ESTABLISHING BIOLOGICAL NOVELTY: THE ROLE OF PRIORITY

The decision to abandon the project of seeking out archetypal examples of new species in favor of those first presented as evidence in the prosecution of claims to type must, initially, have seemed rather counterintuitive. However, as the absolute impossibility of any person undertaking a physical comparison of every proffered example of a species in order to derive the one archetypical exemplar of the class became apparent, so the need to move to the adoption of a system that valorized priority of publication over typicality became increasingly evident. For what became clear was that determining taxonomic novelty demanded, above all, stability in nomenclature: Were the specimens offered up by collectors as something novel one of these things already so named or not? Whether the type specimen was, materially, the iconic exemplar of its class or not became, ironically, immaterial. What was important was that a relatively representative example of the class be “consecrated” as Daston puts it,Footnote ¹³ as the permanent named referent against which all claims of the uniqueness or novelty of other proffered specimens could later be judged.

Militating against the success of this project, as we have seen, was the curse of synonymy. This occurred when individuals in different localities made simultaneous claims to type unbeknownst to each other and in so doing proliferated numerous different names for a single species. It was this crisis of synonymy that prompted the introduction of the diktat of priority of publication. In order to ensure that only one name would attach to a species, it was determined that the botanist who first submitted or “published” as it became known, a detailed description and physical example of a previously unidentified organism, and the locality and circumstances in which it was found, would acquire the right to name it. The name and the physical example of the specimen so published then takes priority over any other like taxon discovered and named after that date. It becomes the type specimen, the valid name for which, as the taxonomists of the late nineteenth and early twentieth centuries, such as De Candolle, Strickland, and later Dall noted, might thereafter only be altered for “weighty reasons.”Footnote ¹⁴

In considering the relatedness of systems of taxonomic classification and contemporary systems of IPR law as mechanisms for the disciplining of relations to the natural world and in generating property rights to biological novelties, we might begin by comparing the role of referents and priority of publication in each. As the historian Elizabeth Keeney argued, the Linnaean system of taxonomic classification became popularized in part as it allowed the amateur botanist (or zoologist) a means by which to “rapidly pigeon-hole” specimens.Footnote ¹⁵ This visual metaphor proves to be a quite pertinent and useful one. The act of creating standard protocols for naming and categorizing organisms in taxonomic classificatory systems had a normative effect—that is to say, it created stable, universally agreed-on criteria for inclusion in the system, a system to which all contributors could then subscribe. The objective was clear: to “discover” previously “unknown” organisms and to then to classify and characterize them as type specimens.

These highly valorized specimens would then be located or pigeon-holed in their correct compartment within what might be visualized as a “grid of established relationships.”Footnote ¹⁶ It is helpful here to visualize a set of postal office pigeon holes—for this is exactly what a storage unit for botanical type specimens looks like. Other type specimens, of say, insects, for example, are often similarly arrayed in drawers with compartmentalized sections. This process of pigeon-holing then is literal or material, but also epistemic. For much was to be gained from this process of selective enframing—closely juxtaposing these specimens such that their visible surfaces and features could be readily surveyed greatly facilitated the comparative work necessary for the identification and classification of new specimens. The primary function of archived type specimens in this schema is to act as referents against which new claims to novelty in speciation can be tested. This in turn allowed particular systems of knowledge to be built up about the uniqueness of species and similarities and dissimilarities between them—information that could expedite their further collection, and indeed, economic utilization.

Biological materials have since undergone further dramatic processes of transformation and revaluation. While advances in biotechnology and molecular engineering have enabled natural organisms to be remanufactured in an endless variety of historically unprecedented ways, the ability to lay claim to them within another system for codifying property rights in natural entities—the Euro-American system of IPR law has allowed their productive value to be both secured and defended. Patent rights (which are an important mechanism within this system) are commonly assumed to extend only to manufactured products such as toasters or car parts, but in fact they are available to any invention that is determined to be novel, capable of industrial application and able to be adequately disclosed by description. A substantive body of case law has established that such inventions include all manner of hybridized and engineered organisms. What is interesting, however, is how the test of novelty is prosecuted.

Just as in the taxonomic system, a value, both informational and material, accrues from being the first party to be able to successfully locate biological entities within a kind of grid of established relationships. In systems of taxonomic classification, the aim is to take existing organisms and to test their novelty in relation to those already named (the type specimens) and to then place them in their correct pigeon-hole (class, order, genus, species, etc.) In biotechnology, however, the aim is different—it is not to discover existing organisms but rather to manufacture new biological entities through processes of biological reengineering that can only be placed in the spaces in between the taxonomic pigeon holes—in what might be thought of as the negative spaces of the classificatory grid. This is for one very important reason. Systems of IPR law are there to reward inventiveness, and consequently, they will not extend rights of protection (such as patent) to unaltered products of nature. The U.S. Supreme Court in the case Diamond v. Chakrabarty established that discoveries of “laws of nature, physical phenomena, and abstract ideas” would not be patentable as they should be considered “manifestations of … nature, free to all men and reserved exclusively to none.”Footnote ¹⁷ The “products of nature” exception, as it became known, meant that places within the IPR patent grid would be reserved not for type specimens (identified products of nature) but rather for engineered biological materials that are deemed to have transgressed the boundaries of type. Type specimens are key to the function of this system however, as they provide the referent for determinations of biological novelty in this context—known species of plants or animals are the one thing that cannot be patented, therefore, only entities that are determined by reference to this standard to be novel, that is to say that fall outside or between these accepted and preexisting exemplars of naturalness, may be valorized and claimed as human inventions.

Priority of publication is as central to legitimizing claims to biological novelty in the IPR system as it is in the taxonomic system. As every patent office can attest, the monopoly right of patent is only extended to the first appropriately authored, novel biological entity to which an adequate and disclosable description can be attached. All other identical biological inventions that are proffered up afterwards will be turned away for being, in effect, synonymous. In this regard it can be argued that the IPR system of biological patenting employs taxonomic systems of classification as its primary referent. Entities such as chimera embryos or engineered viruses are classified as novel and thus typically become eligible for patentability only once their distinction from naturally existing species (as determined by reference to type) has been established. In this sense taxonomy plays a key role in enabling patent protection.

There are, however, some instances in which the polarity of this relationship has been reversed. Rather than drawing legitimacy from the applied use of formally stabilized systems of taxonomic classification, law has here taken on the mantle of actively disciplining the sometimes unruly and contested practices of taxonomic classification and naming. As Pottage and Sherman note, following Biagioli, the first “patent republics,” in which inventions were disclosed in exchange for exclusive patent rights, were an expression not only of a bargain freely made between the inventor and the public but also of new forms of political representation and governmental rationality.Footnote ¹⁸ The ideas on which inventions are based are both nonexcludable and nonrivalrous (they can be possessed by a number of people at the same time and no person's enjoyment of them is diminished by another's possession of them). Patent rights work, therefore, as Pottage and Sherman suggest, by “fictionalizing scarcity”—creating temporary monopolies to the small number of ideas that have been materialized or reduced to an invention in practice.Footnote ¹⁹

“Specification” as they argue, plays a key juridical role in policing distinctions between ideas and embodiments, providing the metrical technology for determining “whether an idea has been sufficiently transformed, embodied or applied as to become something more than, for example, a mere scientific principle or a product of nature.”Footnote ²⁰ Law has, on such occasions, been invoked quite instrumentally to intervene in, and in some instances adjudicate over, scientific disputes regarding indeterminacies that complicate the practice of specification, particularly those relating to nomenclature. For example, when moves were first made to develop patent protection for plants in the 1920s, it was deemed necessary to first clarify scientific questions relating to the naming and classification of certain plants that until that point had been unresolved by taxonomists. This effectively involved stabilization of taxonomic nomenclature through legal “witnessing.”Footnote ²¹ Concretizing the thing in question (the type specimen) through resolution of disputes over naming acted to generate a stable referent against which claims of novelty and authorship could be adjudged.

Priority of publication—the practice of seeking to establish a first claim to type—has even been subverted, in some exceptional circumstances to either facilitate or resist patenting practices. In the 1940s and 1950s, some microorganisms were baptized by industrial microbiologists with a new—albeit illegitimate—name in order to expedite their claims to patent protection; while others in the 1970s renamed existing types used in laboratory experiments in order to avoid accusations of patent infringement.Footnote ²² Priority of publication is not, however, the only mechanism for legitimizing claims of ownership in biological entities that patent law has inherited from the philosophy and practice of taxonomic classification. Two others, I would argue, have also been imported as privileged ontological constructs: authorship and deposition, and it is to a discussion of the first of these that I now turn.

AUTHORSHIP

Type specimens, as we have seen, are not chosen because they are exemplars of a species or because they alone embody or best represent the essential elements of their class. Conversely, and perhaps rather counterintuitively, they are selected at random as an evidential artefact of a unique first encounter between the collector and this as yet unknown and unnamed element of nature. As Daston noted, it is only these particular specimens that come to serve a much more significant baptismal purpose: to bear, as a kind of progeny, the name that the collector, the “describing author of the species,” confers upon them.Footnote ²³ A single specimen designated by a first author with an accompanying name and description combats the scourge of synonymy, however, as Daston goes on to argue, “since the only link between specimen, description and name is the author, the integrity of the match between these elements depends on the coherence of the author's intent [in collecting and naming them such].”Footnote ²⁴

The act of producing type specimens can be understood then, in this context, to constitute a form of witnessing. The type specimens that are plucked from the field are brought forward to witness the encounter between the collector/author and these elements of nature and to simultaneously have their existence as an evidential artefact of that encounter witnessed and legitimated. Claims to type much like claims to inventions cannot be sustained simply by reference to a proffered object. They must be supported by a description of the circumstances of its production—where and how it was produced or located, its disposition in the surrounding landscape, and so forth. The veracity of the claims made in this regard is of the utmost significance: It is essential, for example, that the information provided be appropriately detailed and accurate. The status of the authors and their legitimacy as witnesses thus dramatically affects the reception of their assertions about the uniqueness or novelty of the specimen or object: the circumstances of its production or manufacture and its standing within what might be thought of as the prior art, be it industrial or taxonomic.

As Steven Shapin noted, trust played a key role in the production and operation of many knowledge-making enterprises in the early modern period, but perhaps nowhere more so than in production of experimental knowledge about natural history.Footnote ²⁵ Taking by way of example the ways in which Robert Boyle's experiments employing the air pump or vacuum were prepared and received, Shapin illustrates how the moral and epistemic value of direct individual experience or observation of phenomena was generally asserted and privileged over the conjecture of theoreticians. This preference for direct observation as a means of verification of phenomena was further valorized when performed by a “reliable witness”—personified in English natural history in the figure of the “gentleman—that culture's paradigm of the type of individual one could trust to speak the truth.”Footnote ²⁶

In demonstrating how the privileging of the gentleman as the quintessentially credible witness occurred, Shapin illustrates just how much collective work by unnamed, subjugated, or obliterated others—notably technicians and holders of craft knowledge—was effectively subsumed by this very strong rendering of the authorial first person. As he argues, “the 17th-century laboratory was a collective workplace, but one in which one human agent spoke for others.”Footnote ²⁷ The testimony of technicians, servants, native informants, or other supporting personnel was either, routinely co-opted without suitable attribution or derided publicly as inherently untrustworthy, tainted, as it was perceived to be, by their relations of dependency on their gentlemen employers. As Shapin notes: “in the natural philosopher's voice was the testimony of a free and independent gentlemen; in his assistant's voices was the potentially unreliable testimony of the dependent, the vulgar and the interested.” This was, and is, he suggests a “continuing culture” in which the work of these others is “rendered invisible, subsumed in that of their Masters.” Despite this, natural philosophers nevertheless remained dependent on their technician manservants for “the avowal that his experiments were really done, done as he directed and yielded the results that he could credibly relate to others.”Footnote ²⁸ These were subsequently furnished to interested parties through publication by the author.

It light of this, it should perhaps come as no surprise to discover that the practice of what might be termed biological authorship in the late modern and contemporary periods has similarly sought to deny or obscure the collective character of its empirical knowledge making and knowledge holding. This is evident in relation to claims of authorship—and thus ownership—of type specimens and their transgressive counterparts: manufactured compositions of biological matter. As I outlined above, a claim to type can only be sustained through the production, not just of the material artefact of the specimen itself, but also, crucially, of an accompanying testimony that accurately describes the circumstances of its existence—where it was found, how it was growing, its disposition, and any further characteristics that could not be adequately captured by the specimen itself (such as giant seed pods that could not be attached to an herbarium sheet). The veracity of the claim to type, therefore, came to rely on the moral authority of the individual supplying that testimony—the identity of the author who warrants the truth of what is claimed. Only those specimens that were established as having been collected and christened by a reliable witness—typically an upstanding gentleman collector of good character would, in turn, have his existence formally acknowledged and legitimated within the emerging scientific discipline of taxonomy.

One of the most well-known and highly regarded of such gentlemen collectors was the naturalist Hans Sloane whose expeditions to Jamaica in the 1600s produced many of the earliest and now emblematic type specimens archived at the Natural History Museum in London. However, although purportedly collected by Sloane, preliminary investigations in the archive suggest that they were, in fact, collected not by Sloane himself, but rather by his manservants, some of them indigenous slaves. This was a transgression that, it could be argued, fatally undermines an essential condition of his purported authorship of specimens; that the geographical circumstances of their existence be personally witnessed by a describing author of unimpeachable character at the moment of their extraction—for it is this information that is presented at court in the prosecution of claims to type. The role of the technician—in this case the native informant—is completely elided in the construction of a narrative that situates, and celebrates the gentleman collector of high repute as the single witnessing author of the new species.

If we compare the role of authorship in taxonomic systems of classification with the role it plays in the operation of contemporary systems for the patenting of biological novelties, we can draw some relevant, if disturbing parallels. For example, if we consider how claims for monopoly rights to new biological works (as biotechnological inventions might be described) under contemporary systems of IPR are assessed, we see that the law continues to give what the anthropologist Rosemary Coombe calls “troubling centrality to the figure of the romantic individual author and his singular creations.”Footnote ²⁹ One of the immediate political consequences of this, as Peter Jaszi and Martha Woodmansee suggest, is that in “emphasizing originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-European artists working in traditional forms and genres and individuals engaged in group or collaborative projects to name but a few.”Footnote ³⁰

Many of the works in this volume provide potent examples of the ways in which rights of recognized authorship are routinely denied to those generally subsumed and indigenous others whose own authorial creations—such as herbal medicaments or drought-resistant crops—are deemed to be the product of collective, incremental, or communal innovations. The moral and epistemic quality and adequacy of these individuals' tacit knowledge about biological organisms and their testimony about their proven utility (which have been established through their own forms of experimentation) also continues to be called into question in claims to inventive authorship. Many of these kinds of innovations are the products of exactly the type of technical, applied, or craft-based experiments which, while often directly informing the development of new biotechnological products, are so often black boxed—that is to say, obliterated in both epistemological and evaluative ways—in the witnessed descriptions of their manufacture. Unreliable, untrustworthy, or somehow already notionally published as part of a universally available canon of prior art, this particular species of knowledge about biological organisms and their uses (indigenous species) lie already and conveniently beyond the ken of authorship and yet remain within the grasp of an acquisitive patent regime.

Claims to biological novelty (whether a type specimen or a newly engineered plant or animal) are secured, as we can now see, through several enabling mechanisms. The first of these is priority of publication: the first publication of testimonies that bear witness to the uniqueness of the entity at hand. The second is through the valorization of particular forms of authorship: notably those that privilege the accounts of reliable witnesses, typically scientific authors, over those offered by eclipsed others such as indigenous collectors or innovators. But how are these claims to be rendered material? A mere description of the novelty proffered by even the most reliable authority proves insufficient in a culture that has long subscribed to the ethos that “seeing is believing.” This brings us then last to the third of my enabling mechanisms for legitimating claims to ownership of biological materials in both the early modern and contemporary epochs—that of deposition.

DEPOSITION

In order to make good a claim—whether it be for type or for patent—a describing author is invited to submit a physical specimen of the biological entity for examination. In drawing this analysis to a close, I want to contemplate here, and in so doing, explicate, the role that materiality, corporeality, and deposition play in substantiating claims to novelty and authorship and thus, rights of property in biological entities. Deposition, as the word suggests, involves archiving specimens through a process of decontextualization that allows the organism to be offered up as an evidential artefact in adjudications over its uniqueness or utility. Why the material object itself need be submitted (rather than just an accompanying textual description) can only be explained by reference to the impulses of natural philosophy in the early modern period, particularly the vogue for empiricism. This was informed in no small part by the Lockean conception of the veracity of eye-witnessing. Locke passionately believed in the certitude that might be gained from direct, firsthand, observation of phenomena, arguing that “we may as rationally hope to see with other men's eyes as to know by other men's understandings.” Herein, as Shapin has noted, lies the genesis of the seventeenth-century modernist maxims: “Rely not on the testimony of humans but on the testimony of nature; favor things over words as sources of knowledge; and prefer the evidence of your own eyes and your own reason to what others tell you.”Footnote ³¹

Deposition has become, as a consequence, one of the key epistemological and functional technologies for validating claims to novelty and thus authorship, and later ownership in systems of taxonomic classification but also in its close classificatory relative: systems for biological patenting. In each the biological entity is called upon to testify to the veracity of the claims made in its name, and against which all future claims can be materially assessed. A compelling authority thus comes to inhere in the very corporeality of these specimens, and this is reflected in the taxonomic realm in the reverential way in which type specimens are archived. As Daston notes: “To the untutored eye type specimens are as unprepossessing as relics are to the non-devout … they are nonetheless regarded [by collectors and scientists] as unique and irreplaceable, the ultimate guarantee of the integrity of botanical names…. Mere traces of the body of a specimen (tiny bones from pre-historical animals, for example) can acquire the privileged status of a ‘type’ if they are adjudged to be the first recipient of a species name. This status may not be usurped even if a later whole specimen is unearthed. The diktat of ‘priority’ forbids this. If accidentally damaged, even corporeal fragments of type specimens are gathered up and restored, as artefactually, they are irreplaceable.”Footnote ³² Housed in fire- and bomb-proof safes in museums of natural history, they are regarded as unique and irreplaceable touchstones serving as, Daston argues, “as the last court of appeal in all questions and disputes about species definition, membership and names [and are consequently] as assiduously protected as religious reliquaries.”Footnote ³³

The patent deposition—that is the biological work that is submitted as part of a claim to authorship of a new biotechnological invention serves an uncannily similar function. They also act as permanent referents against which subsequent claims to novelty are assessed. In order to make good a claim, patent law requires—much as the taxonomic system does—disclosure of the full details of the invention. It is interesting to note, for it is not insignificant, that the requirement for deposition is particularly robust in relationship to those biological materials—particularly microorganisms or microbial components (including isolated cell lines and viruses) that are so labile that they may not be adequately described textually.

This is because, as the microbiologists Fritze and Weihs have noted: “While full disclosure of a traditional mechanical invention is achieved through a written description that will enable others ‘skilled in the art’ to reproduce the product or process themselves, words may be insufficient to describe a biotechnological invention in which living material plays an essential role … this is due to the difficulty of reconciling the requirement of exact definition and reproducibility which are essential for patentability with the basic unpredictability and complexity of biological systems.”Footnote ³⁴ The stability, distinctiveness and utility of the work may only be established through a process of deposition in which the existence of these qualities is not only verified materially, as it is with the type specimen, but also witnessed by an unencumbered and impartial observer of good character—the patent inspector.

Patent depositions in the microbiological field are also stored in repositories that serve a very similar purpose to those dedicated to the archiving of type specimens. Indeed, as if to bring this discussion of the relationship between systems of taxonomy and biological patenting full circle, and to an appropriate conclusion, we can note that many of these microbial repositories are in fact referred to as Type Culture Collections. In 1980, the newly signed Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure established a form of recognition for something very akin to the taxonomic edict of priority of publication wherein it was accepted that signatory states would only recognize patents granted to the first single deposit of a new microbiological invention lodged with any of a select number of certified international depository authorities or IDAs.

This directive, which effectively supports the principle of priority of publication had been introduced for similar reasons to its historical taxonomic counterpart: to curb the curse of multiple depositions and synonymy. From the 1950s until this point in time patent applicants in different countries have been advised to submit a copy of their deposited work in every legal jurisdiction for which they seek patent protection particularly in instances where the invention cannot be otherwise accurately described or enabled. The achievement of this directive was to enable inventors to deposit a copy of their work to just one internationally recognized depositary to which all other interested parties could then apply for permission to examine the work. Which depositaries, however, would be selected to perform this important regulatory task? It was resolved that only those few institutions that have “permanent existence, necessary equipment, staff and knowledge”Footnote ³⁵ would be considered to have the epistemic and technical authority to verify the novelty, viability, and reproducibility of the proffered specimens. In this regard, the IDAs could be said to perform in the contemporary era a remarkable similar function to those that the Latourian centers of calculation such as museums, botanical gardens, and laboratories did in the early modern period acting as master repositories: “focal points for accumulations of collected specimens data, technologies and expertise.”

TAXONOMY AND BIOLOGICAL PROPERTY MAKING

In this article I have attempted to illustrate the reflexive relationship that exists between historical systems for classifying naturally occurring biological materials, notably taxonomy, and more contemporary systems for claiming rights of ownership or property in engineered biological materials—systems of biological patenting as constructed by IPR law. Taxonomy and its iconic referents, the type specimens, as I argued earlier in this article, perform a key role is determining and thus delimiting the agreed boundaries of the naturalness of species thus also in providing the threshold of biological transgression that must be crossed in order to make good claims for biological inventions. This certainly holds true in relationship to the patenting of higher order species. As Daniel Kevles notes in his history of the first animal patent—on Harvard's Oncomouse—the claim for patent protection of the mouse was initially rejected by the European Patent Office on the grounds that the mouse was a new variety of animal, the product of a natural biological process and, hence, ineligible for a patent under the European Patent Convention.Footnote ³⁶ Harvard University, the claimant, conversely argued vociferously that “its mouse was not a new variety but rather a new type of animal that transcended varietal classification and that was not a natural biological product but—echoing Chakrabarty's claim—a biological entity made by man.” In other words the claim, which was made by reference to taxonomic systems of classification (the comparison of the deposited specimen with archived types), was that the Oncomouse was not a natural organism but rather, a manufactured one that effectively transgressed the boundaries of type and thus was decreed ultimately to be eligible for patent protection.

This raises, however, the situation regarding varieties of plants and their ability to be protected by various forms of IPR. This proves to be a complex and sometimes contradictory story, but nevertheless, one in which the practice of taxonomy remains centrally implicated. A plant variety is defined as “a plant grouping within a single botanical taxon of the lowest known rank”Footnote ³⁷ understood more commonly to embody a plant that has been bred for particular enhancements—taste, color, longevity, and so forth. In this sense, the plant variety is considered to be an embellishment of an existing natural species rather than a manufactured composition of matter. In order to secure protection under the Convention's award of Plant Breeder's Rights by the International Union for the Protection of New Varieties of Plants, these varieties must be proven to be distinctive, stable (genetically fixed), and uniform through processes of propagation. As Sherman noted, the need to meet these requirements has led some signatory countries to agree that the subject matter to be protected by plant variety legislation should only extend to specific taxonomically defined classes of plants. This is because, as he puts it “by the time the plant invention [variety] is presented to the law the plant will already have been described and its distinguishing features highlighted … in this sense taxonomy will have already have answered many of the legal questions that will be asked of the new plant, such as subject matter, distinctiveness and novelty.”Footnote ³⁸ The argument here is that taxonomy, with its crisp classificatory mechanisms can be employed to discern which plant varieties are genuinely distinctive and replicable variants (worthy of property protection) and which remain fleeting aberrations are not.

There are, however, some instances in which the demands of taxonomic classification and biological property making come into direct conflict. Judgments in intellectual property law have established that it is possible to acquire a right of patent over biological materials such as microbes or DNA that have simply been isolated from their natural surroundings.Footnote ³⁹ Although as Sterckx argued, there is nothing to suggest that “isolating a natural element from a body by technical means, or purifying that element changes its naturalness in any way,” such patents have been granted on the basis that the material is transmuted through this process of human extraction from a naturally occurring “product of nature” to a non-naturally occurring “composition of matter.”Footnote ⁴⁰ As Fritze and Weihs explain “many of the potent microorganisms currently isolated from unusual habitats are now not only of industrial interest but also new to systematists … the unfortunate consequence of this is that in these cases the ‘type’ strain, which is the agreed reference strain for new species is usually also the strain which is covered by patent protection.”Footnote ⁴¹

Researchers who uncover new type strains may wish to deposit them as taxonomic types. These reference strains must consequently then be made readily available to the academic community for the furtherance of scientific research. The very same strain may, however, if it proves likely to have industrial application, also be simultaneously subject to a patent claim. Access to the strain would then be severely delimited while the examination and determination of novelty is assessed. Claims to biological ownership are here operating in two distinct epistemic registers that are working in direct opposition to each other. While each seeks to appeal to priority of deposition as an enabling mechanism for making good their claims, at present, it appears that the advocates of patent rights are now in the ascendency in this debate. This follows the pronouncement in the “Guidelines to Submitting Authors” in the Journal of Systemic and Evolutionary Microbiology that “the description of a new species cannot be published while a patent is pending upon the intended ‘type’ strain.”Footnote ⁴² The right to priority of publication, it would seem, remains firmly in the hands of the patenting fraternity.

The prosecution of a property right to biological inventions now depends, as I hope to have illustrated here, on the ability to make successful claims in relation to the ways in which the entity in question has been manufactured or authored, its novelty as an entity, and its potential utility. By explicating the epistemological and functional relationships between two potent, secular belief systems for adjudicating claims of ownership to biology and biological works—the taxonomic system of classification with its now iconic referent of the type specimen and the contemporary system of IPR patent law, I hope to have revealed something of the ways in which the latter appeals to the authority of the former and its attendant practices and tropes in validating these truth claims. By demonstrating how the three key conceptual and functional mechanisms of the taxonomic enterprise—priority of publication, authorship, and deposition by both systems—I hope to provide the basis for some wider intellectual forays and investigations. Primary among these must be questions of how approaches to the authorship and ownership of forms of biological property have been progressively made and remade, refracted, and ordered through related modes of practice over time as part of a wider project for understanding the relationship between science, knowledge making, and regulation.