Patents, Politics and Abortion
Intellectual Property Law in Context: Law and Society Perspectives on IP, Willliam T. Gallagher and Debora J. Halbert, eds., Forthcoming 2017
31 Pages Posted: 19 Oct 2013 Last revised: 18 Apr 2017
In June 1980, the United States Supreme Court made headline news by its ruling in Diamond v. Chakrabarty that life was patentable. Life was chemistry, and new forms of life created in the laboratory were as ownable and marketable as other new gadgets. In the decades following this ruling, the United States patent office led the world in expanding patentable subject matter to encompass all non-human living organisms. During this same period, the question that the Chakrabarty case posed – what is life? – became increasingly prominent in United States politics. Outside of the patent office, however, the question was answered very differently. In the years since Roe v. Wade (1973), the position that life was sacred and unique developed considerable political clout through the burgeoning anti-abortion movement. Under the Reagan and first Bush presidencies, this view of life permeated many aspects of the federal government, shaping appointments and agency decision-making. How did this disconnect between understandings of life develop, and how has it been maintained? The politics of life within the patent system are remarkable because of their unremarkability. Usually, patent law is considered in complete isolation from the explosive mixture of medicine, religion, law and politics that have made the legal and social status of abortion controversial in the United States since the antebellum period. The actions of the patent office and the details of patent doctrine have been ignored in contemporary abortion politics, and the patent office has maintained a reputation as a non-political, technical agency. This article links the history of patent practice and doctrine with the sociolegal status of abortion to examine the politics of life within the United States patent system over time and to identify the strategies employed by the patent office to sidestep much of the turmoil the politics of life has caused in other executive agencies since 1973.
In Part I, I examine the scientific and social context of Chakrabarty to explain why the patent office took the unprecedented step of inserting the ontology of life into the patent system through this case. I then consider in Part II the historic success of the patent office in avoiding abortion politics by considering abortion-related patents issued since the nineteenth century. In Part III, I consider the post-Chakrabarty history of the politics of life within the patent system by looking briefly at two late twentieth-century controversies involving inventions and the politics of life, the "abortion pill," RU-486, and human-animal chimeras. Based on this historic review of the politics of life within the patent system, I argue that (a) that the patent system is deeply implicated in the politics of life in the United States, and (b) the patent office has been remarkably successful in hiding that fact. The history of abortion and the patent office provides a window into the approach of the patent office to socially controversial technologies, and a contribution to law and society analyses of intellectual property law that remind us that even technical bureaucracies reflect and create the social structures in which they exist.
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