Biopatenting and Industrial Policy Discourse
Patent law has yet to recognize the agency of multiple creators acting jointly with so-called inventors. It operates on the romantic myth of individual creation, ignoring the agency of plants, animals, people, and their genetic substrates. Invention is, according to the law, a singular deliberative act completed in isolation. The legal doctrine of "products of nature" provides only a partial challenge to the legitimacy of biopatent claims and is contingent on human agency for meaning. In Canada, the Supreme Court has recognized the agency of non-humans with its concern over “reproducibility” of mice in the Harvard mouse case and has used this understanding to inform its perhaps unduly criticized reasons against the patentability of the oncomouse. A socio-cultural approach to law using actor network theory may inform our understanding of biology and biotechnology as discourse, always in performativity, adaptation, mutation, and translation. It may provide a means to challenge the normative assumptions implicit in claims of legal entitlement to patents in language familiar to the patent bar, paving the way for recognition of the agency of others while helping define the necessary limits on patentability and patent rights in biomedia. An interdisciplinary approach may generate the necessary conceptual shift and create, in the words of Stuart Hall, a critical "moment of collective self-clarification."
Bita Amani, BA (York University, with Distinction), LLB (Osgoode), SJD (U of T), is Associate Professor at Queen’s University, Faculty of Law, and teaches courses in intellectual property, information privacy, and feminist legal studies. She is author of two books: State Agency and the Patenting of Life in International Law: Merchants and Missionaries in a Global Society (Aldershott: Ashgate Publishing Company, 2009) and Trademarks and Unfair Competition Law in Canada: Cases and Commentary (Toronto: Carswell, 2011, with Carys Craig). She is Adjunct Professor at Osgoode Hall Law School and has been a Co-Director and Lecturer for the LLM Program in Intellectual Property (with Rosemary Coombe). She was a visiting researcher at the Brocher Foundation (Geneva, Switzerland) and visiting scholar and guest lecturer at the Oxford Intellectual Property Research Centre and at the Centre for International Governance, University Of Leeds School of Law. Dr. Amani has served as government consultant on gene patenting for the Ontario Advisory Committee on Predictive Genetic Technologies and on the E-Laws project for the Ministry of the Attorney General, Office of the Legislative Counsel (Ontario), where she was also briefly a legislative drafter (37th Legislature’s Session, 2001). She is called to the Bar of Ontario.