Expanding patent protection and eligibility cuts back on Court decisions against biopolitics, furthering the biopolitical state’s expansion into everyday life.

The final main chapter (Chapter 5) treats developments in patents. Patent law is where the messy evolution of IP into neoliberal biopower is most contested, substantially because it is here that the Supreme Court has repeatedly pushed back against it. This pushback has understandably been a source of confusion; the chapter here provides a new theoretical framework through which to interpret it. In the opening section, I lay out the emergence of a new model of medicine in genomics and other biotechnologies and show how that model functions as a form of neoliberal subjectification insofar as it conceptualizes health as a form of risk management and human capital development. I then turn to the difficult question of the patentability of isolated gene fragments. The Supreme Court’s decision rejecting such patentability was a surprise to most observers. Looking at the litigation at both the appellate and Supreme Court levels, I examine how judicial understandings of patentability intersect with the test for the BRCA1/2 mutation. Because gene fragments were routinely considered as patentable for nearly a generation before the Supreme Court’s decision, the litigation and the research around cancer-causing genes offer a nearly ideal case study of the stakes in how one models the form of power underlying subject-matter patentability, and how patentability encourages the development of neoliberal agents who model their health in terms borrowed from financial risk.