Patzke+Hegemonic+Backdrop

HEGEMONIC BACKDROP

Discourses of property and innovation frame the litigation of patenting biotech patents. In //AMP v. USPTO//, a property discourse is established through patentability.

Patenting inventions is a limited and exclusive monopoly right to license an innovation addressed in the United States Code Title 35. Sections 101, 102, and 103 of the code outline the conditions for patentability. Section 101 specifically addresses utility and statutory subject matter, while Section 102 addresses novelty. Judges evaluate disputed patents according to the language in Title 35 as well as precedents established in previous judicial rulings. Through these interpretations, the Supreme Court has further refined conditions for patentability andin the 1981 case //Diamond v. Diehr// excluded "laws of nature, natural phenomena, and abstract ideas" from patentable subject matter.[1] Judicial precedents such as this are used to stand in, elaborate, broaden or rein in the scope specified by the US Patent Code. Inventions representing patentable subject matter have been refined through legislative changes in the US Code (Section 102) as well. Patent law represents a hybrid of both statutory law, represented by written codes and regulation, and common law, derived from adjudicated disputes. As such an amalgamation, disputes of patentability are common and are often brought to light by novel technologies and methodologies.

//Diamond v. Chakrabarty// established in 1980 that the novel ability to genetically modify organisms and grow, as opposed to manufacture, invention was a patentable technology. Chief Justice Warren E. Burger, wrote the majority opinion and concluded that Congress intended statutory subject matter under Title 35 to "include anything under the sun that is novel and made by man."[2] //Chakrabarty// established a new sensibility of patentable subject matter from //manufactured// objects to //grown// organisms. This ruling “normalize[d] genetic engineering by providing forms and methods of discourse that made the applications of the technique seem amenable to control” ( Jasanoff 1995, p140)[3]. The description of specific chemical compounds became an established practice of describing patentable subject matter within the USPTO. Chemical descriptions of compounds, like those identified in the contested patents of //AMP//, specify detailed and difficult laboratory work. One can easily imagine the artificial laboratory setting, in which bonds are “cleaved.” This normative approach to patenting gene sequences is tied to the biotechnology laboratory as a place of innovation, discovery, and commercialization.

As legal definitions of property are constructed in genetics, based on descriptions of chemical compounds, patenting becomes the means by which constructions of //intangible// property are framed – through the rhetoric of intellectual property. It is important to distinguish this notion of intangible property from real property (e.g. //real estate// as it is used in legal jargon). Patents are not physical ownership of a tangible artifact but address //applications// of ownership and innovations through the potential for licensing agreements. In their legal-historical account of the development of patenting and intellectual property, Alain Pottage and Brad Sherman contend that, patents //construct// the idea of an invention rather than identify a manufactured artifact.[4] They state, “the distinction between idea and embodiment has become a central article of faith in patent doctrine” (Pottage and Sherman, 2). Patents are descriptions of manufactured goods and are only //representations// of inventions. Patents account for both the legal practice of licensing manufacture processes as well as the disciplinary specific purposes of establishing the manufacturing of an invention. Specifically, Pottage and Sherman identify this move in gene patents as a move to instrumentalize biotechnology and it is representative of patenting practices after //Chakrabarty.// This plays out in the patenting of gene sequences “which sees the question of biotechnology patents in normative rather than conceptual terms” (Pottage and Sherman, 182). The practices established by the USTPO since //Chakrabarty// have created normative practices of describing genes as chemical (i.e. material) compositions with mechanical (diagnostic) sensibilities.

This discourse of property has developed through legal and industrial partnerships to order biotechnologies for commercial purposes, most obviously in the process of patenting biotechnology inventions. Patenting represents the potential for gene sequences to be categorized as inventions, legally protected as property, and licensed for a fee. While histories of genetics describe the enlistment of cybernetics (and the information metaphor) to the //a priori// development of genetic practices, I contend that the application of legal technologies to “discoveries” of genetic sequences changes the interpretations of genes //from// information //to// property. This is more than just a linguistic application of the metaphor of property to a so-called invention. It is a form of ordering, of maintaining legally sanctioned practices and as a means to conform new ‘inventions’ to normative endeavors.

[1] Diamond v. Diehr, 1981 U.S. LEXIS 73 [2] Diamond v. Chakrabarty, 447 U.S. 303, [3] Jasanoff S. 1995. //Science at the Bar//. Science and Technology in American Law. Cambridge, MA: Harvard Univ. Press. [4] Pottage, Alain. //Figures of invention: a history of modern patent law//. Oxford University Press, 2010.