Western ideologies of patent law promote removal and devaluation of indigenous ideas

Scholars have paid considerable attention to how patent ownership threatens the resources of indigenous peoples (Boyle 1996; Drahos and Mayne 2002; Finger and Schular 2004). They also note how patents are based on Western notions of property rights that conflict with indigenous peoples’ ways of knowing (Coombe 1998; Brown 2003; Anderson 2009; Boateng 2011). Although valuable, such studies can leave contradictions of postcolonial science projects unaddressed. For instance, scientists in South Africa are trying to claim patent ownership for themselves, but at the expense of local indigenous peoples. Indigenous San peoples are demanding contractual benefit sharing to obtain much needed resources and recognition, but at the cost of having to navigate between notions of themselves as both modern and traditional.

A feminist postcolonial technoscience approach, with its attention to the cultural legacies of colonialism in shaping science and society, offers alternative theoretical insights toward a decolonizing of patent law and its relation to science. By decolonization here, I mean a set of research processes (and political practices) that seek to change the hegemonic ordering of knowledge production. I take seriously Linda Tuhiwai Smith’s notion of “decolonizing methodologies,” which engages with how histories of imperialism and colonialism depend upon and position Western knowledge production as superior to the rest. Drawing upon Smith, I engage in what she considers a decolonizing project of “re-fram-ing” by examining patent law and benefit sharing not through the dominant language of law and economics, but as techniques of neoliberalism embedded within racialized and colonial legacies (Smith 1999).

Influential theorists, such as Sandra Harding (1998), Donna Haraway (1991), Sharon Traweek (1988), and Vandana Shiva (1997), produced early work at the intersections of feminism, postcolonialism, and science studies. Feminist scholars also examined how development agendas actually led to the de-development of the Third World (Braidotti 1994; Scott 1995; Visvanathan et al. 1997). Drawing upon these earlier insights, an emerging field of feminist post-colonial technoscience is taking shape through interrogations, for example, of bioprospecting, forestry, rice cultivation, and genomics in West Africa, Mexico, India, South Africa, and US Native Nations (Carney 2001; Hayden 2003; Philip 2004; Harding 2008; Reardon and TallBear 2012; Benjamin 2013; TallBear 2013; Foster 2011, 2016a, 2016b). This scholarship challenges hierarchies of power and knowledge within science and technology by taking colonial histories and their contemporary legacies into account (Pollock and Subramaniam 2016). It also understands the term “postcolonial” broadly in order to address conditions of decoloniality and indigeneity that flow from the different histories of coloniality that have impacted, for example, peoples in Latin America and Native Nations, thus a feminist postcolonial technoscience offers a feminist decolonial approach to the study of scientific knowledge production (Subramaniam et. al. 2016).

Sandra Harding (2011) describes a feminist postcolonial technoscience that addresses issues of political concern (such as the environment, development, corporatization, and militarism) to women in the non-West and to those who are considered Other in the West. Harding deploys the terms West and non-West, but cautions, as do I, that the use of these terms is problematic, as they obscure histories of colonialism, practices of Orientalism, and developmental discourses that have positioned the “West” at the center and justified the taking of indigenous peoples’ land and resources. Feminist postcolonial technoscience differs from what Harding defines as “northern feminist science and technology studies” and its attention to women’s success in the STEM fields or their reproductive rights (2008, 103). A northern feminist science studies approach to patents, for instance, might focus on female scientists’ inability to obtain patents and empowering them to do so. Although valuable, this provides little insight into how patents and contemporary struggles over them are embedded within gendered colonial histories and neoliberal politics. I am more interested in developing a feminist technoscience approach to patent ownership that interrogates its contradictions within postcolonial science projects—how becoming owners of and/or stakeholders in patents can simultaneously challenge, reinforce, and re-configure relations of power. Such an approach enables an understanding of how science and law are historical and sometimes contingent in relation to each other.

Patent ownership rights, for instance, were not always considered value-neutral, natural property rights. Scholars attribute the rise of the first formal patent system to Venice, Italy in the fifteenth century, where patents were considered privileges granted by the state to increase economic competitiveness (Drahos 1996; May and Sell 2006, 71; Mgbeoji 2006). They were not understood as individual, natural property rights until the late fifteenth and sixteenth century, when the modern legal patent system took hold with Britain’s 1624 Statute of Monopolies and the 1709 Act of Anne. It was only then that patents were justified as a way to recognize the genius of the scientific inventor, a figure coded as male and masculine (Pettitt 2004, 211). Support for patent ownership also cast patents as important state strategies for facilitating capitalist expansion (May and Sell 2006, 87). Given these histories, patents emerge as not only historically contingent, but also distinctly European (Mgbeoji 2006, 17).

Patent law and its assumptions are also aligned with histories of colonialism (Coombe 1998, 247). According to feminist science studies scholars Sandra Harding (1998) and Londa Schiebinger (2004), colonial voyages of discovery and practices of bioprospecting enabled the rise of Empire. Africa was considered, Helen Tilley (2011) notes, as a “living laboratory” to be studied by British explorers. Patents were central to these practices. Colonizing Europeans imposed concepts of patent ownership and property upon indigenous societies in the Americas, Africa, Australia, and Asia (Mgbeoji 2006, 28). Early patents emphasized not the first to invent, but the first to introduce the invention into the nation-state territory (Mgbeoji 2006, 30). This enabled the colonial taking of resources and knowledge first known by indigenous peoples. South Africa, for instance, became an official British Colony when they re-conquered the Cape Colony from the Dutch in 1806. The Cape parliament would eventually pass the first patent law in 1860, which closely modeled the English Patent Act of 1852 (Burrell 1999). As the British took over the remaining territories, they established similar patent statutes in Natal, Orange Free State, and the Transvaal. The establishment of an independent Union of South Africa in 1910 resulted in the consolidation of patent statutes under the Patents, Designs, Trade Marks and Copyright Act 9 of 1916, which was based largely on the British Patents Act of 1907 (Burrell 1999). The colonial diffusion of patents thus corresponded with and enabled practices of colonization and the appropriation of indigenous peoples’ lands, resources, and knowledge.

To be sure, feminist scholars have produced valuable insights into patent ownership and its colonial histories. Winona LaDuke (2005) and Linda Tuhiwai Smith (1999) emphasize patents’ historical affiliations with imperialism and the taking of indigenous peoples’ land, knowledge, and heritage. Vandana Shiva is also well-known for linking patent ownership and colonialism, arguing against globalization and the privatization of plant life (Shiva and Moser 1995; Shiva 1997, 2007). Indigenous women have also explicitly argued against patent ownership as an issue of indigenous women’s rights in the 1995 Beijing Declaration of Indigenous Women and the 2004 Manukan Declaration of the Indigenous Women’s Biodiversity Network.