We are witnessing this IP contestation in a new biopolitical epoch—the emergence of genomic governmentality allows sovereigns to govern us down to the molecule with intellectual property as the key battleground

A number of analyses of the biotech sector begin by pointing out that instead of an inevitable development, the historical emergence of molecular biology in the life sciences had a distinct political dimension (Yoxen 1981; Kay 1993; H. Rose and Rose 2012). Yoxen sets out “the history of molecular biology as a research programme and as a technological project – formed, organised and regulated by economic and political forces” (Yoxen 1981, 67). In his account of the formation of molecular biology as a discipline, he shows how “science managers” (Ibid., 88 ff.) selectively funded one direction of research amongst many, which studied life based on “the concepts of ‘information’ and ‘program’ […] [which] draw[s] attention to the fact that our current rules of biological thought direct us to a specific level or mode of interaction in living nature” (Ibid., 70; also Kay 1993). This direction, Yoxen argues, was “not only about new institutions, new techniques and new styles of research. It has also allowed the formation of new conceptions of life, nature and humanity, which are fundamentally important to both the pursuit of the research itself and its relation to contemporary society” (Yoxen 1981, 69). In this way, molecular conceptions of life can be understood as being productive of more than just economic value, but are “a productive force” (Ibid., 1981) of understandings of the self and of an entirely new socio-cultural frame of reference for the governing of populations and the self. Yoxen draws attention in particular to “the reductive shift to molecular processes” and the treatment of “nature as a program” in the promotion of molecular biology (Ibid., 77 and 101; see also Boyle 1996; 2008; Thacker 2004; 2005a; Nelkin and Lindee 1995; Kay 1993; 2000; see also chapter IV). The notion of the code has become central for the understanding of life at its intersection with information technology, as Thacker argues (Thacker 2005a, xx), and given rise to a range of new entities of “biomedia”, in which bioinformation is being stored and generated, for example in Biochips (used for the automation of repetitive laboratory tasks) and in BioMEMS (biomedical microelectromechanical systems, see Thacker 2004, 63 ff.). Landecker’s account of “the practice of growing living cells outside the body in a laboratory” shows how the life and the components of the human body have been transformed into entities that can be mass-produced and lead an immortal existence away from the donor, within the confines of the laboratory – thus changing “practices of plasticity and temporality of living things” (Landecker 2007, 1). The shift to the molecular level of knowledge entailed “a redefinition of life: life as meaning” (N. Rose 2007b, 44). Undoubtedly, the emergence of these technical capabilities for the long-term storage, indefinite replication, and global distribution of cell lines gave rise to a new industrial sector, in which IPRs enabled the integration of life into the economy. But the promotion of one research agenda over others also points to this vision of life’s contingency on a particular programme. This affected the conception of ‘life’ in fundamental ways, as new living entities such as immortal cellline were created in laboratories. It also affected lived experience beyond the confines of the laboratory, as the notorious case of the HeLa stem cell line shows. In 1951, particularly aggressive cancer cells were taken from Henrietta Lacks before her death without her knowledge or consent, and were developed into the highly successful immortal HeLa cell-line – and “have now been living outside her body far longer than they ever lived inside it” (Skloot 2011, 4). The development of this new living entity continues to cause controversy, and claims of Henrietta Lacks’ family for some form of limited control over the use of this very identifiable genetic material have only very recently been acknowledged in debates around the release of HeLa’s genome sequence (see Skloot 2013; Hudson and Collins 2013; Collins 2013). This cell-line was not patented, but its long-term implications for the Lacks family show how the development of these entities have effects far beyond their economic use, deeply affecting the identities of individuals and families. Rose argues that on the basis of information generated in the laboratory, “we are increasingly coming to relate to ourselves as “somatic” individuals, […] as beings whose individuality is, in part at least, grounded within our fleshly, corporeal existence, and who experience, articulate, judge, and act upon ourselves in part in the language of biomedicine” (N. Rose 2007a, 26). IP is thus becoming a contentious issue within a wider political economy of the molecular conception of life, situated at the intersection between economic circuits and knowledge that is increasingly important for the self-actualisation of “somatic” individuals. At this intersection, this thesis argues, IPRs are fulfilling more than a unidirectional function of creating commodities, and are rather involved in the governing of the “problem” in the sense of a “problematization” (Foucault 1994, 114) of life. 3.2. A “new genomic governmentality” More recently, a number of scholars noted the particular problem of governing life in its molecularised form, and increasingly turned to Foucault’s notions of biopolitics and governmentality for their work on a new “politics of life itself” (Franklin 2000; N. Rose 2007b) based on knowledge created in the laboratory. Here, Franklin argues that “[w]e are currently witnessing the emergence of a new genomic governmentality” (Franklin 2000, 188). This refers to the emergence of new form of governing based on this knowledge, derived from Foucault’s concept of a new art of governing or governmentality (Foucault 2000; see next chapter). This thesis analyses how IP’s treatment of life could be better understood with reference to this concept of governmentality, in which new priorities for governing such as life can challenge the operation of economic relations. The politics of life ‘itself’ in the life science/ biotech sector have been explored specifically (Cooper 2008; Rajan 2006; Rouvroy 2008), and in more general terms (Rabinow 1996; 1999; Rabinow and Dan-Cohen 2005; Rabinow and Rose 2006; N. Rose 2007b; Dillon and Reid 2001; 2009; Dillon and Lobo-Guerrero 2008; 2009; Elbe 2009). These and other uses of Foucault’s ideas will be discussed in the next chapter, where the parameters of this governmentality and its increasing emphasis on biopolitical strategies for the governing of life will be set out.8 The discussion here merely seeks to point to some studies and their conception of the politics of molecularised life in order to provide a contrast to the commodification critique’s perspective on IP. The issue of IP is raised consistently within these studies of molecular “life itself”, but mostly with regards to its function of creating commodities for the economy. There is to date no comprehensive study of IP’s contribution to the governing of life within the life science sector. However, Pottage’s article on “Genes, Patents and Bio-politics” explores IP’s function in stabilizing hybrid genetic concepts of life in order to establish “singular scientific ‘fact[s]’”, thus understanding patents as “vectors” (Pottage 1998, 752 and 749). But he connects this to a notion of “governing” only in so far as “[bio-political programmes] treat the distinction [between norm and nature] itself as a provisional programme which serves to govern their own operations” (Ibid., 747). Yet this statement on the intermediary position of biopolitical programmes can hint to the mode in which IPRs are understood to function as a “tactics” of government (Foucault 2000, 211) by this thesis. IP’s contribution to the management of the individual’s involvement in the bioeconomy and to the normalization of knowledge consists in the negotiation of tensions between the different priorities of life and the market in a neoliberal governmentality, thus “[engaging] responsively with exteriority” (Golder and Fitzpatrick 2009, 71, see next chapter). The engagement of other studies on the biotech sector with Foucauldian concepts can range from a mere mention of Biopolitics to a more in-depth exegesis of an emerging ‘politics of life’ and its relation to the economy. Franklin’s work introduced the notion of “life itself” and expressly drew on Foucault, but then turned towards highlighting the pervasive cultural reception of genomics rather than towards connections with the economy. Rajan’s comparative study of the life science sector in India and in the US contains a more direct engagement with the notion of biopolitics. He explicitly sets out to combine the Marxist concept of capital with the Foucauldian concept of biopolitics, arguing “that the life sciences represent a new face, and a new phase, of capitalism and, consequently, that biotechnology is a form of enterprise nextricable from contemporary capitalism” (Rajan 2006, 3). In this phase, “Biocapital”: “operates explicitly in two distinct yet simultaneous analytic frames: one the one hand, as the circuits of land, labor, and value (in a classic Marxist sense) that are inhabited by biotechnological innovation and drug development; on the other hand, as the increasingly constitutive fact of biopolitics in processes of global capitalism. In other words, on the one hand, what forms of alienation, expropriation, and divestiture are necessary for a ‘culture of biotechnology innovation’ to take root? On the other hand, how are individual and collective subjectivities and citizenships both shaped and conscripted by these technologies that concern ‘life itself’?” (Ibid., 78) Rajan’s comparative study of biotech companies in India and the US highlights the coexistence of the economy and life as priorities for governing – as also set out in the next chapter. He also points out the fundamental impact of genetic knowledge on individual and collective subjectivities. However, his discussion of IPRs focuses on the “fluid and constantly contested boundaries between what constitutes the public domain and what private property” (Ibid., 59). His understanding of IPRs in this is influenced by Coombe’s emphasis on IP “as a constitutive object in commercial and popular lifeworlds, as a source and sink of social power” (Ibid., 65; Coombe 1998) – thus in a way that goes far beyond the role of providing commodities. But he focuses on challenges emerging in the public policy sphere, as the question of IP is deemed to have been “settled” in law and thus not discussed as a part of bioethics (Rajan 2006, 64). Rajan traces the “fluidity” of IPRs in the complex positions of India and the US in the biotech sector, and shows that these countries’ presumed positions regarding IPRs are far from certain. This shows surprising fluidity in the parameters of the making and enforcement of IP as a commodity. In contrast, this thesis inspects IP’s “fluidity” in a more directly governmental context, arguing that this flexibility enables IP to negotiate tensions surrounding the relation of knowledge over life and the market. Cooper takes a different approach to the study of the biotech sector, focusing on the financialisation of life in the neoliberal economy. Here, she argues, this neoliberal system has a special foundational connection with the emergence of the life sciences sector through the use of speculative capital (Cooper 2008). This study resonates with topics from Foucault’s study of liberal and neoliberal governmentality, and she draws expressly on the Foucauldian concepts of genealogies and biopolitics, but states that she does not wish to engage in their detailed definition (Ibid., 5). Nevertheless, her emphasis on the role of IPRs as economic instruments shows how speculative neoliberal economic relations fundamentally rely on the creation of stable objects for exchange. On the basis of this, the next chapter argues that IP is becoming even more relevant as molecular knowledge’s influence spreads beyond the scientific sector. However, this increasing influence also gives rise to a more contested status of exclusive ownership over this knowledge. Rouvroy’s analysis of Human Genes and Neoliberal Governance (2008) explores the connection between genetic and economic reductionism, and what she terms the “disciplining effects” of genetic knowledge on the level of the individual. These insights tease out interesting aspects of the connection between governmentality and molecular conceptions of life, which will also be explored in the next chapter. She focuses on IP as part of the convergence between economic and genetic reductionism, and argues that patentability promotes reductionism (Ibid., 41). However, the Myriad judgement and problem of patenting “information” partially contradict this correlation. Chapter IV shows that the IP regime’s turn to an informational-genetic reductionist vision of life endangered the patentability of genetic sequences. Interestingly, the influence of the ‘disciplining’ effects of genetic knowledge on the individual can also produce increased demands for access to knowledge – and thus give rise to claims against the exclusive ownership of such knowledge. The convergence between economic and genetic reductionism thus gives rise to an intensified political dimension of molecular conceptions of life, in which IPRs play more roles than a unidirectional tool for the formation of commodities.