IP law cannot be reformed—it’s very existence canonized worthy vs unworthy forms of knowledge

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 107-111. LJS

Rather than enabling further instances of commodification, the Myriad decision’s changed view of the ‘truth’ about life is attempting to reconcile the informational understanding of the genetic code with a continued existence of IPRs on information derived from human genetic materials. The result is a compromise predicated on an enduring finding of “marked difference” between cDNA and isolated DNA. This rendered some of Myriad Genetics’ patent claims void, however, it also held up others. This chapter argues that this accommodation shows that the Court is navigating the overwhelming scientific and social influence of an informational genetic conception of life (the ‘genetic dispositif’) while at the same time seeking to maintain IPRs as a tool for the bioeconomy, and for the normalisation of knowledge. In responding to the challenge of the move of knowledge over life onto the genetic level, law as a “tactics” of government is re-adjusting the “right disposition of things” (Foucault 2000, 208). At stake in this adjustment is nothing less than the continued existence of the IP regime in the area of genetic materials, and its important functions regarding the maintenance of a central canon of knowledge (see this chapter), and as an area of expert knowledge enabling the conduct of “governing at a distance” (Miller and Rose 2008, see next chapter). Knowledge is crucial for governing according to the right disposition of things, and the change towards the informational-genetic conception of life intensified the utility of knowledge of “the nature of things” (Foucault 2008, 28) by seamlessly integrating knowledge of the individual with that of the population, and also – through the medium of information - with further use in the bioeconomy. 2.1. Governing the normalisation of technical knowledge Foucault’s account of the emergence of the new art of governing emphasized the central role of scientific method and medical knowledge, in particular with regards to strategies aimed at the fostering of life and health of the population. These “include forecasts, statistical estimates, and overall measures” and involve “a set of processes such as the ratio of births to deaths, the rate of reproduction, the fertility of a population, and so on” (Foucault 1997, 243 and 246). These sources of information then gave rise to potential biopolitical strategies. Initially this knowledge was gathered from observations of individuals, compiled in an “apparatus of writing” and analysed according to a new comparative system “that made possible the measurement of overall phenomena, […] the calculation of the gaps between individuals, their distribution in a given ‘population’” (Foucault 1977, 190). The notion of a “population” for the purposes of governing could only emerge as a result of this collection of individual cases. Knowledge is thus one of the central factors that ensure the appropriate operation of government. Foucault points out “[t]he constitution of knowledge [savoir] of government is absolutely inseparable from that of a knowledge of all the processes related to population in its larger sense – that is, what we now call the economy” (Foucault 2000, 217). This points to a contingency of ‘truth’ upon measurements of processes in the population – identifying “the nature of things”, and upon an economic way of governing – determined by “the question of the too much and the too little” of governmental intervention (Foucault 2008, 28). However, Foucault asks “[h]ow can the phenomena of ‘population’, with its specific effects and problems, be taken into account in a system concerned about respect for legal subjects and individual fee enterprise?” (Ibid., 317, quoted also in Dean 2010). A fault line of potential conflict thus runs between the notion of “political economy” and governing for “the optimization of the life of the population” according to the nature of things (Dean 2010, 120). This underlying tension between priorities of governing is governed by laws in the mode of a responsive “tactics” of governing (Foucault 2000, 211), navigating demands made on the basis of technical knowledge while also still ensuring the economy (i.e. appropriateness in economic terms) of this disposition of things. This perspective sheds new light on the uneasy compromise in the Myriad decision, reinterpreting it as the product of a confluence of two different dynamics prioritising on the one hand the continued existence of IPRs on knowledge derived from human genetic materials, and on the other hand seeking to contribute to the normalization of the genetic-informational conception of life. In managing this tension, IP law is becoming governmentalised. Previously, “the life/nature-is-nothingmore-than-chemistry argument” (Carolan 2010, 117) effectively “closed down” debates about the patenting of genetic sequences, and settled definitional arguments as predominantly “technical” issues (Calvert and Joly 2011, 13 f.). In this, patent law provided specific rules that enabled the patenting of genetic sequences, and turned these otherwise “fuzzy and uncertain objects” into tradeable entities (Ibid., 16). Genes are fundamentally “uncertain” and hybrid objects, as they “[consist] not in a structure but in the process that ‘expresses’ or actualises a given molecular strand” (Pottage 1998, 747). As long as IP law provided clear patentability criteria for these objects, it succeeded in normalising an understanding of DNA that ‘governed’ for the market. However, the Myriad judgement’s turn complicated this function considerably, and showed that the adoption of the informational-genetic paradigm causes tensions that could seriously overstretch IP law’s parameters. The Myriad decision reflects the emergence of a new scientific paradigm. Changing paradigms of (scientific) knowledge are closely connected to changes in paradigms of governance (Foucault 1970). Within a paradigm38 of knowledge, an apparatus or a dispositif of knowledge connects the various sites of decision-making at the macro and micro level of governing, containing a particular constellation or congruency of understandings of “labour, life, language” (Ibid., 250 ff.) – a shared basic epistemology39 making the development of sciences like biology, economics, and linguistics possible. These elements contain an epistemology that shaped for example the modern system – and within this system, knowledge derived in accordance with this epistemology needs to be seen as a central concern of power relations, or “power-knowledge”. Information science has emerged as the predominant paradigm of the twenty-first century and given rise to a dispositif that connects the life sciences with computer science and the economy. Within this paradigm, technical scientific knowledge needs to be understood as “power-knowledge”, which is the result of a deeply politicized process of contestations between different forms of knowledge. 40 A normalised canon of scientific knowledge is a result of a struggle between different forms of knowledge, and is constantly threatened by “insurrections” of other formerly “disqualified” or marginalised knowledges (Foucault 1997, 9). Here, a battle “not […] between knowledge and ignorance, but an immense and multiple battle between knowledges in the plural [took place] – knowledges that are in conflict because of their very morphology, because they are in the possession of enemies, and because they have intrinsic power-effects” (Ibid., 179, emphasis added). These power effects, especially on the level of control and ownership of knowledge, are founded “in a society where knowing the secret behind technological knowledge was a source of wealth” (Ibid.). IPRs are thus immersed in a political sphere at the intersection of economic governing and the determination of the nature of things, at the centre of “an immense struggle over the economic inductions and power-effects that were bound up with the exclusive ownership of a knowledge, its dispersal and its secret” (Ibid., 180, emphasis added). IP fulfils different functions within these struggles between competing knowledges. It establishes control over knowledge and research agendas, and enshrines a particular ‘normalised’ version of scientific truth in an officially recognised instrument such as a patent – assigning and amplifying science’s “intrinsic power-effects”. The Myriad decision’s turn towards an informational-genetic conception of DNA can be interpreted as a continued fulfilment of these important functions of the IP regime, which go beyond the sheer commodification of DNA sequences. Instead of prioritising patentability, the decision inscribed or normalised the informational-genetic paradigm in IP law, thus conferring power-effects on this type of knowledge. It contributes to the governing of ‘life’ by further normalising the genetic dispositif. As already pointed out in the previous chapter, genetic knowledge seamlessly integrates knowledge over the individual and the population within one code. The knowledge and ownership of this code is thus a particularly significant power-effect, crucial for questions of research projects, grants, publications, assessments of profitability, and also for personal insurance, questions of identities, and personal life choices. In the process of this normalisation, IP law also marginalises other competing understandings of life and the role of DNA, such as epigenetics and systems biology (see below). In this way, IP promotes research agendas that generate a type of ‘predictable’ knowledge over life.