FOR REF 1AC Mahoney 19 = Patents are an important protection measure for innovation.

The previous chapters traced the development of racial scripts in and around intellectual property law in the United States. In doing so, they named but did not fully examine, as other scholars have done, the complex relationships between copyrights, patents, and trademarks and (neo)coloniality. That connection is not one that begins with the advent of biopiracy but rather stretches back before American independence to the colonial construction of knowledge itself. Colonial regimes were built, in part, on the devaluation of the intellectual capacity and knowledge production of colonial subjects. Practices of treating non-Europeans as less than human and incapable of producing knowledge were enacted in colonies across the world, including in Africa, Asia, and the Americas, through binary articulation of rationality with Europeanness and intellectual incapacity with Otherness. Ramon Grosfoguel, for instance, writes that “[t]he hegemonic Eurocentric counterexamples, arguing that a learned Black man, in Africa or other colonies, must be “like a parrot.” Not only did Hegel and Hume lay out Enlightenment justifications for slavery and colonialism, but echoes of their words are evident in American rejections of the creatorship of people of color and the non-universality of personhood and creativity.

Enlightenment conceptions of colonial subjects as barbarous, childlike, innocent, and without higher intellectual capacity came to be embedded not only in intellectual property law in the eighteenth and nineteenth centuries, but in the very logics of global copyright, patent, and trademark law as well. Ruth Okediji observes that, historically speaking, intellectual property law from the nineteenth century onward discriminated against the developing world, centrally building upon the idea that colonial subjects lacked the intellectual sophistication to produce knowledge. She contends:

In essence, the extension of intellectual property right was not directed at the inhabitants of the governed territories at all, but instead to facilitate commercial relations among colonial powers as trade between European powers occurred on and among the various territories on behalf of foreign sovereigns. Intellectual property law was not merely an incidental part of the colonial legal apparatus, but a central technique in the commercial superiority sought by European powers in their interactions with each other in regions beyond Europe.

Similarly, Edward Said observes that “[o]n the one hand, there are Westerners, on the other there are Arab-Orientals; the former are (in no particular order) rational, peaceful, logical, capable of holding real values, without natural suspicion; the latter are none of these things.” Philosophers and political theorists in the pre-American era made similar claims as well, increasingly marking whiteness as a signifier of the capacity to engage in fully formed thought as well as qualify for the rights and entitlements of citizenship. Colonial subjects, the objects of the production of [pages omitted in Google preview]

Intellectual property law, without attentiveness to modernity itself, is a mechanism for maintaining, not undoing, the racial and epistemic hierarchy that Grosfuguel identifies. Traditional knowledge remains largely outside the scope of protection of intellectual property law because epistemic dominance is deeply embedded within legal theory and doctrine. Adherence to Enlightenment conceptions of authorship and inventorship continues to decenter the knowledge of people of color while advancing purportedly universal Western development agendas. Larger-than-life global brands reinforce the epistemic domination that authorship/inventorship produce by a signifying quality in raced ways and exploiting labor in a global, self-destructing system of racial capitalism.

Rewriting the racial scripts that undergird intellectual property law requires grappling with legal and economic structures but also fundamental orientations toward knowledge itself. In this sense, decolonial theory’s emphasis on epistemology offers inroads to undoing intellectual property law’s racial and (neo)colonial exclusions. The project of decolonization emerged from the Bandung Conference of 1955, which took on critiquing the epistemological foundations of modernity as a justification for (neo)coloniality as its central agenda. As former colonial states gained their independence, they were corralled into international regimes of free trade and economic harmonization, which also created international intellectual property rights. TRIPS, in particular, operated as a predominantly Western project of international law, one in which “white men of letters and science … were the gatekeepers of Western and modern knowledge.” The conversations in Bandung laid the groundwork for future critiques of neoliberal colonialism, particularly as realized through international governance.