Open science alternatives uncritically replicated market logics, thus the exclusionary and exploitative nature of the current intellectual property system

Laura A., Assistant Professor of Gender Studies, Indiana University, Bloomington; Faculty Affiliate, Center for Intellectual Property Research, Indiana University Maurer School of Law. “Patents, Biopolitics, and Feminisms: Locating Patent Law Struggles over Breast Cancer Genes and the Hoodia Plant.” International Journal of Cultural Property (2012) 19. Pp 377-379. LJS

Some critical intellectual property scholarship focuses on bolstering an open public domain. It argues that expansive patent ownership rights are obstructing scientific knowledge production and the fundamental practice of “open science.”32 Scientific ideas and materials formerly in the public domain are now privatized. Scientists are forced to negotiate licensing fees, material transfer agreements, and database access agreements with patent owners. This slows down scientific research, rather than incentivizing it. Stricter patent laws have therefore curtailed the culture of open access and sharing within scientific practice. Scholars point out that patent laws have even restricted access to research ideas and practices for experimental purposes.33 The domain of material and ideas publically available to scientists is thus shrinking and curtailing research, rather than incentivizing it. Scholarship in this area responds to this problem by arguing for expanding the public domain. What is needed is an open public domain that is committed to “a system of open science, where results are shared, criticized and, ultimately, utilized to push forward the frontiers of knowledge.”34 Patent ownership rights should therefore be scaled back in order to promote a more robust public domain where materials and ideas can be freely accessible and open to scientists. Theorizing of an open public domain, however, has its limitations. The first is its uncritical acceptance of neoliberal, biopolitical values and its privileging of a certain type of creativity. Conceptions of an open public domain provide a valuable critique against expanding patent law ownership, but can be read as essentially arguing for a free trade model. Creativity, as the argument goes, is best promoted by encouraging the free exchange of materials and ideas supported by a robust public domain. This is considered an alternative to incentivizing creativity by granting temporary patent law ownership. Open sharing of scientific materials and ideas is said to encourage the exchange of ideas among scientists, leading to more and more innovation. Greater value, they argue, should be placed on bolstering an open public domain versus expanding patent rights. Publicly available science databases are commonly cited as ways of promoting a more open public domain such as the GenBank at the National Center for Biotechnology Information. Sharing of DNA sequence information through GenBank, for example, is based upon an open public domain model and is considered the best way to advance genomic research. 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 Additionally, the majority of patent owners who are female have historically been middleclass 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.