Open domain increases biocapital by creating a culture of white masculinized knowledge without changing the system.

Yet, upon critical examination, conceptions of an open public domain emerge aligned with neoliberal, biopolitical strategies. Nature is now optimized through logics of free trade and competition. It is assumed that an open public domain can bolster circuits of biocapital even further than patent ownership, ensuring the unrestricted trade of human bodily tissue for scientific experiment and commercialization. This engenders more scientific innovations for individuals to choose from in their self-governing efforts at optimizing themselves. Theorizing of an open public domain might question the privatization of scientific ideas and materials, but it does not challenge market logics entirely. In fact, it relies faithfully on market values of freedom and openness to promote innovation. Yet, only certain forms of creativity emerge and prosper in such an economic terrain, primarily an inventiveness that remains mediated by and through market mechanisms.

Privatization through patenting is also not entirely abandoned; it is just deferred. Proponents of an open public domain seem more concerned about patent ownership rights locking up creativity at the temporal stage of its initial inception. An open public domain is meant to incentivize a market-mediated creativity that will eventually lead to patentable products, thus patent law ownership remains sought at a later stage. Uncritical acceptance of values of free trade and privatization unfortunately cloud a discussion of inequality, namely who has access to patented scientific technologies and patent ownership rights.

Second, conceptions of an open public domain also fail to account for modes of power and inequality. Values of openness and sharing can be important in facilitating scientific discovery and access to needed medical care and technology. Yet, such cultures of open science have not been available to everyone. In terms of scientific discovery, female scientists have historically been marginalized within science. In particular, lesbian women and women of color scientists have been excluded from the free exchange of scientific ideas and materials due to continued discrimination against them in the science professions.35 Scientific cultures of sharing and borrowing have also led to the violent exploitation of indigenous peoples, their knowledge, and their lands.36 Given these histories and their contemporary residues, only some female scientists may benefit from an open public domain, and indigenous peoples may in fact be harmed.

Patent inventorship and ownership itself is also structured by histories of gendered and racialized exclusion. Women have historically been less likely than men to be U.S. patent owners.37 Laws of coverture, cultures of domesticity, and bias in the U.S. Patent and Trademark Office partially explain this inequity.38 Addition- ally, the majority of patent owners who are female have historically been middle- class white women.39 Histories of slavery and Reconstruction-era laws preventing people of color from pursuing certain occupations may explain why fewer women of color own patents than white women.40 Unfortunately, women continue to lag behind men in terms of patent ownership today. A 1995 report shows that female scientists hold fewer patents than male scientists in both the academic and commercial sectors.41 By remaining faithful to the free trade of scientific ideas and materials to encourage future innovation, an open public domain model fails to recognize gendered and racialized relations of power structuring technoscientific production and patent ownership.

Third, an open public domain model obscures recognition of gendered and racialized modes of knowledge production, thereby reinforcing Eurocentric, masculinized styles of thought. Intellectual property law was historically justified through metaphors of men giving birth to wisdom and knowledge.42 These metaphors drew upon and contributed to the collusion of masculinization and whiteness with rational knowledge production. Male intellectual labor was privileged over the mere bodily capacity of women’s reproductive power.43 Patent law is thus historically embedded within explicit gendered discourses privileging the mind as associated with men, over the body as linked to women and people of color.

This mind/body dualism persists within contemporary patent law. Dan Burk argues that the distinction between tangible and intangible property within intellectual property law means that it is fundamentally about protecting the original idea of the author and inventor.44 Extending these arguments further, I would suggest that patent law, in protecting intangible ideas, places value upon scientific creativity characterized by reason and rationality, which are epistemologies associated with masculinization and whiteness.45 An open public domain thus fails to recognize that the creativity it seeks to promote is always and already gendered and racialized. Its attention to market-mediated creativity also obscures the importance of and lack of protection for practices of indigenous peoples’ knowledge.