Motion Sickness

It was many years ago, during the halcyon, sepia-toned late 1990s, that I first glimpsed the convergence of architecture and intellectual property law. As a newly minted attorney in the San Antonio office of a prestigious firm, I found myself swept up in a whirlwind of high-profile cases that captured national attention. Yet for every headline-grabbing lawsuit, countless others languished in the shadows, consigned to a kind of legal purgatory, awaiting their moment of relevance. My baptism by fire came in the form of representing an international electronics giant, a company as notorious for its patent infringements and trade-secret violations as it was celebrated for its cutting-edge mobile devices. As a green associate, I had tasks that seemed deceptively simple: I was to determine which documents were privileged and thus beyond the reach of opposing counsel. The rub, however, lay in the nature of these documents—a dizzying array of wiring diagrams and schematics, all penned in Korean. When I confessed to the lead attorney my dual ignorance of electrical engineering and the Korean language, he leaned back in his chair with a Cheshire cat grin and drawled, “They’re all privileged.” That very afternoon, I dutifully filed a motion to that effect. The next morning, I found a subpoena on my desk, bearing the weighty signature of a magistrate judge from the United States District Court for the Northern District of Texas. As I peered out of my office window, a wave of nausea washed over me. The building—Skidmore, Owings & Merrill’s twenty-eight-story Interfirst Plaza (now Bank of America Plaza)—seemed to pitch and roll, the floor beneath my feet undulating like the deck of a storm-tossed ship. My vision narrowed to a pinprick of white, and I succumbed to the welcoming embrace of unconsciousness.

I imagine there’s a cohort of architectural readers out there hankering for a steady hand to guide them through the murky waters of intellectual property law. Peter H. Christensen’s Prior Art: Patents and the Nature of Invention in Architecture claims to be just such an aid. Christensen dives into the Gordian jumble of legal history to extract a string of episodes that amounts to an architectural history of patent law. In an ingenious stroke, he presents these episodes as “sites,” a metaphor whose universal resonance helps to bridge the everyday elements of design history with the rarified world of jurisprudence. Each of Christensen’s sites—The Home, The Studio, The Corporate Lab, The Repository, The Patent Office, The Courtroom, and The Commons—has been the subject of numerous monographic treatments. Prior Art, however, conceives of them within a taxonomy of spaces where architecture is invented and by turns made patentable and recognized as such.

This approach, embedding architecture within broader sociotechnical networks, encroaches on familiar scholarly ground. The patent drawings, models, and offices that Christensen diligently covers are instances of Georges Teyssot’s idea of “architectural equipment”—engineered and designed artifacts that tether the discipline to larger administrative and institutional spheres. And his sites would seem to have a place among Bernhard Siegert’s repertoire of “cultural techniques,” which in the current context signify practices that transform architecture from pure intellection into tangible, mass-produced entities of material significance and influence. But to my mind, Prior Art trades in architectural alembics, spaces that distill, refine, and elucidate Christensen’s crucial triad: “creativity, novelty, and property.”

I found Christensen’s peregrinations into my former field refreshing and inspiring. As for his wide-ranging, synthetic approach, this too was exhilarating. But something kept gnawing at me. At times, I became lost in Christensen’s thickening tangle of archival finds, esoterica, and analyses. And when emerging from the topoi of Prior Art for much-needed air, I felt uneasy about the way the book verges on essentializing the importance of invention to architecture. Invention, undeniably, is a pivotal concept that strikes at the heart of design practice and propels cultural discourse forward. One might recall the contentious legal saga that unfolded when Thomas Shine accused David Childs of copyright infringement regarding the latter’s 2003 Freedom Tower design for lower Manhattan. (Shine, a Yale School of Architecture student in 1999, had presented a proposal for an “Olympic Tower” during a studio review in which Childs participated. The former eventually withdrew the suit.) In such instances, the principle of “first in time, first in right” resonates, aligning with our deeply ingrained notions of artistic and architectural creation. It is crucial to note, however, that Prior Art does not fixate on the concept of “genius” or delve into copyright law—a domain whose stance on originality in architecture is unambiguously delineated in §§102(a)(5) and 102(a)(8) of the United States Code, which extend copyright protection to “architectural works.” Nevertheless, Prior Art persistently probes the notion of invention, elevating it to a position of paramount importance.

In my years as an attorney, the most enduring (and, regrettably, tedious) memories involved sifting through bankers’ boxes brimming with documents, folders, and even architectural sketches—a stark reminder of how law, much like architectural history, is intrinsically tied to media practices and institutional frameworks. Prior Art, however, eschews these mundane realities. Notably lacking is any substantial examination of the patent filing process, a sinecural transaction that nonetheless seems central to the book’s stated concern. Christensen’s near-exclusive focus on those spaces that putatively impact architectural patent creation appears somewhat myopic. This precludes engagement with seminal works on the material cultures of patent law and jurisprudence—works like Cornelia Vismann’s Files: Law and Media Technology (2008) and Matthew S. Hull’s Government of Paper: The Materiality of Bureaucracy in Urban Pakistan (2012). The absence of such texts is particularly lamentable as they could have fostered a rich dialogue with Prior Art. Vismann and Hull delve deep into the institutional ramifications of writing, printing, and storage technologies—elements that, as the astute reader will deduce, profoundly influence the nature of architectural production.

There are other frustrations to contend with. Although it is a term that graces the book’s cover and that is key to the ensuing analysis, “prior art” is never defined in a satisfactory manner. Strange too is how drawings—an integral part of the legal and institutional processes, whose exacting visual standards are a requisite for patentability—are also downplayed. And then there is Christensen’s general overview of the patent law system. He rightly acknowledges how a history of patents is essentially a history of industrialization, a purview that leans heavily on Anglo-American and European traditions. This, of course, means recognizing that patent law is a crucial engine enabling capitalist development as well as colonialism. Take, for instance, the Manning and Hemmings Portable Cottages, patented, demountable housing systems designed in the 1830s for transport on British ships headed to Australia, or William Laycock’s prefabricated wood and galvanized iron Palace, manufactured in Liverpool and shipped to Old Calabar, Nigeria, for use as a residence by the Efik King Eyamba V in 1843. Patent law emerged as a critical conduit for worldwide technological dissemination, deeply entwined with the trajectories of industrial growth, global economic systems, and oppression.

It is possible to view Prior Art as an alternative, more discrete history of how the transmission of the forms and manufacturing processes that gave modernist design its distinctive visual vocabulary depended on patents. In this way, Christensen’s discussion of Hugo Junkers’s patents of components and sections of the Metal House Construction (Metallhausbau) system from the 1930s is on point. It is, after all, a system that coincided with, if not prefigured, Le Corbusier’s own fascination with the mass production of aircraft and housing, as well as Walter Gropius and Konrad Wachsmann’s Packaged House, patented in 1945. But such an alternative history would still depend on nuanced and contextual approaches that are missing from Prior Art by design. In this light, the 1922 Treaty of Rapallo between the Russian Soviet Federative Socialist Republic and the Weimar Republic, which included provisions for patent exchange, appears as a notable omission. The Junkers company licensed its aircraft designs to the Soviet Union through a joint venture, leading to the production of licensed Junkers aircraft for the Soviet Air Force. This influence persisted even after production was transferred, in 1927, to the Tupolev design bureau, as evidenced in the designs for biplanes and heavy bombers that adopted Junkers’s familiar corrugated metal wings and fuselages.

Prior Art also overlooks significant patent disputes, such as those surrounding tubular steel chairs. These cases, involving Mart Stam, Marcel Breuer, and Mies van der Rohe, among others, highlighted the patentability of both form and manufacturing process. Design historians like Otakar Máčel have examined how lawsuits pitted furniture manufacturers Standard-Möbel, Thonet, and Mauser against Stam et al., sometimes resulting in multiple companies producing licensed versions of the same chair, often to the original designer’s financial detriment.

“Study the historian before you begin to study the facts,” E. H. Carr tells us, so here we see Prior Art is a departure from Christensen’s previous work. In Germany and the Ottoman Railways: Art, Empire, and Infrastructure (2017), he presents himself as an architectural historian—of steel as an infrastructural, networked, and aestheticized object. Precious Metal: German Steel, Modernity, and Ecology (2022) closely examines an extractive resource central to architectural innovations in the late nineteenth and early twentieth centuries. These are cultural histories with clear agendas, or at least agendas that will be familiar to art and architectural audiences. Prior Art, by contrast, convenes discussions about varying aspects of the legal discipline, which means that Christensen’s understanding of these realms is conditioned by the architectural historian’s purview. And, just to be clear, this is a limited purview that evades the warp and woof of legal history—with diminishing results. I am a firm believer that to be a lawyer is to be a historian. Like a historian, a lawyer riffles through the Gutenberg galaxy to articulate a version of the past constructed through the mining and analysis of precedent. Lawyers and historians are also advocates for the presence of the past in all its various guises. At the same time, the writing of history requires a bit of disciplinary reflection, which for the architectural historian means recognizing that those methods devoted to the interpretation of artworks and buildings may falter when confronted with the object and visual cultures of patent and intellectual property law.

Christensen defers critical analyses of the patent law system to a succinct, single-page coda, which merely poses questions and leaves readers to ponder the broader implications for architectural patent history. Prior Art brims with assertions that cry out for more definitive conclusions—not least when at the end of the book Christensen speculates that patent law institutions have inhibited architecture’s “full potential as a transformational force for the human condition.” This missed opportunity is particularly poignant given that Prior Art also delves into concerns central not only to architectural practice but to the very craft of writing architectural history. As both an architectural historian and former legal practitioner, I find myself questioning whether Christensen’s study veers into a form of architectural legalism—an unexamined, uncritical devotion to law as an archival wellspring, employed chiefly to illustrate points of architectural history.

I keep going back to that day in a San Antonio office building, dizzy and feeling sick to my stomach. I was always prone to motion sickness (still am to this day). It wasn’t the first time that I experienced an episode in a high-rise, though it was likely the worst: Interfirst Plaza was one of the few skyscrapers in downtown San Antonio at the time, and excessive wind-loading made the tower’s oscillations that much more disorienting for those sensitive like me. Motion sickness is also a good pun, a reminder of just how sick I got after filing the motion where I claimed everything under the attorney-client privilege. And the irony of the whole situation never left me: There I was, in a building, surrounded by boxes with drawings and diagrams whose visual language was—so we were supposed to argue—evidence of invention.