Situating Feminisms, Patent Law, and the Public Domain

This Article contributes to theorizing of the public domain by identifying and examining different conceptions of the public domain, while pointing to the benefits and limitations of each. These conceptions include the open public domain, hybridized public domain, protective public domain, and egalitarian public domains. The goal of this Article is to analyze these various conceptions of the public domain in order to build a more robust theoretical toolkit for investigating patent law struggles over genetic and biological material and how they relate to the lives of women, particularly Indigenous women. It also offers a new conceptual analytic of “situated public domains” as a way of understanding scientific/cultural knowledge production within the public domain as complex, contradictory, and partial. This Article, therefore, breaks open debates over intellectual property and the public domain by offering a new way of theorizing the public domain that requires a more contextualized approach and requires attention to social inequalities including gender discrimination. Thus, it argues for a decidedly critical race feminist approach to the theorizing of the public domain and patent law. To support this new conception, the Article also discusses qualitative research findings from recent fieldwork in South Africa around issues of patent law, biotechnology, and Indigenous knowledge