STS and IP: plants and genes (and authorship)

Keynote Talk: Mario Biagioli (“The Author as Vegetable: Environmental Metaphors in the Discourse of the Commons and the Public Domain”)

Interested in organic/environmental tone of images, not just rhetoric but almost a necessity of a movement that defines itself as being about protecting. If you go back to David Lange’s foundational text, he uses environmental analogies that figure creative production (and thus producers) as grass/cattle etc. Same with Wendy Gordon on Lockean property theory—the use of implicit environmental metaphors.

How the politics of discourse about IP has changed as a result of cultural environmentalism: if you buy into this set of metaphors, IP is less contentious, because we’re no longer talking about criticizing the logic of IP, but only the excessive use of IP that might deplete the public domain, which makes cultural environmentalists like Clinton Democrats.

Problems with the metaphor: Traditional cultural knowledge ends up being put in the public domain and naturalized. See Madhavi Sunder. This is a substantial misrepresentation.

Another problem: the relationship between the commons and the public domain. The commons has been treated as a piece of legal history that can be reinterpreted and used in the IP context. The articulation of the notion of the commons seems to be going in many directions. One could use the semantic openness of the commons/the public domain to put an evolutionary spin on the concepts themselves—we’ll see what shape they take at the end of the debate. A less cheerful take: the proliferation of different meanings points to difficulty reconciling the environmental framework with the IP notions themselves. Are these natural resources or socially constructed infrastructures?

The real problems: Cultural environmentalists seem to stereotype the commons the way Hardin did, but for opposite reasons. Hardin: they’re natural and thus doomed. The cultural environmentalists: they’re natural and thus productive. There are reasons to be suspicious of the deployment of natural categories to discuss the production of knowledge.

Creation stories/myths about the origin stories of property are never neutral. 18^th-century debates over literary property, including Locke: adding labor to nature creates property. “Every man has a property in his own person,” etc. The brain as an estate that yields produce—flowers growing from the author’s creativity (a GI avant la lettre, Biagioli said as an aside). Jefferson described literary creation as a “fugitive fermentation” of an individual brain. Lots of agricultural, naturalizing metaphors. Land provides the structuring metaphor, either positively or negatively.

Critics of IP suggested that publication was equivalent to opening the land to everyone, allowing any squatters and any destruction of value. Blackstone responded by analogizing the book to a key; being given the key to land doesn’t mean you can make lots more keys and let anyone else in.

IP environmentalism confirms the nature/society divide by emphasizing culture as that which is damaged by IP law. It doesn’t question the discovery/invention dichotomy at the heart of IP law but reinscribes it by relying on the author as creator, as with the GPL license. The cultural environmentalist needs IP law to be strong enough to enforce the license.

STS has gone through problems with its own assumptions about the dichotomy between nature and society, and the dichotomy between human and nonhuman agency. Progressive IP is going through the same problems, but instead of pursuing the critique of the romantic author, Jamie Boyle and colleagues are reinstantiating the romantic author.

Martha Woodmansee and Mark Rose looked at the romantic genius as a legal fiction—a cover-up for a move in copyright law. But look at what else was going on in attempts to establish the author as genius—the concepts of author as vegetable; genius as mountain spring; patronage as sunlight; social culture as soil. The oyster does not know that it contains a pearl; genius does not know that it is borrowing. This is apparently the opposite of the flash of genius, which foregrounds human consciousness, but the act of creation is instantaneous so there’s no awareness of copying. In the case of the plant, the plant does borrow, but lacks consciousness so cannot infringe.

Edward Young (discussed in Woodmansee, supra): In Biagioli’s reading of Young, genius means the virgin birth of artifacts that can’t be born from predictable routines of artisanal practices—creative works are born, not made. They are not the result of craft, but of the copious variety of nature—the way that no face is alike. This is the difficulty faced by one defending copyright/patent: one can construe intangible property only by emphasizing that the author produced an artifact that didn’t exist before. But there are potential endless challenges to originality. So you need to come up with something that defends the author against appropriators and appropriatees—and the answer turns out to be to turn the author into a plant or a face. The difference between individual species members may be tiny, but it exists. It has nothing to do with creativity because it has nothing to do with choice, yet provides irreducible difference. Creating the authorial genius kills it in the same move, because genius is supposed to be human and chosen.

Calling collaboration the true source of authorship leaves the invention/discovery dichotomy intact and the source of genius just as mysterious as ever.

Lemley: If growth is the metaphor, what role for IP? Why would we need it? Is it just mulch? And if so we’d want to fertilize all the possible roots, not just the plants that succeeded. An IP regime based on this would be a subsidy for all authors/inventors at an early stage, not a reward for those who succeeded. (Comment: Mark is an economist from top to toe, isn’t he?)

Biagioli: This is a critical project; I’m pointing out that the critics of copyright are in the same boat as the defenders, because both refuse to locate anything volitional in the individual author.

In 1930, the Plant Patent Act for asexually reproduced plants: he likes it because the law acknowledges that inventorship is not human. The Golden Delicious Apple: someone finds it and grafts it.

Lemley: That’s just imprecise genetic engineering.

Biagioli: But who modified the apple? Nobody!

Burk: Testimony in Congress focused on effort.

Biagioli: Yes! Nature came up with a sport, but could not reproduce it. The inventor is the one who allows nature to reproduce itself. The law is explicitly recognizing the changeable meaning of “creator” status.

Gillespie: Reminds him of Jane Gaines on photography: light creates the photo, but the artists then reframe the creative act as one of setting up/framing.

Frischmann: Is your critique applicable to all cultural environmentalism, or to particular proponents? The environmental metaphor need not be handicapped by its connection to land metaphors. It may have historical ties, but can’t we build it differently going forward, with our reference point the environmental movement, which is not necessarily linked to land? Maybe the naturalization misstep can be separated from environmentalism as a framing device.

Biagioli: You can use social construction to define your project, but look at Sunder’s work: revitalization of the public domain casts traditional knowledge as nature. What looks progressive here has a colonial effect elsewhere. His interests would be in developing a notion of environmentalism that doesn’t replicate the nature/society divide and that doesn’t divide human and nonhuman agency. We need a more sophisticated notion of the environment.

Gillespie: In discussions earlier, we weren’t talking about the environmental movement as Boyle suggested, but about enclosure. Rather than having a political model, where we try to give apparently disparate things a single name and bring people with different interests together under an umbrella concept, we’ve slipped into analogy to the environment. Environmentalism has specific features, and we emulate them and all these familiar naturalistic concepts slip in.

Biagioli: It could well be that the environment and the public domain are going to be articulated in the same way as the movement grows. Naturalization happens in several ways: Sunder’s example; the example of Young who can only talk about individual creative choice by reference to plants—not naturalizaton but an aporia, where he can’t actually talk about individual creative effort. It’s not because he’s a bad thinker, but because there’s a problem at the basis of IP.

Session 3: Andrew Torrance (“Coevolution of Gene Concepts and Gene Patents”)

Begin with quote from Walter Gilbert, a pioneer in gene sequencing (though not the winner): you’ll be able to put your genes on a CD, and pull it out and say “this is me!” Lots of people say that genes make us (or genes make proteins and proteins make us). Evelyn Fox Keller says that biologists have a whole different way of talking to each other about genes in the lab than they do in public.

The gene is a very powerful idea in science, in industry, in public consciousness, even as the concept of what a gene is (named 1909) has evolved over time. Consensus over what genes are has been unraveling—lots of people are throwing up their hands and saying there may not be such a thing as a gene. Gene talk, however, hasn’t unraveled. Investors want to know how many genes a company has patented; ordinary people want to know what genes put them at risk for disease or determine the capacities of their kids.

Patent gene talk is simplified; biologists use it to explain why they should be funded. Does that reflect back on the internal use of the gene as a concept? He needs more evidence on this point.

History of the gene: what was known changed over time, to make boundaries between genes harder to define (genes skip around; genes can be within other genes; etc.), and the relationship between the gene and the expressed protein was also quite complicated, very far from gene = protein.

A trick of patent law: genes must be isolated and purified to be patented; you can’t patent a gene as embedded in someone’s body. Biotech as an industry produces genes and patents, not drugs. Another story: genes are a way to make the biotech industry valuable: they allow people to identify (and inflate) value in particular companies. Genes themselves are not products. Gene talk is a shorthand that helps market products.

Based on the complexity of genes, definiteness is a problem for patents that claim “genes” specifically. One might think that patent litigation must have dealt with this, if the science of genes undermines gene talk. However: 16,000 gene patents, but very few definitions of genes—and they’re generally throwaway, e.g. a gene is a DNA sequence. Only two cases get into the definition of genes, and they’re both very limited/just plain wrong.

What is a gene? A prominent article, but cited only one time in patents. Public certainty—could it be convincing biologists unconsciously that genes do exist and are simple? This could coincide with their economic interests in patenting. Internal and external views don’t match up—if the internal views were aired, that would undermine biologists’ authority when speaking outside.

Jenny Reardon: If Craig Venter says genes are worth nothing, as Torrance mentioned, it’s important to ask him “what is worth something?” She doesn’t think that the concept of genes will be useless. Maybe the creation of archives of genes, which involves an attempt to create a common language to talk about genes, will help define terms. Also, maybe the term is valuable as long as either side (internal and external) has some use for it. A productive foil: “gene” is good to think against, even if it’s not necessarily good to think with—a gene could be a boundary object.

Mark Lemley: The strong deconstruction story is “there’s no there there”—don’t build a legal construct around it. The weak deconstruction story is that we’ve oversimplified a complex concept by throwing stuff into the gene bucket. He’s skeptical of the strong story, because if you take a particular set of DNA out of the human body and put it in the right medium it will express human growth hormone. It works for some purposes. The weak deconstruction story is probably true.

What would that mean for patent law? (1) Patent law might simply ignore the scientific question because and to the extent that the gene concept leads to reproducible, consistent, functional results. What’s required for enablement is not that we understand the fundamental concepts; we patent things where we don’t understand the underlying concept. If you create a new practical thing that works and works consistently, that’s all we care about. The biological context puts stress on this because the patented thing isn’t created from scratch but taken from some living thing; what this justifies is a strong version of the utility doctrine. Thus, you can’t and shouldn’t be able to grab a chunk of sequence and claim ownership without proof of a particular result. Morse got a patent when his and our understanding of electricity was wildly wrong—but it worked.

(2) Patentable subject matter: you might say we shouldn’t have DNA patents if there’s no such thing as a DNA gene sequence, but you can go in the opposite direction. If the relation between nucleotide sequences and the human body is complex and contingent, perhaps we should patent other source of complex functional relationship claims in the human body, claims that are currently very controversial (Labcorp v. Metabolite or patents on Prozac’s functional effects on the human body as examples).

(3) Effect of patent law on PHOSITA: If our scientific understanding changes over time, we need to know what the PHOSITA knows at the time—patent law is backward-looking. If people in 1992 didn’t understand that the gene concept was as amorphous as we now understand that to be, how do we account for that?

Torrance: He’s definitely making the weak claim—believe in genetics? He’s seen it! Maybe what we need to do is move towards function, not structure. But as a patent attorney, he got his hand slapped for making functional claims when the client hadn’t yet figured out the full structure.

Burk: Of course genes don’t exist in nature! They’re purely human constructs. Be careful about functionality, because we don’t know what that means—patents work because you put the structure in and describe what it is that you own. Isolating the function without the structure would require going through the genome and pulling out all the enhancers—that’s problematic.

The product of nature doctrine comes in—the human intervention in the patents here is to pull something specific out, and that counts as human creation. That’s the implication of what you’re saying, but do you want to go there? It could make everything patentable. This ties in with our earlier discussions of nature and the commons.

Reardon: Gene patents are microsites where our anxiety about genetic engineering plays out—our uncertainty about what genes do and how, and about who will control that.

Lemley: Some genes are predictable, others aren’t; one should only be able to patent the predictable ones. The question is whether the patent system is outrunning our understanding.

Burk: Electricity was a black box for a while, and then the box opened—we should draw on that historical analogy.

Riskin: The unraveling of the gene may be part of an unraveling of understanding of the natural world which underpins both the standard IP regime and critiques thereof. The natural world doesn’t necessarily work in the way that our 18^th-century roots have encouraged us to believe.

Biagioli: We used to require only reduction to practice, not understanding.

Lemley: But of course our concept of what was patentable was much narrower—I had to give a machine to the patent office; under those circumstances, reduction to practice and utility are pretty much all you need.

Madison: The object-ness of the thing that is patented is challenged by the modern system.

Strandburg: One thing that might be going on is that scientists feel assaulted from outside—creationism/evolution, etc. If they were to admit how complex the issues were, that would hurt their authority. (Comment: More, the uncertainty would be misunderstood—as if scientists were debating whether DNA makes proteins or whether it’s God’s will.)

Burk: But every undergrad who takes a biology course knows that we don’t understand what a gene is. The cat’s out of the bag.

Torrance: Not very far out.

When synthetic genes start getting patented, that will move us away from nature; the concept of genes might be rescued by the very future of biotech.