Discusión de los resultados con la hipótesis

Metaphor is defined in the Oxford English Dictionary as “A figure of speech in which a name or descriptive word or phrase is transferred to an object or action different from, but analogous to, that to which it is literally applicable”.²⁷⁵ Its etymology comes from the ancient Greek μεταϕορά, formed by the prefix μετα- and ϕορά, which means carrying, bearing, “after μεταϕέρειν”²⁷⁶ which signifies to transfer.²⁷⁷

Metaphor has been viewed, for most of the twentieth century, with mistrust and scepticism by legal and science scholars for methodological and epistemic reasons. Justice Cardozo, addressing the problem of the relation between parent and subsidiary corporations in 1926, pointed out that it was “still enveloped in the mists of metaphors”²⁷⁸ and famously censured their use in the law:

“Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often as enslaving it. We say at times that the corporate entity will

272 Linda L Berger, ‘The Lady, or the Tiger? A Field Guide to Metaphor and Narrative’ (2011) 50 Washburn Law Journal 275.

273 ibid.

274 Hyo Yoon Kang, has applied narrative analysis specifically to study the intellectual property law of biotechnology. Kang (n 267).

275 Headword “metaphor”, Oxford English Dictionary, available at

<http://www.oed.com/view/Entry/117328?redirectedFrom=metaphor&>.

276 ibid.

277 ibid.

278 Court of Appeals of New York, Berkey v. Third Ave. Ry. Co., 31 December 1926, 155 North Eastern Reporter 58, 61 (244 N.Y. 84).

59 be ignored when the parent corporation operates a business through a subsidiary which is characterized as an ‘alias’ or a ‘dummy’”.²⁷⁹

This statement epitomizes how low the appraisal of metaphors in law has been by legal scholars, because of the misleading character which is coupled with it. However, at present, still many legal textbooks express distrust towards resorting to metaphors in the legal discourse.²⁸⁰

Likewise, in science, drawing metaphors as useful theoretical tools has been disdained and largely disregarded, in the twentieth century. Only from the 1960’s the study of the use of metaphors in different scientific fields has gained momentum, from the hard sciences to biology. As both science and the law, because of the significant influences of neo-positivism and legal positivism, were posited to have epistemic and methodological claims to certainty and truth, as far as “the is” and “the ought” of the world is concerned, the recourse to metaphors in these areas seemed, for decades, an admission of failure or betrayal of these aspirations. Moreover, civil law systems, like the French, German and Italian ones, are grounded on a specific idea of rationality linked to the enactment of codes as complete and coherent legal statute, under which any concrete legal case can be subsumed simply applying the canons of interpretation. Under this idea of rationality, the ambiguities of metaphorical polysemy are banned in the name of the certainty and clarity offered by the rules of the code.

This partially accounts for the fact that legal scholars have long ignored its pervasiveness in legal narratives as a means of interpretation and integration and, in particular, more recently its use in the definition of legal concepts at the crossroads of science and technology.

Metaphors have been studied from different perspectives since ancient times in several fields of knowledge, such as rhetoric, philosophy, literature,²⁸¹ linguistics, psychology and science.

These theories have a specific focus and offer different answers to the issues of its meaning (linguistics theories) and use (pragmatics theories). The bibliography on metaphor and its theory is, therefore, boundless. The so called “classic” theories account for the metaphor in terms of comparison, anomaly or interaction.²⁸² However, a new generation of theories has arisen, which view metaphor as class-inclusion statement or as a conceptual means, rather a figure of thought than a figure of speech.²⁸³

279 ibid.

280 Olson (n 265) 31-32.

281 G R Boys-Stones, Metaphor, Allegory, and the Classical Tradition (Oxford University Press 2003) 1.

282 Cristina Cacciari, ‘La metafora: da evento del linguaggio a struttura del pensiero’ in Cristina Cacciari (ed), Teorie della metafora: l’acquisizione, la comprensione e l’uso del linguaggio figurato (Raffaello Cortina 1991) 1, 4.

283 ibid.

60 Metaphor has, nevertheless, elicited considerable attention in the last decades. The relevant role of analogy and metaphor in science has been studied, since the 1960s, by the philosopher of science Mary Hesse,²⁸⁴ who showed the “all-pervasive character of metaphor in natural language”²⁸⁵ and that metaphors mediate a kind of social knowledge²⁸⁶ and challenged the deductive model of scientific explanation, arguing that it should be modified and integrated by a concept of theoretical explanation as a metaphorical re-description of the domain of the explanandum.²⁸⁷ Max Black,²⁸⁸ whose work on metaphor Hesse mostly referred to, in the same years, devised a new interaction theory of metaphor. Several scholars, later, further explored the pivotal role of metaphor in different scientific fields, such as biology, chemistry, and physics.²⁸⁹ Moreover, the publication of the two editions of “Metaphor and Thought”, edited by Andrew Ortony, in 1979 ²⁹⁰ and 1993, ²⁹¹ the first volume collecting interdisciplinary essays on metaphor by eminent scholars in several disciplines, was a seminal moment for the study of metaphor, as it brought together and linked the research in different fields and its contributions are still extensively referred to and discussed at present.²⁹² This publication was followed by a third volume entitled “The Cambridge Handbook of Metaphor and Thought” which was edited by the linguistic psychologist Raymond W. Gibbs Jr. and published in 2008, which aimed at providing further developments about contemporary research on metaphor, showing how it contributes to human cognition, communication and culture.²⁹³

With reference to legal theory, the significance of metaphor has been addressed and illustrated, since the 1950s, by the logician and legal scholar Chaïm Perelman, who authored with the social sciences’ scholar Lucie Olbrechts-Tyteca, a pivotal work entitled “The New

284 Mary B Hesse, Models and Analogies in Science (University Notre Dame Press 1966) 3.

285 Mary B Hesse, “The Cognitive Claims of Metaphor”, (1988) 1 The Journal of Speculative Philosophy (New Series) 1, 7.

286 ibid 8.

287 Hesse (n 284) 157.

288 Max Black, Models and Metaphors. Studies in Language and Philosophy (1^st edn 1962, Cornell University Press 1968) ix.

289 Fernand Hallyn, Metaphor and Analogy in the Sciences (Kluwer Academic Publishers 2000) vi; Theodore L Brown, Making Truth: Metaphor in Science (University of Illinois Press 2003) x; M Bradie, “Models and Metaphors in Science: The Metaphorical Turn”, (1998) 12 Protosociology 305; Elena Gagliasso and Giulia Frezza (eds), Metafore del vivente. Linguaggi e ricerca scientifica tra filosofia, bios e psyche, (Franco Angeli 2010) 5.

290 Andrew Ortony (ed), Metaphor and Thought (Cambridge University Press 1979) vi.

291 ibid 2.

292 Raymond W Gibbs Jr., “Metaphor and Thought. The State of the Art”, in Raymond W Gibbs Jr. (ed) Metaphor and Thought (Cambridge University Press 2008) 3.

293 ibid.

61 Rhetoric: A Treatise on Argumentation”. ²⁹⁴ Their work questioned the centrality of demonstration (which is meant as logical deduction)²⁹⁵ as means of proof and logical justification. In particular, they pointed out that, although demonstration is employed in scientific disciplines, it should not be regarded as the only means of practical rational justification. Conversely, they claimed and showed the value of argumentation in providing reasonable arguments for persuasion, which results from conveying effective arguments. In particular, Perelman, in his further work, showed that the law and its logic centered on argumentation shall be taken as a model of reasoning in other practical fields.

Although their theory drew on a longstanding Western rhetorical tradition, which it is not specifically rested upon, in this thesis, their analysis of the relationship between metaphor and analogy²⁹⁶ might be insightful to understand how metaphors have been applied in defining and ruling biotech patentable subject matter.

In their treatise, they refer to Aristotle’s definition of metaphor in Poetics as “the application of a word that belongs to another thing: either from genus to species, species to genus, species to species, or by analogy”.²⁹⁷ Under the definition of metaphor, Aristotle included figures of speech that scholars have later distinguished from it, namely metonymy and synecdoche, and devised a theory of metaphor as comparison. According to this view a metaphor is, as Searle explained, an ellipsis of a simile, in which “like” or “as” has been deleted.²⁹⁸

Among the examples offered by Aristotle of metaphor, there is one in which, according to Perelman and Olbrechts-Tyteca, the analogical relationship is brought into focus, because it pinpoints how “a metaphorical expression can rise from an analogy”.²⁹⁹

Aristotle, in fact, further clarified: “I call ‘by analogy’ cases were b is to a as d is to c: one will then speak of d instead of b, or b instead of d. Sometimes people add that to which the replaced term is related. I mean, e.g., the wine bowl is to Dionysus as the shield to Ares: so one will call the wine bowl ‘Dionysus’ shield’, and the shield ‘Ares’ wine bowl’. Or the old

294 Chaïm Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric. A Treatise on Argumentation (1^st edn 1958, Notre Dame Press 1971) v.

295 Robert Alexy, Teoria dell’argomentazione giuridica (Giuffrè 1998) viii, 125.

296 Perelman and Olbrechts-Tyteca (n 294) 399.

297 Aristotle, Poetics 1457b, 7-9, Stephen Halliwell (ed and traslator) (Loeb Classical Library, Harvard University Press 1999) 3, 105.

298 John R Searle, ‘Metaphor’, in Andrew Ortony (ed), Metaphor and Thought (Cambridge University Press 1993) 83, 95.

299 Perelman and Olbrechts-Tyteca (n 294) 399.

62 age is to life as evening to day: so one will call evening ‘the day’s old age’, or like Empedocles, call old age ‘the evening of life’ or ‘life’s sunset’”.³⁰⁰

In this last example, they commented that “the analogy ‘A is to B as C is to D’ yields the expression ‘C of B’ to designate A”.³⁰¹ They, therefore, argued that a metaphor can be well-described as “condensed analogy, resulting from the fusion of an element from the phoros with an element from the theme”.³⁰² As a result of this fusion, the analogy is not conveyed as a suggestion, but as a datum.³⁰³

As Perelman elucidated the formula of analogy is: “a/b as c/d”³⁰⁴ and, in case of a mathematical proportion, is “a/b = c/d”.³⁰⁵ He addressed the relationship of metaphor and analogy also in other texts, explaining that analogy means “proportion” and it establishes a similarity of relationship, in which two heterogeneous domains are confronted in order to clarify or assess the first couple (called “theme”) in the light of the second couple (called

“phoros”).³⁰⁶

The concept of analogy expounded by Aristotle in Poetics must be distinguished from analogical reasoning, which he referred to in Prior Analytics as “example” (or proof by example),³⁰⁷ which has been deemed, since the Middle Ages, an autonomous form of reasoning, which proceeds from particular to particular.³⁰⁸ The development of legal analogy, which has been devised and elaborated in the legal sciences as a means of integration of the law, arose from Aristotle’s work on “example” as analogical reasoning.

Legal analogy is a form of reasoning which aims at filling legal gaps, in Latin lacunae, which is allowed to be drawn upon by judges when a particular concrete case (species facti) cannot be solved by subsuming it under one or more legal provisions. The logical structure of analogical reasoning, as Bobbio illustrated, is the following: “S is similar to M; M is P: S is P”.³⁰⁹ This kind of analogical reasoning has been referred to an analogia legis, which is

300 Aristotle, Poetics 1457b, 15-24, Stephen Halliwell (ed and traslator) in (Loeb Classical Library, Harvard University Press 1999) 3, 106-107.

301 Perelman and Olbrechts-Tyteca (n 294) 399.

302 ibid.

303 ibid 400.

304 Chaïm Perelman, ‘Analogia e metafora’ Enciclopedia Einaudi I (1977) 523. Translation mine.

305 ibid.

306 Chaïm Perelman, ‘Analogia e metafora’, Enciclopedia Einaudi I (1977) 523.

307 Aristotle, Prior Analytics, II. XXIV, in Hugh Tredennick (ed and translator) (Loeb Classical Library, Harvard University Press 1938) 182, 515 and 517.

308 Norberto Bobbio, ‘Analogia’ Contributi ad un dizionario giuridico (Giappichelli 1994) 1, 3.

309 ibid 3. Translation mine.

63 distinguished from analogia iuris, namely a process of legal integration, not strictly analogical, in which a legal gap is solved by resorting to general legal principles.³¹⁰

Canale and Tuzet explained that the legal gap “is filled by arguing analogically from a source case to a target case”³¹¹ and the scheme of analogy is:

“C1 falls under N₁.

C₂ does not fall under any actual norm of the system (there is a gap in the law).

There is relevant similarity between C₁ and C₂.

C₂ falls under N₂ obtained by analogical reasoning (filling the gap)”.³¹²

In analogical reasoning, therefore, the regulation of the source case C1 is extended to the target case C₂, by creating analogically a new norm N₂ from N₁.³¹³

As legal analogy is not a deductive argument, which is the logically valid form of inference, it does not guarantee the truth of the conclusion, even if its premises are true.³¹⁴ The conclusions drawn from legal analogy are not causal or predictive, as White pointed out, but normative, as they regard the “correct legal outcome”.³¹⁵

Golding pinpointed that, as far as the use of metaphor is concerned, “the crucial question is whether the compared objects resemble (and differ from) one another in relevant respects, that is, respects that are relevant to possession of the inferred resemblance”.³¹⁶ In particular, he highlighted that the assessment of the factors, such as “the number of respects in which the compared objects resemble one another (positive analogies) and the number of respects in which they differ (negative analogies)”³¹⁷ is complex. In this assessment, the judge makes several relevant personal choices on the factors that should privileged over others and, therefore, exercise his discretion. However, a good analogical argument should be possibly based on relevant characteristics (albeit few) rather than many irrelevant ones.³¹⁸

Furthermore, it has been illustrated³¹⁹ that stating that “A is similar to B”, which is at the core of analogical reasoning entails two problems. The first problem was explained by Goodman,

310 ibid 11.

311 Damiano Canale and Giovanni Tuzet, ‘Analogical Reasoning and Extensive Interpretation’ in Hendrik Kaptein and Bastiaan van der Velden (eds), Analogy and Exemplary Reasoning in Legal Discourse (Amsterdam University Press 2018) 66, 69.

312 ibid.

313 ibid.

314 Martin Golding, ‘Argument by Analogy in the Law’ in Hendrik Kaptein and Bastiaan van der Velden (eds), Analogy and Exemplary Reasoning in Legal Discourse (Amsterdam University Press 2018) 123, 124.

315 Jefferson White, ‘Analogical Reasoning’ in Dennis Patterson (ed) A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell 2010), 571, 572.

316 Golding (n 314) 124.

317 ibid.

318 ibid.

319 White (n 315) 572-574.

64 who pointed out that this statement is incomplete, in so far as “the properties to which the similarity claim refer” have been identified. Since A and B could be stated to be alike in numberless ways, restrictions on the relevant properties should be made, but any kind of restriction hangs on “an intrinsically relative judgment”.³²⁰ Moreover, White pinpointed that, before adjudication, “the similarities which bear upon various specific issues within a case must be collectively assessed in order for a determination of overall fit between precedent cases and the case at hand to be made”.³²¹

Several different theories have been developed in order to understand the analogical patterns of inference,³²² in particular by Klug,³²³ Alexy,³²⁴ Brewer³²⁵ and Weinreb.³²⁶

It should be noted that whereas, in civil law systems, judges rather refrain from acknowledging the need for analogical reasoning, because of the uncertainty and judicial discretion which have been coupled with it in the civil law cultural tradition; in common law countries, as the analysis of the case law regarding biotech patent claims also shows, justices refer to its use in a much more liberal way, as a practical resource to adjudicate in a new case.

Weinreb remarked that, in the United States, “Not only do analogical arguments figure prominently in briefs and opinions, but they are also a standard feature, one might almost say a defining feature of legal education; the content of Socratic dialogue, on which law school classes are typically built in, is mostly an exercise in reasoning by analogy”.³²⁷ He referred, in particular, to the U.S. scientific tradition of studying that stemmed from the “case method of legal education”,³²⁸ which was introduced, in 1870, at the Harvard Law School by Langdell.³²⁹ This method is posited to replicate what occurs in the process of adjudication, in which lawyers and judges relentlessly recur to analogical reasoning.³³⁰

However, as this work will illustrate, in common law patent jurisdictions, such as U.S. and Canada, judges, lawyers and amici curiae make reference to analogies mostly not acknowledging the need to fill a legal gap and drawing on metaphors which convey

320 ibid 573.

321 ibid.

322 Fabrizio Maccagno and Douglas Walton, ‘Argument from Analogy in Law, the Classical Tradition, and Recent Theories’ (2009) 42(2) Philosophy & Rhetoric 154.

323 Ulrich Klug, Juristische Logik (1^st edn 1951, Springer 2014) 2.

324 Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (1^st edn 1978, Oxford University Press 2010) viii.

325 Scott Brewer, ‘Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy’ (1996) (109)5 Harvard Law Review 923.

326 Lloyd L Weinreb, Legal Reason: The Use of Analogy in Legal Argument (1^st edn 2005, Cambridge University Press 2016) v.

327 ibid 10.

328 ibid 128.

329 ibid 128-130.

330 ibid 132.

65 analogical features across cases. It has been noted that, when courts in the U.S. reason analogically, the principle that they elaborate “appears not to reach further than what is required by a comparison of the specific facts before the court with other facts, equally specific, for which the result is known”.³³¹ Furthermore, only in a few cases the arguments of the courts provide the statement of a general rule.³³² Nevertheless, the use of precedent is focused on the use of the relevant rule which grounds the decision, which constitutes the precedent³³³ and how to differentiate³³⁴ the ratio decidendi from obiter dictum.³³⁵

Several differences emerge across particular national jurisdictions, such as the United States and Canada, as far as what judges recognize as the appropriate limits of their role in recurring to legal analogy.

Nevertheless, as this work will show, when the reference to an analogy is made in patent case law is general, not strictly linked to formal analogical reasoning. However, in several cases metaphors are drawn upon in order to create analogies.

The perspective that will be applied to analyse the metaphors used in legal discourse, in order to establish the patentability of biotech products, is centered on “conceptual metaphor” and was developed by the cognitive linguists George Lakoff and Mark Johnson in the seminal monograph “Metaphors We Live By”,³³⁶ firstly published in 1980, in which they argued that metaphor should be interpreted as “metaphorical concept”.

Cognitive linguistics defines metaphor as understanding and experiencing³³⁷ one conceptual domain (the target domain) in terms of another conceptual domain³³⁸ (the source domain), namely “CONCEPTUAL DOMAIN (A) is CONCEPTUAL DOMAIN (B)”.³³⁹ The source domain (B) is, as Kövecses illustrated, “the conceptual domain from which we draw metaphorical expressions to understand another conceptual domain”,³⁴⁰ whereas the target domain is the conceptual domain which is understood by resorting to the source domain (A).

Understanding one domain (a) in terms of another (B) means that “there is a set of systematic correspondences between the source and the target in the sense that conceptual elements of B

331 ibid 34.

332 ibid 35.

333 Alexy (n 324) 218.

334 In that respect, the doctrine of dictum in Anglo-American jurisprudence has pivotal significance. See White (n 258) 571-572.

335 Alexy (n 324) 218-219.

336 Lakoff and Johnson (n 45) vii.

337 ibid 5.

338 Zoltán Kövecses, Metaphor: A Practical Introduction (Oxford University Press 2002) viii, 4.

339 ibid.

340 ibid.

66 correspond to conceptual elements of A”,³⁴¹ which are named “mappings”. The use of a metaphor, therefore, implies a set of systematic correspondences between the two domains.

Conceptual metaphor is related to metaphorical linguistic expressions, which are “words or other linguistic expressions that come from the terminology of the more concrete conceptual domain (i.e. domain B)”,³⁴² since the latter contribute to settle and reinforce the former.

Nevertheless, conceptual metaphors are differentiated from linguistic metaphors or metaphorically linguistic expressions. Linguistic metaphors have been defined as “the linguistic realizations or manifestations of underlying conceptual metaphors”.³⁴³

As metaphorical linguistic expressions in language are systematically linked to metaphorical concepts, their study proves to be fundamental in order to understand metaphorical concepts and how they make sense and order human activity.³⁴⁴

Lakoff and Johnson’s theory of metaphor is based on the view that “metaphor is pervasive in everyday life, not just in language but in thought and action”³⁴⁵ and that the nature of the

Lakoff and Johnson’s theory of metaphor is based on the view that “metaphor is pervasive in everyday life, not just in language but in thought and action”³⁴⁵ and that the nature of the