Book Review: Intellectual Property and the Design of Nature

As a plant intellectual property nerd, this Kat was delighted to get her hands on the new book Intellectual Property and the Design of Nature (Oxford University Press, 2023), edited by Jose Bellido and Brad Sherman. But don’t stop reading if your passion lies along other branches of IP law, because this volume has plenty to say about copyright, trademarks, and more.

The hardback is currently available at
a 30% discount with code ALAUTHC4

The argument of the book is that "nature" plays a central role across the whole of intellectual property law (as a subject to be excluded, a force to be stabilised, a metaphor...), yet this relationship has received very little attention. The editors have set out to remedy this situation by bringing together 13 contributions, which are organised into four overlapping themes.

Theme 1: The Rhetoric of Nature

This section opens with the chapter, 'Vegetable Genius' by Mario Biagioli, which traces the use of plant metaphors in the copyright case law and legislative debates about originality, from the landmark British case of Donaldson v Becket (1774) to the current debates about non-human authorship. Whilst images of organic growth were used in the second half of the eighteenth century as emblems of authorial originality, in the early 2000s, they were instead mobilised by cultural environmentalists:

as figures of the commons and the public domain that, formerly lush green pastures, were now depleted by the excessive production and protection of patents and copyrighted works.

The other two chapters turn to the conceptualisation of nature in patent law. In 'Denaturing Bacteria', Daniel Schneider discusses the controversy over the patenting of biological sewage treatment and questions of the public interest. In 'The Essence of Biology', Veit Braun revisits the Broccoli/Tomatoes cases to explore how the pragmatic focus on 'biological' in European patent law allowed the European Patent Office to avoid reviving criticism of patenting 'life' and 'nature'.

Theme 2: The Circulation of Nature

Many of the chapters are accompanied by
 fascinating images from the archives

The five chapters in this section explore how creators were able to remain linked to their nature-based creations even as they circulate beyond their physical or contractual control, from the colonial seed laws in the Gambia that preceded the extension of patents and plant variety protection (Susannah Chapman), to the role of copyright law in controlling the publication of the accounts of Captain James Cook’s voyages (Isabella Alexander).

This Kat was particularly interested in the chapter by Daniel Kevles entitled 'Novelties, Frauds, and Protections'. Like many contributions in this volume, the chapter draws on a wealth of archival materials. Long before the Plant Patent Act of 1930, the booming market for seeds in nineteenth century America brought with it a proliferation of "thieves of names and novelties." The chapter explores how American nurserymen and seed houses turned to branding strategy and federal trademark law to restrain the circulation of stolen plants and prevent "humbuggers" from taking advantage of their reputations.

Theme 3: Distinguishing Nature from the Artificial

This section explores the unstable distinction between the 'natural' and the 'artificial', from the opposition to a yellow peach patent in Japan (Kjell David Ericson), to the dissatisfaction with IP from agroecology and synthetic biology (Dominic Berry). The editors' chapter entitled 'Artificial Flowers' contrasts the different ways patent law and copyright law dealt with the unruly and changeable nature of living subject matter by analysing how courts have dealt with copyright claims to artificial flowers.

Theme 4: Nature as Subject Matter

The final two chapters discuss how IP law has consistently been faced with the challenges of dealing with nature-based subject matter. For example, in 'Conceptualizing Nature as Information', Allison Fish focuses on biopiracy (unauthorised IP claims to genetic resources and associated knowledge). Her chapter explores how the Indian central government sought to address biopiracy with the creation of the Traditional Knowledge Digital Library and its implementation of the Nagoya Protocol. 

Concluding Thoughts

This review could not do justice to all thirteen of the contributions in the book. Suffice to say, this rich volume lives up to its aim of showing "how the boundaries between nature and intellectual property law are often more complex, permeable, and porous than is commonly recognized." 

The book can be purchased in hardback or ebook format. Readers can take advantage of a 30% discount by using the code ALAUTHC4 on the Oxford University Press website.