Feminist analysis of patent law regarding indigenous women struggle is necessary.

Both critical intellectual property studies and feminist legal scholarship seldom address the gendered dimensions of patent law or its implications for women and women's rights. This lack of attention raises awareness of the need to broaden our approach to studies of patent law and the public domain. During recent fieldwork in South Africa, I began to consider patent law as a feminist site of inquiry and to think through the difficulties of such an examination. tKhomani San women in the northern Cape express concerns over the patenting of biological and genetic materials derived from their indigenous traditional knowledge. Maintaining control over their knowledge and resources is important for feeding their families and safeguarding their intellectual histories and heritage as female plant gatherers. The TKhomani San peoples are currently engaged in political struggles against patent law and the ownership of their indigenous knowledge, but such organizing has not been explicitly gender-based. Although some TKhomani San women articulate patent law as a women's rights issue, other women in the community consider issues of patent law to be gender neutral. Concerns arising from patent ownership of indigenous knowledge are also not the main priority. tKhomani San women committed to gender-based political organizing explain the difficulties of mobilizing and educating indigenous San women in their communities. Political organizing takes money and resources, and San communities are spread out over great distances within South Africa, Botswana, and Namibia, making meetings difficult to arrange. Issues of patent law are also not as significant or pressing as the material conditions of domestic violence, substance abuse, and poverty facing San women and their families right now. Thus, TKhomani San men and women are involved in struggles against patent law, yet their political work does not explicitly address the connections between patent ownership and gendered social relations. Indigenous women elsewhere, however, have begun to address patent law from a gender-based perspective. The 1995 Beijing Declaration of Indigenous Women and 2004 Manukan Declaration of the Indigenous Women's Biodiversity Network explicitly argue that intellectual property rights threaten indigenous women's lives. 1The Indigenous Peoples' Permanent Forum also highlights patent law as an issue of concern for indigenous women. 2 Local women in India have taken up the issue through with the Diverse Women for Diversity Campaign in connection with Vandana Shiva. 3 Patent law as a gender-based issue therefore emerges within some international forums, and may also circulate at the local level such as with Diverse Women. On the other hand, as with the TKhomani San, discourses of indigenous rights around patent law are seemingly framed in gender-neutral terms. Or are they? San struggles related to the patenting of Hoodia may appear gender-neutral as read through the narrow registers of liberal feminism. Yet, as will be further discussed, the masculinized discourses and gendered social relations at work within political struggles related to Hoodia become visible when scrutinized through a lens of transnational, indigenous, African feminisms. Addressing the complex gender relations that shape and are shaped by patent owernship is a complex task. It requires careful consideration of the interactions, relationalities, and hierarchies within social relations of gender, indigeneity, ethnicity, race, and histories of colonialism. Legacies of liberal, western feminism must also be confronted and continually interrogated. Yet, I contend that studies of patent law struggles and complex gendered relations can help push the boundaries of critical intellectual property scholarship and feminist legal scholarship, by asking new questions and defining the fields in new ways. They may also lead to more robust practices of law and science that re-imagine conceptions of ownership and knowledge in ways that benefit less powerful groups. In this Article, I am interested in how one might begin to formulate a feminist analysis of intellectual property law that addresses indigenous women's interests and gendered social relations both discursively and materially. Given the tenuous relationship between indigenous women and feminism, we may not even want to call it a "feminist" analysis. Liberal feminist ideals of autonomy, freedom, and choice often run counter to indigenous feminist politics and organizing that produce valuable critiques of these notions. Furthermore, as will be discussed, strategies against (or even in support of) intellectual property law are radically different among various individuals and groups of indigenous women, and in solidarity with indigenous men. Developing a feminist analysis of patent law therefore is a process that requires careful consideration of these histories. This Article therefore takes a modest first step in formulating a feminist analysis of patent law by scrutinizing conceptions of the public domain that tend to obscure a gendered analysis. The initial move therefore lies in breaking through the current scholarly discourse on patent law in order to make space for a feminist/gender investigation and to consider claiming a public domain of our own.