Open Public Domain

Some critical intellectual property scholarship focuses on bolstering an open public domain. It argues that expansive patent ownership rights are obstructing scientific knowledge production and the fundamental practice of “open science.”Footnote ³² Scientific ideas and materials formerly in the public domain are now privatized. Scientists are forced to negotiate licensing fees, material transfer agreements, and database access agreements with patent owners. This slows down scientific research, rather than incentivizing it. Stricter patent laws have therefore curtailed the culture of open access and sharing within scientific practice. Scholars point out that patent laws have even restricted access to research ideas and practices for experimental purposes.Footnote ³³ The domain of material and ideas publically available to scientists is thus shrinking and curtailing research, rather than incentivizing it. Scholarship in this area responds to this problem by arguing for expanding the public domain. What is needed is an open public domain that is committed to “a system of open science, where results are shared, criticized and, ultimately, utilized to push forward the frontiers of knowledge.”Footnote ³⁴ Patent ownership rights should therefore be scaled back in order to promote a more robust public domain where materials and ideas can be freely accessible and open to scientists. Theorizing of an open public domain, however, has its limitations.

The first is its uncritical acceptance of neoliberal, biopolitical values and its privileging of a certain type of creativity. Conceptions of an open public domain provide a valuable critique against expanding patent law ownership, but can be read as essentially arguing for a free trade model. Creativity, as the argument goes, is best promoted by encouraging the free exchange of materials and ideas supported by a robust public domain. This is considered an alternative to incentivizing creativity by granting temporary patent law ownership. Open sharing of scientific materials and ideas is said to encourage the exchange of ideas among scientists, leading to more and more innovation. Greater value, they argue, should be placed on bolstering an open public domain versus expanding patent rights. Publicly available science databases are commonly cited as ways of promoting a more open public domain such as the GenBank at the National Center for Biotechnology Information. Sharing of DNA sequence information through GenBank, for example, is based upon an open public domain model and is considered the best way to advance genomic research.

Yet, upon critical examination, conceptions of an open public domain emerge aligned with neoliberal, biopolitical strategies. Nature is now optimized through logics of free trade and competition. It is assumed that an open public domain can bolster circuits of biocapital even further than patent ownership, ensuring the unrestricted trade of human bodily tissue for scientific experiment and commercialization. This engenders more scientific innovations for individuals to choose from in their self-governing efforts at optimizing themselves. Theorizing of an open public domain might question the privatization of scientific ideas and materials, but it does not challenge market logics entirely. In fact, it relies faithfully on market values of freedom and openness to promote innovation. Yet, only certain forms of creativity emerge and prosper in such an economic terrain, primarily an inventiveness that remains mediated by and through market mechanisms.

Privatization through patenting is also not entirely abandoned; it is just deferred. Proponents of an open public domain seem more concerned about patent ownership rights locking up creativity at the temporal stage of its initial inception. An open public domain is meant to incentivize a market-mediated creativity that will eventually lead to patentable products, thus patent law ownership remains sought at a later stage. Uncritical acceptance of values of free trade and privatization unfortunately cloud a discussion of inequality, namely who has access to patented scientific technologies and patent ownership rights.

Second, conceptions of an open public domain also fail to account for modes of power and inequality. Values of openness and sharing can be important in facilitating scientific discovery and access to needed medical care and technology. Yet, such cultures of open science have not been available to everyone. In terms of scientific discovery, female scientists have historically been marginalized within science. In particular, lesbian women and women of color scientists have been excluded from the free exchange of scientific ideas and materials due to continued discrimination against them in the science professions.Footnote ³⁵ Scientific cultures of sharing and borrowing have also led to the violent exploitation of indigenous peoples, their knowledge, and their lands.Footnote ³⁶ Given these histories and their contemporary residues, only some female scientists may benefit from an open public domain, and indigenous peoples may in fact be harmed.

Patent inventorship and ownership itself is also structured by histories of gendered and racialized exclusion. Women have historically been less likely than men to be U.S. patent owners.Footnote ³⁷ Laws of coverture, cultures of domesticity, and bias in the U.S. Patent and Trademark Office partially explain this inequity.Footnote ³⁸ Additionally, the majority of patent owners who are female have historically been middle-class white women.Footnote ³⁹ Histories of slavery and Reconstruction-era laws preventing people of color from pursuing certain occupations may explain why fewer women of color own patents than white women.Footnote ⁴⁰ Unfortunately, women continue to lag behind men in terms of patent ownership today. A 1995 report shows that female scientists hold fewer patents than male scientists in both the academic and commercial sectors.Footnote ⁴¹ By remaining faithful to the free trade of scientific ideas and materials to encourage future innovation, an open public domain model fails to recognize gendered and racialized relations of power structuring technoscientific production and patent ownership.

Third, an open public domain model obscures recognition of gendered and racialized modes of knowledge production, thereby reinforcing Eurocentric, masculinized styles of thought. Intellectual property law was historically justified through metaphors of men giving birth to wisdom and knowledge.Footnote ⁴² These metaphors drew upon and contributed to the collusion of masculinization and whiteness with rational knowledge production. Male intellectual labor was privileged over the mere bodily capacity of women's reproductive power.Footnote ⁴³ Patent law is thus historically embedded within explicit gendered discourses privileging the mind as associated with men, over the body as linked to women and people of color.

This mind/body dualism persists within contemporary patent law. Dan Burk argues that the distinction between tangible and intangible property within intellectual property law means that it is fundamentally about protecting the original idea of the author and inventor.Footnote ⁴⁴ Extending these arguments further, I would suggest that patent law, in protecting intangible ideas, places value upon scientific creativity characterized by reason and rationality, which are epistemologies associated with masculinization and whiteness.Footnote ⁴⁵ An open public domain thus fails to recognize that the creativity it seeks to promote is always and already gendered and racialized. Its attention to market-mediated creativity also obscures the importance of and lack of protection for practices of indigenous peoples' knowledge.

Protective Public Domain

Responding to the emphasis on an open public domain, critical intellectual property scholarship also offers an alternative conception of a protective public domain.Footnote ⁴⁶ Such scholarship is aligned with the theorizing of an open public domain. It similarly advocates the expansion of the public domain by limiting intellectual property (IP) rights, enlarging fair use, and requiring compulsory licensing.Footnote ⁴⁷ In contrast, however, scholarship promoting a protective public domain insists upon exceptions for indigenous individuals and groups who have been traditionally excluded from asserting authorial rights over their knowledge, resources, and culture. It is therefore critical of the expansion of a public domain based upon values of sharing and openness, which can produce harm to indigenous peoples.

Theorizing of a protective public domain takes into account histories of colonialism and imperialism, while seeking to expand notions of authorship beyond its individualism to fully consider indigenous forms of collective knowledge production and creativity.Footnote ⁴⁸ It stresses the need to consider how, given social hierarchies, information within the public domain is not equally accessible and open to all, thus the need for some elements of protection.Footnote ⁴⁹ In contrast to an open public domain, a protective public domain challenges articulations of indigenous peoples' knowledge as raw material and recognizes the inventiveness and dynamism of indigenous traditional knowledge.Footnote ⁵⁰ It is also a flexible concept of the public domain. Conceptions of a protective public domain require flexibility in order to provide an adequate balance of protection and access to different forms of indigenous traditional knowledge (e.g., artworks versus medicines) in a variety of geopolitical contexts.Footnote ⁵¹ Coombe thus suggests an “ethics of contingency” recognizing that protection might mean different things to different marginalized groups.Footnote ⁵² A protective public domain therefore recognizes inequalities and works to protect indigenous peoples' knowledge from being exploited as raw material.

In contrast to an open public domain model, conceptions of a protective public domain challenge neoliberal, biopolitical modes of governing by placing value upon indigenous peoples' forms of knowledge and creativity. Normative conditions and discursive framings of free trade and privatization are contested by shifting some control over to indigenous communities. Scholarship in this area argues that free and open sharing of indigenous peoples' knowledge can be responsible for continuing a legacy of colonial exploitation of their traditional resources.Footnote ⁵³ Giving indigenous peoples some control over their own knowledge practices is one way to counter this history.Footnote ⁵⁴ By granting indigenous communities more control through a protective public domain, neoliberal values of freedom become disrupted.

Alternative legal protections are suggested, such as contractual arrangements allowing groups to decide for themselves when, where, how, and to whom they want to grant access to their knowledge.Footnote ⁵⁵ For example, models for benefit-sharing contracts are proposed, which would require scientists to give indigenous communities money and resources in exchange for access to and possible ownership over indigenous resources. Prior informed consent agreements are also advocated to allow communities to dictate the terms of granting such access to potentially patentable resources. Indigenous peoples' knowledge becomes privatized in new ways through these contractual arrangements, yet the primary goal of privatization becomes one of protection, rather than profitability per se.

By shifting some control to indigenous communities, a protective public domain produces fissures within neoliberal, biopolitical modes of governing by interjecting an alternative ethic of production. Even when such contractual arrangements bring profits to indigenous communities, these “strategies of indigenous incorporation”Footnote ⁵⁶ serve to challenge Western scientific and capitalist logics. For example, benefit-sharing agreements designed around a protective public domain model theoretically engender a space whereby scientists are expected to negotiate and consult with indigenous communities and to recognize the importance of indigenous epistemologies of science, which run counter to Western philosophies of science undergirding new bioeconomies.

Theorizing of the protective public domain offers the most potentially liberating space right now for indigenous peoples, but more work is yet to be done. In its current theoretical framing, a protective public domain insufficiently addresses complex gendered social relations. It fails to recognize that many indigenous women have fewer opportunities because of the encroachment of patriarchal models of family and governance into their communities from histories of colonialism and new demands of neoliberal globalization. Little attention is paid to how indigenous peoples' knowledge is gendered and whether or not benefit-sharing agreements serve the interests of indigenous women in the same way as indigenous men.

Some might argue that attention to gendered social relations is not necessary because indigenous communities do not exhibit gendered hierarchies. They might also perceive a gendered analysis of patent law as an imposition of Western feminism. These are legitimate concerns. Western feminism has been used to reinforce indigenous peoples as “Other.”Footnote ⁵⁷ Its close association with the imperial process means that many women, including Native American and African women, refuse to align themselves with feminist movements.Footnote ⁵⁸ Yet, Native American feminist scholar, Andrea Smith, reminds us that complex processes of both patriarchy and sexism are integral to colonialization.Footnote ⁵⁹ This means that practices of decolonization must directly address the elimination of sexism. Likewise, theorizing of the public domain and a feminist analysis of patent law should explicitly address complex gendered social relations, sexism, and patriarchy. Such an analysis however must proceed with caution. Gender may not be significant to specific struggles over indigenous peoples' knowledge. Nevertheless, a feminist analysis of patent law asks to what degree it may or may not be relevant.

Breast Cancer Gene Patents and a Women's Right to Health

In May 2009, the ACLU and Public Patent Foundation filed a complaint against Myriad Genetics, the University of Utah Research Foundation (UURF), and the U.S. Patent and Trademark Office (USPTO) in the District Court of the Southern District of New York. Myriad and UURF hold several patents on breast cancer susceptibility genes issued by the USPTO. Plaintiffs brought the case, Association for Molecular Pathology, et al. v. USPTO, et al., in order to overturn the patenting of DNA containing BRCA1 and BRCA2 gene sequences used in the treatment of breast cancer.Footnote ⁶³ The question at issue for the court was whether or not “isolated human genes and the comparison of their sequences” are patentable subject matter under 35 U.S.C. §101. Ruling on a motion for summary judgment, the court held invalid all 15 claims contained in the seven patents related to the BRCA1 and BRCA2 genes. The court reasoned that the isolated DNA at issue was not “markedly different” from a product of nature, namely that of the “native DNA” found within human cells. Ruling against Myriad Genetics, the court therefore put into question the USPTO's practice of issuing patents on human genes.

However, in July 2011, the U.S. Court of Appeals for the Federal Circuit overturned the lower court decision and ruled in favor of Myriad Genetics. The court concluded that isolated BRCA1 and BRCA2 genes do in fact have a markedly different chemical structure than native DNA because they are cleaved and isolated from the covalent bonds that structure them in the human body.Footnote ⁶⁴ Most recently, the U.S. Supreme Court granted a writ of certiorari and remanded the case back to the U.S. Court of Appeals for the Federal Circuit for further consideration in light of the Court's 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.Footnote ⁶⁵ Scholars are closely monitoring the case as its eventual judicial outcome may invalidate similar patents and stands to potentially alter practices of biotechnology. Given the Supreme Court's decision to strike down the patents in Mayo, the ACLU is hopeful that their initial victory will be restored.

What is interesting about this case, for our purposes here, is its positioning as an issue of women's rights. It is no coincidence that the plaintiffs strategically filed a case stemming from breast cancer gene patents. Such patents present a most suitable claim for the goal of overturning human gene patents more generally. Challenging the patents as an issue of women's rights to health generates additional stakes for the court. If it validates the Myriad patents, then the court appears to threaten the lives and health of women. Powerful in its discursive framings, these legal decisions bring questions of biopolitics, patents, and gender to the forefront.

Women are obliged to take advantage of medical technologies to learn their susceptibility to risk and to treat disease. Yet, as medical technologies are mediated by market considerations, women are given limited choices in making those decisions for themselves and their families. A full range of medical technologies is not always made available to individuals, even to those whom can afford it. In regards to breast cancer, Myriad maintains a monopoly over genetic testing for the disease through restrictive patent licenses. This monopoly hinders other companies from developing alternative technical approaches to genetic testing for breast cancer.Footnote ⁶⁶ Women are therefore given a “choice” to get tested for BRCA1 and BRCA2 genes, but their decisions are limited by Myriad's patent ownership restricting the range of testing available to women. The legal claim against Myriad aims to overturn their patent claims on DNA sequences in order to facilitate the production of additional technical approaches to breast cancer genetic testing.

A coalition composed of the ACLU and several women's health advocates has launched a powerful and valuable campaign in support of women's rights to health. Yet, the case provides a limited intervention in support of women's health because of its biopolitical framing and appeals for an open public domain. Addressing this limitation should not be understood as a criticism of the actors challenging Myriad's patents. Their work is an important act of feminist solidarity, mobilization, and resistance to the law. Rather, it is a critique aimed at the law's power to codify dissent into its own language and force oppositional discourses into narrow parameters.Footnote ⁶⁷ The plaintiffs filing the complaint and advocates submitting amicus briefs are thus compelled to make their arguments within an acceptable language intelligible to the law, a language of neoliberal, biopolitics and an open public domain.

Centered on the metaphor of genes as information, the initial 2009 ACLU complaint argues that Myriad's BRCA1 and BRCA2 patents restrict the flow of information regarding breast cancer research. Women are prevented from receiving genetic information regarding their susceptibility for the disease because testing can only be done through Myriad laboratories. The complaint points out that many women, particularly women of color, cannot afford the testing. This is because patent law provides Myriad with a temporary monopoly over breast cancer testing involving BRCA1 and BRCA2 genes, allowing Myriad to keep costs high and to be selective in the types of insurance they accept from patients. The legal complaint also argues that gene patents restrict information sharing among researchers, precluding them from developing alternative tests. Female patients at risk for breast cancer are unable to obtain more meaningful genetic testing, and female scientists are hindered from doing breast cancer research. Thus, women's labor and participation (and health) in the bioeconomy is curtailed. The ACLU argues therefore for overturning genetic sequence patents and keeping them in the public domain. BRCA1 and BRCA2 gene sequences should not be patented, and should remain freely available in the public domain for scientific research.

Similar arguments are made in the initial amicus briefs filed on behalf of the plaintiffs. A coalition of women's health advocates assert that gene patents “prevent women at risk for breast cancer and ovarian cancer from obtaining the information they need about their own bodies to take steps to improve their health outcomes, and possibly save their own lives and the lives of their children.”Footnote ⁶⁸ Thus, they argue, it is critical that genetic sequence “knowledge and information are maintained in the public domain.”Footnote ⁶⁹ In developing a feminist analysis of patent law, one must think carefully how this case leaves neoliberal, biopolitical values unchallenged.

Contemporary biopolitics, as discussed above, obliges women as the primary caretakers to engage in technologies of optimization for themselves and their families. Mechanics of neoliberal, biopolitics argue that patent law is crucial for providing new medical technologies to assist women in the self-management of their health. The ACLU case disputes such claims regarding patent ownership, while leaving biopolitical assumptions intact. The ACLU complaint argues that gene sequence patents actually prevent women from making decisions regarding their health and the well-being of their families. Myriad's patent ownership rights enable the company to maintain a monopoly control over breast cancer research and testing. Populations of women therefore become regulated differently through legal “technologies of subjection” as high costs and insurance restrictions mean that only some women at risk for breast cancer can obtain testing.Footnote ⁷⁰ The case therefore argues that excluding gene sequences from patentable subject matter and placing them in the public domain would promote women's right to health by giving them alternative testing technologies and better breast cancer research. The case however does not go far enough to challenge the styles of thought driving contemporary bioeconomies. The goal of the case is to facilitate women's access to genetic testing, thus it reinforces biopolitical obligations for women to donate bodily tissues and utilize medical technologies. Biopolitical values are thus simultaneously challenged, while also being upheld.

The legal complaint and amicus briefs make it clear that the plaintiffs are not against patents entirely. In fact, they explicitly agree on patents for genetic testing innovations. What they disagree on is patents over DNA sequences. Foundational to their legal claim is an open public domain model, one in which patent ownership is not suspended, but merely temporally deferred. Faith remains in a neoliberal model of free trade and competition. The ACLU engages within an economy of hope, placing their faith in an open public domain where freely accessible BRCA1 and BRCA2 genes will engender research and genetic testing alternatives, while reducing costs and increasing availability for women to receive testing. The foundational assumptions of the case therefore remain within modes of biopolitical governance. Its aim is to give women more testing alternatives, further entrenching women within a field of biopower compelling them to undergo genetic testing and assessing their potentiality as “pre-patients” for breast cancer.Footnote ⁷¹

Ensuring alternative genetic tests for breast cancer is a worthwhile goal. Concerns over equality and access to such tests continue to be salient. Yet, women are obliged to seek genetic testing within an inequitable terrain that fails to provide the material resources for all women to receive such testing. It remains unclear if testing technologies will in fact materialize once Myriad's gene patents are invalidated. Even if more testing options do become available, there is uncertainty as to whether or not women will have adequate insurance and levels of income to take advantage of them. It is also unclear if more testing options will lead to more meaningful information for patients and better practices of genetic counseling.

Neoliberal, biopolitics governs the health of populations through narrowly constrained choices involving limited technologies. Resources are devoted to genetic screening, while cancer causing carcinogens remain within the very cleaning products and food supplies women consume on a daily basis. In other words, Western epistemologies of science emphasizing genetic research are upheld through normative scripts of scientific knowledge production, while basic public health initiatives are not prioritized. Therefore the ACLU case, while admirably striving for increasing genetic screening technologies, remains within a field of biopolitics regulating women's bodies and labor within an uneven terrain. Women's rights to health and conditions of labor continue to be constrained.

Alternatively, an amicus brief filed by a coalition involving the Indigenous Peoples Council on Biocolonialism (IPCB) opts for a different approach.Footnote ⁷² Taking into account the effect of gene patents on indigenous peoples, the amicus brief subtly evokes a protective public domain model. It claims, “gene patents privatize genetic ancestry, making indigenous peoples and patients into ‘treasure troves' to be exploited for economic gain.”Footnote ⁷³ The brief notes that indigenous peoples’ bodies are transformed into laboring bodies, supplying patentable blood and tissue samples for scientific research, which may not benefit and may even harm their communities. Genetic sequence patents infringe the legal rights of indigenous peoples, making them increasingly vulnerable to patenting of their cell lines. The brief argues that gene sequence patents, therefore, should be considered the “common heritage of humanity” and part of the public domain, thus not considered patentable subject matter.Footnote ⁷⁴

At first glance, this line of argument seems to adopt an open public domain model, arguing for gene sequences to be openly and freely accessible. Yet, the amicus brief summons up a protective public domain by focusing its attention on problems of informed consent. It references instances where researchers applied for patents on cells lines from indigenous peoples without their consent.Footnote ⁷⁵ It also mentions the recently settled case between the Havasupai Indians and Arizona State University where researchers used Havasupai DNA for research objectives beyond the scope of the initial informed consent documents.Footnote ⁷⁶ Attention to issues of informed consent is grounded upon a protective public domain. Authors of this brief are not arguing for genetic sequence information to be freely open and accessible to researchers. They are arguing for genes to be in the public domain, but within a public domain offering protections for indigenous peoples in the manner of prior informed consent agreements based upon indigenous peoples' own styles of thought and ethical frameworks. This would shift control to indigenous peoples, allowing them to better govern the manner in which genetic research is conducted on their DNA. Such a shift boosts recognition of indigenous forms of governance prescribing protocols for DNA research and the epistemologies informing such protocols.

In terms of women's rights, the brief does not explicitly mention indigenous women. However, filing an amicus brief and entering into coalition with the ACLU and women's health organizations indicates a shared concern over women's rights to health. A separate IPCB brief, however, becomes necessary. Arguments based only an open public domain would fail to protect indigenous women. Indigenous peoples, including indigenous women, require some control over how their DNA might be accessed and utilized. Arguments based upon a protective public domain model, in which alternative ethical-legal frameworks such as indigenous governance protocols of prior informed consent arise, are more likely to advance indigenous women's rights to health. As caretakers of their families, indigenous women might obtain more control over how scientific research is conducted and more input into how such research might benefit the health of their communities.

Authors of the other amicus brief would likely agree that informed consent and protections are important, yet their legal arguments leave this issue unaddressed. In developing a feminist analysis of patent law, it is important to discern the differential assumptions underlying coalition efforts against gene patents. Examining these points of departure and similarity within the ACLU political mobilization can inform strategies for future coalitions among women's health advocates and indigenous peoples. It can also help make connections to related political campaigns such as patents on indigenous peoples' plant knowledge.

Hoodia Plant Patents and Indigenous Women's Rights to Self-determination

The story of Hoodia involves a succulent plant known for generations by the San peoples in Southern Africa to suppress appetite when food supplies were low. But as it traveled through circuits of scientific expertise, regulatory systems, and market logics, Hoodia's properties became patented objects aimed at helping U.S. women in their self-disciplining efforts of weight control. In 1996, South Africa's Council for Scientific and Industrial Research (CSIR) obtained patent rights to Hoodia's chemical compositions, and then in 1998 the CSIR granted an exclusive license to Phytopharm to develop Hoodia for global commercialization and sale as an anti-obesity product.Footnote ⁷⁷ Phytopharm, in cooperation with Unilever, began to conduct final drug trials on the compound and expected to sell it as a food additive in Unilever products for millions in profit. However, the journey of Hoodia did not stop there. It also flowed through networks of indigenous peoples and nongovernmental organizations working within and against transnational intellectual property policy. Traveling through these spaces of global governance, Hoodia became an object of indigenous self-determination, a site of symbolic and material struggle where San peoples could make moral and political claims for rights and recognition. In 2003 the South African San Council publicly condemned CSIR's patenting of Hoodia and eventually signed a benefit-sharing agreement requiring CSIR to give 6% to 8% of their profits to a legal trust set up for San communities across Southern Africa. Meanwhile patents on Hoodia signaled its value, generating a profitable herbal supplement industry devoted to selling Hoodia for weight loss. Expectations of a financial windfall to the San, however, have plummeted since Unilever announced in late 2009 they were dropping all plans to develop Hoodia products.

Struggles over the patenting of Hoodia are much more complex than this brief account. Yet it does begin to suggest potential paths of inquiry for developing a feminist analysis of patent ownership and related benefit-sharing agreements. For example, how is San knowledge and cultivation of the plant gendered? How did San women participate in the benefit-sharing negotiations? How do San women benefit from the contractual agreements with CSIR? How is Hoodia marketed in gendered ways? How does the patenting of Hoodia place U.S. women in relation to San women? Based on qualitative research in 2009 in South Africa, narratives from social actors closely involved in political organizing around the patenting of Hoodia reveal some answers to these questions.Footnote ⁷⁸ A more comprehensive analysis of these narratives of course is needed, but an initial discussion suggests sites for feminist analysis of patent law located around questions of labor.

Attention has focused on increasing awareness of women's contributions to indigenous knowledge and practices as a means of supporting indigenous peoples' rights to self-determination.Footnote ⁷⁹ Such acknowledgment becomes important in the case of Hoodia. Some members of the ‡Khomani San articulate gendered forms of knowledge regarding Hoodia. Responding first that both men and women have similar knowledge of Hoodia, they go on to explain that ‡Khomani San women use the plant to ease breast-feeding and to treat gassiness in babies. Gendered narratives of Hoodia thus suggest a relationship between the plant and the reproductive labor practices of ‡Khomani San women. In addition, both ‡Khomani San men and women are said to use the plant during hunting trips. Dissemination of knowledge regarding the plant is also described in gendered ways. Most community members interviewed describe learning about Hoodia from their mothers and grandmothers. ‡Khomani San knowledge regarding Hoodia is therefore described in complex gendered ways that necessitates further study.

In contrast, the herbal supplement industry espouses masculinized, market-mediated narratives of Hoodia as used by San male hunters. Activated through neoliberal circuits of capital dependent upon narratives of difference, the industry brings into service the script of the San male hunter in order to sell Hoodia. Through this globalized circulation of the hunting narrative, ‡Khomani San women's reproductive and intellectual labor around Hoodia becomes obscured. Lawyers and environmental activists working on behalf of the community also tend to describe Hoodia as an appetite-suppressant used by San male hunters. Through their adoption of the hunting narrative, lawyers and environmental activists unwittingly contribute to the invisibility of ‡Khomani San women's labor as they travel within their respective transnational professional circuits articulating masculine, market-mediated narratives of Hoodia as used by San male hunters.

Given how San women's labor is obscured, recognition of their knowledge and practices becomes a valuable counterhegemonic strategy. Such acknowledgment can work to disrupt neoliberal mechanisms constructing what counts as valuable knowledge regarding the plant. Whether it is the patentable knowledge of Hoodia chemical compositions by CSIR scientists or the indigenous knowledge of the plant by the San male hunter, both are strategically deployed to serve the interests of biocapital production. Recognizing the subjugated knowledge of ‡Khomani San women can act as a countermeasure against this deployment. As Chandra Mohanty points out, “[u]ncovering and reclaiming subjugated knowledges is one way to lay claim to alternative histories.”Footnote ⁸⁰ It also enables a broader feminist examination of ‡Khomani San women in relation to other women. ‡Khomani San women use Hoodia as a biodiverse resource in the caring of their families. Thus, they are similarly engaged and obliged to care for the health of themselves and their communities. Yet, their obligations are more deeply constrained. Neoliberal modes of governing in South Africa remain structured by histories of colonialism and apartheid. This ensures the continued exploitation of the San as inexpensive surplus labor for local farms and scientific research, while failing to provide them with sufficient food, water, shelter, education, and health care.Footnote ⁸¹ Acknowledging ‡Khomani San women's knowledge produces understandings of the biopolitical conditions in which their labor functions, while providing insights for improving their rights to self-determination. A transnational feminist inquiry emphasizing relationality can also be directed toward examining the marketing of Hoodia as a weight-loss product.

Patent ownership signals biocapital value, inciting new circuits of production, which employ gendered and ethno-racialized narratives to sell products. Knowledge of CSIR's patenting of Hoodia stimulated its inception as a weight-loss product for the herbal supplement industry. Commercialization of Hoodia then generated a stream of global images marketing Hoodia to consumers through magazines, web sites, and e-mail communications. Tracing the commercial advertising of Hoodia reveals how the plant is marketed through stereotypical images constructing and reinforcing Eurocentric and gendered hierarchies. Deconstructing how patent law functions in this manner, and the circulation of images it engenders, is vital for a feminist transnational analysis of women's reproductive and intellectual labor.

For example, Hoodia is advertised as a “natural,” “authentic,” “tribal,” “South African” weight-loss remedy evoking colonial narratives of the Other. Advertisements contain stereotypical images of seemingly, white Western women's bodies embodying the perfect image of thinness. Employing familiar colonial scripts of the use of white women in the production of Africa as Other, these images are juxtaposed against scenes of San men in “tribal” dress and sporting hunting bows. Thus, white Western women's bodies are depicted as modern in relation to San men and women as exotic, tribal, and less modern. The imagery therefore functions in complex ways in its subordination of women. On one level, images of white women's bodies operate as symbols of beauty, which works to exclude women whose bodies do not fit this ideal image of appearance, thinness, and whiteness. On another level, these images marginalize the contributions of indigenous San women who, given their historical role within the community as plant gatherers, were central in cultivating Hoodia and continue to use it today. Deconstructing these narratives contributes to a feminist analysis of the relationality of women's labor within new bioeconomies and informs a discussion of benefit-sharing agreements and patent law as value system.

Patent ownership acts as a legal conduit—firing up, sustaining, and securing the flow of norms and values passing through and shaping channels of biocapital markets. Rose contends that contemporary bioeconomies mediated through forms of biopower involve a new molecular style of thought whereby tissues and molecules are stripped “of their specific affinities to a disease, to an organ, to an individual” and regarded as “delocalized” in order to be mobilized into new circuits of biocapital.Footnote ⁸² Patent law optimizes nature by isolating and purifying genetic and biological material from its natural or “native” state. Codified through patent ownership, norms of delocalization and fragmentation are therefore incited to travel within mechanisms of neoliberal, capital production.

Contractual benefit sharing can act as a circuit breaker within patented flows of capital. Indigenous peoples can negotiate benefit-sharing agreements to temporarily stop the currents of patent ownership from flowing too strongly in the directional favor of scientists, corporations, and universities. Such agreements may not stop patent rights from being assigned to inventor scientists, but they can disrupt the operation of patent law as a medium for ethical norms and values, which privileges Western scientific knowledge production and signals what is new, novel, and ready for capital consumption. Benefit-sharing agreements fall within the scope of a protective public domain. Proponents of benefit-sharing agreements contend that genetic and biological materials derived from indigenous peoples should not be freely accessible within an open public domain. Indigenous peoples' knowledge, resources, and culture should be safeguarded through new legal technologies such as benefit-sharing contracts and, as noted in the ACLU case, prior informed consent agreements. Benefit-sharing agreements can be important not only as a means of protection, but as a strategy of resistance against hegemonic practices of science.

Contractual benefit sharing, in theory, provides a channel for indigenous ethical models to travel and interject upon scientific knowledge practices in various ways.Footnote ⁸³ Scientists are forced to recognize a different style of thought connecting and reconnecting the affinities between the organ, the body, the individual, the land, and the community. For example, ‡Khomani San men and women describe the Hoodia plant as “life.” The patenting of plant properties, therefore, to the ‡Khomani San, involves the ownership and commodification of a being rather than inert raw material.Footnote ⁸⁴ In negotiating a benefit-sharing agreement with scientists and patent owners, the ‡Khomani San introduce their own epistemologies of relationality into the debate over the patenting genetic and biological materials. This should include ‡Khomani San women's reproductive and intellectual labor and the explicitly gendered knowledge practices related to Hoodia. By introducing indigenous epistemologies, important questions arise, challenging the new molecular style of thought within contemporary biopolitics. Where do the borders between a plant and its molecular properties begin and end? Where do the boundaries between ancestral DNA, tribal members, sacred lands, and symbolic plants start and stop? Who draws the lines and for whose benefit? These questions go to concerns over how benefit sharing might change science by introducing indigenous ethical frameworks as intervention into dominant neoliberal paradigms of scientific knowledge production.

The scope of this challenge does not amount to a “radical rupture” of scientific practices of bioprospecting or the neoliberal, biopolitical modes that govern such practices.Footnote ⁸⁵ The degree to which San epistemologies actually travel and create lasting institutional change within science remains unclear. Social actors closely involved in Hoodia negotiations tend to agree that the benefit-sharing contract brought recognition to the San peoples, yet they disagree on whether or not it changed scientific practices within CSIR or its partners. I would argue, however, that a protective public domain and its associated contractual arrangements opens up space for multiple points of resistance against biopolitical modes of power, albeit in limited ways. The San may choose to enter into a benefit-sharing agreement and become stakeholders in the commercialization of Hoodia, whereas Native Hawaiians may forego benefit sharing and contest the patenting of the taro plant entirely.Footnote ⁸⁶ Although their strategies differ, each one makes up an important node within a “swarm of points of resistance.”Footnote ⁸⁷ In contrast to an open public domain, a protective public domain offers space for resistance against expanding patent laws in order to safeguard and reclaim indigenous knowledge, resources, and culture as well as recognize indigenous women's contributions.

Examining Hoodia in this manner stretches critical analyses of patent law to address complex gendered relations. It takes us beyond a doctrinal legal examination to ask how patent law operates as an ethical norm, a conduit for gendered values and norms to travel through neoliberal, biopolitical channels of governance. How does the patenting of Hoodia privilege Western scientific knowledge production over indigenous peoples' knowledge of the plant? How might models of benefit sharing increase recognition for indigenous epistemologies regarding Hoodia, including San women's knowledge? How might benefit sharing provide a space for developing new modes of governance advancing San women's rights to self-determination? How does the patenting of an object enable the production of new circuits of biocapital powered by familiar configurations of sexist, racist, and colonial representations of women's bodies? How does patent law place groups of women in relation to each other, simultaneously creating new hierarchies and spaces for political coalition? These questions offer guideposts for future research examining the sociolegal and cultural significance of patent law on the lives of indigenous peoples, women, and their families. This focus on recognition, governance, and gendered relationality is not meant to supplant the important question of whether or not benefit sharing has actually transferred monetary income to indigenous peoples. Rather, it contributes to the valuable work already produced around this question.Footnote ⁸⁸ Attention to questions of monetary transfer, however, can obscure understandings of benefit sharing more broadly and its relationship to patent law as value system. For example, even in the midst of failure, when Hoodia benefit sharing resulted in no money to the San, several ‡Khomani San articulated the contractual arrangement as a success and as a pathway toward political and economic recognition. Such an understanding is important for developing robust IP policy that responds to the needs and concerns of indigenous women and men. Examining the links between the patenting of Hoodia and breast cancer genes is one step toward developing a feminist analysis of patent law.