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| Hoodia (Photo credit: Cath Traynor) |
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
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| 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.
