Equality and patent law may seem to make strange bedfellows. Convincing analyses exist though of how legal definitions related to science and innovation and patents themselves have fostered domestic inequalities as well as global health disparities. Concerns about the intra-human inequities that patent law produces are pressing ones. Still, in remaining anthropocentrically-bound by presuming that only humans can be inventors, these concerns miss the full scope of patent law’s inequality quotient. Laura A. Foster’s recent article Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life refreshingly takes up the inventive capacity of plants themselves as knowledge producers.
Foster seeks to correct her own human-focused examination of patent law’s role in elevating Western science at the expense of Indigenous knowledges in her 2017 book Reinventing Hoodia: Peoples, Plants and Patents in South Africa. With her 2023 article Plants as Inventors, Foster brings attention to plants, and patent law’s role in subordinating them, through telling stories about plants that pivot on the “binary logic of human exceptionalism” (P. 228). The article provides an engaging and instructive analysis inspired by what Foster terms “a vegetal feminist approach” (P. 229).
The first part of Foster’s thesis—“how the law draws upon and reinforces the view that humans are superior to and more worthy than other creatures and forces in nature” (P. 229)—is not new. Many animal rights scholars, for example, have already established the legal anthropocentrism which the legal liberal subject has normalized.
But Foster extends the remit of this insight into patent law by demonstrating how plants innovate and produce knowledge, situating her analysis in an intersectional understanding of patent law. She argues that human exceptionalism, harbouring “residues of colonial pasts” (P. 230), ultimately “obscures an understanding of plants as complex and lively beings that pervade the law” (P. 229). Foster draws upon recent attention to the sentient life of plants in the humanities, hoping “to shift conceptions of the liberal legal subject that undergird the law” (P. 229) and “imagine new ways of understanding and acting toward plant worlds” (P. 230).
The article compellingly shows that plants can qualify as inventors under a re-imagined patent law and in a manner equal to human groups in producing valuable knowledge and materials about and in themselves. The analysis is concise yet rich and accessible to those that know nothing about plants, patents, or feminist or postcolonial analysis, or who may have never heard the term “human exceptionalism” let alone questioned it. Foster leads the reader through helpful summary accounts of all these themes and concepts and adeptly ties them together.
She begins by noting how “legal reasoning and its conception of reason as the highest order of thought by which the truth can be determined,” along with its emphasis on “humans as rational subjects” (P. 230), sets up a human-plant binary. She provides background to how this human exceptionalism is related to intrahuman hierarchies, unpacking the gendered and racialized premises of legal protection for intellectual scientific labour and “associations of inventorship with the rational mind” (P. 231).
She then connects this colonial history to the rise of patent law and its framing of laws as “inert” and “passive” (P. 231), instead of as “creative and inventive beings” (P. 232). Foster explains the influence of the scientific method, Christianity, and taxonomic classification in creating “hierarchical understandings of life” (P. 232), and she valuably blends feminist, anti-colonial, and critical plant studies perspectives to distill the development of patent law and its importance to the growth of the British Empire and its dismissal of plants as mere economic resources. She also explains how the legal treatment of plants carried imperial and gendered significance.
Foster then moves to analyzing contemporary patent doctrine that frames plants as resources for humans. Foster discusses alternatives to this framing, evaluating recent accounts of how best to affirm “plant intelligence” and wondering whether some of these carry problematic pro-capitalist connotations. As a better option to affirm the inventive capacity of plants, she highlights accounts that emphasize that plants are aware of their surroundings and relations with others and that they change dynamically to adjust to changes in their surroundings and relations.
Foster further notes how plants “recognize plant stems, seeds, molecules, sensations and touch as ways of knowing…” (P. 238). She concludes that, resultingly, it does make sense in patent law to consider plants as inventive and creative just as humans are, whether we consider the standards of modern science or traditional Indigenous knowledge to be models for rewarding innovation.
Thoughtful accounts like Foster’s that ask us to imagine new legal possibilities for nonhuman life —here, of pluralizing our definitions of knowledge producers and intelligence — are important to help law catch up to social realities even where resistance runs deep. Some years ago the prospect of a macaque claiming copyright in selfies he took with camera equipment deliberately left in his Indonesian jungle environment resulted in a lawsuit that drew international attention. Adopting the human exceptionalist precedent to the effect that animals cannot claim copyright in their own creations, the trial court kept the monkey in the legal realm of what can be owned rather than who can be an (intellectual property) owner.
That position has still not changed. However, we do see a rising number of courts taking issue with law’s anthropocentric baseline, inspired to consider the justice claims of the nonhumans who inhabit our planet and citing from the plentiful socio-legal and other scholarship now advocating for rights for animals and rivers and generally questioning human exceptionalism and the wisdom of the paradigmatic liberal legal subject.
Similar developments for individual plants may seem a long way off. That is precisely why astute and crisply explained contributions like Foster’s are to be welcomed and read. They augment scholarly discourse that equality and justice are interspecies matters, too, and ask us to reimagine how human laws can be directed toward much more accountable interspecies relations.
