TRIPS and the WTO are the imperialist arm of the biopolitical US intellectual property rights regime

At the same time as the rise of the gene, intellectual property has “become one of the major issues of our global society” (Stiglitz 2008, 103), as a global system of enforceable temporary monopolies on knowledge was enshrined in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as part of the WTO. This IP system became a key component for business strategies of pharmaceutical companies and other entities operating in the life sciences – including for example the “entrepreneurial university”, which actively uses IP for “rapid commercialization of basic research problems”, enabled for example in the US context by the Bayh-Dole Act (1980) (Rajan 2012, 2; Cooper 2008, 27). This commercialisation of research thrived especially at the intersection with the life sciences, where new “high-risk forms of investment” fuelled these “decidedly entrepreneurial, public-private alliances” (Cooper, Ibid., 27). This thesis argues that in the new political economy of life, IPRs became a central concern – not only for the production of commodities for circulation in the economy, but also in a variety of roles asserting control over knowledge and over participation in this economy on the national and the international level. In fulfilling these roles, it is argued throughout this thesis, IPRs are increasingly contributing to the governing of life, and are negotiating tensions between economic priorities and a new sphere of politics surrounding the geneticinformational conception of life. This new sphere of politics reaches far beyond the life science sector and its commercialised research, as it fundamentally re-shapes understandings of “humanness, illness and health” (Kay 2000, xv). The overwhelming influence of the informational-genetic paradigm continues to profoundly affect the individual’s relation to its own body, rendering the accessibility of genetic information an increasingly important marker of personhood. This thesis argues that understanding this fundamental impact on personhood can provide a new perspective on ongoing challenges to the exclusive commercial ownership of genetic sequences enabled by IPRs. Increasingly, patients and developing countries criticise IPRs as detrimental to their health and are actively challenging exclusive rights on testing kits such as for example the breast cancer test containing the BRCA-1 and 2 sequences in the recent Myriad case (Assoc. for Molecular Pathology v. Myriad [2013]). In a decision that came as a surprise to the biotech sector, this landmark case overturned some forms of gene patents, arguing they contained a “product of nature” rather than an invention. The following chapters point out that this challenge to patentability was enabled by containing the essence of life. The Court however still maintained patentability of cDNA, arguing that it was “man-made”. This tenuous compromise shows IP’s precarious position in this new sphere of politics based on genetic knowledge, and at the same time highlights its continued importance to the industry. The analysis of the confrontation between IPRs and life conducted in this thesis re-reads conflicts as an increasing “problematization” of genetic life for questions of governing (Foucault 1994, 114), and argues that in this context IPRs accommodating and resolving tensions between life and the economy. IP’s relation to genetic material is reinterpreted as a confrontation with biopower, in which IP law is being “governmentalized” and begins to negotiate tensions between different priorities of a new way of governing, instead of simply inscribing sovereign claims of power. This reading relies on Foucault’s notion of a new way of governing, or governmentality, which “set[s] up an economy at the level of the entire state, which means exercising […] surveillance and control as attentive as that of the head of a family over his household and his goods” (Ibid., 207). This returns to a more original interpretation of ‘economy’, which emphasises the fostering of life and well-being as part of this new art of governing (Foucault 1978, 138) – and thus leads to the emergence of ‘biopower’. This pastoral economy focused on the life of the population as an important point of reference: “the welfare of the population, the improvement of its condition, the increase of its wealth” (Ibid., 217), giving rise to particular biopolitical strategies. This new point of reference leads to a governmentalisation of the state apparatus, in which previously sovereign features of power increasingly act as tactics of economic governing. Sovereign aspects of power, such as law, thus become involved in the problematization of life for questions of governing, and contribute to the realisation of a pastoral yet economic fostering of life. This process of governmentalisation thus involves a range of adjustments and tensions for law (N. Rose and Valverde 2010, 543; Elbe 2009, 12), and renders it a central site that contributes to the governing of both life and the economy – accommodating two priorities that exist in some tension with each other (Dean 2010, 120). In an “analytics of power” (Dillon and Lobo-Guerrero 2008, 272), this thesis studies IP’s confrontation with the growing influence of a “genetic dispositif” on the level of conflicting truth discourses over life, in challenges to the control of genetic materials voiced by ‘genetic’ subjects, and in new strategies confronting IP’s relation to life on the national and international level. This analysis reveals that IPRs play a wider variety of roles in this political economy than previously suggested by critiques focusing on IP’s function of the ‘commodification’ of life alone. At the intersection of life and the market, IPRs establish commodities for the trade of knowledge over life, but also play other important roles, for example privileging one vision of life over others and thus contributing to the normalisation of knowledge. Furthermore, they establish and maintain a dividing line of exclusion/ inclusion of participation in the area of IP policy making and in the life science economy, keeping challenges by patients and donors at bay. An analysis of debates on the global level shows the IP regime’s function as a regime of exclusion in its starkest terms. The popular author Michael Crichton once argued “[y]ou, or someone you love, may die because of a gene patent that should never have been granted in the first place” (Crichton 2007) – on the international level, the detrimental effects of IP law are already a very painful and widespread truth (Godoy 2013). But even here, where the influence of donors and patients is still mostly excluded from participation in the development of IP policy, this division is coming under increasing pressure, as new strategies begin to contest this exclusion from within the core institutions of the IP apparatus.