Inter Partes Review is a form of biopoliticalization through state/corporate review of individual patents which controls what remains patented
Hull ’19 (Gordon, is an Associate Professor of Philosophy and Public Policy at the University of North Carolina at Charlotte. He has published numerous articles on contemporary philosophical and political theory, intellectual property, privacy, and the history of philosophy. He is also the author of Hobbes and the Making of Modern Political Thought (2009), “The Biopolitics of Intellectual Property: Regulating Innovation and Personhood in the Information Age”, pg. 18-19 //nw-avis)
I then turn to other areas where the Supreme Court appears to be pushing back against an expansive, biopolitical notion of patentability. Specifically, I show how the Supreme Court’s recent revival of patent exhaustion doctrine as well as several decisions on subject-matter patentability all represent a juridically based effort to limit patent protections. In the final section of the chapter, I make explicit a question which has been underlying the analysis throughout, the extent to which IP functions as a form of “property.” Specifically, nearly all theories of biopower note the rise of the administrative state, often at the expense of judicial law, as central to the emergence and functioning of biopower. The chapter concludes by studying the Court’s ruling upholding the PTO’s inter partes review process. The administrative state is a key feature of public biopolitics, and the opinion, concurrence, and dissent clearly illustrate what is at stake in the intersection of differing understandings of power and IP law.
In the brief concluding Chapter 6, I both provide a condensed case for why the analysis of IP through differing regimes of power is a fruitful one, and detail a couple of its implications. One is that we need to be attentive to the way IP law creates certain kinds of subjects, and to be willing to critique it on those lines. The other takes the form of a brief discussion of alternatives proposed to IP, in such areas as “low IP” zones and in creative commons-style proposals. I will conclude that the degree to which those fundamentally challenge the neoliberalization of IP, and its move away from public biopower, is essential in assessing the extent to which they actually are alternative. The goal is not to be strongly prescriptive, but, in the manner of Foucault, to help figure out what are the right questions to ask.