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About half of the experts responding to this canvassing said people’s uses of technology will mostly weaken core aspects of democracy and democratic representation, but even those who expressed optimism often voiced concerns. This section includes comments about problems that were made by all respondents regardless of their answer to the main question about the impact of technology on democracy by 2030. These worries are organized under seven themes.

Empowering the powerful: Corporate and government agendas generally do not serve democratic goals or achieve democratic outcomes. They serve the goals of those in power

There is a significant body of work which considers the emerging implications of digital technologies for political life. Sadowski argues that related analyses can be broadly situated within a field of study known as technopolitics (Sadowski, 2020a: 4–5). The study of technopolitics emphasises the political nature of the technological and how the development of technology is shaped by political as well as commercial interests and imperatives (ibid: 5). In this paper we are interested in one aspect of emerging forms of technopolitics: the mixing of digital surveillance technologies and government practices in liberal democracies.1

As the urtext of digital surveillance in the modern world, Zuboff's (2019) book the Age of Surveillance Capitalism offers two broad perspectives on the technopolitical mixing of Big-Tech and government. First, Zuboff argues that liberal governments have been active accomplices to the infiltration of surveillance capitalist technologies into our lives—utilising Big-Tech as a context for expanding systems of state surveillance. Second, Zuboff suggests that surveillance capitalist systems have facilitated the emergence of systems of anti-liberal government and telemetric influence which were first envisaged by behaviouralists such as B.F. Skinner. While undoubtedly instructive, we argue that Zuboff's perspectives miss some of the more subtle, but arguably more profound, imbroglios of digital technology and government. These imbroglios are characterised by moments when surveillance capitalist corporations take on the actual role of governmental actors (either in isolation from, or loose partnership with, state organizations). In these instances, governments are not accomplices to Big Tech, nor the orchestrators of surveillance capitalism's vectors of behavioural influence, but are, instead, themselves contexts for the realization of corporate imperatives. There are a series of interpretative frameworks which offer insights into these particular combinations of surveillance technology and government. We briefly outline them below, before turning our attention to theories of governmentality.

The biopolitics of population and the reassertion of the sovereign right to kill and to execute exceptions to the liberal rights of citizenship suggest neoliberal governmentalities are increasingly rent with contradictions. On the one hand, neoliberal government operates from afar through individualized technologies of the self and through dispersed expert/bureaucratic/ managerial decision making. Market models of government increasingly replace state-directed ones in the public sphere as social welfare and education are either privatized or operated in accord with “free-market” strategies and technologies. These reforms are viewed as disciplining and/or transforming the inefficient apparatuses of the welfare state. Moreover, contemporary market mechanisms extend neoliberal technologies of government globally through contracts (e.g., international trade agreements and organizations), transnational corporations, and through international finance, securities, and related derivatives. Although market mechanisms involve dispersed sovereignty and disciplines, these tend to be viewed as impersonal and necessary for secure and expansive market operations.

On the other hand, the proliferation of risks associated with barriers to market penetration and derived from the uncertainties surrounding market contingencies seem to require centralized and often state-controlled intervention and government. Risks to market security are posed by energy disruptions or limitations, geopolitical conflict, resistance by nation-states such as Venezuela to neoliberal market operations, and, most recently, terrorism. In the context of these problematics, security exigencies are represented as warranting the reassertion of the sovereign capacity to kill and as legitimizing abnegation of liberal “rights” of personhood.

Chapter 2 turns to developments in trademark. The fit between neoliberal models of subjectification and trademark is less precise than in copyright, but by contextualizing the analysis in the context of the development of brand capitalism, I argue that aspects of trademark doctrine are almost uniquely explicable in those terms. Traditional trademark analysis displayed the features of a public biopolitics; developments around branding push it in a neoliberal direction. I emphasize the way that the intersection of law and markets works to make people into brand-focused consumers, who understand themselves in terms of brand loyalties. The best doctrinal example of this process is the emergence of trademark dilution. Nearly inexplicable by an economic analysis grounded in public biopower, dilution doctrine can be better understood as a form of biopower designed to facilitate neoliberal brand loyalties and affective attachments to brands. After an analysis of the emergence of dilution and its departure from more market-based views of trademark, I turn to an extended case study of Victoria’s Secret’s successful attempt to shut down a sex-toy shop that called itself “Victor’s Little Secret.”

Although law and the judicial system can impose limits on the extent and power of branding culture, I will argue here that those limits are not without cost to those who might seek to impose them, or who might be seen as most obviously to benefit from them. Brands directly affect the bios of different communities insofar as they necessarily interact with local geographies, with effects on producers, consumers, and regulatory processes; in essence, as Andrew Pike notes, “branding seeks to destabilize existing markets and reinstitutionalize them around new, strategically calculated produce and service brand definitions” (Pike, 2009, p. 633). Geographical associations are an integral part of branding strategies. As Pike argues, brand owners engage in a strategy of selectively “playing up certain desirable and valued meanings – such as the heritage, quality and reputation connoted by particular places (e.g., Milanese design or Thai silks)” while downplaying negative associations (2013, p. 323). As Pike emphasizes, this process necessarily has distributive effects, as for example, geographies that are perceived as high value are able to monetize that consumer perception.

Consumers assign value to products based on their place of origin, and Western companies frequently attempt to profit by association with the “traditional” products and methods of non-Western cultures and places. In Western countries, IP law – particularly trademark, since it is concerned with the naming and branding of goods – has traditionally been invoked to keep freeloaders away from the goodwill accreted to a brand. Could a similar strategy help the producers of traditional products? The logic is clear enough. Global consumers demand “Coke,” and they are rewarded with the product of one, specific corporation. If global consumers are going to demand “Darjeeling” tea, then it only seems just that they should get something from India, and not from Benetton. Indeed, such global standards seem to be needed to stop Western companies exploiting indigenous products for their own profit. In one famous example of such “biopiracy,” the Texas company RiceTec imported basmati rice from India and sought patent protection for it; it took a lengthy battle and global pushback to prevent RiceTec from calling its products “basmati” (Boyle, 1997; Shiva, 1999).

Assuming that they are the first to use it in commerce, trademark owners are entitled under common law to certain protections for their mark, including exclusive use of it in specific markets. There are, however, numerous benefits to federal registration of the mark, such as exclusive rights to the mark across the United States (as opposed to one region), as well as several advantages in litigation surrounding it (Anten, 2006, pp. 396–398). Registration is meant to be a fairly automatic process; most of the hurdles are procedural. The substantive hurdles are found in Section 2 of the Lanham Act, and include, for example, bans on trademarking official insignia of governmental entities or the identifying name, signature, or portrait of a living person without their consent. The statute also prohibits registration of a mark that: Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (15 USC 1052(a)) In denying registration to scandalous or disparaging material, the Lanham Act evidences a sense of public biopolitics. Independently of its viability in commerce, putting governmental imprimatur on a scandalous or disparaging mark is viewed as bad for the polity. In the case of disparaging marks, the idea is that the use of the mark would be damaging to those targeted by the mark in question. The First Amendment means that the government cannot stop such use, but it is also not required to reward it in commerce with the benefits of trademark registration, and so the policy explicitly values a vision of civil discourse over commercial benefit.

Online settings illustrate sharply our passing into the information age in the truest manner, with the development of culture and social relationships being mediated exclusively via ‘palpable’ digital information artefacts, like texts, images, videos, webpage links and social networking accounts. Suspended between its intangible nature and its various ‘tangible’ expressions, and according to Drahos constituting ‘the daily lifeblood of human agents as communicating beings’, information regulated under familiar legal conceptions of property suggests arguably ‘biopolitical’ developments: the hold, which one exerts on information items, extends to administering essentially life in its social and cultural aspects. The propertisation of information in copyright laws authorises long-term exercises of power that, in future, computer-mediated societies, could both undercut circulation of vital knowledge and structure the public’s participation in culture, thus interfering effectively with the development of personal, social and political identities. Such concerns appear more plausible in view of the increase of corporate power across online settings, contested between concentrations of copyright-intensive industries and web hosting giants, and following debates over the impacts of laws like the recently introduced EU Directive 2019/790 (Directive on Copyright in the Digital Single Market). By reviewing copyright law developments, this paper reflects on Foucauldian understandings of biopolitics and media ecology theoretical interpretations, to comment critically on the regulation of information and online public interaction spaces.

I then turn to other areas where the Supreme Court appears to be pushing back against an expansive, biopolitical notion of patentability. Specifically, I show how the Supreme Court’s recent revival of patent exhaustion doctrine as well as several decisions on subject-matter patentability all represent a juridically based effort to limit patent protections. In the final section of the chapter, I make explicit a question which has been underlying the analysis throughout, the extent to which IP functions as a form of “property.” Specifically, nearly all theories of biopower note the rise of the administrative state, often at the expense of judicial law, as central to the emergence and functioning of biopower. The chapter concludes by studying the Court’s ruling upholding the PTO’s inter partes review process. The administrative state is a key feature of public biopolitics, and the opinion, concurrence, and dissent clearly illustrate what is at stake in the intersection of differing understandings of power and IP law.

In the brief concluding Chapter 6, I both provide a condensed case for why the analysis of IP through differing regimes of power is a fruitful one, and detail a couple of its implications. One is that we need to be attentive to the way IP law creates certain kinds of subjects, and to be willing to critique it on those lines. The other takes the form of a brief discussion of alternatives proposed to IP, in such areas as “low IP” zones and in creative commons-style proposals. I will conclude that the degree to which those fundamentally challenge the neoliberalization of IP, and its move away from public biopower, is essential in assessing the extent to which they actually are alternative. The goal is not to be strongly prescriptive, but, in the manner of Foucault, to help figure out what are the right questions to ask.

The final main chapter (Chapter 5) treats developments in patents. Patent law is where the messy evolution of IP into neoliberal biopower is most contested, substantially because it is here that the Supreme Court has repeatedly pushed back against it. This pushback has understandably been a source of confusion; the chapter here provides a new theoretical framework through which to interpret it. In the opening section, I lay out the emergence of a new model of medicine in genomics and other biotechnologies and show how that model functions as a form of neoliberal subjectification insofar as it conceptualizes health as a form of risk management and human capital development. I then turn to the difficult question of the patentability of isolated gene fragments. The Supreme Court’s decision rejecting such patentability was a surprise to most observers. Looking at the litigation at both the appellate and Supreme Court levels, I examine how judicial understandings of patentability intersect with the test for the BRCA1/2 mutation. Because gene fragments were routinely considered as patentable for nearly a generation before the Supreme Court’s decision, the litigation and the research around cancer-causing genes offer a nearly ideal case study of the stakes in how one models the form of power underlying subject-matter patentability, and how patentability encourages the development of neoliberal agents who model their health in terms borrowed from financial risk.

In 2013, The Supreme Court unanimously ruled that Myriad could patent cDNA – a sequence of nucleotides generated from naturally occurring mRNA (cDNA contains only the coding exons found in the gene in situ, and not the noncoding introns) – but could not claim a patent on the isolated genetic sequence itself.31 The Court proposed that “Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes within chromosomes 17 and 13” and then proceeded to address the question of whether “this renders the genes patentable” (Myriad, p. 2116). The Court produced three arguments to answer in the negative. First, relying on Funk Brothers Seed Co. v. Kalo Inoculant Co. (1948), the Court reasoned that Myriad’s claim fell within the “law of nature” exception to patentability. On this argument, Myriad had found the BRCA gene mutations, but had not invented anything. Funk concerned a patent on a novel mixture of bacterial supplements designed to facilitate nitrogen fixing by legumes. Different legumes used different bacteria, and they had previously been sold separately, as it had been assumed that they mutually inhibited one another. Bond had discovered a set that did not do so, and so was able to produce a single product that could be used on multiple legumes. The Court begins by underlining that “the qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are ... manifestations of laws of nature, free to all men and reserved exclusively to none.” The successful aggregation of these bacteria present “no more than the discovery of some of the handiwork of nature” and as such not patentable since “each species has the same effect it always had.” As a result, the product amounted to “hardly more than an advance in the packaging” of the bacteria. (Funk Bros., p. 131) Second, the Court made similarly quick dispatch of the argument that the act of removing the nucleotides chemically altered them and therefore rendered them new. Pointing out that Myriad was interested in the information contained in the nucleotide, the Court pointed out that Myriad’s reasoning would allow a competitor to avoid infringing on Myriad’s patents by isolating the BRCA sequence plus one more nucleotide. Since the patent was awarded to a specific chemical composition, the competitor would escape infringement by virtue of having made something different. This argument points to the same problem of arbitrariness noted earlier: Treating all isolations as patentable makes everything patentable. Concluding that Myriad would resist this outcome on the grounds that it was the information contained in the nucleotide that the company was interested in, the Court concluded that the information in the isolated sequence was the same as that found in nature, and so was also subject-matter ineligible. Finally, the Court argued that there was no sufficient reason in this case to defer to the erroneous PTO practice of awarding patents to isolated genetic sequences, even if the practice had been a longstanding one. This was the entire opinion, with the addition of a few caveats that it was not to be taken to deny patents on other aspects of the genetic testing process or the techniques for developing tests, and that the Court was not expressing an opinion on whether cDNA satisfied other standards for patent eligibility beyond §101. Still, the opinion harbors a significant and obvious difficulty in that the Court used competing logics in resolving the eligibility of isolated DNA and of cDNA. If the difference between the cDNA and the isolated DNA is that the former contains only coding exons, and the latter also contains noncoding “junk” introns, then it would seem that the information contained in both is identical.32 Indeed, the Court’s argument here seems rather difficult: “cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a ‘product of nature’ and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA” (Myriad, p. 2119). In other words, the Court invokes the material differences between DNA and cDNA to grant patent eligibility to the latter, but uses the informatic identity between DNA in situ and isolated DNA to deny patent eligibility to isolated DNA. The case thus leaves a significant question hanging: When is the criterion for novelty physical, and when is it informatic? Dan Burk put this point particularly strongly, suggesting that the opinion was “at best incoherent,” because: One is ... forced to conclude that molecules that differ structurally from a native molecule are both excluded from and included within patentable matter, while molecules with the same coding information as a native molecule are also both excluded from and included within patentable subject matter. (2014, pp. 507–508) There is also a wide potential impact to the decision, as “pharmaceutical and other chemical developers routinely extract useful organic molecules from a variety of native sources,” and these molecules contain no coding sequences. This means that “depending on whether one believes that structure or information is the determining criterion in Myriad, it is difficult, and perhaps impossible, to fathom how Justice Thomas’s reasoning is to be applied to the patent eligibility of such novel chemicals” (2014, p. 509). One problem with the Myriad decision is the lack of “a coherent theory as to why the differences in certain molecular characteristics should be overlooked in favor of the similarities in other characteristics” (2014, p. 516). It seems to me that the Court is struggling to apply juridical understandings of power to the case of gene patenting, but in the service of a public biopolitical concern about excessive enclosure. This happens in at least two ways. First, struggling with the need to look at both the informatic and material aspects of DNA, the Court was attempting, if somewhat incoherently, to articulate a doctrine according to which the chemical composition had to change “enough” to override the informatic similarity. Even if it is not clear where the line is, it would arguably distinguish the case of extracted DNA sequences, which were modified only as much as necessary to extract them from an organism, as opposed to cDNA, which is missing all of the supposedly irrelevant introns. Such a result would align patent jurisprudence not just with precedent about mixing things, but with aspects of copyright, where some de minimis level of originality – and not just hard work – was declared by the Court to be requisite for copyright eligibility in Feist (1991), and which has figured prominently in more current litigation surrounding hip-hop sampling. Second, the Court is assuming a sharp nature/art distinction of the sort that no longer makes sense in modern biology, given the importance of the material/ informatic duality. As Bruno Latour and Donna Haraway both suggested some time ago, modern science is characterized by hybrid or cyborg entities that blur this distinction.33 The move into a post-Fordist economy complicates the distinction yet further when applied to patents. At noted earlier, statutory law defines patentable subject matter as “new and useful processes, machines, compositions or matter, or articles of manufacture” (35 U.S.C. §101). The schema works better in an industrial setting than a post-industrial one because all of these patentable things tended to occur in certain objects that could be claimed as patentable. As Burk notes, “products, at least to the extent that they constitute objects, are inherent in the concept of process ... Making and using entail some type of object: some thing is made, and some thing is used. In classic industrial setting, the substrates of the process were fairly apparent, and extant in what is now §101; machines and materials visibly interacted as inputs generating outputs” (2014, p. 527). With the rise of immaterial goods and a post-Fordist economy, however, it is increasingly difficult to point to discrete things either at the level of product or process, and the ability to characterize immaterial goods informatically suggests that they could be understood as either thing or process. The computer software cases exemplify the problem, since “software defines a set of physical relationships that may model other relationships” and “software routinely collapses the usually comfortable distance between symbolic expression and physical instantiation, concomitantly collapsing the distance between laws of nature and their material substrates” (Burk, 2014, p. 529). These cases, however, are inconsistent and repeat many of the same problems; the work-around is usually in the claims-drafting process, where applicants emphasize the physical machines that are to run their software. Of course, such a strategy usually makes little sense from a computer science or coding standpoint. On Burk’s view, however, the conceptual confusion goes even deeper. Even if we could successfully distinguish processes and products, or laws of nature from their application, the more basic “laws of nature” exclusion itself is problematic because it fails to understand the interpretive work of science. Court decisions routinely cite Newton’s laws, for example. However, those laws meet the criteria established in Mayo insofar as “a Newton or an Einstein constructs a model that entails the qualities or characteristics of the universe, but is not a quality or characteristic of the universe” (2014, p. 519) Evidence for this point is that Newton’s laws have of course turned out limited in scope to certain macro-level measurements. He concludes that what is really going on in those cases, taken as part of the “laws of nature” doctrine, is a judicial attempt to set the limits of what patents can cover: One might conclude that the jurisprudence of “laws of nature” is intended to push patentees toward narrower, more specific claims on tangible instantiations. This policy of maintaining fundamental access to critical constructs is probably correct, and is perhaps the most sensible reading of the process subject matter cases ... Excluding conceptual inventions from patent eligibility pushes exclusivity further downstream to the stage of finished products, requiring narrower claims on concrete implementations, rather than allowing conceptual patents early in the development of a technology. This rationale makes far more sense than to claim that certain ideas are off-limits to the patent system because they are not the product of human invention. (2014, p. 535) Generally, “the degree of abstraction serves as a rough metric of the sort of claim breadth likely to preempt future uses” (2014, p. 540). The preemption doctrine suggested here is well known from real property law (if your property blocks the only access to a public beach, expect to be required to allow a pass-through of some sort), and has been suggested before in the context of gene patenting (Kane, 2004, 2011). Burk’s construal of the opinion pushes it in the direction of the underlying public biopolitics, and away from the Court’s effort at bright juridical lines. In moving away from the metaphysical question as to whether something “is” natural, it also tends to reopen questions about the monopoly power of patent owners. Forcing narrower claims would serve to increase the potential number of products in a given market. Something like a preemption doctrine would serve to limit the ability of patent owners to create entry barriers to new competitors, and might be viewed as akin to restraints on the ability of patent owners to restrict access to nonpatented products by way of tying arrangements.

Vandana Shiva (1997) strongly advocates for an opening of the commons and abolition of Intellectual Property Rights, which she sees a system legalizing pirating of indigenous knowledge for corporate profit. In Biopiracy Shiva (1997) describes the ways in which corporations profit from the privatization of indigenous knowledge and life itself, selling back the same idea at exponentially higher rates and exacerbating poverty. The same economic relationship characterized imperialism and colonization, where the colonies supplied the raw material to be manufactured by industrial factories in Europe, and sold back to the colonies at knavish rates (Rodney, 1972). Shiva (1997) traces the formation Trade Related Aspects of Intellectual Property Law to major corporations to demonstrate the direct connection between IP and corporate interest and dispel the idea of law as democratically constructed with the needs of the people in highest consideration. “TRIPs…is not the result of democratic negotiations between the larger public and commercial interests or between industrialized countries and the Third World. It is the imposition of values and interests by Western transnational corporations on the diverse societies and cultures of the world” (p. 81). It was conceived, shaped and negotiated by three organizations representing the United States, Japan and Europe—the Intellectual Property Committee (IPC), Keidanren, and the Union of Industrial and Employees Confederations (UNICE). Intellectual Property Committee is comprised of 12 major U.S. corporations including: Hewlett Packard, IBM, Johnson & Johnson, Merck, Monsanto, Pfizer, Rockwell, and Warner. Keidanren represents a federation of economic interests in Japan. Union of Industrial and Employees Confederation is the officially recognized spokesperson for European Business and industry (ibid.). Industries with greatest interests in IP are related to technology, medicine, and food/ agriculture. Medicine and agriculture are most obviously and most literally connected to questions of life and death. Technology, perhaps less obviously, is tied to questions of national economy and participation in a globalized economy, and therefore to sovereignty (Gana, 1996).

IP is significant both economically (materially) and epistemologically (symbolically) to constructing and maintaining global relations of power as they map European legal frameworks globally. Intellectual Property rights have been conflated with right to culture and production through the Universal Declaration of Human Rights, Article 276, Declaration on Rights of Indigenous Peoples Article 317 and the International Covenant on Economic, Social and Cultural Rights Article 158. In 1994, the first multilateral international trade agreements related to IP, NAFTA and TRIPS were enacted, setting in motion a globalized system of IP ushered in under the auspices of trade regulation. Historically, IP emerged out of particular Western ideologies to address economic desires of capital accumulation by turning ideas and creativity into property and granting power over their production and dissemination (WIPO, 1998). A main point of contention within intellectual property law is that it remains grounded in Western ideologies of development, continues to extract resources from historically exploited nations and peoples, restricts access to resources needed for survival (medicines and food), and restricts access to technology and literatures that facilitate economic participation in global capitalism (Gana, 1996; Shiva, 1997). Instituting a legal mechanism for granting ideas and creative enterprise the authority, privilege and protection of property has the potential to address histories of appropriation and extermination of indigenous ways of knowing and living, or ethnocide—the deliberate destruction of the culture of an ethnic group (Shiva, 1997). However, turning to a European system to address issues of European colonization necessitates recognition and material redress of coloniality as a modern reality and therefore runs counter to dominant logics of modernity as linear and progressive (Mignolo, 2011), and of colonial powers as the exception to the rule of law (Agamben, 2005). Race and culture present a complex paradox within rights discourse in general, and intellectual property rights specifically (Harris, 1987; Sunder, 2012). Historically, law has served as a colonial tool to legitimize imperial expansion and confer wealth and privilege upon whites (Bell, 1993; Harris, 1993). The prospect of redressing marginality within the law is certainly quite sticky and contentious: Is it possible to address the needs of marginalized populations within the very system that has created their marginality? It has been argued that intellectual property rights can address global poverty and marginalization of indigenous peoples by patenting traditional knowledge, thereby allowing economic growth through commodification of that patent (Brush & Stabinsky,1996). In addition, intellectual property rights have been argued to be a site through which the pirating and appropriation of traditional cultural knowledge might be addressed (Sunder, 2002). The fundamental concern of IP law as addressing needs of peoples through the market however, signals a grounding in neoliberal ideology, which I have demonstrated is traced to histories and logics of imperialism and colonization under rhetoric of development. The concept of development and of the market is fundamentally tied to logics of capitalism and is not related to need for goods and services, as commonly presumed, but to profit motive geared toward inducing crises of scarcity that is primarily “concerned with people’s ability to pay rather than their need for commodities” (Rodney 1972, p. 10, emphasis my own). Privatization, deregulation and eliminating barriers to trade and the flow of goods characterize neoliberal policies like NAFTA and TRIPS. Given the history of private property and its connection to capitalism, imperialism, slavery, and colonization, it is impossible to divorce the ideas of property from its ideological connections to race and gender.

On 1st October 2015, the Coalition for Affordable T-DM1 (hereafter: ‘the Coalition’) issued a letter to the then Secretary of State for Health Jeremy Hunt, demanding that the UK government issued a compulsory license on a life-extending cancer medicine trastuzumab emtansine, trade name: Kadcyla (The Coalition for Affordable T-DM1 2015). The Coalition’s challenge addressed the problem of the prohibitive cost of Kadcyla by seeking to override the industry’s unfettered monopolistic prerogative—relying primarily on the instrument of Crown use provisions of Sect. 55 of the UK Patents Act 1977. The UK National Institute for Health and Care Excellence (NICE) and the UK Cancer Drug Fund had previously declared this treatment unaffordable at £5908 for a 3-week cycle, or £90,000 for a standard 14 months cycle of treatment (Triggle 2014).Footnote1 Kadcyla is “a next generation breast cancer drug”, combining a cancer-killing cytotoxic agent with a monoclonal antibody, trastuzumab (Staines 2017). This treatment has given hope to many, but in 2016 it was also “the most expensive breast cancer drug ever sold” (Boseley 2016).

This somewhat paradoxical situation, potentially pitting the sovereign of the UK against British health agencies, raises the question of the implications of this action beyond the immediate legal context: why did patients invoke this particular passage of law? Was this only an opportune strategic choice? This article provides a performative reading of rights activism, which foregrounds patients’ desire to be recognised as subjects that count in the delivery of healthcare, and are using this particular method to wield power in a process that usually excludes them entirely. The rights of the Crown are here effectively turned into somatic rights, which are claimed by ‘active’ patients—or biological citizens (Heath, Rapp, and Taussig 2004; Rose 2007). Furthermore, the choice of this particular legal strategy highlights the absence of any other avenues of challenge to the monopolistic position of the pharmaceutical industry created by the IP regime. In this context, the Coalition’s demand represents a clear declaration of sovereignty in the face of exclusion, re-asserting power in a field in which patients are usually entirely absent. It mobilises the conceptually unfettered rights of a sovereign, utilizing a very specific limited exception to the IP rights regime. This strategy provides a glimpse of the potential power of patients’ demands, but its necessarily limited remit does not seek to address the inbuilt absence of patients for instance within deliberations of price. Their absence in the IP regime has a deeper historic background and fundamental conceptual roots, as shown below.

In the previous chapter, I argue that patent law functions as a technology of power, utilizing the molecularization of life described by Rose as its means: advances in biotechnology enabling human societies to alter the cellular and subcellular processes of life allow living material to enter the marketplace and be governed by legal policy. More profoundly, molecularization enables policy to influence how we view our relationship to those processes of life—that is, the power of our public policy to influence our moral sentiments arises not merely from the incremental introduction of new laws and regulations, but rather from a new view of biology produced by molecularization. In closing by revisiting this point, I consider Foucault's ​The Birth of the Clinic​ , particularly as it relates historically to the development of a political biomedical consciousness from the advancement of biotechnology and the sciences. In detailing his notion of biopower, Foucault historically traces the state's conditional provision of legal status to the medical profession as it began operating at the level of the home and family. Initially serving state interests by providing its own form of surveillance, the field of biomedicine soon intensified its connection to the state: the epidemic as a phenomenon soon became a threat to the essential economic interests of the state, meriting its consideration as a national medical issue. This in turn allowed for "the definition of a political status for medicine and the constitution, at state level, of a medical consciousness whose constant task would be to provide information, supervision, and constraint, all of which 'relate as much to the police as to the field of medicine proper'" (26).173 This state interest in medicine as a means to preserve control over production occurred simultaneously with the technological advancements necessary for the development of a systematic, scientific field of inquiry. Stated differently, advancements in medical technology and the discipline's maturation as a knowledge-generating apparatus began to allow for human bodies to become the targets of power as the raw materials from which that knowledge is manufactured. According to Foucault, the establishment of the clinic permits this phenomenon, enabled by the epistemic shift previously discussed. That power is secured, reified, and reinforced through legal policy, inexorably linking the goals of science with those of the state. In turn, the content of our policy influences moral discourse subtly and incrementally, a point worth noting in the context of Rose’s proposal that modern political power takes the form of governing a genetic body: modern policy is no longer limited by a grossly anatomic or physiologic view of the body as biotechnology’s advancement permits life science institutions to envision life at a cellular or molecular level. This epistemic shift functions within a broader framework of power relations that are capable of influencing and even determining our ethical evaluations. In this section, I propose that reframing moral discourse by acknowledging a reciprocal power relationship (in which the interests and beliefs of a state’s citizens have the power to determine policy) is valuable in approaching resolution of the issues discussed to this point. My intention in providing this brief overview of Foucault's political biomedical consciousness is twofold: first, to close this project by alluding to Foucault's claim that the "medical gaze" as a product of and instrument in the knowledge-generating apparatus of biomedicine provides a foundational power asymmetry—one that takes its more modern form in Rose's molecularization; and second to propose that the very development of biomedicine as a field even prior to its industrialization occurred via the powers of the state. In these ways, our current economic frameworks, ideologies, and practices afford distinctive forms of public control. More specifically, emphasizing "privatization and free trade as privileged modes of governance" allows for "the control and management of knowledge through patent law," thereby situating "patent law as a juridical tool and mechanism of neoliberalism where biological and genetic material are privatized for the development of capitalist production"

In The Birth of Biopolitics (2008), Foucault addresses the basic characteristics of the liberal art of government. Herein he focuses on the new raison d’état that sees the market as a truth-telling place and liberalism as an art of government wherein the freedom of the market ensures reciprocal, correlative, and enrichment behavior for European countries. Immersed in such a scenario of the “globalization of the market,” Foucault (2008) sees commercial globalization as the means to guarantee perpetual peace—where the new governmental reason, referring to liberalism, needs freedom to buy and sell, to exercise intellectual property rights, to discuss, to express, and to consume. Therefore, Foucault highlights here that freedom is not a given, but is rather constantly produced and, in order to do that, additional control and intervention are needed.

Foucault addresses—and differentiates from neoliberalism—the liberal art of government. From a political perspective, he considers it as “the generalization of state power”—wherein states exercise vigilance, undertake activity, and make interventions. The center hereof is pure competition, and consequently, neoliberals think of a society as subject to competition dynamics—an enterprise society whose members are people of enterprise and production (Foucault, 2008). What is at stake, then, in neoliberal policy is that market, competition, and enterprise become “the formative power of society” (Foucault, 2008, p. 148).

In what follows, I develop the theoretical lens of this book. In brief, I will argue that the question of what IP does can be approached through an analysis of how power operates socially. That, in turn, requires an understanding of what we are talking about when we talk about “power.” I will argue that there are three competing ways of understanding power that are relevant in the present context. One is the power of law in the traditional, “juridical” sense: Repressive and coercive, "law” tells you what to do and prescribes penalties for not doing it. The second, emergent in classical liberalism - around the same time as the first IP policies - I will call “public biopolitics.” Power in this sense is less a matter of repressing than it is of generating, of harnessing the life energies of a population toward some sort of end, usually cashed out in terms of public/social welfare. The third, currently ascendant, is that of neoliberal biopolitics. Neoliberal biopolitics takes from its public predecessor a concern with generation and optimization, but drops the focus on the public sphere: Neoliberalism is a regime of intense privatization.* The central theoretical claim I will make is that intellectual property (IP) evidences a move away from both juridical law and public biopower, and toward neoliberalism. This process is uneven, incomplete, and contested, but the trend is nonetheless evident in a number of doctrinal areas. In so doing, IP has begun to adopt two of the key techniques of neoliberal biopower. The first is the production of a specific “truth” about what it means to be a person. All ways of life of course encourage an understanding of what it really means to be human; in the case of neoliberal biopolitics what it means to be human is to be a rationalizing economic agent: The human is homo economicus. The second technique, consequent upon the first, is that neoliberalism deploys an intense strategy of “subjectification,” which is to say that neoliberalism deploys a number of strategies for making people into exemplars of homo economicus. I will develop specific examples of how IP has adopted these strategies of subjectification in subsequent chapters, and suggest that they help to explain otherwise puzzling departures from the traditional goals of IP.

Put most briefly, this book has argued three things. First, intellectual property (IP) is a form of power. By that I mean that it exists in and through specific institutional, political, and social contexts, and influences the behavior of people in various ways with varying degrees of coercion attached. Second, the nature of this power has been shifting, particularly in the last thirty years or so. If one divides modem forms of power into an admittedly rough schema, it is possible to adumbrate juridical, public biopolitical, and neoliberal biopolitical variants. Although no form of power as socially diffuse and culturally fundamental as IP will monolithically transition from univocally expressing one form of power to another, it is possible to observe a marked shift in IP law in the direction of neoliberal biopower. This shift is evident in the increasing adoption of individualizing, market-driven provisions grounded in a Demsetzian understanding of property driven by the internalization of (publicfacing) externalities. From the attempt to patent isolated genetic fragments to efforts to protect brands as themselves commodities, IP law has increasingly insinuated itself into the everyday lives of individuals, nudging them to understand themselves as market actors at all times, rewarding producers who produce for market exploitation and consumers who interact with cultural products as though they were so produced. Third, we can see that IP law, as other forms of power, is also legible as a process of subjectification, which is to say that it is in the business of making people. The blockhead model of creativity and correlative passive consumer, the brand-conscious individual envisioned by regimes like trademark dilution, and the actuarial agent of contemporary biomedicine are all examples of the kinds of individuals imagined by neoliberal biopower and encouraged by its expression in intellectual property policy. These are contingent forms, as the contrast with the Mertonian scientist, drew sampling artist who sees appropriation as creation, and the artist who secs in a Louis Vuitton bag a powerful symbol for cultural critique indicate. So too, individuals do not naturally approach music as consumers and resist being forced to do so by technologies. It takes effort to persuade scientists that they should treat their research process as governed by the standards of homo economicus and artists that they should pay for access to culturally important symbols.

Philosophically speaking, Agamben suggests, both language and law are sig-naturae that signify the efficacious relation between respectively, words and world, law and life.83 Like language, law is not merely signification, ‘“ius dicere” (saying what is in conformity with the law)’: it is always also a ‘“vim dicere” (saying the efficacious word)’84 which constitutes the legal order as the sphere in which law can (i.e., has the power to) refer to life (like words refer to the world) in a stable and efficacious manner. This efficacious relation—which represents, with Agamben’s words, an ‘excess of efficacy over signification’, ‘a relation that exceeds and grounds every relation’85—is thus allowed to produce meaning (i.e., to signify) in accordance with the logic of instrumentality. Most importantly, the concrete instances (including theories, judicial and legislative decisions, administrative acts, juridical categories, and so forth) in which this relatability is expressed and articulated become paradigms of the signatura of law, examples of its power (i.e., organised potentiality).Law’s self-preservation coincides with the administration of the relatability of law and life and, from this perspective, it is biopolitical or governmental: it constitutes life itself as a governable force and, at the same time, produces the sub-ject (of law) who will administer life’s governability, the (law’s) ‘signator’,86the subject who administers the signatura (of law). This figure represents an ‘enunciative function’, to be understood, with Foucault, as a ‘vacant place’ within a network of power relations that individuals must fill in order to produce intelligible meaning in a given historical moment.87 This ‘signatura’ produces a ‘sanctioned mode of intelligibility’88 through the institutions of ‘subjective enunciative positions’ that pre-determine the intention to signify of the individuals enter-ing that framework of meaningful signification, thus allowing them to con-struct the objective world around them.

In this sense, for example, when legal theorists speak of a fundamental norm (such as Kelsen’s Grundnorm or Hart’s rule of recognition) which allows to deter-mine the criteria for identifying the law, they are implicitly dealing with the issue of law’s signatura. My suggestion, specifically, is that the enunciative func-tion presupposed by legal theory’s fundamental norm(s) is to turn life into a ‘zero-degree of law’,90 that is to say, an instrument for the self-preservation of law. Crucially, these ‘master norms’, which found the relation between law and life in terms of decidability, are shaped and sustained by various ‘officials’ and, ultimately, also by ‘the man in the street’,91 that is to say, by society at large.92For example, as Atienza and Manero suggest, the fact that ‘one could not use the law as a mechanism of foreseeing the consequences of one’s own behav-iour, if one would not expect norm-applying and norm-producing organs to follow one and the same rule of recognition’,93 implies that private citizens themselves enforce, through their thoughts and actions, law’s decidability, and, in this respect, act as (quasi)officials who perform a social function. In similar terms, Lindhal has recently re-interpreted Kelsen’s Grundnorm as an ‘ought form’ which provides subjects with social agency by, precisely, allowing them to understand ‘something as something in law’.

This interplay among material innovations, fictional projections, and popular anticipations and anxieties is a crucial object of study in the twenty-first century. In his introduction to Lively Capital, Kaushik Sunder Rajan suggests that the “theoretical problem of this volume is not to come up with the ‘theory of’ life or capital or governance or globalization or markets or neoliberalism but is rather to come up with forms of inquiry that are adequate to studying a contemporary conjunction of the life sciences and capital.”29 Speculative fiction is precisely such a form of inquiry. To be clear, I am not arguing for technological determinism, and indeed, precisely the point of fusing sociotechnical practice with speculative fiction is that technologies will influence social life based on the political and social structures and values attendant on their emergence. Narratives foreground such cultural forces and often enable us to see how otherwise neutral or even beneficial technologies may have undesirable consequences if issues of equity are not addressed in how they are implemented.30 At its best, speculative fiction can help us envision and materialize alternative futures that seek to transform rather than intensify contemporary injustices. At the very least, such alterative futures are a sign of capacities for speculative dreaming and anticipation of the future that exceed and escape what Mark Fisher calls “capitalist realism” and defines as the erosion of our capacity to imagine the future as anything other than a continuation of current hegemonies.

Fisher similarly sees speculative fiction as a way to shape our affective investments in the new, to orient how we think about technologies and the new social arrangements they entail toward greater social justice rather than greater capitalist accumulation. He argues that capitalist realism is our dominant ethos, prompting us to accept the world-as-seen-by-capital as given, rather than one alternative among many. Trapped in these logics, we seek to survive, to endure, and are no longer capable of imagining that there is an alternative. Fisher points to speculative images of the future produced by corporations as the chief mechanism by which we are encouraged affectively to invest in the future of capital, images he calls “sf [science fiction] capital.”31 He contends that our emotional investment in such sf capital encourages our material investment in a narrow range of futures. He calls on us to invest our sf capital in estranged new worlds rather than the continuation of this one, to cultivate a different sociotechnical – and political – imaginary.

We have argued here, along with the contributors, that futurity is dangerous. How then, do we proceed? Though these articles do not answer the durable question of racial injustice, they caution us to take care to understand what political work the future does. Modernity denies futurity to racialized others by depending upon a hierarchy of human-ness. These papers remind us that, ironically, efforts to include the marginalized within the biopolitics of the human serve to naturalize and reinscribe the functioning of race rather than attacking the hierarchy of humanity that produces the uneven distribution of life and death. Our readings of race-biopolitics indicate that white non-futurity has been greatly exaggerated. White supremacists refer to a ‘‘white genocide,’’ revealing a racial fantasy rooted in white fragility (DiAngelo, 2011), while some on the left place hope in demographic changes to shift party politics. The articles here make clear that whiteness is about more than demographic trends, and recent events reaffirm that a lax teleological hopefulness equating futurity with progress will lead to repetition rather than rupture. We must work toward a future that comprises a break with a past that cannot be reconciled or forgiven (Eaves, 2016; Inwood, 2012).

Da Silva (2011) asks us to take on racism as ‘‘biopolitical arsenal’’ by understanding how race emerged in modernity, infused into the apparatus of the ‘‘bios’’ and the ‘‘political,’’ and sustained through the production of new efficient tools for sorting humanity. Here, we suggest it is incumbent on us to pay attention to both specificities and continuities in context-based, future-oriented biopolitical practice. That is, as Olund observes, there are multiple and complex racializing spatio-temporalities beyond what is implied by the white/non-white binary. Here, we identify two competing temporalities. On the one hand, a hopeful imagining of the future (as a ‘‘long arc toward justice’’) sees biopolitical violence as exceptional or as falling away over time. On the other, in the vocalization that Black Lives Matter, and in the indigenous re-occupation of Standing Rock, alternate futurities momentarily rupture the present tense, revealing the untenability of the biopolitical violence that undergirds this world. In Olund’s words, under present biopolitical regimes, ‘‘white spaces and futures are necessarily heteronormative, while racialized spaces and temporalities are queered’’ (285). The disruption of race-biopolitics requires a seizure of the biopolitical arsenal, and a queering of the future through 216 Environment and Planning D: Society and Space 35(2) decolonial, abolitionist, and fugitive practices (Best and Hartman, 2005; Bliss, 2015; Collard et al., 2015; Dillon, 2013; Gumbs, 2016; Harney and Moten, 2013; Heynen, 2014; Jackson et al., 2013; McKittrick, 2013; Morgensen, 2011; Mun˜oz, 2007; Tuck and Yang, 2012), to undo the grammar that binds us to a narrowly defined human future.