Patents for Power: Intellectual Property Law and The Diffusion of Military Technology. Robert M. Farley and Davida H. Isaacs. Chicago, IL: University of Chicago Press, 2020.

“Whenever an idea organizes for battle it gathers around its guns.”
—C.J. Chivers.[1]

C.J. Chivers’ book, The Gun: The Story of the AK-47, starts with an account of the first detonation of a Soviet nuclear bomb. The remainder of his book recounts the development of the AK-47 ‘Kalashnikov’ rifle, which was the product of collaborative design and mass production. The contrast Chivers draws in The Gun is between the tightly held development of the Soviet nuclear bomb and the open design and state sharing of technology around the AK-47. Chivers’ work and the new book Patents for Power: Intellectual Property Law and the Diffusion of Military Technology complement one another by providing an in-depth account of the AK-47, which is a weapon that is used by many participants in armed conflicts around the world.

The story of the development of the Kalashnikov rifle can be found throughout Patents for Power as it demonstrates one particular model—the Soviet model during the Cold War. This was a framework of mass production and open sharing of technology that was driven mostly by political factors rather than the strict adherence to the established licensing system.[2]

Patents for Power views intellectual property law through an international relations lens. The primary contribution of the book to these two fields is to reinforce the idea that the design of legal structures—both international and domestic—to protect and manage intellectual property directly impacts the protection and proliferation of military technology. Farley and Isaacs intend to explain how international relations affects the diffusion of military technology. They achieve this intent, but the book seems like the starting point for more detailed research that delves into the intersection between intellectual property law and international relations.

Farley and Isaacs intend to explain how international relations affects the diffusion of military technology. They achieve this intent, but the book seems like the starting point for more detailed research that delves into the intersection between intellectual property law and international relations.

The authors use several analytical methods to examine how the distribution of military technology is affected by intellectual property law. They use historical and contemporary case studies, and comparative approaches to intellectual property systems in different countries to explore the role of intellectual property law in regulating the arms trade and export controls—particularly from the perspective of the United States during the Cold War. While these multidisciplinary approaches can make the narrative in the book feel somewhat disjointed, it has the benefit of ensuring that the analytical method is appropriate to the topic explored in the relevant chapter. This results in a more compelling narrative for the book overall.

Structure

The sometimes impenetrable complexities of intellectual property law can deter its examination and conceal its importance in protecting military technology in the Information Age. The authors effectively use vignettes to situate a discussion of intellectual property concepts in each chapter. Examples of this technique include the comparison of development between the U.S. M-16 rifle and Soviet AK-47; the Soviet development of the Su-27 Flanker and the Chinese efforts to copy and improve this technology; and the Soviet copy of the B-29 Stratofortress (which became the Tupolev Tu-4) as a way of developing their strategic bomber force during and after the Second World War.

The sometimes impenetrable complexities of intellectual property law can deter its examination and conceal its importance in protecting military technology in the Information Age.

The introduction provides insight into the breadth of topics covered by the book—from an overview of the Revolution in Military Affairs, to the relevant international relations theory and the principles of international law. Because of the breadth of topics discussed, it only covers what is necessary to set up the remaining discussions in the book.

Chapter 2 is an overview of intellectual property law as it applies in the international context. The chapter covers the different forms of intellectual property—patents, trade secrets, and copyright. The focus of the intellectual property law discussion here is on its importance to the defense industry as a means for protecting a valuable source of income and assisting the broader public in a nation to benefit from innovation. The international aspects of intellectual property are also discussed as an essential enabler for international trade. The overview is useful for the reader with no background in this field, and it establishes an important foundation for the remaining chapters.

Chapter 3 situates the discussion of intellectual property law in the context of the defense industrial base (DIB) within the United States. There is an excellent overview of the role of the DIB in the revolution in military affairs—particularly the intersection of military innovation with the reform of military doctrine. The chapter also covers how intellectual property laws are used in the context of the defense industrial base, alongside secrecy provisions and contracting law, to protect the distribution of new military technologies from its inception to its sale. The chapter highlights the importance of such legal frameworks to regulate the transfer and ownership of intellectual property, particularly given the multi-sector collaboration—industry, academia, government—involved in military technology.

Comparative approaches to intellectual property protection are the subject of chapter 4. The protection of military technologies in Russia, China and South Korea form the basis of the comparison. An especially interesting discussion in this chapter surrounds the issue of the evolution of intellectual property over time in these countries, due largely to the driver of public-private partnerships. Military access to intellectual property held by civilian companies (dual-use technologies) became a key factor in the need to use intellectual property law frameworks to regulate public-private partnerships.

The utility of intellectual property law in the sale of military technology and the arms trade is the focus of chapter 5. An interesting example in this area is the relationship between Russia and China and the trade of military technology between the countries. As one example, Russia had exported Flanker (Su-27) fighter aircraft to China, which the latter nation improved through developments in Chinese avionics and electronic equipment. Russia claimed that this undermined its maintenance and supply contracts with China.

However, China’s copies of Russian aircraft are limited by Chinese engine technology, which provide less power than the Russian engines. Nevertheless, the maturity of Chinese industry is demonstrated by its ability to produce Flanker airframes and equip them with Chinese avionics. China’s copy of the Soviet Flanker demonstrates the limitations of the intellectual property frameworks between Russia and China. This bilateral framework does not seem to constrain Chinese practices in improving on Russian technology and possibly selling them to third parties, thereby undermining Russia’s sale to developing countries.

The lesson is that traditional ways to manage such sales—through reliance on diplomatic relationships and contractual arrangements—are limited without an overarching intellectual property framework. The U.S. export control framework, developed during the Cold War, is an example of an effective regulatory system for the transfer of military technology.

The final chapter of the book discusses the effects of industrial espionage and cyber security compromise to the protection of intellectual property. Industrial espionage is not new, and in many ways is made more effective through cyber capabilities. These methods are the only means of acquiring unique military technologies that are not otherwise accessible due to the absence of trade relationships and export control regimes. The Chinese are known to pursue industrial espionage as a way of sparking innovation and to copy military technology for the purpose of enhancing their own military capability. This is exemplified by their reproduction of Russian technology and improved by incremental advances in Chinese technology.

The book concludes with some suggested areas for further research to overcome the limits of the research, which is rooted in the U.S. approach to international intellectual property. The authors invite further research in alternative areas, such as the comparison of innovation frameworks across different nations, and detailed study of intellectual property and multilateral arrangements in different jurisdictions, such as the European Union. Perhaps these avenues of inquiry will provide the key factors that underlie the intellectual property arrangements of different countries and their propensity to use and accept the international legal frameworks to protect their military innovation and technologies.

Conclusion

Robert M. Farley and Davida H. Isaacs’s contribution to both fields of international relations and intellectual property lies in their ability to explain the legal system that results in the diffusion of military technology in some cases. The diffusion of military technology is explained in the book by the difference in political factors, organizational structures, or protective security frameworks. The legal explanation for the commonality of some military technologies is not well understood but is a significant factor for explaining why some military technologies are more accessible and widespread than others. Further, their work is of contemporary importance noting the monolithic nature of the global defense industry, consisting of public and private partnerships as well as collaborative approaches to high end military technologies that require complex legal frameworks. Farley’s and Isaacs’ work is an excellent introduction to the topic and a useful starting point for further research on this topic.

Jo Brick is a legal officer in the Royal Australian Air Force and a Member of the Military Writers Guild. The views expressed are the author’s alone and do not reflect those of the Royal Australian Air Force, The Australian Defnece Force, or the Australian Government.

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Header Image: Untitled, 2009 (Wikimedia Commons).

Notes:

[1] C.J. Chivers, The Gun: The Story of the AK-47 (London: Penguin Books Ltd, 2010), 9.

[2] Robert M. Farley and Davida H. Isaacs, Patents for Power: Intellectual Property Law and the Diffusion of Military Technology (Chicago: The University of Chicago Press, 2020), 2.