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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.
Distinctively Catholic voices have contributed to public debate over the patenting of human life from its very beginnings (since the Supreme Court’s landmark 1980 Chakrabarty decision). This essay reviews these contributions and assesses them in light of Audrey Chapman’s recent criticism that, in general, religious contributions to the debate over gene patenting have been intermittent, fragmented, and less interested in shaping actual patent law and policy, especially in the US, than in mounting a “prophetic” critique of what are taken to be the various problematic political, social, and economic assumptions undergirding such law and policy. In response to Chapman’s critique, the essay demonstrates how a theologically coherent and ethically rigorous contribution to the public debate over gene patenting–one that is not exclusively “prophetic”–can be discerned in the work of two influential Catholic theologians, Lisa Sowle Cahill and Cathleen Kaveny. Going beyond both Cahill and Kaveny, and in contrast to the widely shared assumptions about divine ownership that underlie their (and most other) theological contributions to this debate, the essay proposes that recapturing the late Herbert McCabe’s point that God literally owns nothing would allow the formulation of a more adequate theological contribution to the bioethical debate over gene patenting.