Patently unequal: race inequality and IP, a critical analysis
By Jess Im, Paralegal, Arts Law (IP student, Law Faculty, UTS)
Copyright, patent, and trademark law, like all other legal regimes, are discursive formations shaped by culture, identity, and power. They are not a set of universal or immanent rules about knowledge governance that originate with infallible authority. They are negotiations of social values and ethical mores and their practical implementations. – Anjali Vats, The Color of Creatorship
The operation of the global patent system is rooted in a Western or Eurocentric framework, which in turn perpetuates systemic race inequality. Legal scholar and critical race theorist, Anjali Vats, suggests that we live in a ‘race liberal era’ of racial capitalism – which simply put, means that race, class, and power are intertwined. This is despite the end of the colonial age (being the expansion of the European empire in the post-Enlightenment era), and the subsequent de-colonisation movements in the 1960s and 70s whereby newly independent colonies sought to establish their own nationalist identities through self-representation and self-determination.
Under post-colonial theory, the imperial agenda draws upon the concepts of French structural linguist Saussure, who said that signs do not have meaning by reference to real objects, but by their opposition to other signs.[1] The perceived inferiority of ‘the East’, and justifications for conquest, were thus supported through ideological binaries that lay out power structures: primitive vs civilised; passive vs innovative; irrational vs rational, and so forth. Vats suggests that in the patent system, the epistemic distinction between ‘traditional knowledge’ (non-Western) and ‘science’ (Western) places people of colour into a schema of inventorship associated with a restrictive notion of human progress, without any material confrontation with the racial scripts or structural inequalities that underlie those concepts.
In the 1980 landmark decision of Chakrabarty[2], the U.S Supreme Court considered whether gene patents fit in the unpatentable category of “the laws of nature, physical phenomena, and abstract ideas” (ie. “manifestations of … nature, free to all men and reserved exclusively to none”), or whether they were in fact patentable by virtue of being a “product of human ingenuity” ie. a “non-naturally occurring manufacture or composition of matter”. Vats suggests that the language of this and subsequent decisions reinforces the perception that people of colour sit outside the scientized regime of knowledge production, casting the knowledge produced in the Global South in opposition to morality, science, and ingenuity. Vats also notes that in the Chakrabarty proceedings, “patent policy insiders tried to keep out any novel forms of knowledge or reasoning that would have challenged their power and the established ways of thinking about patent policymaking”.[3]
In America and elsewhere, people of colour have historically produced raw materials such as neem oil, hoodia, and turmeric, which were then purified or refined in the science-industrial complex for sale in the global economy.[4] There are also deep historical records of black inventors inventing even when black people were not considered ‘persons’.[5]Those producing traditional knowledge were often construed as less than whole people lacking the capacity to invent.With Western science developing, patent law became the domain of ‘raced conceptions of human progress’, underpinned by the idea that knowledge is white property. Similarly, in the Australian context, patents have been granted for inventions that involve prior traditional use of knowledge.
Loopholes in the patent requirements of novelty and inventiveness which allow non-traditional users to exploit traditional knowledge have been addressed in the newly adopted WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. The text of the treaty was finalised in May 2024 after decades of negotiations and will enter into force three months after 15 eligible parties have either ratified or acceded to the treaty. This is the first WIPO Treaty to address the interface between intellectual property, genetic resources and traditional knowledge, and the first WIPO Treaty to include provisions specifically for Indigenous peoples as well as local communities. Patent applicants are to disclose the origin and source of any biological resources and traditional knowledge in their specification (Art 3) and impose sanctions for the failure to disclose origin (Art 5). However the text does not apply retrospectively (Art 4), and failure to disclose origin alone would not be sufficient grounds to render the patent unenforceable or revokable (Art 5.3).
The latest guidelines for using publicly accessible traditional knowledge for biodiscovery under the Biodiscovery Act 2004 in Queensland, Australia, address the situation where researchers wish to use traditional knowledge for biodiscovery, but the custodians of the traditional knowledge cannot be identified (for example, if traditional knowledge about plants was published in a 19th century book without indicating which Indigenous community provided it, and due diligence did not reveal who the custodians are). The traditional knowledge obligation under the Act requires that a person takes all reasonable and practical measures to only use traditional knowledge for biodiscovery with the agreement of the custodians of the knowledge. In cases where it cannot be identified who should be party to a benefit-sharing agreement, the guidelines state that biodiscovery projects which generate monetary benefits above a minimum threshold must instead provide funds to build the capacity of Indigenous peoples (whether a specific community or Indigenous peoples generally) which would enable them to lead or participate in bio-discovery projects. However, the definition of “capacity-building”, as conceived of by the likely non-Indigenous user of the traditional knowledge, is loose and undefined, and thus examination of this aspect by IP Australia with traditional peoples and stakeholders is of critical importance.
The traditional knowledge obligation is one example of efforts to rectify the gaps in the Australian patent system which perpetuate the ‘racial capitalism’ that Vats describes. Vats suggests that globally, the practice of bioprospecting itself is a system of neo-colonial exchange, in which inventorship is vested in the Global North, seen as the source of discovery, refinement and purification, and the Global South as the source of raw materials for exploitation. Unsurprisingly, in previous WIPO IGCs, India made submissions to amend the text to replace the word “patent” with “intellectual property” to broaden the scope of the disclosure requirement to capture plant variety rights for example.
As Partha Chatterjee states, the nationalist discourse of the former colonies is a ‘derivative discourse’ and therefore problematic because “there is, consequently, an inherent contradictoriness in nationalist thinking… it reasons within a framework of knowledge whose representational structure corresponds to the very structure of power nationalist thought seeks to repudiate.”[6]
Despite recent efforts to amend patent disclosure requirements and economic benefit sharing with traditional owners, as social and political norms do not exist in a vacuum, the global patent system can be said to perpetuate the same essentialist conception based on the distinction between ‘the East’ and ‘the West’, and hence the same ‘objectifying’ procedures of knowledge constructed in the post-Enlightenment age of Western science.
[1] Bill Ashcroft, Key Concepts in Post-Colonial Studies, (London: Routledge, 1998), 23.
[2] Diamond v. Chakrabarty, 447 U.S. 303 (1980).
[3] Anjali Vats, The Color of Creatorship (Stanford UP, 2020), 75.
[4] WR Grace, a US company, patented the method and formulation for a storage-stable pesticide containing neem oil. Neem tree seeds have been used for hundreds of years by farmers in India (the tree seeds are soaked in water and applied to crops; however, this is not storage stable). The patent was challenged on the grounds it lacked novelty and was immoral, but was ultimately unsuccessful due to the geographical limitations on prior art that could be considered under the US patent laws at the time. This meant that the prior use by farmers in India was not available as grounds for invalidating the patent for lack of novelty.
[5] Podcast: IP Provocations, ‘Inventors are white men – or are they? Patents, race and gender’ (available on Spotify).
[6] Partha Chatterjee, Nationalist Thought and the Colonial World, (London: Zed Books, 1986), 16.
[1] Bill Ashcroft, Key Concepts in Post-Colonial Studies, (London: Routledge, 1998), 23.
[2] Diamond v. Chakrabarty, 447 U.S. 303 (1980).
[3] Anjali Vats, The Color of Creatorship (Stanford UP, 2020), 75.
[4] WR Grace, a US company, patented the method and formulation for a storage-stable pesticide containing neem oil. Neem tree seeds have been used for hundreds of years by farmers in India (the tree seeds are soaked in water and applied to crops; however, this is not storage stable). The patent was challenged on the grounds it lacked novelty and was immoral, but was ultimately unsuccessful due to the geographical limitations on prior art that could be considered under the US patent laws at the time. This meant that the prior use by farmers in India was not available as grounds for invalidating the patent for lack of novelty.
[5] Podcast: IP Provocations, ‘Inventors are white men – or are they? Patents, race and gender’ (available on Spotify).
[6] Partha Chatterjee, Nationalist Thought and the Colonial World, (London: Zed Books, 1986), 16.
