Swanson on "Patents, Politics, and Abortion"

For someone like me, interested in the intersection of intellectual property and religious thought, this forthcoming book chapter "Patents, Politics, and Abortion" by Kara Swanson (Northeastern) is fascinating.  From the abstract:

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. . . .

. . . 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.

Scholars of abortion and bioethics should find this interesting too.  A couple of reflections about the relation between intellectual property (IP) and religious/moral perspectives:

First, the presumptions that have dominated in the past 40 or so years are that the Patent Office is neutral and technocratic, and that granting a patent as a property right is the neutral baseline for any kind of new technology (as the Court put it in Chakrabarty, the original genetic-patenting case in 1980, if any category of technology is to be excluded from patentability because of moral concerns, Congress should do so explicitly).  Patents on abortion-related inventions like RU-486 have escaped pro-life scrutiny in part because the conservative side of the political spectrum--with which the pro-life movement has been aligned--has been very positive on patents in general, seeing them as simple property rights.  (I must add that liberals have generally been pro-patent too: Swanson is right that patents came to be seen as an apolitical good by everyone.)  Pushing for limits on patentability in this context might well require conceding that patents are not simple "property" that should be near- absolute in its scope, but rather a limited (though important) property-type entitlement granted to achieve social purposes and subject to social limitations.  As I've argued elsewhere, that more limited conception of patents (and IP in general) fits better with Catholic thought concerning the "social mortgage" that exists on property for the good of all, especially the poor and the developing nations.

Second, however, Swanson points out another reason the pro-life movement didn't challenge patents on abortion-related inventions.  Although patents (like other IP) are meant to encourage innovation, they do so by giving the patent-holder a (20-year) monopoly.  Thus for that term, the patent may well limit broad distribution of the invention.  At the very least it can allow opponents to concentrate on just one entity and try to get it to refrain from marketing the invention in a certain area.  As Swanson points out, RU-486 opponents were successful in pressuring the European patent-holder to "refus[e] to seek FDA approval or to license any other company to do so through the 1980s."

At any rate, a very interesting piece.