Myths of Invention: Law and the Ignorance about Genetics
Limon, Cressida, The Australian Feminist Law Journal
This article argues that the modern legal concept of invention is based on an 'ignorance about genetics.' The ignorance about genetics refers in general to the forms of imagination about biological reproduction in western philosophy. Adriana Cavarero's rewriting of the patriarchal form of the ignorance about genetics is extended to biological inventions. This article explores a general notion of biological invention in law and genetics and how intellectual property law continues to be based on myths of parthenogenesis. Such a myth is an image of genealogy based on the name of the father (law). But that is not the only possible genealogy. Clarice Inspector's novel A Breath of Life is a good starting point.
All narratives of the origin take on a mythical turn, in that they speak what is: to speak what is qua what absolutely is, is always to endure Meno's aporia, to which a positive answer cannot be given.1
Does invention always involve a narrative of the origin and therefore a corresponding myth? Myth is clearly no stranger to invention. In Bernard Stiegler's analysis of an originary divide between art and craft technê) and knowledge episteme) in western philosophy, Meno's aporia, refers to the problem of the origin of knowledge:
A man cannot try to discover either what he knows or what he does not know. He would not seek what he knows, for since he knows it there is no need of the inquiry, nor what he does not know, for in that case he does not even know what he is to look for.2
In Meno, Socrates' response to this aporia (which Stiegler suggests is at the basis of modern philosophy) is to posit the immortality of the soul and its omnipotence prior to the soul's fall 'into the body.'3 At birth, the soul forgets this knowledge which nonetheless can be 'rediscovered.' Stiegler argues that in Meno the myth of anamnesis (the immortality of the soul) remains mysterious but that it will become 'dogmatic' in the Phaedrus4 whereby
the opposition of the soul and the body becomes the law of all philosophical discourse - and with it, the opposition between what will later be nature and culture, the human and the technical, as well as the question of technics qua writing.5
This opposition, at the origin of philosophical discourse, against myth, against rhetoric, against poetry, is repeated in the law of invention. But invention always escapes this law. Jacques Derrida began his essay on invention by recalling the word's Latin roots and by insisting that we need to keep this inheritance in mind.6 Inverino, in Latin, refers to that part of rhetoric (the art of oratory, or speaking well) that finds the ideas or things that the speaker deals with. Inventio is contrasted with disposino which arranges or places these ideas or things.7 The rhetorical tradition appears to have been displaced in the contemporary understanding of invention as a mechanical apparatus. But the advent of biotechnological, reproductive and genetic inventions has challenged the 19th century metaphors of invention.8 More precisely, it is the insistence of the modern law of invention (intellectual property rights are exemplary) that ideas are universal and therefore they belong to everyone. Invention, on the other hand, 'can display its originality only in the values of form and composition.'9 Significandy, Derrida writes,
There is no natural invention - and yet invention also presupposes originality, originality, generation, engendering, genealogy, that is to say, a set of values often associated with genius or geniality, thus with naturality. Hence the question of the son, of the signature and of the name.
We can already see the singular structure of such an event taking shape. Who sees it taking shape? The father, the son? Who finds himself excluded from this scene of invention? Which other of invention? Father, son, daughter, wife, brother, or sister? If invention is never private, what then is its relation with all the family dramas? …