Patent Politics: Life Forms, Markets and the Public Interest in the United States and Europe by Shobita Parthasarathy (review)

Patent Politics offers a lucid comparison of the U.S. and European patent systems focusing on the politics of patenting life forms and extensively discussing the ways in which political culture and ideology shape different understandings of the public interest. The book contains strong analysis based on a variety of sources of data, such as policy and legal documents, transcripts of more than 100 interviews, and participant observation field notes.

The author finds fundamental differences between the two systems and explains that patent institutions embody different understandings of the role of governments in shaping markets and innovation. Parthasarathy considers the U.S. system to be based upon a market making ideology and the European system to embody a market shaping ideology. To give an example, there is a lengthy analysis of the 1980s U.S. Supreme Court decision in Diamond v. Chakrabarty (p. 60). Congress could have chosen to legislate on the question of patenting of genetically engineered microorganisms; in fact, both the majority and minority opinion invited Congress to do so. As Parthasarathy argues, the choice not to legislate reaffirmed the techno-legal character of patents in the midst of enthusiasm for the benefits of biotech for the economy. Ideas about markets and the benefits they bring influence outcomes, and in this sense, patents embody ideology and culture.

While in the United States patents are treated as techno-legal instruments in the service of markets that work better without regulatory intervention, the European way is different. Throughout the book Parthasarathy argues that patents function as a form of market regulation and stresses the porous nature of the European patent system: arguments that point to the commodification of life and the dignity of human beings filtered into the decision-making process. For example, Parthasarathy mentions the dynamics that the idiosyncratic nature of the EU sets in motion, such as when the European Parliament was mobilized to alter the final text of the Biotechnology Directive. Other examples include the use of the proceedings of the European Patent Office by civil society groups challenging patents regarding genetically engineered animals, and the decision of the Court of Justice of the European Union to ban patents on inventions relating to human embryonic stem cells.

The book makes an insightful contribution in the field of science and technology studies and science technology and innovation studies. The patent system emerges as a political system where meaning is constantly negotiated between institutions, practices, the law and networks of actors. This is a theme that is also discussed in the work of Graham Dutfield, Stephen Hilgartner, Joseph Gabriel, Ingrid Schneider, Christopher May, Susan Sell, and the author of this review.

Parthasarathy is correct to stress the role of politics and social values in determining different outcomes in the U.S. and European systems. Europe has a long history of welfare policies and interventions in markets in the wake of two devastating world wars. Yet, we also see in the European system familiar arguments about the techno-legal character of patents and the importance of creating market incentives that benefit the economy: both ideas were put forward vigorously by the European Commission and networks of professionals when the Biotechnology Directive was debated. These arguments seem to be accepted more readily in comparison to the past. An example is found in the 2016 report of the Expert Group on the development and implications of patent law in the field of biotechnology and genetic engineering. Despite civil society activism in the European context, many times battles are lost. On the other hand, in the United States, judicial activism in the case of patents on gene fragments and diagnostic methods has led to disallowing patents in these fields, but again it could be argued that the decisions echoed familiar concerns about "freeing data" which make sense from a "market making" perspective. In both cases Parthasarathy's argument still...