Patent law is based upon myths of origin that operate through compressions of time and space in order to construct indigenous people and their knowledge as both visible and invisible….Hoodia gordonii is a cactus, or more accurately a succulent plant, that is grown in the Kalahari Desert in the southern region of Africa. For generations, the plant has been gathered and used by the indigenous San people to suppress appetite during times of famine or low food supplies. In 1963, South Africa’s Council for Scientific and Industrial Research, otherwise known as CSIR, identified the chemical compound, known as P57, that is responsible for the plant’s appetite-suppressant qualities. In 1996, CSIR was awarded patent rights to Hoodia’s P57 compound and then in 1998 it granted an exclusive license to Phytopharm, a British biotechnology firm, to develop Hoodia for global commercialization as an anti-obesity product. Phytopharm in cooperation with Unilever now expects to have Hoodia ready for global production and sale by the year 2008 and estimates close to $600 million in sales.

The story of Hoodia took an interesting turn in 2003 when scientists were asked how the knowledge of the San peoples contributed to their research on the plant. Scientists responded that the San peoples were extinct. This statement sent off a firestorm of criticism and the South African San Council initiated a lawsuit against CSIR and its licensees. The parties eventually settled the lawsuit and entered into a benefit-sharing agreement that required CSIR to give 6 to 8% of their profits to the San communities. The agreement is now the subject of intense debates among indigenous rights activists.

These conflicts make a discussion of patent law and benefit sharing extremely difficult. Rosemary Coombe offers some guidance and urges an “ethics of contingency” that respects the decision and sovereign right of indigenous communities to enter into such agreements and turns the attention more towards a critique of law. Thus, the central inquiry is not whether or not the San were correct in entering into such an agreement, but on the limits of patent law itself. Examining the patenting of Hoodia reveals how the notion of invention within patent law is constructed through compressions of time and space, which simultaneously make the histories and contributions of indigenous peoples visible and invisible.

In order to investigate these sites of visibility and concealment, I would like to briefly introduce the elements of patent law. A patent is awarded by the patent office of a given country if an applicant can show that the information is novel, inventive, and has an industrial application. The first requirement of “novelty” means that it cannot be described in the public domain either in written or oral form. In other words, it must be new and original information. The second requirement is that information must contain an “inventive step,” which is often interpreted as “not obvious.” Finally, the third requirement is that the knowledge must have an “industrial application.” The information must have a proven application that has “utility” and is “useful.” In the case of Hoodia, CSIR was able to show that the identification of the P57 compound within the plant was both novel and inventive and that its use to fight obesity was an industrial application.

Investigating the patenting of this plant offers a site to think through how law constructs the visibility and invisibility of indigenous peoples’ knowledge and how it enables narratives of progress within modernity. The Hoodia example concerns the chemical compound of P57, but the discussion applies broadly to the patenting of biological and genetic material from indigenous communities because similar processes of fragmentation and decontextualization are at work. To begin, patent law chooses the identification of the P57 compound as the significant moment in time of invention. Patent law creates a myth of origin through compressions of time and space that work together to value scientific method and the practices of so-called experts. Patentable knowledge operates upon an origin story that designates the chemical compound as the privileged site of novelty and inventiveness. The birth of invention happens in the lab by expert scientists. Authorship is assigned to the scientists who investigate the plant for its exact appetite-suppressing properties and the subject of patent ownership becomes the decontextualized compound. Compressions of time and space enable patent law to mark this moment as the spark of invention and designate the scientist as author. For patent law to recognize these particular temporal and spatial moments it must conceal and delegitimate others.

What is made invisible is the work and knowledge of the San peoples and most likely San women. Social scientists have noted that it is San women who are highly skilled at distinguishing useful plants for their communities. The San have spent considerable time and expertise over generations to develop uses for the plant as an appetite-suppressant as well as a way to treat what we now refer to as abdominal cramps, indigestion, hypertension, and diabetes. Colonial accounts of the uses of Hoodia are precisely based upon the labor and experimentation of the San peoples around the plant. Patent law chooses to recognize and legitimate one origin story – the tale of the expert scientist and his moment of invention. Alternative origin stories generated from the lives of the San people are made invisible and devalued. The San peoples historically traveled back and forth across the Kalahari Desert region and many live a nomadic lifestyle still today. They most likely began to use the Hoodia plant to sustain themselves during these long journeys. The local knowledge that the San developed, however, is left unacknowledged by patent law in order to construct the work of CSIR as novel and grant them ownership rights. The invisibility of the San peoples and their knowledge enables patent law to recognize the discovery of the P57 compound as the origin of invention and to maintain and reinforce assumptions of western science.

The logics of patent law also construct and strengthen neoliberal capitalist assumptions of industrial application. Patentability depends upon demonstrating the usefulness of an invention. In this case, it is the application of Hoodia for treating obesity that becomes the industrial use. In other words, what is patentable usually means what is profitable. By linking invention to industrial application in this way patent law further legitimates masculinized modes of production. In this case, patenting of Hoodia singles out the production of a weight-loss product as industrial. Commercialization of the plant depends upon the visibility of discourses around western women’s bodies as thin, while at the same time the labor of San women is made invisible. Western women as consumers are placed in relation to San women and global transnational systems of oppression become reinforced.

These masculinized notions of industrial application also raise questions around incentives and alternative frameworks for knowledge production. Patent law is often justified as an incentive for invention because its monopoly structure provides for the possibility of profit to recoup development costs. Incentives for invention, however, are not always motivated by law or profit. In fact, creation of knowledge and objects often does not depend upon incentives at all. In this instance, the San developed knowledge around Hoodia for purposes of sustainability and San women have been known to give the plant to their children during times of low food supplies. Patent law chooses to recognize the treatment of obesity as the industrial application and in the process works to conceal the practices of San women around the plant for purposes of sustainability and care.

Examining the signing of a benefit-sharing agreement also complicates these sites of invisibility and visibility and reveals contradictions. The parties to the agreement are the South African San Council and CSIR. The Agreement provides for a Trust fund that distributes royalties to the large diasporic San community across southern Africa. The difficult question then becomes who is a member of the various clans that comprise the San peoples? The problem is that in order to determine who will receive benefits, the San are forced to make themselves visible through categories of identity and belonging that are based upon western legal models. The limits of this legal framework also create a situation in which the San become stakeholders in their own visibility as premodern and exotic, which works to support western culture as modern. Commercialized success of the product to western consumers depends upon recent advertising that plays up Hoodia as “authentically South African” with large red African suns and Safari animals. Higher sales of Hoodia mean larger royalty checks; therefore, the San have an financial interest in the commodification of the plant and their culture. On the other hand, the example of the San peoples shows that for many indigenous communities a benefit-sharing agreement serves as a potential source of much-needed revenue. Benefit-sharing agreements can operate as a significant tool for indigenous communities to gain control over their own futures and plans for protecting the health and well-being of their own community.

In returning to Coombe’s notion of an “ethics of contingency,” what becomes important in this discussion is a critique of the limits of patent law itself. It also involves imagining possibilities for more socially just benefit-sharing agreements so that indigenous communities have additional alternatives to consider while making their own decisions around controlling their biodiverse resources in the face of patent law regimes. Feminist theories become a useful tool in conducting such an analysis and understanding how patent law constructs and reinforces western modes of science and capitalism.