5 - Patents

Summary

Patent law is where the messy evolution of intellectual property into neoliberal biopower is most contested.I begin with the emergence of a new model of medicine in genomics and show how that model functions as a form of neoliberal subjectification insofar as it conceptualizes health as a form of risk management.I then turn to litigation surrounding the patentability of isolated gene fragments, which offers a nearly ideal case study of the stakes in how one models the form of power underlying subject-matter patentability, and how patentability encourages the development of neoliberal agents who model their health in terms borrowed from financial risk.I then turn to two other areas where the Supreme Court is pushing back against an expansive notion of patentability: its revival of patent exhaustion doctrine, and a series of decisions on subject-matter patentability.The chapter concludes by studying the Court’s ruling upholding the PTO’s inter partes review process.The administrative state is a key feature of public biopolitics, and the opinion, concurrence, and dissent clearly illustrate what is at stake in the intersection of differing understandings of power and intellectual property law.