CAPE TOWN HUB: SKILL SHARE SESSION: The Making and Unmaking of Patent Ownership: Technicalities, Materialities, and Subjectivities

Hoodia (Photo credit: Cath Traynor)

 Guest Blog by Dr. Laura A. Foster

Dr. Laura Foster recently led a seminar with Natural Justice regarding her newly published article titled “The Making and Unmaking of Patent Ownership: Technicalities, Materialities, and Subjectivities” regarding issues of indigenous peoples’ knowledge, patent ownership and benefit sharing. The seminar sparked an informative discussion on how the assumptions and rules of patent ownership are designed to value certain forms of knowledge production over others, namely that of knowledge produced in a lab over that of indigenous peoples knowledge. Foster stressed the importance of also examining how knowledge produced by scientists in the lab and indigenous peoples in the Kalahari are in fact similar rather than different. An abstract and excerpt from her new article is featured here.

Abstract

Feminist sociolegal studies have recently taken up the technicalities of doctrines, documents, and regulations to better understand the law. In an affiliated move, feminist science studies turned to the materialities of theories, practices, and nonhuman organisms to make critical sense of science. These methodological turns focus not on gender, per se, but on precise mechanisms of law and science that structure, reinforce, and reconfigure power and inequality. Drawing on these methodological approaches, this article attends to the technicalities and materialities of patent ownership and benefit sharing in South Africa in regards to San peoples’ struggles over the patenting of the Hoodia gordonii plant. An examination of patent documents, benefit-sharing agreements, legislative appendixes, and the biology of plants generates an understanding of how patent ownership, rather than being natural or value-neutral, is a historical and sociocultural process shaping, refashioning, and being inscribed across multiple scales of nation-state jurisdictions, divergent ways of knowing, and biochemical orderings of plants

Excerpt

Hoodia seedlings (Photo credit: Cath Traynor)

Scientists with the South African Center for Scientific and Industrial Research (CSIR) obtained a provisional patent in 1997 related to the Hoodia gordonii  plant, which they found to be responsible for suppressing appetite.  The patenting of Hoodia properties, officially granted in 1999, incited a network of actors as the plant was poised to become the next blockbuster weight-loss drug. CSIR scientists collaborated with the UK biotechnology firm Phytopharm and the global pharmaceutical company Pfizer, and eventually with Unilever, to develop Hoodia- based products for the growing “obesity epidemic” in the United States. Angered over the patenting of Hoodia , indigenous San peoples mobilized against CSIR and its commercial partners, accusing them of stealing their knowledge without prior informed consent (Barnett 2001; Wynberg 2004). San claimed historical discovery of the plant they referred to as !Khoba  as a source of water and energy when food supplies were low. Their knowledge of the plant’s properties and uses in conditions of scarcity was now being appropriated to treat obesity. San’s collective organizing led to the signing of a benefit sharing agreement in 2003, whereby CSIR agreed to give San peoples 6 percent of their royalty income from future Hoodia  sales and 8 percent of milestone payments.

My own ethnographic research into Hoodia  arose when San–CSIR benefit sharing seemingly faltered. Unilever dropped the project in late 2008, casting doubt over the promise of Hoodia -based products and monies to San. Legal uncertainty also ensued with the adoption of the Bio-Prospecting, Access and Benefit-Sharing Regulations4  in 2008 (hereafter, BABS Regulations). Despite this uncertainty, Khomani San I spoke with considered benefit sharing to be a success because it brought recognition to San peoples. Benefit sharing simultaneously recognized two divergent ways of understanding Hoodia —one emanating from San and the other from CSIR researchers. The mechanisms underlying this recognition, however, remain unexamined. Several accounts have produced valuable histories of San struggles over the patenting of Hoodia  and subsequent benefit-sharing negotiations (Comaroff and Comaroff 2009; Vermeylen 2008; Wynberg, Schroeder, and Chennells 2009). Delving into the technicalities and materialities relevant to these struggles, however, provides additional insights into how patent ownership and benefit sharing become sites for the fashioning (and unfashioning) of human and nonhuman subjects, albeit in limited and unequal ways.

In particular, I examine the technicalities of two Hoodia patent documents, the San–CSIR benefit-sharing agreement, and a South African legislative appendix governing benefit sharing to understand how patent ownership is constituted. To guide my analysis, I draw upon a recent turn in feminist sociolegal studies toward the technical and everyday details of law to understand how hierarchies of power and knowledge are produced and contested (Riles 2005; Valverde 2009). For instance, I find that the Hoodia invention and its scope of patent ownership differ in South Africa versus the United States. Through this analysis, patent ownership emerges not as a Lockean natural property right, but as a contingent and historical process.

Furthermore, I analyze how patents involve the making of both human and nonhuman subjects. While feminist sociolegal studies turn to technicalities, feminist science studies takes up the materialities of human and nonhuman matter. Attention is placed not only on the discursive representations of humans and nonhumans, but also on how the unpredictability of their biologies and materialities provoke their discursive constraints (Alaimo 2011; Barad 2007; Bennett 2010; Coole and Frost 2010). Considering the biochemistry of the plant, I show how Hoodia patent ownership and benefit sharing become sites for the interrelated engendering of both San and Hoodia . The liveliness of the plant inscribes San agency and conditions of law, and vice versa. In the end, I argue that patent ownership and benefit sharing are contingent scalar processes; as such, they are best understood through attention to scale, specificity, and the making of human and nonhuman subjects that are co-constituted by and against the law.

Citation

This excerpt can be cited as follows: PoLAR: Political and Legal Anthropology Review, Vol. 39, Number 1, pps. 127–143. 

The full text of the article can be found at http://onlinelibrary.wiley.com/doi/10.1111/plar.12135/abstract

Dr. Laura Foster (@DrLauraAFoster) (fosterl at indiana.edu) is Assistant Professor of Gender Studies at Indiana University, where she is also Affiliate Faculty in the IU Maurer School of Law and African Studies Program. She is also a Senior Research Associate in the Intellectual Property Unit at University of Cape Town Faculty of Law. Her current book project examines how contestations over patent ownership rights, Indigenous San knowledge, and Hoodia plants in South Africa present emerging sites of struggle over who does and does not belong. 

MARGINALISATION AND INEQUALITIES COURSE (OSISA)

Reflections from Indigenous Fellows Ivan and Yvette

Natural Justice’s Cape Town office held its monthly Skills and Information Sharing Session on 25 April 2016. At this session the Cape Town office’s two indigenous fellows, Ivan Vaalbooi and Yvette le Fleur, shared their reflections with the team about their learning at the Open Society’s Initiative for Southern Africa (OSISA) Marginalisation and Inequalities Course, which they attended in Johannesburg from 2 to 15 April.

This course aimed at providing knowledge around marginalisation and inequalities in Southern Africa, as well as the skills to use the knowledge gained when working with marginalised communities and inequalities in society. The knowledge is also useful in influencing policies and laws. It is said that inequality in Southern Africa is amongst the highest in the world. This course identified domains in which these inequalities, marginalisation and social exclusion manifest itself in this region. These domains are ethnicity, race, class and nationality, gender, people with disabilities, youth and identity, as well as indigenous peoples. It also looked at how marginalisation and inequalities could be addressed through social policy for the development of Southern Africa that has respect for the human rights of marginalised peoples under the domains of exclusion and inequalities mentioned above. The course brought a wide array of indigenous peoples, activists, academics and experts alike together in this discussion.

The knowledge gained at this course is important for Natural Justice as its work is focused on such marginalised indigenous and local communities in Southern Africa impacted by their human, environmental and related resource rights.

OSISA supports both Yvette and Ivan’s fellowship with Natural Justice for a period of one year. Yvette is a youth from the Griqua Khoisan community, West Coast of the Western Cape. Ivan is from the Khomani San community in the Kalahari, Northern Cape. They appreciated understanding how policy can be influenced to address the concerns many of their communities continue to face within South Africa’s period of continued decolonisation in post colonial and apartheid South Africa. Natural Justice wishes to congratulate OSISA on running a very successful workshop and for their continued support of Southern Africa’s most marginalized communities, in particular their Indigenous Rights Programme .

Yvette and Ivan is looking forward to incorporate these learnings in their current work around land restitution, access and benefit sharing and related intellectual property rights work in both South Africa and Namibia. 

Natural Justice – Cape Town Office – Skill and Information Sharing Session – March 2016.

The Cape Town Office of Natural Justice, joined by Nayana Udayashankar, from our India office, via the internet, hosted its third monthly Skill and Information Sharing Session on 3 March 2016. This time we were honoured with the presence of Dr Laura Foster, Gender Studies, Indiana University Bloomington. Dr. Foster has expertise in science and technology studies, feminist and critical race legal theory, post-colonial feminisms, and feminist research methodologies. She is a research partner on NJs ‘Empowering Indigenous Peoples and Knowledge Systems Related to Climate Change and Intellectual Property Rights’ Project.

Dr Foster shared with the team her skill of grounded theory coding which could be very helpful in processing volumes of information. She explained that coding helps in narrowing down the scope of sometimes a very wide range of knowledge that we so often have to work through, to extract main points or core themes in one’s work. Grounded theory allows one to consider issues from the ‘bottom-up’, to assist in constructing community meanings. Dr. Foster also stressed that although a variety of sources can be analysed using this methodology, e.g. interviews, publications, Parliamentary Bills, email and correspondence, indeed multiple sources are beneficial however triangulation is essential.

Developing coding, as a skill within Natural Justice will enhance our capacity to analyse the multiple sources of information we encounter during our work in a more systematic way.

We look forward to further integrating this methodology within thematic areas such as land, customary law, climate change, amongst others.