Imagined Nature: Narratives and Metaphors in the Co-Production of Biotech Patentable Inventions
Since the 1970s, modern biotechnology and its innovative products have been central to the development of what is considered to fall within the scope of patent eligible subject matter. In major patent systems, an interpretation of the definition of patentable invention has evolved to allow matter qualifying as patent eligible to include techno-scientific products and processes that could not have been envisaged when patent systems were first established. However, modern biotechnology and its bio-artifacts have proved challenging, as they have increasingly raised social opposition and ethical concerns from non-governmental organisations and civil society. Biotech patent claims on genetically modified organisms, DNA sequences and genes, isolated human biological materials and human embryonic stem cells have questioned more radically than other technological claims the meaning of nature and artifact, subject and object, discovery and invention. In the United States, Canada and under the European Patent Convention (EPC), several landmark biotech patent cases involving these kinds of inventions have settled the patent eligibility of these products. In these cases, judges, parties, patent officers and amici curiae have drawn on a rich repertoire of metaphors that, by defining the “nature” and ontology of the claimed invention, sustained or rejected the allocation of intellectual property rights over it. This thesis addresses whether and how metaphors and the analogies they entail have been resorted to in judicial decisions and the administrative discourse of patent offices (practices and guidelines) to expand and limit the scope of patentable subject matter. Moreover, the thesis is engaged in explaining the discrepancies that marked the development of what is a patentable invention in these three jurisdictions. The main hypothesis of the thesis is that the use of the metaphors of the machine, molecule and code has proved pivotal in expanding the scope and stabilizing the meaning of patent eligible matter. These metaphors have been endorsed in technoscientific domains of research and they could be deemed what Ruse has called “root metaphors”, metaphors that were pivotal in orienting the study of the phenomena of life. All these metaphors, as this work illustrates, imply an atomistic and reductionist view of the living organisms, which has largely sustained their patent eligibility. Drawing on the insights offered by cognitive linguistics, the thesis explains that, by prompting analogies, metaphors define the “is” and the “ought” of a concept. Their analysis, therefore, enables an account of how descriptive and normative issues have been entangled in sustaining and settling the meaning of molecular biotech products, so that the metaphorical definition of the nature of the invention conveyed or not its patent eligibility. The thesis argues and shows, furthermore, that the judicial and administrative narratives in which these metaphors have been employed have been likewise influential and backed particular sociotechnical imaginaries of life and nature, which have been pivotal in defining what is natural and artificial and in framing individual and collective identities in molecular terms. This work relies, in particular, on Science and Technology Studies’ framework centered on concept of co-production, namely the insight that the natural and social orders are produced together. According to this framework, the is and ought of the world are continuously established, through the authoritative discourses of science and law, which define what is a claimed invention within a technological field and how it should be governed. The co-productionist framework is fundamental to pinpoint and understand the relevant nexus that narrative analysis should address and explain in the thesis (which has been articulated by Calvert and Joly): the relationship between making knowledge – the creation of ontologies – and the production of intellectual property.
- Theses