The New Biology
Queen Mary Studies in Intellectual Property series
Edited by Matthew Rimmer and Alison McLennan
Chapter 4: Patent Law, the Emerging Biotechnologies and the Role of Language in Subject-Matter Expansionism
Graham Dutﬁeld This short chapter is about science, patent law and the use of language that supports the extension of patent claims ever deeper into the realms of nature. By language I refer in particular to the use of ﬁgures of speech, terminologies and epistemologies that both express and support powerful explanatory and justiﬁcatory conceptual systems. Undoubtedly, chemical, informational and mechanistic ways of understanding life have all been enormously helpful to scientists, as are the metaphors and analogies that frame their verbal and written forms of expression. The point of the chapter is not to undermine them but to examine critically what implications they have for patent law and policy, in particular their consequences for the positioning of boundaries between the patentable and the unpatentable. From the mid nineteenth century, patents were regularly being granted on chemical substances in those countries, like the United States, the United Kingdom and France, that had no statutory chemical exclusions.1 In the early twentieth century, patents claiming isolated and puriﬁed natural compounds were allowed or else found by courts to constitute acceptable subject matter. Since the 1970s an increasing number of jurisdictions have granted patents on micro-organisms, cell cultures, seeds, plants, animals and genes. Patenting in the life sciences is often criticised for inappropriate expansionism. I would argue that some but not all such criticisms are justiﬁed, not least because the application of what philosopher Michael Ruse calls ‘root 1 Dutﬁeld, Graham (2009), Intellectual Property Rights and the Life...
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