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92 Iowa Law Review 353 (2007)


This article applies insights from critical race theory to examine an emerging phenomenon in biotechnology research and product development. The strategic use of race as a genetic category to obtain patent protection and drug approval. A dramatic rise in the use of race in biotechnology patents indicates that researchers and affiliated commercial enterprises are coming to see social categories of race as presenting opportunities for gaining, extending, or protecting monopoly market protection for an array of biotechnological products and services. Racialized patents are also providing the basis for similarly race-based clinical trial designs, drug development, capital raising and marketing strategies that carry the implication of constructing of race as genetic out to ever widening and consequential segments of society.

The introduction of race in the field of patent law as an adjunct to biotechnological inventions producing a new political geography of intellectual property in which the very metes and bounds of the territory covered by patents are becoming racially marked. As patents are racialized, racial identity itself is becoming a patentable commodity whose value is being appropriated to expand market control and extend the market life of their products. Generally speaking, however, the people capitalizing on race are not necessarily those who belong to the racially identified groups, but rather those corporations that are literally investing their patents and products with race to gain commercial advantage in the research, development, and marketing of new biotechnology products. Patenting race may thus have profound implications both for the equitable distribution of benefits derived from biotechnology and for broader social understandings and mobilizations of race.