Session #3: Saturday, 10 January, 9.30 - 11.15 (CSLG)
Panel coordinator(s): Brenna Bhandar (Kent University, UK) and Dwijen Rangnekar (Warwick University, UK) (b.bhandar@kent.ac.uk/d.rangnekar@warwick.ac.uk)
Chair/discussant: Kaushik Sunder Rajan, Department of Anthropology, University of California, Irvine (ksunderr@uci.edu)
Panel description
Panelists, paper titles, and abstracts
The panel seeks to unpack and disturb various readings (and writings) concerning intellectual property. In the process it focuses on that persistent contradiction within intellectual property law – the struggle between myths of creativity and originality and rhetorics of theft and progress. The panel also acknowledges the ‘exclusionary’ effects and impacts of intellectual property. In addition to the exclusionary effects that the borders of a property right generate, the law also excludes various forms of creativity by recognising and privileging only particular arenas and acts of creativity. Another set of contradictions emerge with the very nature of biotechnological innovation itself, which challenges distinctions between the natural and the made, between the categories of human and non-human. These distinctions, well entrenched in regimes of property ownership and patent law, are now being taken apart and challenged by the very substance of biotechnological objects. The role (and ability) of the law to draw bright line distinctions in this arena raises further issues of enquiry.
This paper is concerned with current disputes over the regulation of Bt cotton in India. I am interested in one particular aspect of this very complex debate, namely the role Nature plays in framing struggles against biotech agriculture. To put it briefly, opponents’ concerns often invoke the issue of ‘unnaturalness’ and therefore undesirability of Genetically Modified Organisms (GMOs). On the other side of the debate, while claiming that GM products are not substantially different from their non-GM counterparts, proponents have to argue that genetic engineering is the result of human invention, as this is the pre-requisite for obtaining patent protection and, with it, exclusive property rights. I argue that there are several reasons for leaving Nature out of the picture. The first, and most conventional one, is that by basing their arguments on the defence of the ‘integrity of nature’, opponents end up replicating the basis on which the biotech industry lays claims to patents protection. In other words, as long as the controversy over GMOs is framed in terms of conservation/violation of nature, the result is that control over resources and research patterns is difficult to challenge. There is however another perspective from which to problematise the recourse to Nature. I suggest that Latour’s contribution in unpacking the opposition between Nature and Society by showing the political work this separation does is important in re-conceptualising the current GMOs’ debate. From this angle, appeals to Nature are problematic since they end up reinforcing the schism between Science – which explains what happens in the domain of objective reality, where ‘things’ are and await to be ‘discovered’ by experts – and Society, the domain where humans decide what to do with such things or facts. This separation has a double political relevance: by relegating non-humans to the domain of Science, not only are facts established beyond public scrutiny. As Latour observes, Society is also required to ‘judge facts without the rich material according to which facts are defined, stabilised, and judged’. By accepting the separation between facts and values without further scrutiny, we agree ‘to place [our] own legitimacy away from the scene of facts in the land of the universal or formal foundation of ethics’. The controversy over GMOs can thus be seen as an expression of the crisis not of nature but of objectivity. In this respect, Latour’s thinking through matters of fact/matters of concern becomes important. Unlike pure matter of facts, matter of concerns have no defined essence and clear boundaries, their producers are visible and, importantly, they can no longer be detached from their unexpected consequences. I want to argue that thinking of GMOs as matters of concern is crucial in helping us think not in terms of naturalness/unnaturalness but in terms of a shift from certainty to the uncertainty about the relations we share with non-humans and whose unintended consequences threaten to disrupt the ‘common world’.
The dissolution of a colonial mercantilism in the 19th and early 20th centuries signalled a paradigmatic shift from political power and state rule being situated within the domain of a unitary sovereign authority to multiple, diffuse and fragmented strategies of governance. This shift, significantly, reflects the ascendance of intangible or ‘intellectual’ forms of property and their eclipse of the place of territory (and landed property) in the operation of a globalised capitalism. In other words, Foucault maps the shift from sovereign power that has as its object the control and retention of territory to strategies of governmentality that displace territory, and to some extent, conventional notions of property itself, as central to the dynamics of control, reproduction, and calculation that characterise its political economy.
When situated in the post-colonial context, this avenue of thought opens up radically new ways of understanding the persistent tension between the paradigm of sovereign power and the ownership of property on the one hand, and the new world of biotechnological property that is imbricated with diffuse, de-territorialised, and transnational ownership interests on the other. Taking the emergence of biotechnological seed in the agricultural sector in India as my focus, I am interested in exploring how the notion of strategies (or techniques) of ownership help to make sense of recent legislative changes in the areas of plant patents (Patents (Amendment) Act 2005) and plant variety protection (Plant Varieties Protection and Farmers Rights Act 2001). What is of particular interest to me is the rendering of law as a strategy or technique of ownership rather than as the sine qua non of property as an object of ownership.
The upset of Bentham’s observation- now a rather hackneyed phrase- that ‘where there is no law there is no property, and where there is no property there is no law’ that occurs with the emergence and proliferation of intellectual forms of property can be understood in terms of the temporal dimension of propertisation. Sovereign assertions of ownership over territory require the force of law for their self-grounding; mythic narratives of origin require the law to continually recreate and re-affirm their legitimacy. The fiction of absolute ownership is made manifest, retrospectively, through the law.
In the realm of property rights over biotechnological seed, two significant differences emerge. One is that law is no longer required to instantiate a fiction or myth of origin, but is utilised to shore up future claims over biotechnological innovation. The second and related difference is that absolute ownership is no longer the primary objective in this economy of property; rather, the law is utilised to anticipate a range of diverse ownership interests in an object that is dynamic, changing and has no single point of origin. While patent legislation has as its aim the protection of exclusive ownership of the genetically modified seed, the proliferation of legal protection for other producers, and for benefit sharing amongst a range of breeders point to a displacement of exclusive ownership as the primary end of legal regulation in this arena. The rupture in the concept of ownership at play can also be understood as a by-product of the nature of the property itself. Drawing from the work of Pottage (2007) and Pottage and Sherman (2007), the object of property, the seed, “disaggregates” legal forms of ownership itself by challenging distinctions fundamental to patent law such as the distinction between what is natural (grown) and what is made.
Not only does law become a tactic of the legal regulation (or governance) of this form of property, but ownership itself becomes another strategy (among many) in the dynamic machinery of propertisation that creates value through a multiplicity of means. Multiple and often overlapping ownership interests reflect one strategy employed in the constitution of a constantly evolving economy of the agro-chemical and life sciences businesses. Ultimately, this enquiry leads to the question of what is at stake, if not ownership, in the context of intellectual property rights over seeds. Claims of ‘bio-imperialism’ and assertions of ‘seed sovereignty’ belie forms of propertisation that hive off a range of lifeworlds, ecologies, and species considered expendable in a scientific framework that posits human populations as its primary constituents. Thus, this paper concludes by enquiring into the need to re-think the boundaries of the concept of human subjectivity usually taken for granted within the conceptual apparatus of ownership, now ruptured with the emergence of biotechnological innovation in the agricultural sector.
This paper puts forward a three-part argument: (i) molecular biology and biotechnology are suitable fields for the patent system, but (ii) that at the present time, claims to whole organisms, including microorganisms, plants and animals, are premature, and (iii) the fact that such claims are allowed marks a radical departure from, rather than a logical and scientifically sound extension of, traditional patent practice, which we ought to reconsider.
Living organisms have been patented since the 1870s, and possibly earlier. However, it is only since the 1980s that courts have been called upon to consider whether patenting living organisms is consistent with the principles of patent law. In Diamond versus Chakrabarty, the United States Supreme Court found Chakrabarty's oil-eating bacterium to be patentable. 21 years later, in 2001, the Court confirmed the patentability of plants. In the oncomouse case, the Canadian Supreme Court, and in the face of very similar statutory language to that of the US, took a different view. This is that while the patentability of lower life forms is acceptable, higher life forms cannot be classed as inventions.
Which courts came to the right decision? Or are they both wrong? My approach is to revisit the above cases and the whole question of life form patent claims on the basis, in part, of lessons drawn from ongoing debate (henceforward 'the debate') between Darwinists and those who hold that science and reason point not to natural selection but rather to a great designer in the sky, a notion associated originally with William Paley as expounded in his 1802 book Natural Theology, but that has been repackaged for modern times as 'intelligent design'.
One can argue, as many no doubt do, that the debate, which can be seen as a continuation of a very old preoccupation concerning the place of religious belief in times of rapid scientific advancement, is unhelpful. Darwinian evolutionists seem easily to have the upper hand, natural theology and its present incarnation of intelligent design not yet being very convincing. But in another sense, the need for Darwinists to respond to the view that living things are too complex, ordered and well-designed to have emerged without a (divine or extraterrestrial) designer has been fruitful.
First, it has forced evolutionists to give serious thought to the apparent existence of design and teleology in biology, and the results can be illuminating. Even Richard Dawkins, with his jaundiced views about religion, natural theology and intelligent design, has written some of his most thought-provoking work, and most colourful metaphors, in reaction to the so-called 'argument from design'. Just consider The Blind Watchmaker and River Out of Eden.
Second, it has put Darwinism to the test and found it robust enough to survive the - admittedly weak - challenge and remain as much the orthodoxy as it has ever been (including to many believers in God such as the physicist and theologian John Polkinghorne who is attracted to a God that writes the laws of physics and lets evolution do the rest). At the very least, this testifies to the robustness of Darwinism. Irreducible complexity has not made the breakthrough, remaining an idea that few scientists take seriously, and one whose popularity in some circles seems like an act of desperation - of a necessary kind for those fearing that Darwinism would make God's existence implausible or unnecessary, or merely even that it renders unsustainable the literal truth of the Book of Genesis.
On the more negative side, though, Darwinians and intelligent designers tend to share the same assumptions, metaphors and analogies as do scientists more generally. Given that the field of battle has mostly been biochemistry, the debate has done little to engage constructively with the wider war of the metaphors going on between biologically-trained mechanical engineers, chemical engineers, geneticists and information scientists, who are all keen for us to envision life according to their chosen language. The issue may not be that of whether these are wrong or misleading in themselves, but whether they are sufficient. Life is still mysteriously complex and increasingly seems to require ecological and interdisciplinary approaches for us to understand what it is and what it does. It is far from clear that use of these metaphors can do the job any more, at least at the level of whole cells or organisms, nor the disciplines, at least by themselves, of biochemistry, molecular biology, computer science or for that matter physics (which according to James Watson is the only science, all others being 'social work'). While Alan Sokal, the physicist who is very anti-religion, reminds us that 'Newtonian physics is perfectly capable of describing complex interactive systems', Steven Rose, a biologist who has written extensively on biochemistry, but is not involved in the science-religion debate, explains that all life forms must have the ability 'to be and to become' which in turn requires a biology that encompasses 'epistemological pluralism'. He also makes the fascinating point that because biology 'developed in the shadow of physics', a consequence is 'the power of technological metaphor in biology, whereby living systems become analogized to machines ... thus reversing a much older tradition in cultures in which the physical world too was regarded as if it were alive'. It is clear he finds these metaphors problematic. By this statement, of course, he means cultures prior to, or unaffected by, Scientific Revolution thinking and in which few if any people questioned the existence of one or more deities.
Meanwhile, patent examiners have only this or that chosen language to go by - usually chemistry in our case. And many scientists, within and outside the debate, continue to talk a bit like the 18th century animal breeder Robert Bakewell who called a sheep 'a machine for turning grass into mutton', a perspective that Rose would find typical of what he calls 'mechanical materialism'. Nowadays living cells are nanomachines, to give one example of from Paul Davies of what I mean, a physicist with an interest in the origins of life who is happy to discuss 'the G word.'
Nonetheless, this concern leads to a third reason for feeling the debate is not a waste of time, talk and trees. Indeed, this reason may go some way towards mitigating the problem I have just identified. As we can see from recent books edited by Michael Ruse of Florida State University, who is keen to bring together individuals willing to debate design from religious and atheistic standpoints, the debate is now enlisting highly original thinkers from disciplines other than biochemistry and genetics including philosophy and history of science. Molecular biologists are of course as essential as they have ever been. But new ideas, metaphors and analogies from these sources may prove invaluable in the brave new world of systems biology, synthetic biology, cloning and stem cell research. Of course, many if not most of these people would have got involved anyway. But the debate is now attracting and bringing together at least some people to the subject with important things to say that would not have otherwise got involved or ever met.
We go on to consider the patenting of life forms and argue that the view, accepted under current patent law and practice, that living things can be claimed as inventions, is not supported by what we know so far and what we know how to do. Patent laws, practices and jurisprudence assume, when it comes to claims over whole organisms, that 'inventors' do more to turn living things into human artefacts than they can really do. Even the simplest life forms are too complex and little understood for such claims to be objectively plausible. Scientists cannot make or invent life as they can make or invent complex devices like computers, robots, airliners or space rockets. There are three reasons for this, which together make, at least in my view, an overwhelming case for this argument. First, living things seem to be far more complicated than any genuinely human artefact. Second, the ways that biochemical elements of cells interact to make metabolism and replication possible, are still poorly understood. Neither are we yet close to understanding how, with respect to higher life forms, organisms develop from the initial clusters of undifferentiated cells that form just after fertilisation. So we have mind-boggling complexity and incomplete understanding. Third, unlike machines, living things can do without our help in carrying out most functions. They are autonomous ('autopoietic') in terms of how they make, renew and remake themselves, and in their independence from us - unlike machines which are assembled and directed to specific tasks by human operators. And yes, they evolve.
None of this is to deny the immense ingenuity of many life scientists. Scientists are able to achieve extraordinary feats with respect to the manipulation of living cells including both unicellular and multicellular life. For example, scientists at State University of New York announced in 2002 they had synthesised the polio virus. Shortly after, Hamilton Smith and Craig Venter claimed that in just two weeks they had constructed in the lab a virus consisting of 5,386 base pairs of DNA. Most recently, researchers at Novocell have turned human embryonic stem cells into insulin-producing pancreatic cells that were grafted into mice where they successfully made insulin and protected the animals from diabetes. Scientists can create enormous numbers of different proteins that have no natural counterparts. And of course we've been consciously modifying plants and animals for a long time. At some level, domesticated plants and animals are human artefacts. As Dawkins wrote in an open letter to Price Charles: 'a wheat grain is a genetically modified grass seed, just as a pekinese is a genetically modified wolf. Playing God? We've been playing God for centuries.' But in my view this is not enough to say they can be inventions. Those favouring the extension of patenting to embrace life forms should not be allowed to rely for support on legal or scientific arguments.