The link is class reductionism—ip rights and neoliberalism are technologies of biopolitics that operate uniquely in different circumstances

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 372-376. VQ

Patent ownership accompanies novel forms of governing the human body within neoliberal conditions. Neoliberalism, as a set of ideologies and practices, emphasizes privatization and free trade as privileged modes of governance. It is characterized by modes of deregulation that accompany the reduction of the welfare state. It is also beset by increased regulation, in particular, the control and management of knowledge through patent law. This section situates patent law as a juridical tool and mechanism of neoliberalism where biological and genetic material are privatized for the development of capitalist production. This section also positions patent law within understandings of biopolitics and gendered inequalities. Within the architecture of neoliberalism, nature becomes a public good best removed from the public domain and privatized in order to ensure its management through free market mechanisms.5 For example, cell lines are extracted and isolated from the public domain of the human body, and then patented, giving owners exclusive rights to temporarily control the uses of their invention. Such privatization places human bodily tissue into global circuits of capital, where cell lines and DNA sequences take on value as biocapital.6 Patent law also becomes intimately tied to and generative of logics of free trade. This is most clearly articulated by the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights. The Agreement links global trade explicitly to the international harmonization of intellectual property rights among member states. Member states are required to uphold the intellectual property rights of other member states or face restrictions on trade relations. The analytics of patent law are also grounded in an ironic logic whereby temporary monopoly protection is said to ensure the free trade and exchange of biological and genetic material by promoting innovation. As the normative legal argument goes, granting patent rights encourages further innovation through the public disclosure of scientific inventions.7 A world without patent rights would mean an economic terrain in which companies kept their innovations as trade secrets and failed to produce public goods sufficiently. Inventors are thus given temporary, exclusive patent rights to control the use of their inventions. In return, they are required to unveil their scientific work by filing a patent specification document, which is open to public gaze. Patent filings therefore become productive features of the scientific process. Scientists, with the help of their attorneys, refer to specification documents to learn new pathways for scientific research and/or to confirm the novelty of their findings. Further scientific knowledge is thus generated, and additional patent rights are assigned to inventions that are entirely new or improvements thereof. Once patent rights expire, then inventions flow back to the public domain and are freely open for use by others. Patent ownership is therefore justified through a market-mediated, temporal trick whereby short-term monopoly protection is said to encourage a future of freely traded materials within the public domain. Critical intellectual property scholars, as will be discussed, contest this normative justification and argue that expansive patent law rights actually stifle the free exchange of creative ideas and materials. Nevertheless, patent law rights are espoused as both a product and generator of neoliberal economic values of privatization and free trade. This is important for understanding patent law as a technology of biopower designed to function as a norm signifying value. Biopower offers a theoretical framework for understanding contemporary forms of governance within a neoliberal order that includes patent law ownership. Foucault argued that, starting in the seventeenth century, mechanisms of power shifted from the sovereign authority to take a life toward the power to foster life.8 Power became directed at administering and regulating the biological existence of populations. Bodies became subject to “techniques of power”9 through diverse institutions such as schools, churches, hospitals, and the family, which were aimed at managing populations for the development of capitalist production. Power therefore, according to Foucault, transformed into a discursive power that “comes from everywhere.”10 As a consequence, Foucault claims that the juridical system of law gave way and shifted to law as norm. This does not mean that the law is no longer an important site of inquiry. Rather, the law, whose task is to govern life, begins to operate more as a norm and “the judicial institution is increasingly incorporated into a continuum of apparatuses (medical, administrative, etc.) whose functions are for the most part regulatory.”11 This later point is important for our purposes. Law remains a crucial site of analysis to consider within biopolitics. Yet, attention must be paid to the discursive and regulatory power of the law and how it is embedded. How does patent law act as an ethico-legal norm privileging certain forms of knowledge production, bodies, and subjectivities over others? How are patent law, scientific knowledge, and the life science industries co-constituted? How is patent law employed as a technique to optimize and manage life in the service of neoliberal capitalism? These questions begin to frame a feminist analysis of patent law that opens up space to consider the multiple and contradictory implications of patent law on different women’s lives. Critical science studies scholars articulate a more contemporary understanding of biopolitics, which help frame and illuminate patent law. Science in the twenty-first century is a technomedicine and technoscience shaped by capitalization and intellectual property rights.12 It involves the “molecularization”13 of the body where cells, tissues, and DNA are made visible, isolated, stored and can be transferred to others through new circuits of biovalue mediated by patent ownership. Technologies of the self have shifted to become “technologies of optimization” that not only govern bodies, but also “change what it means to be biological.”14 New hierarchies structured through an “informatics of domination”15 no longer stress the perfection of bodies, but rather their optimization. As individuals are obliged to optimize themselves, patent law incites innovations for them to take advantage of. Patent law therefore facilitates the optimization of nature for circuits of capital, so that individuals can optimize themselves. Human beings thus become “nature’s author or inventor”16 as they seek to generate and utilize technoscientific inventions. New forms of subjectivity also emerge as individuals engage in self-techniques to manage their risk and susceptibility for disease. For example, individuals are compelled to take advantage of genetic counseling and screening. In so doing, they form new biosocial relations of “somatic expertise”17 with medical professionals, while also developing new modes of genetic and biological citizenship by lobbying politicians to support genetic causes. Such relations and modes of citizenship also work to contest patent law ownership and its privileging of scientific expertise, as individuals become patent owners themselves (e.g., PXE International) and/or file legal claims against patents on their human tissue (e.g., Moore18). Furthermore, such technologies of optimization are sustained by a “moral economy of hope”19 where the promise of future innovation to treat and/or cure disease is used to stimulate further innovation. Economies of hope similarly drive the approval of patent law rights. Inventors, in filing their applications, only have to demonstrate a potentiality and promise of industrial application for their creations. Approval of a patent then serves as a promise to investors that the invention is worthwhile to finance and develop. Patent law therefore enables technologies of optimization through discourses of hope and promise. Feminist science studies scholarship demonstrates that contemporary biopolitics is itself highly gendered and racialized. Contemporary biopolitics is now aimed at the individual and enhancing the quality of life. In particular, it depends upon women’s reproductive and intellectual labor. As Rose argues, “responsibility now falls not on those who govern, but on those who are responsible for a family and its members.”20 Although he fails to elaborate, Rose explicitly notes that it is women in particular who are responsible for the medical needs of their families and children.21 In contrast, feminist science studies scholars have produced valuable and extensive insights furthering this point. For example, women are often obliged to take advantage of genetic screening to ensure a “normal” child.22 Women’s bodies also become sources of raw material called upon to “donate” or “gift” their eggs for the advancement of reproductive technologies and stem cell research.23 Bodies are also governed through demands for what might be called “epistemic donations.” For example, indigenous women are often compelled to “donate” their epistemic knowledge regarding traditional plants and healing practices for pharmaceutical research. Such forms of governance may lead to important medical advances that benefit individuals and groups of women. The problem, however, is that individuals are obliged to take advantage of medical technologies to ensure their health without being given the necessary resources in which to do so, such as adequate health insurance and education. Biopolitics is accompanied by neoliberal strategies of governing that have reduced governmental support for public health care, while shifting the burden (and guilt) to individuals.24 Thus, many women are left with fewer options to care for their families. In addition, those women who can afford a range of medical care for their families are obliged to do so, and if they fail to utilize all available options then they are left to blame for burdening the welfare state. Biopolitics is therefore variegated and relational, governing different groups of women in variable ways. As a mode of biopolitical governmentality, neoliberalism involves explicit market calculations as to whose ways of living, being, and knowing are deemed more valuable than others. Neoliberalism, according to Ong, involves “technologies of subjection,”25 whereby political strategies are designed to regulate populations differently in order to optimize productivity. Such strategies are increasingly carried out through spatial practices engaged with market forces. For example, global tissue economies increasingly seek out cheaper forms of reproductive labor by enlisting women from the former Soviet Union, China, and South Africa to donate oocytes for use in fertility clinics and experimental research.26 Thus, the optimization of some women’s bodies is at the expense of other women’s bodies. The United States historically relies on the experimental bodies of women such as Henrietta Lacks from the racially poorest areas of the United States.27 It also depends upon the appropriation of medicinal plant knowledge from indigenous women in India.28 Such practices differ and historically shift, but nevertheless express a continuity of inequality where only certain women’s bodies and minds became sites of extraction. Privatization through patent law may or may not occur in all these instances. Yet, patents can potentially be assigned to products or processes associated with the cell lines extracted from Henrietta Lacks, the chemical compounds derived from indigenous women’s medicinal knowledge, or the embryonic stem cells donated by South African women. Technologies of subjection are therefore at work. Some women’s bodies and minds are treated as raw material necessary for the development of new medical technologies, which may or may not benefit them. Their human tissue (with its genetic information) and/or indigenous knowledge become the subject of patent ownership. Patent law therefore privatizes some women’s bodies and their knowledge over others, while promising innovations that may only be accessible to certain groups. A feminist analysis of patent law therefore must analyze how it is intertwined with technologies of subjection within neoliberal biopolitics. A useful analytical for beginning to develop such an examination is the notion of the public domain.