, local places like Taiwan today (and China and other low cost of labor, high capital “manufacturing” countries tomorrow) will still bear much more environmental risk through production than benefit through consumption.

Both environmental movements and capitalist production are future-oriented modes of action; they premise their current engagements in either activism or production, as well as the motivation of them, on imagined futures. The particulars of these future imaginaries are, however, very different and the pursuit of one can easily disrupt or set back the pursuit of the other. The global division of labor between designing and manufacturing not only serves to concentrate profit, but also environmental risk. In return for their willingness to take on such environmental risk, these places get the right to export Green to the world.

131 The disposal of LEDs also is a point of concentration for negative environmental effects due primarily to the large aluminum heat sinks that the bulbs currently must use to maintain efficient operating conditions. While I do not address it here, waste too tends to be quite unevenly distributed in terms of geography, power, and class (cf. Kirby 2009 or ChinaGreen at http://sites.asiasociety.org/chinagreen/feature-ewaste-afterlife/ on computer (not LED) e-waste). 319

Chapter 9:

Conclusion:

Innovation, Environment, and Legal Infrastructures of Stoppage

This dissertation has presented an ethnography of the creation and deployment of patents in practice as an entrance into the role that patents play within globalization as critical instruments of stoppage. I began the story of the production of this property in the Company's R&D lab, the same place where its products' production also begins. While both knowledge and product are here an integral part of the same emerging networks of managers, engineers, new materials or processes, material platforms, and a variety of machines, the fact that the knowledge that exists in the lab is embedded in such overall project networks, is surrounded by and bleeds into other knowledge, and takes shape as the skills of engineers and as the properties of materials means that it is not easily recognizable to the law as an ownable “object.”

In early anthropological engagements with intellectual property, one prevalent critique was the way that the law privileged Scientific knowledge and discounted indigenous knowledge in part due to it being embedded in local socio-religious engagements with the world (cf. Sillitoe

2007; Shiva 2001). While the law may indeed more easily recognize and may even privilege engineering types of knowledge,132 I suggest here that even engineering or scientific knowledge requires a robust translation to extract a single knowledge “object” and to build that object up into something that faces the law instead of the lab. The translation performed by patent

132 See, for instance, Alain Pottage and Brad Sherman’s 2010 work detailing American jurisprudence's tendency toward framing patentable knowledge in analogy to machines and mass manufacture. 320 engineers (who themselves are often moving from the lab towards the law in their own professional careers) make it possible to control the movement of useable knowledge by splitting off the right to make use of that knowledge from the possession or “knowing” of the knowledge itself. Many of my interlocutors told me of the gradual process by which they came to see patents not as they did as R&D engineers, but rather as patent practitioners, where disclosures, for instance, had to be partial and claims should have as few words in them as possible. Patents thus not only create knowledge commodities that can be bought, sold, licensed, and stolen, they also render their knowledge objects legally alienable from those who created that knowledge. While most R&D inventors may not feel this change until they (or their patent) leaves the Company, they do recognize the vast difference between their own “new to me” innovation and the knowledge object in the patent. Often by the end of this translation, as I explained in Chapter 4,

R&D engineers in the Company needed patent engineers to help them go through the claims phrase by phrase (aided by the patent's figures) to show them that their original technological innovation, was indeed still in there.

I take this process of translation as a series of representations of representations of the original in situ “object” whose chain of re-interpretations133 are led more and more by the goals of the Company, by the perceived goals of the Company's competitors, and by the rules and norms of, primarily, the USPTO's patent examination system and less and less by the contexts and constraints that govern the particular knowledge as embedded in the lab. This is not to suggest that the patent as issued is no longer connected to the technological knowledge from the lab, but it is to say that that connection is far from unmediated and that understanding the

133 This perspective on the relationship between material object or material technological effect, the knowledge of it in the lab, and the knowledge object as owned builds on a loosely Peircean view of relations between and within signs. See, for instance, Zeyman 1977 for an introduction to Peirce's version as applied to knowing “objects” of scientific knowledge. 321 tendencies of this mediation is essential to understanding both this system of property and its consequences for innovation. In Chapters 2 and 3, I detail the process by which the Company's patent engineers choose a “single” invention to form the core of the patent application based on a set of extracted pieces of particular knowledge gathered from R&D. These particular pieces of knowledge are then described in synchronic (rather than diachronic) terms, they are diversified to include any number of other potential variations, and described at a generic level of language that can include all possible variations without revealing too many specific details of the actual implemented product and process. Finally, in a negotiation between the Company's patent engineers and the patent office's patent examiner, the scope of the actual claims to property, the contours of the invention as owned, are set not just in words, but in logical phrases that, like the accumulated practices and conventions of sonnets or Lüshi (律詩), reproduce the invention as a form of logical poetry and ready it for a close reading and interpretation by a court of law.134

Despite this lengthy and essential process, all of these layers of re-interpretation and re- representation—all traces of the interventions and representations that create knowledge objects to own—are collapsed in what is otherwise a very process-attentive patent as issued. Thinking back to Interlude 1 in light of Chapter 2, though this hybrid document reveals much in the way of its process of production, its revelations also very skillfully obscure the fact that, by hiding the names, it hides the role of perhaps the most important people in the patent's production. After performing their work, the translators themselves disappear and, in their disappearance their

134 By translating knowledge embedded in materials or the skills of people and machines into logic, this new object of knowledge comes to be readable as the “original” ideational “template” of any number of particular infringing “instantiations,” regardless of which came first or of the precise relation between knowledge-as-owned and knowledge-as-mobilized in labs and fabs. Pottage and Sherman (2010) offer an historical perspective on the emergence of patents (in laws and in courts), especially in the United States, through analogy to machines and mass production. Here, the patent is conceptualized as the mold (or the idea behind the mold) from which all subsequent copies of it will be cast. 322 translation is left highlighted and the mediation between it and the materiality or sociality of the lab is collapsed. This collapse then allows us to continue to uphold the fiction of direct connection, even of an iconic relationship, between the words of the patent and the materiality of the innovative products or processes it will assert a degree of control over.

This collapse is effected through the prosecution process whereby patents are evaluated not based on what the technology provides in terms of advance over products without it, but rather based on what difference its description presents in relation to the already existing archive of written knowledge objects. Here, the patent's “value” shifts again to one based on a

Saussurean idea of difference (patent examiners very rarely take into account the actual workability of a patent application's proposal135): rather than a focus on the connection between signifier and signified, the signifier is evaluated in relation to other signifiers. This analogy to signs and theories of linguistic signification is, of course, only a metaphor and, therefore, at some point it breaks down. Rather than Saussure's assumed arbitrary connection between signifier and signified (between patent application and knowledge in the lab), this flattening lets us assume an iconic relation such that we imagine that knowing the object as owned is knowing the knowledge from the lab.

Thus when, as in Chapter 5, there is an attempt to (re)establish (or not) a link between patent and material product, the words of the patent and especially the logical structures of its claims are thought to immediately “read upon” the layers of particular products in the material world. Markman hearings of the sort in which Epistar, Philips, and the Court sought to

135 In the USPTO up until 2015, for instance, this only happened in specific cases laid out by the USPTO as potential embarrassments to the agency should they issue (the Sensitive Application Warning System also known as the SAWS program). Flagged applications were to receive additional attention (meaning also a more determined rejection posture by the PTO) and included applications for patents on near-impossible inventions such as perpetual motion machines, cold fusion, or cures for the common cold (Mullin 2015). 323

“construe” the meaning of the patent's key terms need only use reference to the patent's other claims, to their definitions in its Specification, to the prosecution history, and to either expert

LED dictionary definitions or those of the English language more generally to do this. The court therefore marshalls related CEOs, heads of R&D or production, outside technological experts, inventors, opposing lawyers, and dictionaries to complete its task. There is no need to call the actual authors of the invention to testify as to their translation choices and, should these people be found and called to the stand, their testimony would most likely be prepped to focus on a flat relationship as well. The more indirect practice of the actual translation calls into question its ability to stand directly for an entire range of particular infringing products. Detailing this would enable defendants (or “respondents”) to challenge everything from the “merging” of patent ideas to the specific diversification and genericization processes that, properly or improperly, expand the particular materialities of the original product to a more powerful generic “invention” to claim. In the case of the '718 patent, its original inventors would not have planned to cover window layers made of ITO because that was neither feasible nor desirable on the material- machine platforms they were working on. It was the writers of their original technology who successfully translated it into logical poetry that would cover such an as-yet-technologically- unanticipated practice.

Since the patent's legal value comes from its difference with other patents rather than its tie to an original, particular product structure or process, its logic, unlike its prior art, need not be interpreted based on the state of knowledge at the time of the invention. This flattening renders its timeless logic paramount and its scope rootless. In turn, this is what gives patent owners their ability to exert significant control at a distance (both spatially and temporally) to stop others from using, selling, offering for sale, or importing “covered” products.

324

Yet, the role of patents as an infrastructure of stoppage is not limited to an individual patent's ability to stop both independent inventors and inventors of unanticipated, but logically parallel technologies. Rather, its force in terms of globalization turns on the accumulation of patents and their effect on the movement of people and the organization of industries and corporate power globally. Part II of the dissertation takes Part I's understanding of the creation of patents and of their move away from the needs of R&D towards those of the Company as a whole and looks at how their deployment in practice stops certain sorts of innovation while also enabling the creation and maintenance of a global division of labor, profit, and environmental risk. The deployment of patents in the LED industry nearly always happens as portfolios and not just as individual patents; though any particular lawsuit may only have one or two patents at stake, it was the threat of a potentially endless number of such lawsuits that gave additional impetus to sued companies to settle (even if they looked to be winning). This was one of the primary reasons why the Company sought to bulk up its own collection of patents, as a defensive set of potentially actionable legal weapons to deter other producing companies from suing them.

In this way, then, rather than patents leading to more innovation, in this case patents directly inspired only more patents. The steady accumulation of separately owned negative rights (to prevent others from producing things) within a whole range of technological areas has meant that it would now be nigh impossible to produce an LED (especially a white LED) without infringing on someone's patent. At the same time the owners of these smaller scope xiawei patents that fill up the technological space are also stopped from producing their own improvements due to the earlier, wider scope shangwei patent.

Rather than patents driving or enabling innovation, the accumulation of patents clogging potential production pathways and ongoing product-focused innovation in the Company were

325 both driven instead by competition. And as I laid out in Chapter 7, the accumulation of powerful patents by early entrants into the LED industry has removed competition to the spaces within existing Big 5 supply chains. As Nichia's dramatic rise shows, patents are a powerful force for use stopping potential competitors especially once these competitors' have caught up in terms technology and product price. Even in spite of the exceptional nature of Nakamura's advances using a machine-material platform few others did, Nichia, too, ran into the patents of other powerful companies. Since GaN took off, the Company and its competitor's patents have nearly all included diversifying language showing how any particular invention could apply to embodiments made from blue as well as red, yellow, and green materials.

As the experience of the Company and of Spectrum suggest, patents' stoppage is never really absolute. Small companies, with low sales figures might escape notice or escape lawsuits because neither their earnings (and thus potentially retrievable damages) nor the threat they pose rise to the level of meriting the cost of a lawsuit. Similarly, many engineers do market their skills as inventors for new jobs, and both within Taiwan and between Taiwan and China there is a fair amount of movement of people. But the point of legal infrastructures of stoppage is not that other flows are absent, but rather that these instruments funnel the vast majority of flows in particular directions. Once Spectrum grew larger, like Epistar and United Epitaxy Corporation they found themselves involved in lawsuits and threat of lawsuits, the same for employees who leave to found or join companies that begin to pose a legitimate competitive threat.

In contrast to Nichia's moves up the industry's value chain, Taiwanese companies like the

Company are still pushing for a key advance or a large enough number of smaller advances that would induce the Big 5 companies into a cross-licensing agreement. In the meantime, Taiwanese companies are stuck between the patents of the Big 5 and up-and-coming Chinese companies

326 with lower wages and more government capital investment support. Like their Big 5 competitors before them the Company seeks to deploy its patents alongside other competition oriented measures like non-disclosure or non-compete agreements, strategic investment alliances, and keeping their organizational chart secret in order to keep these Chinese companies at bay, prevent its employees from being poached, continue to pressure the Big 5 and, somehow, still making a profit occupying this space of between. The spread of patent lawsuits in the industry and the subsumption of competition within supply chains has, thus, led to the specific movements of products and profits that we normally recognize as globalization. I suggest here, however, that to understand movement, we need to pay particular attention to the infrastructures that underlie and determine what moves and in what directions. While globalization's movement may point to the growing importance of international alliances or multi-national agents at the expense of the nation-state, by turning these circulations inside-out we see instead the ongoing significance of national legal statutes, of national power to export favorable legal statutes, and of the national legal jurisdictions within prime consumer markets.

Innovation, Competition, and the Intellectual Property Umbrella

LEDs, of course, are not the only industry that has a surfeit of patents and patent lawsuits, where patents stop movement and control its directions, and where the positions of China and Taiwan echo those in the LED industry. Perhaps the best covered of these in the recent popular press has been the Smartphone Patent Wars. At least one set of these lawsuits, Boston University's suit against nearly the entire industry launched based on the same patent that Cree wielded against

Nichia, even involved the white LEDs used as backlights for smartphone screens. As in the LED

327 industry, the main players in smartphones are busy assembling large patent portfolios and deploying them against their competitors.136 At the time of my fieldwork in 2010, for instance, there was a serious uptick in these patent wars with the initiation of a new set of lawsuits and countersuits between Apple, HTC, Samsung, and Motorola (and later pulling (back) in

Microsoft, Google, RIM, Ericsson, Sony, Huawei, ZTE, and LG Electronics among others). Also similar to the LED industry, more recent entrants into this product arena like HTC and Samsung found their attempts at competing based on products and price confronted with patent lawsuits by more established players like Apple. HTC, a Taiwanese company, and Samsung, based in Korea, both began as OEM or ODM suppliers for HP, Palm,137 and Apple. Samsung's move into selling own-branded mobile phones in direct competition with Apple sparked such a vehement legal response (by 2012, the two companies were involved in 50 lawsuits in countries around the globe), in part, precisely because Samsung had been one of the main parts producers for Apple's (“Apple and Samsung's symbiotic relationship” 2011).

There are, of course, differences between the way that patents work in the LED and

Smartphone industries. The battles between these named companies were also, in a very real sense, battles at a more fundamental level between the owners of three different mobile phone operating systems for market share: Apple, Google (Android), and Microsoft. When HTC was sued by Apple, Google even attempted to “loan” HTC some patents for a countersuit. The loan was unsuccessful as US courts ruled that HTC did not own the patents to a high enough degree to allow them to use them in suit (Foresman 2012). These underlying operating system wars mean that many of the patent battles have involved software (rather than just hardware) features of the

136 For a good introduction to this as it concerns many of the issues of patent deployment and competition (as opposed to a direct link to innovation), see McMillan 2012. 137 See HTC's corporate overview at http://www.htc.com/us/about/. 328 phones and this involvement of software patents (and software copyrights in the case of Oracle versus Google) complicates the levels of stoppage even further. Moreover, the sheer number of technological component parts of a smartphone (from the screen, to its LED backlight, to its cameras, computer chips, operating system, and other software) mean that there are an enormous number of patents that any smartphone could potentially infringe on.

While the smartphone industry, as I mentioned in the introduction, embodies a dominant perspective on globalization as focused on global movement and connections crossing multiple national, cultural, and linguistic borders, it is at times like this (and especially when they concern potential import bans on extremely popular mass consumer products) that its example also serves to enable normally dormant infrastructures of that globalization to rise, briefly, to the surface.

Yet as much as these stories call out for an understanding of patents in terms of competition, this realization remains, at most, temporary. The rhetorical connection between patents and the promotion of innovation quickly returned to the fore in a variety of press releases (on all sides) loudly proclaiming their company’s devotion to innovation and, therefore, their need to defend their own innovations through patent enforcement actions against “copiers” and “thieves”— regardless, of course, of whether or not the original inventors still worked in the company or if the suing party was even a part of the “inventing” in the first place. As a sign of this, in the midst of these lawsuits in September 2010 the United States congress did pass a patent reform law.

While there was talk of reducing the influence of patent trolls and the costs of litigation (in part because powerful companies like Google have emerged with a business model that benefits from more rather than less sharing of knowledge), these were treated as peripheral consequences of what was still assumed to be and promoted as a system promoting innovation. Ongoing political advocacy of those who own patents aiming to protect their own assets was a key factor in its

329 passage and far from recognizing the challenge that patents' use as weapons of competition represents to the patent system's rhetorical foundation, the act reaffirmed it. The act is now known as the “America Invents Act.”

One key point of my work here, then, is to challenge this rhetorical connection between patents and innovation by showing the strong connection between competition and patents’ inspiration, construction, and use. Pointing to parallels in the smartphone industry and to how an understanding of the creation of knowledge as ownable can help us understand that as well, is not to suggest that these ethnographic findings can be directly applied everywhere. I am not suggesting that the effect of patents in all industries are the same. In fact, by shifting our understanding of patents from one tied directly to innovation to one tied much more closely to competition—as well as from one tied to formal legal statutes and if-then rhetorics138 to actual evaluations of patents as produced and practiced—I argue here that patents will necessarily work differently in different industries, in the same industry at different times, for products at different points in their lifecycles, and for different actors within an industry (from differently oriented companies to the differential impact of patents on line workers to R&D engineers to consumers).

Under some circumstances, the long term impact of patents' stoppage may indeed be an increase

138 One of the most common justifications for the patent system generally (or for stronger, longer, and broader rights to exclude within patents) involves some variation on the following if-then set of logic. If there is no patent system, then inventors' new inventions will immediately be copied and sold by rivals. If they are immediately copied and sold, then inventors will not make enough money to recoup their initial investment. If inventors cannot count on recouping their investments, then they will no longer be able to make a living on inventing and will no longer invent. Thus if there is no patent system, we will very quickly no longer ever have any new advances. Of course, while this logic seems, on its face, to make sense from one step to the next (and this is where it gains followers), its reductionist impulse is defied by reality. Historically, there have been numerous examples of “innovation” in the absence of IP laws of any kind—remember that patents of our sort today have only been around for a few hundred years and only in Europe and the United States for much of that time. In the present, too, there are many examples of inventors working on new innovations without patents, from university researchers working on more basic science to commercial researchers working on reducing costs or simplifying designs (both of which are areas where patents are very difficult to argue for). This is not to say that some of the economic problems referred to in the statements are not true, copying is much cheaper than the R&D work needed for many inventions, rather that focusing only on these truisms fails to account for the wide variety of potential solutions beyond this particular sort of negative property right in knowledge. 330 in innovation. There are, however, an increasing number of examples of cases where patents inhibit innovation, from RCA's use of patents on FM radio to prevent its progress at the expense of RCA's own AM radio network (Lessig 2004: 3-7), to issues with thickets, patent trolls, or large patent holding producers threatening innovative or “disruptive” start-ups.

But if patents are allowing innovation, under what circumstances is this? What kinds of innovation is it enabling—think of the differences between “pushing forward” unilineal innovation, “filling-out” innovation, innovative but incremental improvements, and brand new area innovation—and are those the sorts of innovation that we desire? How do patents work in concert with the wide range of other tools for competition within any particular industry—such as the additional barriers to entry based on FDA requirements in the pharmaceutical industries?

Then, given that “the economy” does not just serve itself, what effects do the divisions of labor that patents produce in such situations have on, for instance, inequality, labor rights, and the environment in the various countries where such products (both licensed and unlicensed) are produced, assembled, distributed, sold, and disposed of? Could we have a patent system where patents are not completely alienable from the people that produce them?

If we shift our basic understanding from assuming that patents promote innovation to evaluating their wide variety of effects, then why would we grant all patents the same rather arbitrary term of 20 years? Surely, patents would work better in some cases with a 5 year term or shorter and in others at longer terms. If patents are meant to promote innovation, too, then why grant them in industries where the competitive situation means that patents will prevent innovation, even if a particular application can establish itself as “new enough” over and above existing members of the patent archive?

331

Finally, if patents' own connection to innovation can no longer be assumed as universal, then anecdotal arguments of past patent success should carry little weight in justifying either patent protection in other industries or ongoing copyright or trademark protection. Given the vast difference between the process of creating property in technical knowledge and property in

Writings—to get a copyright in a “writing” good in any of the 168 signatories of the Berne

Convention, one need only make that writing take a “tangible” form—as well as the vast difference in the nature of the intangible object owned, and the consequences of that ownership, there is no reason to group patents and copyrights (let alone trademarks) under a single umbrella category of “intellectual property.”

This grouping allows for legal arguments seeking to justify particular pieces of property or to expand the scope of one kind of property to travel easily from say patents to copyrights, despite the lack of similarity between them or empirical basis for the comparison. To give an example of this, copyright and intellectual property more generally are often described, like patents, as an economic bargain that trades a temporary monopoly on the use of a knowledge object (be that publication, adaptation, or production) in return for the disclosure to the public of that knowledge. Yet, copyright has never worked this way; this is entirely borrowed from rhetoric native to patents. Unlike a patented product, a copyrighted book must necessarily disclose everything that its copyright covers if it is to be published at all. There is, therefore, no disclosure of anything that would not already be disclosed without property rights “exchanged” for the copyright. Copyright is much more concerned with the subsidy of the expenses of

“publication” than of original production or of luring out secret knowledge into the open.139

139 See Johns (1998, 2009) for historical accounts of the rise of copyright and piracy that strongly outlines this publication origin. 332

Whether patents promote or inhibit innovation in the LED industry at this time really has almost nothing to do with the role that copyright plays in, for instance, the creative use and reuse of themes and allusion in the music industry. The fact that both copyrights and patents concern

“intangible” objects140 or that both (along with trademarks and other trade related restrictions) were historically forced together upon countries by the same powerful countries and corporations, is not a reason to assume they are at all similar. Both are, indeed, kinds of property, but they are distinct and should be analyzed and understood separately much as we analyze and understand property in land differently from, say, property in cattle or property rights to the water flowing through a riverbed. The widespread rhetorical use of intellectual property as an umbrella term serves to inhibit exactly this sort of individual, fine grained attention.

Commodity Capitalism: Articulations and Other Ends

Though it is often discussed as a system that enables capitalist forces to work with knowledge, the patent system is better understood as an attempt to steer an already capitalist system of manufacturing, innovating, and copying towards a different desired end. Rather than capital accumulation, the patent system is meant to enable innovation through commodity means. The problem is that we have later come to assume rather than evaluate this and what was an end, has now become a rhetorical tool to justify a “right” for inventors and authors to “own” things well beyond their original “writing” or “invention.” Those aspects of the system that many people deride today as aberrations, like the ability of non-practicing entities (also known as

140 Property rights in land, too, can be considered intangible and the “intangibility” of patented inventions may seem quite fictive when understood as integrally (and necessarily) connected to tangible products, people, models, diagrams, and actual physical patent documents (Pottage and Sherman 2010: 7). 333 patent trolls or, in Taiwan, as patent cockroaches) to sue manufacturers, are actually normal parts of it that have emerged as people take advantage of the system to aide in capital accumulation.

Patents are created precisely as a way of alienating new knowledge commodities from inventors and the materials of the lab. As such, they also alienate this knowledge from the production of products using it (not to mention from the actual people who produce final products) and allow it to circulate as a separate commodity. The fact that patents tend not to change hands very much, does not mean that they are not, over the long term, accumulated by those with more resources no matter if this is an Apple, a Samsung, a Philips, or a non-practicing company like Intellectual

Ventures. Like other commodities of value and especially like other instruments that provide control over capital accumulation, they accumulate in the hands of companies whose goals need not coincide with either our desire for new products or with our desire to promote innovation.

This practical articulation of efforts to promote innovation with the capitalist tendencies of the companies and individuals who create and deploy them thus poses a similar problem to the attempts at knitting environmental concerns with capitalist commodity production represented in my environmentalist friends' hopes for the LED industry. As with innovation, the promotion of

Green concerns within the LED industry, too, has taken a back seat to those of commodity capitalism. In the introduction, my friends suggested that LEDs were an area where we might put together a “carbon fund” that would purchase patent rights to enable a wider distribution of green technology products. The problem is that patents stand in the way of advancing this solution of carbon-related environmental problems. As I described in detail in Chapter 8, the same patents that emerged from the technological conditions of making LEDs into a Green technology product, have resulted in not only a global division of labor and profits, but also have created and maintained an unequal, global distribution of environmental risk. In other cases, people seek

334 exceptions to patents for products that are particularly important (such as for medicines). But if our goal is to promote innovative products, then why would we need to make exceptions to a system precisely for those most important products? How do we ensure that the public benefits of patented products, which really only accrue once the patent's term expires, actually do emerge and are not rendered moot by shifts in production to the next generation, more “innovative” products? If we are serious about employing commodity solutions to problems like innovation or the environment, then we must also be serious about ensuring that the systems we make actually achieve those goals rather than simply advancing towards accumulations of capital.

I suggest in this dissertation, then, that an understanding of globalization in terms of movement and flows must be supplemented by an indepth look at the things that do not move and at the infrastructures that underlie these flows. Far from being “natural” or “automatic” the creation of property in technical knowledge takes a considerable amount of work. Instead of being a case of an inventor simply claiming rights to the result of their own efforts, the patent system is a politically introduced policy that has considerable very real consequences that should be understood and deliberately chosen. This attention to patents as a critical infrastructure of stoppage is thus also a way of turning our attention to the practice of particular global articulations of capitalism, to evaluating efforts to achieve other desirable effects through or within a capitalist environment, and to the tremendous impacts globalization turned inside-out has on the lives and labor of people in Taiwan, China, and around the world.

335

BIBLIOGRAPHY

Alford, William P. 1995. To Steal a Book is an Elegant Offense: Intellectual in Chinese Civilization. Stanford: Stanford University Press.

Appadurai, Arjun. 1986. Introduction: commodities and the politics of value. In The Social Life of Things: Commodities in Cultural Perspective, Edited by Arjun Appadurai, Pp. 3-63. Cambridge: Cambridge University Press. ______. 1996. Modernity at Large: Cultural Dimensions of Globalization. Minneapolis: University of Minnesota Press.

“Apple and Samsung's Symbiotic Relationship: Slicing an Apple.” 2011. The Economist, August 10, last accessed March 23, 2015 at http://www.economist.com/blogs/dailychart/2011/08/ apple-and-samsungs-symbiotic-relationship.

Arrigo, Linda Gail and Gaia Puleston. 2006. “The Environmental Movement in Taiwan after 2000: Avances and Dilemmas.” In Dafydd Fell, Henning Kloter, and Chang Bi-yu, eds., What has changed? Taiwan Before and After the Change in Ruling Parties. Research Unit on Taiwanese Culture and Literature, Ruhr University, Bochum: Vol. 4. Harrassowitz Verlag: Wiesbaden.

Barth, Fredrik. 2002. “An Anthropology of Knowledge.” Current Anthropology 43(1):1-18.

Berger, Peter and Thomas Luckmann. 1966. The Social Construction of Reality. New York: Anchor Doubleday.

Bishop, Ronald L., Robert L. Rands, and George R. Holley. 1982. “Ceramic Compositional Analysis in Archaeological Perspective.” Advances in Archaeological Method and Theory 5:275-330.

Brecher, Jeremy, Tim Costello, and Brendan Smith. 2000. Globalization from below: The power of solidarity. Cambridge, MA: South End Press.

Chan Yuet Wah. 2006. “The manufacturing and functions of stone adzes in the cultural development of Late Neolithic Sha Ha.” MPhil Thesis, Department of Anthropology, Chinese University of Hong Kong, Hong Kong.

Chang, Shenglin, Wen-ling Tu, Wen-chuan Yang, and Li-Fang Yang. 2001. “Environmental and Social Aspects of Taiwanese and U.S. Companies in the Hsinchu Science-Based Industrial Park.” A Report to the California Global Corporate Accountability Project, April, 2001, last accessed March 24, 15 at oldsite.nautilus.org/archives/cap/reports/

336

TaiwanReport.pdf.

Chi, Chun-chieh. 1994. “Growth With Pollution: Unsustainable Development in Taiwan and Its Consequences.” Studies in Comparative International Development 29(2):23-47.

Chien, Hui-chen, Wen-cheng Hu, Fei-Chiao Yang, and Chen-Chiu Tsai. 2011. “Taiwan’s Climate Policy: Perspectives and Prospects. In Greenhouse Gas Market 2011: Asia and Beyond: The Roadmap to Global Carbon and Energy Markets, Pp. 17-21. Geneva: International Emissions Trading Association.

Chung, Shang-Pei (鍾尚倍). 2009. “The Origins, Evolution, and Impact of the Development of a Patent Law in Taiwan” (台灣專利法制史-從比較法制史論專利權於財產法中之定位). Master's Thesis, Department of Law, Soochow University (東吳大學法律學系), Taipei, Taiwan, ROC.

Class for Physics of the Royal Swedish Academy of Sciences. 2014. “Scientific Background on the Nobel Prize in Physics 2014: Efficient Blue Light-EMitting Diodes Leading to Bright and Energy-Saving White Light Sources.” Nobelprize.org, The Royal Swedish Academy of Sciences, Nobel Media AB 2014. Last accessed November 16, 2014 at http://www.nobelprize.org/nobel_prizes/physics/laureates/2014/advanced.html.

Cohen, Mark. 1998. Taiwan at the Crossroads: Human Rights, Political Development and Social Change on the Beautiful Island. Washington, DC: Asia Resource Center.

Cohen, Myron. 2005. Kinship, Contract, Community, and State: Anthropological Perspectives on China. Stanford: Stanford University Press.

Comaroff, John. 2001. “Colonialism, Culture, and the Law: A Foreword” Law and Social Inquiry (26):306.

Conner, Margery. 2012. “Shuji Nakamura: Persistence pays off in blue LED Quest.” EETimes, November 12. Last accessed January 5, 2014 at http://www.eetimes.com/ document.asp?doc_id=1264600.

Coombe, Rosemary. 1998. The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law. Durham, NC: Duke University Press.

Cushing, Katherine Kao, Heather McGray, and Hongyan Lu. 2005. “Understanding ISO 14001 Adoption and Implementation in China.” International Journal of Environment and Sustainable Development 4(3): 246-268. de Laet, Marianne. 2000. "Patents, travel, space: ethnographic encounters with objects in transit.” Environment and Planning D: Society and Space 18(2):149 – 168. de Sousa Santos, Boaventura and César A. Rodríguez-Garavito. 2005. “Law, politics, and the

337

subaltern in counter-hegemonic globalization.” in Boaventura de Sousa Santos and César A. Rodríguez-Garavito ed., Law and Globalization From Below: Towards a Cosmopolitan Legality, Pp. 1-26. Cambridge: Cambridge University Press.

Demian, Melissa. 2004. “Seeing, Knowing, Owning: Property Claims as Revelatory Acts.” In Eric Hirsch and Marilyn Strathern eds., Transactions and Creations: Property Debates and the Stimulus of Melanesia, Pp. 60-84. New York: Berghahn Books.

Department of Investment Service. [nd. circa 2011]. “The Analysis and Investment Opportunities in LED Industry” [sic], Taiwan Ministry of Economic Affairs, Last accessed May 6, 2015 at http://www.taiwantrade.com.tw/MAIN/resources/MAIN/EN/ATTACH/industry/ 18LED_EN.pdf

Doane, Molly. 2010. “Relationship Coffees: Structure and Agency in the Marketplace.” In Sarah Lyon and Mark Moberg, eds. Fair Trade and Social Justice: Global Ethnographies, pp. 229-257. New York: New York University Press.

Dulles, Aaron. 2009. “Epistar Corp. v. International Trade Commission, May 22 2009, No. 2007-1427.” In Stephanie Weiner ed., Jolt Digest, Harvard Journal of Law and Technology, June 1. Last accessed January 6, 2015 at http://jolt.law.harvard.edu/ digest/patent/epistar-corp-v-international-trade-commission.

Foresman, Chris. 2012. “ITC rejects Google's 'Patent Loan' to HTC: HTC can't use those patents against Apple to gain an import ban.” Ars Technica, June 12, last accessed March 13, 2015 at http://arstechnica.com/gadgets/2012/06/itc-rejects-googles-patent-loan-to-htc.

Friedman, Thomas L. 2005. The World Is Flat: A Brief History of the Twenty-first Century. New York: Farrar, Straus & Giroux.

Gereffi, Gary. 1990. “Paths of Industrialization: An Overview.” In Gary Gereffi and David Wyman eds., Manufacturing Miracles, Pp. 3-31. Princeton: Princeton University Press.

Goffman, Erving. 1959. The presentation of self in everyday life. London: Penguin.

Gold, Thomas. 1998. State and Society in the Taiwan Miracle. Armonk, New York: M. E. Sharpe.

Goldman, Robert. 1994. “Contradictions in a Political Economy of Sign Value.” Current Perspectives in Social Theory 14:183-211.

Graham, Stephen and Simon Marvin. 2001. Splintering Urbanism: Networked Infrastructures, Technological Mobilities and the Urban Condition. London: Routledge.

Hacking, Ian. 1983. Representing and Intervening: Introductory Topics in the Philosophy of Natural Science. Cambridge: Cambridge University Press.

338

Hann, Christopher M. 1998. “Introduction: The Embeddedness of Property.” In Christopher M. Hann ed., Property Relations: Renewing the anthropological tradition, Pp. 1-47. Cambridge: Cambridge University Press.

Hardt, Michael and Antonio Negri. 2000. Empire. Cambridge: Harvard University Press.

Harvey, David. 2003. The New Imperialism. New York: Oxford University Press.

Haug, Wolfgang Fritz. 1986. Critique of commodity aesthetics : appearance, sexuality, and advertising in capitalist society. R. Bock, transl. Minneapolis: University of Minnesota Press.

Ho, Chen-Ying, Hsien-Te Lin, and Kuang-Yu Huang. 2011. “A Study on Energy Saving and Light Pollution of LED Advertising Signs,” Applied Mechanics and Materials 121- 126:2979-2984.

Ho, Ming-Sho. 2005a. “Taiwan's State and Social Movements under the DPP Government (2000-2004).” Journal of East Asian Studies 5(3): 400-429. ______. 2005b. “Weakened State and Social Movement: The Paradox of Taiwanese Environmental Politics After the Transfer of Power.” Journal of Contemporary China 14(43):339-352. ______. 2010. “Co-opting Social Ties: How the Taiwanese Petrochemical Industry Neutralized Environmental Opposition.” Mobilization: An International Journal 15(4): 447-463.

Ho, Ming-sho and Feng-san Su. 2008. “Control by Containment: The Politics of Institutionalizing Pollution Disputes in Taiwan.” Environment and Planning A 40:2402- 2418.

Hoffman, Diane M. 2006. “You’ve Got Chong: Reflections on Power, Intimacy, and Self- fashioning in Fieldwork in South Korea.” Asian Anthropology 5:145-155.

Hofmeyr, Isabel. 1993. "We Spend Our Years as a Tale That Is Told": Oral Historical Narrative in a South African Chiefdom. London: Currey.

Hsiao, Hsin-Huang Michael. 1999. “Environmental Movements in Taiwan.” In Yok-shiu F. Lee and Alvin Y. So eds., Asia’s Environmental Movements: Comparative Perspectives, Pp. 31-54. Armonk, NY: M.E. Sharpe.

Hsiao, Hsin-Huang Michael, Russell Stone, Chun-Chieh Chi. 2002. “Taiwan Environmental Consciousness: Indicatiors of Collective Mind toward Sustainable Development.” 永續 台灣簡訊 (yongxu taiwan jianxun, Sustainable Taiwan Newsletter) 4(2):1-33.

339

Hsiung, Ping-Chun. 1996. “Living Rooms as Factories: Class, Gender, and the Satellite Factory System in Taiwan” Philadelphia, Temple University Press (also, as Google E-book, 2011).

Huang, Hsin-Hsun. 2012. “An Investigation of Taiwan’s Persistent Environmental Plight: A Political and Ecological Critique of Science-Based Industrial Parks in Taiwan.” Doctoral Dissertation, Center for Environmental and Energy Policy, University of Delaware. UMI Number: 3526429.

Ingold, Tim. 2000. The Perception of the Environment: Essays in Livelihood, Dwelling and Skill. London: Routledge.

Jefferson, Thomas. 1854 [1813]. “To Mr. Isaac McPherson: Monticello, August 13, 1813.” In The Writings of Thomas Jefferson 1790-1826, Volume 6, Henry Augustine Washington, ed., pp. 175-183, Washington, D. C: Taylor & Maury.

Johns, Adrian. 1998. The Nature of the Book: Print and Knowledge in the Making. Chicago: University of Chicago Press. ______. 2009. Piracy: The Intellectual Property Wars from Gutenburg to Gates. Chicago: University of Chicago Press.

Johnstone, Bob. 2007. Brilliant! Shuji Nakamura and the Revolution in Lighting Technology. Amherst, NY: Prometheus Books.

Kahn, Miriam. 2000. Tahiti intertwined: Ancestral land, tourist postcard, and nuclear test site American Anthropologist 102(1): 6-24.

Kirby, Peter Wynn. 2009. “Toxins Without Borders: Interpreting Spaces of Contamination and Suffering.” In Peter Wynn Kirby ed., Boundless Worlds: An Anthropological Approach to Movement, Pp. 153-172. Berghahn Books.

Kittler, Friedrich A. 1999. Gramophone, Film, Typewriter. Geoffrey Winthrop-Young and Michael Wutz, transl. Stanford: Stanford University Press.

Kopytoff, Igor. 1986. The cultural biography of things: commoditization as process. In The Social Life of Things: Commodities in Cultural Perspective, Edited by Arjun Appadurai, Pp. 64-94. Cambridge: Cambridge University Press.

Larkin, Brian. 2008. Signal and Noise: Media, Infrastructure, and Urban Culture in Nigeria. Durham: Duke University Press. ______. 2013a. “Making Equivalence Happen: Commensuration and the Grounds of Circulation.” In Patricia Spyer and Mary Margaret Steedly eds., Images that Move, Pp. 237-256. Santa Fe: School for Advanced Research (SAR) Press. ______. 2013b. “The Politics and Poetics of Infrastructure.” Annual Review of Anthropology, 42: 327 -343.

340

Latour, Bruno. 1987. Science in action: how to follow scientists and engineers through society. Cambridge, Mass.: Harvard University Press. ______. 1993. We Have Never Been Modern. Translated by Catherine Porter. Cmbridge, MA: Harvard University Press.

Leach, James. 2004. A Dispersed Creativity, Or, Persons and Their Boundaries: Some broader issues involved in the ownership of intellectual property. Cambridge Anthropology 24(1):21-27.

Lee, Anru. 2007. “Subways as a Space of Cultural Intimacy: The Mass Rapid Transit System in Taipei, Taiwan.” The China Journal 58:31-55.

Lee, Yi-Tze. 2013. “Divided Dreams on Limited Land: Cultural Experiences of Agricultural Bio-energy Project and Organic Farming Transition in Taiwan.” Doctoral Dissertation, Department of Anthropology, University of Pittsburgh.

Lessig, Lawrence. 2004. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: The Penguin Press.

Li Shuqi (李書齊) and Cai Zhixian (蔡智賢). 2010. The LED Legacy: How Heroes Built LED Business in Taiwan (在黑暗中發光: 臺灣LED三十年成功的故事, Zai heian zhong faguang : taiwan LED sanshinian chenggong de gushi). Taipei: Tianxia Yuanjian (天下 遠見).

Li Xun-ying (李珣瑛). 2000. “Technology colony? Commentary did not mention Hsinchu manufacturers promote local prosperity, No denying the authority of the central administrative division in looking for solutions.” (科技殖民地？竹科廠商不置評帶動 地方繁榮不容抹煞 行政權限劃分應找中央解決) 經濟日報 [Economic Daily], April 27. P.4.

Liu, Ken. 2011. “Taiwan remains World's Number 1 LED Maker by Revenue.” China Economic News Service (CENS.com), December 27. Last accessed November 16, 2014 at http://news.cens.com/cens/html/en/news/news_inner_38779.html.

Liu, Shang Jyh. 2001. “Competing in the Knowledge Game: Intellectual Properties,” In Made by Taiwan: Booming in the Information Technology Era, Chun-Yen Chang and Po-Lung Yu eds., pp. 213-234, London: World Scientific Publishing.

Lu, Hsin-yi. 2009. “Place and Environmental Movement in Houjin, Kaohsiung.” Journal of Archaeology and Anthropology 70:47-78.

Lyons, David. 2009. “The Two-Headed Dragon: Environmental Policy and Progess Under Rising Democracy in Taiwan.” East Asia 26:57-76.

341

Masco, Joseph. 2010. “Bad Weather: On Planetary Crisis.” Social Studies of Science 40(1): 7-40.

Mathews, Gordon. 2011. Ghetto at the center of the world: Chungking Mansions, Hong Kong. Chicago: University of Chicago Press.

Mattelart, Armand. 1996. The Invention of Communication. Susan Emanuel, transl. Minneapolis: University of Minnesota Press.

Matthews, Duncan. 2002. Globalizing Intellectual Property Rights: The TRIPs Agreement. London: Routledge.

McKeown, Adam. 2001. Chinese Migrant Networks and Cultural Change: Peru, Chicago, and Hawaii 1900-1936. Chicago: University of Chicago Press.

McKinsey and Company. 2011. “Lighting the Way: Perspectives on the Global Lighting Market.” July, last accessed on March 24, 2015 at http://www.2012.smartlighting.org/ pdf/MCKINSEY_LIGHTING_THE_WAY_AHEAD.pdf.

McLuhan, Marshall. 2003. Understanding Media: The Extensions of Man, Critical Edition. W. Terrence Gordon, ed. Corte Madera, Califonia: Ginko Press.

McMillan, Robert. 2012. “How Apple and Microsoft Armed 4,000 Patent Warheads.” Wired, May 21, last accessed March 23, 2015 at http://www.wired.com/2012/05/rockstar/.

Mertha, Andrew. 2005. The Politics of Piracy: Intellectual Property in Contemporary China. Ithaca, NY: Cornell University Press.

Mullin, Joe. 2015. “USPTO ends 'warning system' for outlandish patents: 'Sensitive' applications included cures for AIDS, perpetual-motion machines.” ArsTechnica, March 5, last accessed March 21, 2015 at http://arstechnica.com/tech-policy/2015/03/uspto-ends- program-for-patents-that-could-create-unwanted-media-coverage/.

Myers, Fred. 2001. “Introduction: The Empire of Things.” In Fred Myers ed., The Empire of Things: Regimes of Value and Material Culture, Pp. 3-61. Santa Fe: School of American Research Press. ______. 2004. "Ontologies of the image and economies of exchange." American Ethnologist 31(1):5-20.

Orton, John W. 2004. The Story of Semiconductors. Oxford: Oxford University Press.

Portes, Alejandro. 2000. "Globalization from below: the rise of transnational communities." In Don Kalb, Marco van der Land, Richard Staring, Bart van Steenbergen, and Nico Wilterdink eds., The Ends of Globalization: Bringing Society Back In, Pp 253-70. New York: Rowman and Littlefield Publishers.

342

Pottage, Alain. 2006. “Materialities in Law and Life: Informatic Technologies and Industrial Property.” Paragrana 15(1): 81-99.

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

Rabinow, Paul. 1996. Making PCR: A Story of Biotechnology. Chicago: The University of Chicago Press.

Reardon-Anderson, James. 1992. Pollution, Politics, and Foreign Investmentin Taiwan: The Lukang Rebellion. Armonk, NY: ME Sharpe.

Richards, Donald. 2004. Intellectual Property Rights and Global Capitalism: The Political Economy of the TRIPs Agreement. Armonk, NY: M.E. Sharpe.

Rigger, Shelley. 2001. From Opposition to Power: Taiwan's Democratic Progressive Party. Boulder: Lynne Rienner Publishers.

Riles, Annelise. 2006. “Introduction: In Response.” In Annelise Riles, Ed., Documents: Artifacts of Modern Knowledge, Pp. 1-40. Ann Arbor: University of Michigan Press.

Schivelbusch, Wolfgang. 1977. The Railway Journey: The Industrialization of Time and Space in the 19th Century. Berkeley: University of California Press.

Scholand, Michael J. and Heather E. Dillon. 2012. “Life-cycle Assessment of Energy and Environmental Impacts of LED Lighting Products: Part 2: LED Manufacturing and Performance.” Pacific Northwest National Laboratory for the United States Department of Energy, June 2012, last accessed March 24, 2015 at http://energy.gov/eere/ssl/ technical-reports-briefs.

Shiva, Vandana. 2001. Protect or Plunder? Understanding Intellectual Property Rights. London: Zen Books.

Sillitoe, Paul. 2007. “Local Science vs. Global Science: An Overview.” In Paul Sillitoe ed., Local Science vs. Global Science: Approaches to Indigenous Knowledge in International Development, Pp. 1-22. New York: Berghahn Books.

Simmel, Georg. 1906. “The Sociology of Secrecy and of Secret Societies.” American Journal of Sociology 11:441-498.

Simon, Scott. 2013. “Of Boars and Men: Indigenous Knowledge and Co-Management in Taiwan.” Human Organization 72(3): 220-229.

343

Simon, Scott and Awi Mona. [forthcoming 2015]. “Indigenous Rights and Wildlife Conservation: The Vernacularization of International Law on Taiwan.” Taiwan Human Rights Journal (台灣人權學刊).

Simone, AbdouMaliq. 2012. “Infrastructure: Introductory Commentary by AbdouMaliq Simone.” Curated Collections, Cultural Anthropology Online, November 26, 2012, http://www.culanth.org/curated_collections/11-infrastructure/discussions/12- infrastructure-introductory-commentary-by-abdoumaliq-simone.

SIPA (Science and Industrial Park Administration). 2012. “2011 Hsinchu Science Park Annual Report.” April. Last accessed January 4, 2014 at http://www.sipa.gov.tw/english/file/ 20130412110153.pdf.

So, Bennis Wai Yip. 2006. “Reassessment of the State Role in the Development of High-Tech Industry: A Case Study of Taiwan's Hsinchu Science Park.” East Asia 23(2): 61-86.

Sum, Ngai-Ling. 2003. “(Re-)Imagining ‘Greater China’: Silicon Valley and the strategy of siliconization.” In Christopher R. Hughes and Gudrun Wacker eds., China and the Internet: Politics of the Digital Leap Forward, Pp. 102-126. New York: Routledge Curzon.

“Taiwan Statistical Data Book 2006.” 2007. Executive Yuan's Council for Economic Planning and Development, Taiwan, Republic of China. ______. 2009. Executive Yuan's Council for Economic Planning and Development, Taiwan, Republic of China.

Tso, Heng, Wen-Jey Tsai, Regina Chyn, and Theresa Hu. 2013. “Five pillars for a happy Taiwan.” Taiwan New Economy Newsletter, Center for Economic Deregulation and Innovation (CEPD), Executive Yuan, Taiwan, Republic of China. 136(May):10-11. Last accessed January 5, 2014 at http://www.ndc.gov.tw/encontent/m1.aspx?sNo=0017068.

Tu, Wen-ling. 2004. “Challenges of Environmental Planning and Grassroots Activism in the Face of IT Industrial Dominance: A Study of Science-based Industrial Parks in Taiwan.” PhD Dissertation, Landscape Architecture and Environmental Planning, University of California at Berkeley. ______. 2006 “Environmental Governance in the Information Technology Sector: The Case of Hsinchu Science-based Industrial Park in Taiwan.” In Peter Ho ed., Greening Industries in Newly Industrializing Economies: Asian-Style Leapfrogging, Pp. 137-162. New York: Routledge.

Vaidhyanathan, Siva. 2001. Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. New York: New York University Press. van der Zwan, Natascha. 2014. “Making Sense of Financialization.” Socioeconomic Review 12(1):99-129.

344

von Benda-Beckmann, Keebet, Franz von Benda-Beckmann, and Melanie Wiber. 2006. “The Properties of Property.” In Keebet von Benda-Beckmann, Franz von Benda-Beckmann, and Melanie Wiber, eds., Changing Properties of Property, Pp. 1-39. New York: Berghahn.

Wade, Robert. 1990. Governing the Market: Economic Theory and the Role of Government in East Asian Industrialization. Princeton: Princeton University Press.

Weller, Robert P. 2006. Discovering Nature: Globalization and Environmental Culture in China and Taiwan. New York: Cambridge University Press.

West, Matthew. 2006. Cultural Conceptions of Intellectual Property: The Pirated Disc Market in Xi’an, China. MPhil Thesis, Department of Anthropology, Chinese University of Hong Kong, Hong Kong. ______. 2008. Cultural Conceptions of Disc Piracy in China: Structural Constraints and Local Level Policy Implementation. In Sustaining a Resilient Asian Pacific Community, Edited by Wilmar Salim and Kiran Sagoo, Pp. 75-90. Newcastle, : Cambridge Scholars Publishing.

West, Paige. 2005. “Translation, Value, and Space: Theorizing and Ethnographic and Engaged Environmental Anthropology.” American Anthropologist 103(4):632-642. ______. 2012. From Modern Production to Imagined Primitive: The Social World of Coffee from Papua New Guinea. Durham: Duke University Press.

Williams, Jack F. and Ch’ang-yi David Chang. 2008. Taiwan’s Environmental Struggle: Toward a Green Silicon Island. New York: Routledge.

Yang, Chung-hsin (楊重信). 2013. “Lessons to be learned from Dapu Incident.” Taipei Times, Tue, August 6, p8. Last accessed on Decmber 19, 2014 at http://www.taipeitimes.com/ News/editorials/archives/2013/08/06/2003569018.

Zeigler, Catherine. 2007. Favored Flowers: Culture and Economy in a Global System. Durham: Duke University Press.

Zeng, Emmanuelle. 2008. “Gov’t eyed ahead of environment day.” The China Post. June 5, last accessed March 24, 2015 at http://www.chinapost.com.tw/taiwan/national/national- news/2008/06/05/159594/Gov’t-eyed.htm.

Zeyman, Jay. 1977. “Peirce’s Theory of Signs.” In Thomas Sebeok ed., A of Signs, Pp. 22-39. Bloomington: Indiana University Press. (Also accessible at http://users.clas.ufl.edu/jzeman/peirces_theory_of_signs.htm).

345