Situating feminism, patent law, and the public domain.

Author:Foster, Laura A.


Both critical intellectual property studies and feminist legal scholarship seldom address the gendered dimensions of patent law or its implications for women and women's rights. This lack of attention raises awareness of the need to broaden our approach to studies of patent law and the public domain. During recent fieldwork in South Africa, I began to consider patent law as a feminist site of inquiry and to think through the difficulties of such an examination. [double dagger]Khomani San women in the northern Cape express concerns over the patenting of biological and genetic materials derived from their indigenous traditional knowledge. Maintaining control over their knowledge and resources is important for feeding their families and safeguarding their intellectual histories and heritage as female plant gatherers.

The [double dagger]Khomani San peoples are currently engaged in political struggles against patent law and the ownership of their indigenous knowledge, but such organizing has not been explicitly gender-based. Although some [double dagger]Khomani San women articulate patent law as a women's rights issue, other women in the community consider issues of patent law to be genderneutral. Concerns arising from patent ownership of indigenous knowledge are also not the main priority. [double dagger]Khomani San women committed to gender-based political organizing explain the difficulties of mobilizing and educating indigenous San women in their communities. Political organizing takes money and resources, and San communities are spread out over great distances within South Africa, Botswana, and Namibia, making meetings difficult to arrange. Issues of patent law are also not as significant or pressing as the material conditions of domestic violence, substance abuse, and poverty facing San women and their families right now. Thus, [double dagger]Khomani San men and women are involved in struggles against patent law, yet their political work does not explicitly address the connections between patent ownership and gendered social relations.

Indigenous women elsewhere, however, have begun to address patent law from a gender-based perspective. The 1995 Beijing Declaration of Indigenous Women and 2004 Manukan Declaration of the Indigenous Women's Biodiversity Network explicitly argue that intellectual property rights threaten indigenous women's lives. I The Indigenous Peoples' Permanent Forum also highlights patent law as an issue of concern for indigenous women. (2) Local women in India have taken up the issue through with the Diverse Women for Diversity Campaign in connection with Vandana Shiva. (3) Patent law as a gender-based issue therefore emerges within some international forums, and may also circulate at the local level such as with Diverse Women. On the other hand, as with the [double dagger]Khomani San, discourses of indigenous rights around patent law are seemingly framed in gender-neutral terms. Or are they? San struggles related to the patenting of Hoodia may appear gender-neutral as read through the narrow registers of liberal feminism. Yet, as will be further discussed, the masculinized discourses and gendered social relations at work within political struggles related to Hoodia become visible when scrutinized through a lens of transnational, indigenous, African feminisms. Addressing the complex gender relations that shape and are shaped by patent owernship is a complex task. it requires careful consideration of the interactions, relationalities, and hierarchies within social relations of gender, indigeneity, ethnicity, race, and histories of colonialism. Legacies of liberal, western feminism must also be confronted and continually interrogated. Yet, I contend that studies of patent law struggles and complex gendered relations can help push the boundaries of critical intellectual property scholarship and feminist legal scholarship, by asking new questions and defining the fields in new ways. They may also lead to more robust practices of law and science that re-imagine conceptions of ownership and knowledge in ways that benefit less powerful groups.

In this Article, I am interested in how one might begin to formulate a feminist analysis of intellectual property law that addresses indigenous women's interests and gendered social relations both discursively and materially. Given the tenuous relationship between indigenous women and feminism, we may not even want to call it a "feminist" analysis. Liberal feminist ideals of autonomy, freedom, and choice often run counter to indigenous feminist politics and organizing that produce valuable critiques of these notions. Furthermore, as will be discussed, strategies against (or even in support of) intellectual property law are radically different among various individuals and groups of indigenous women, and in solidarity with indigenous men. Developing a feminist analysis of patent law therefore is a process that requires careful consideration of these histories. This Article therefore takes a modest first step in formulating a feminist analysis of patent law by scrutinizing conceptions of the public domain that tend to obscure a gendered analysis. The initial move therefore lies in breaking through the current scholarly discourse on patent law in order to make space for a feminist/gender investigation and to consider claiming a public domain of our own.

Part I of this Article examines scholarship theorizing conceptions of the public domain and its relationship to patent law. It identifies and critiques four public domains: (1) open public domain; (2) hybridized public domain; (3) protective public domain; (4) and egalitarian public domain. Part I, Section A examines scholarship theorizing an open public domain. (4) This scholarship fears that expansive patent laws restrict the free and open sharing of scientific materials formerly in the public domain. Thus, an open public domain is desired where scientific ideas and materials are freely accessible to others. Unfortunately, this project is limited by its uncritical assumption of science as generating knowledge, practices, and outcomes benefiting all members of society equally. Part I, Section B analyzes scholarship generating a hybridized public domain. (5) These studies focus on how the relationship between the public domain and private patent law ("PD/IP relationship") disrupts notions of nature/culture that are foundational to modern scientific knowledge production and scientific authorship. What this scholarship desires is a public domain where new hybrid categories of nature/culture and social/biological are re-imagined to produce new possibilities for modernity. Its limitations reside though in its cursory attention to indigenous and gendered social relations or histories of colonialism and neo-liberal globalization. Part I, Section C discusses scholarly work devoted to a protective public domain. (6) Such scholarship examines the PD/IP relationship as embedded within historical processes of colonialism and neo-liberal globalization, impacting ethnic and racialized individuals and groups. A protective public domain safeguards indigenous traditional knowledge. Its scope of protection does not fully extend to women, as gendered social relations are not explicitly examined. Part I, Section D addresses scholarship that directly examines gendered social relations and envisions egalitarian public domains. (7) This scholarship analyzes how the PD/IP relationship shapes and is shaped by individual and structural relations of gender. Theorizing around egalitarian public domains, however, is a site of contention. Scholars differ over conceptions of egalitarianism and whether women's equality is better reached by increasing their right to own patents, or by fighting against patent ownership all together. Recognition of complex notions of gender and its intersections with other social relations such as racism and neo-colonialism also remains inadequate.

Part II then presents an alternative conception of the public domain as situated public domains. In doing so, it draws upon recent qualitative fieldwork in South Africa examining struggles related, to the patenting of indigenous knowledge related to the Hoodia plant and the [double dagger]Khomani San. (8) It does not offer suggestions for policy-making at this time. Robust patent law policies should be built from more nuanced examinations of the public domain. Rather, it offers a notion of situated public domains as a starting point for producing such complex accounts, which would also consider intersecting gendered social relations. Situated public domains provides a conceptual framework for beginning to develop a new legal realism of patent law that can produce better understandings of how patent law impacts society and, in particular, indigenous women, men, their families, and communities.

Four concepts of the public domain, which circulate within critical intellectual property projects, are identified and discussed by the Article. This is to create space for a feminist analysis, but it also tries to make sense of critical intellectual property projects that share common critiques against expansive patents laws, yet remain unintelligible to each other. (9) Not all critical IP projects are the same and, in fact, can often be opposed to each other. Scientists concerned about DNA patents do not share the same assumptions and concerns as Indigenous peoples who want to protect their own DNA from being patented, even though they are both against gene patents. Feminist organizing to increase patent ownership for female scientists runs counter to Indigenous feminist critiques of norms of patent ownership, and fails to account for how patent law reinforces dichotomies of nature/culture, which undergird binaries of male/female, self/other, and white/non-white. I contend that one reason why all these valuable critical IP projects continue to...

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