Patzke_4S_Abstract

Title: Seeing Through the ‘Magic Microscope’: legal fictions in gene patents

Judicial actors (plaintiffs, defendants, amici, lawyers and judges) negotiate new meanings and orders of genetics through legal fictions, written opinions and briefs. This paper investigates how the economic and social value of genes are constructed, negotiated and adjudicated in the US judiciary through the analysis of //Association for Molecular Pathology v. United States Patent and Trademark Office// (//AMP//), a landmark case involving the patentability of a breast cancer gene. The author posits that the economic value of gene patenting is not a stable component of the biotech industry, but a volatile practice with implicated actors in both science and law. Patentability tests like the “magic microscope” and the “machine or transformation test” reveal the court’s struggle to differentiate new innovations from products of nature. The judicial tension, between maintaining the status quo through upholding/interpreting precedent and directing discoveries beyond patentability, is revealed in the court’s current inability to reconcile the conflicting descriptive metaphors of genes as information and/or chemical compounds. This paper relies on discourse analysis to identify multiple frames and narratives that inform the complex arena of gene patenting and the judiciary. The theoretical framework of co-production and Jasanoff’s notion of ‘bioconstitutionality’ situate genes as a site of negotiation between economics, law, science and social order. While it is difficult to predict the Supreme Court’s ruling of //AMP//, scheduled for 2013, it is clear that the patentability of human gene sequences calls into question established and future practices in biotechnology.