The IP regime requires a reductionist understand of life—this not only serves biopolitical ends, but is bad science

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 116-119. LJS

In particular, epigenetics and systems biology are competing ‘truths’ over life, which are undermining the predominance of the genetic determinist’ view in a power struggle between knowledges. The IP system cannot connect to these complex notions in the same way as to the genetic-reductionist paradigm – which was given “economic strength” in particular by the IP system’s previous chemical-molecular definition of genetics. It is argued that the delayed turn towards the informational-genetic view weakened this strength, while other scientific conceptions emphasising ‘complexity’ would certainly reduce it even more. While the patenting of aspects of genetic interactions (for example biomarkers, SNPs, HAPs) has been on the rise, there are some indications that the patenting of genetic sequences alone has been declining (see for example Mills and Tereskerz 2011, 712; Hopkins et al. 2007; Gaisser et al. 2009). The patenting of complex post-genomic interactions cannot be achieved in the same way, as this section explains. IP’s problematic relation to more complex accounts of life thus highlights the power exercised in the field of knowledge by the Myriad judgement’s turn to an informational-genetic concept, preferring and further normalising one ‘truth’ over other competing scientific knowledges. 3.1. New (old) truths: Systemic Biology and Epigenetics IP law has only recently adopted the informational-genetic dispositif, which had been the determining force of developments over the course of the 20th century. However, in the life sciences, Francis Crick’s “central dogma” of the unidirectional mechanism of “DNA makes RNA makes protein makes us” (H. Rose and Rose 2012, 31) has been increasingly called into question. A recent resurgence of different approaches to life can be traced back to other fields of research that were side-lined when funding focused on the establishment of molecular biology by the Rockefeller Institute and other funding institutions (Kay 1993; 2000; H. Rose and Rose 2012, 66). This paradigm of molecular biology was promoted over and above any other contemporary scientific discourses, and drew funding away from competing programmes such as systems biology, which “was dealt a devastating blow when the Rockefeller Foundation, committed to a reductionist approach, rejected their proposal for a research institute in Cambridge […] in favour of a major investment in what was to become molecular biology” (H. Rose and Rose, Ibid., 66). Recently, systems biology has again drawn attention away from the ‘blueprint’ of life and focused instead on the overwhelming importance of complex interactions between biological systems and their environment. According to this school of thought, the potential for disease contained in the DNA code does not necessarily manifest itself in any case, only in particular circumstances – often depending on wider systemic factors. Rose finds that as “[a] genetic style of thought is giving way to a postgenomic emphasis on complexities (….) informational epistemologies seem to have reached their limit” (N. Rose 2007b, 47). Similarly, the field of epigenetics looks beyond the genetic code towards interactions with environmental factors for explanations of the emergence of particular conditions. Here, “[g]enes are no longer thought of as acting independently but rather in constant interaction both with each other and with the multiple levels of the environment in which they are embedded. […] DNA is no longer seen as an ‘informational macromolecule’ controlling the cell but rather as part of the web of molecules and their interactions that the cell employs during development.” (H. Rose and Rose 2012, 73; see also McAfee 2003, 204 f.)46 The (re)emergence of epigenetics highlights the underlying assumptions built into the reductionist view of genetics. Rosenow terms this the “‘static-linear’ instead of ‘complex-dynamic’ understanding of life”, which “is inextricably bound to a particular episteme that assumes the sovereignty of the subject and the latter’s control over the world as object, and that is deeply at odds with the episteme that is advanced in significant strands of scientific complexity theory” (Rosenow 2012, 532; see also Wynne 2005, 70).47 Braun also points to assumptions of control and sovereignty on the level of the bounded individual body containing molecular information. He contrasts this view with that of the “post-genomic body” immersed in “a global economy of exchange and circulation, where the body is thrown into a chaotic and unpredictable molecular world filled with emergent yet unspecifiable risks” (Braun 2007, 7). The informational-genetic conception of life thus accentuates predictability and control instead of focusing on the unpredictability and complexity characteristic of a novel and experimental research agenda (see Wynne 2005, 69). In the field of agriculture, studies conducted on the performance of transgenic crops provide an example of this imprecision and unpredictability, finding “patterns of mediocre and inconsistent crop performance and unpredicted effects that contrasts with the idealized image of agricultural genetic engineering as capable of increasing food production in an exact, ecologically safe, and economically sustainable manner” (McAfee 2003, 207). McAfee states that “[o]nly a narrowly molecular-genetic reductionist view, in which organisms are advanced Cartesian machines that can be understood by calculating the total of reactions among their molecules and atoms, would lead one to expect anything else” (Ibid., 209). IP’s normalised scientific accounts emphasise predictability and control – in line with the IP regime’s need for stable patentable objects. Here, reductionist “negotiations” and processes of abstraction give rise to an “apparently stable object” (Calvert 2008, 385), thus concealing an inherent ambiguity of genetic conceptions of life (Pellizzoni 2011; Carolan 2008; 2010; Rosenow 2012, 534; McAfee 2003; Pottage 1998). Carolan points out “[t]here are no purified sequences of DNA in the world of genetic testing; no isolated protein-encoding DNA sequences in a field of engineered canola plants” (Carolan 2010, 122, he refers to the infamous Monsanto cases). Without the mental processes of abstraction needed to imagine the existence of isolated DNA sequences in a living plant in a field, patent enforcement against farmers’ use of seed material would be impossible. This “interpretive flexibility” is necessary for the maintenance of IP claims, however, “too much flexibility would […] threaten the patent regime” (Ibid.). IPRs on human genetic materials thus exert power through a “double reductionism” (McAfee 2003, 203), reducing scientific accounts of life to genetic code, and reducing the interactions and uncertainties contained in this evolving field of research to stable and predictable objects that can be traded in the economy. Importantly, the Myriad decision maintains both these reductionist conceptions. Despite the limitation of patentability incurred by a turn towards informational genetic conceptions of DNA, Myriad still continues the normalisation of genetic reductionist knowledge. In this way, the Myriad compromise governs scientific research paradigms in a way that supports the market and provides predictable knowledge for questions of governing life by preferring informational-reductionist knowledges to competing complex accounts. An opening towards more complex understandings of life could have profoundly unsettling effects on IP, resulting in a loss of stable and easily definable patentable entities – which would be even more difficult to negotiate and significantly complicate the circulation of value in the economy and the strategic use of genetic knowledge for the governing of life.