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Why I Believe Gene Patenting is Wrong, Although it is Currently Legal

David Koepsell

Ethical Technology

August 16, 2009

Before I left for an Alpine vacation of high altitude hiking, fresh air, and peace, I was pondering my response to Randall Mayes puzzlingly entitled: “In Defense of Patenting DNA: A Pragmatic Libertarian Perspective” published in Ethical Technology on July 26.  In the meantime, a much more scathing and less meaty attack on my book Who Owns You? The Corporate Gold Rush to Patent Your Genes was published as a “book review” (more on this in a moment) which stoops to the same level as numerous recent bloggers who, so moved by the danger of my arguments to their cause, have attempted to attack me, and thus misses the point of most of my argument.  I am glad I waited to respond to Mr. Mayes, who at least raises his own policy arguments and responds to a number of my policy arguments.

Before I respond to my disagreements with Mr. Mayes, however, and they are significant, I would like to first address the Holman “review,” which ignores the policy and ethical arguments I raise in both my book and my lengthy online commentaries since.

I can forgive Holman, who teaches at the University of Missouri, Kansas City School of Law, because he is only doing what any good attorney advocating for a position would do.  Unfortunately, he is doing so under the guise of a book review, but actually writing the summary of argument section of a legal brief.  He should also have disclosed any conflicts of interest he might have, such as stock options or other future benefits he might still maintain from his previous positions as a corporate lawyer for several biotechnology firms, including stints at: PhyNexus, Inc., Vice-President, Intellectual Property 2003 – 2005, Maxygen, Inc., Patent Counsel 2001 – 2002 Transgenomic, Inc., Associate Patent Counsel 2000 – 2001. 

Of course, it is possible that he has divested himself of all conflicts of interest, and has nothing to gain or lose by this argument (as I have nothing to gain or lose) and so is merely arguing a true belief, rather than carrying water for an industry which benefits him.  Unfortunately, he uses a number of devices that my former students might have used, and which I used at one time or another in the numerous appeals I have written and argued.  Because not all readers of book reviews have a legal background, however, let me point out just a few of the most egregious techniques before coming to the point: he failed to address the central, ethical argument.

“When the facts are against you, pound the law.  When the law is against you, pound the facts.  When both are against you, pound the table.”  All law students have heard and, at some time during their careers, used it to some success.  Strangely, Mr. Holman begins pounding the table early on, even though, given he is really arguing a legal case, he might have more successfully pounded the law.  This is because he makes the early decision to do what lawyers are trained to do when arguing an appellate case: convince the judge the law can go no other way.  Judges don’t like to have to set precedent, and so we are trained to convince the judge that, all along, the law bends clearly in our favor. 

Of course, looking at the briefs of most cases, you’ll easily see that despite the confidence of both sides in their legal conclusions, the law often leaves plenty of room for interpretation.  This is the case with the law of patenting genes, as the Supreme Court has not yet decided on this matter.  It may yet do so if the current lawsuit brought by the ACLU against Myriad for its BRCA1 and BRCA2 patents (patents on the tests for breast cancer genes) ever gets up to SCOTUS.  Meanwhile, there are clearly good faith arguments to be made on either side of the issue, as indeed the ACLU and other organizations, representing both cancer patients and thousands of researchers, have argued in their papers.  My legal arguments are not much more than theirs. 

So Holman does a good job of arguing his legal case, but in so doing misses the bulk of my argument.  Mine is not a legal argument, because I’ll leave that to the lawyers who are doing their expert jobs in the Myriad suit.  Rather, it is a public policy argument.  I want the law changed.  While Holman can pound the table and claim I am wrong about the law (as he erroneously does when he claims I rest my legal argument on the Moore case – I don’t, but the attorneys at Celera used it when convincing themselves to begin patenting genes), he loses the day when he sidesteps (though applauds my attempt) my ethical and philosophical arguments.  I am not writing to convince judges.  I am writing to convince everyone else, and especially policy-makers, and I am arguing that the current state of affairs should change. 

Of course, this sort of proposed change upsets those who have billed tens of thousands of hours drafting and filing patents on genes, even though there is scant evidence that those patents have encouraged much research, or promoted any great innovation.  In fact, in an article in Forbes, Craig Venter recently said he generally opposes gene patents except in rare cases, stating: “There were a couple of gene patents that were worth a lot of money, so all of a sudden every university and every biotech company spent a fortune on patenting genes, I think only the patent lawyers got rich.”  Perhaps this is why most of my detractors are patent attorneys, and I have received emails from supporters within the industry, including some large biotech firms, stating their support for my arguments while understandably asking for their anonymity.

Holman and Mayes also rightly correct my errors in terminology, I had thought I had caught them all in proofing the text as they caused my biologist wife to wince when she read them too.  These minor errors will be corrected in subsequent editions.  But it is another tactic, taken by Holman and some bloggers to raise these errors as sufficient reason to ignore the rest of my argument.  Holman, for his part, rests on that to his detriment, for he has missed the critical, central, ethical arguments.  Fortunately for Mayes, he responds in depth to my policy arguments, but naturally, I differ with his conclusions.  Let’s examine some of those differences.

Firstly, I am baffled as to how Mayes’s argument is in any way a libertarian one, although it might be pragmatic.  I am consistently confused by “libertarians” who support a government-sponsored monopoly of any kind.  I make a libertarian argument of my own in my book, arguing that there is no free market given the existence of patents, which are the grant by a government of an artificial monopoly of the practice or sale of a useful art or product.  I have been making this argument since my first book, The Ontology of Cyberspace (Open Court 2000). 

The present book elaborates upon my economic/libertarian arguments, explaining that as many software developers who are experimenting with disseminating their goods outside of IP law have found, there are ways to form private contracts and licensing agreements with users that enable the functioning of free markets, and encourage rational product pricing to function without the influence of governmental backing. 

Of course, I have made in both books the rather lengthy and detailed argument that Intellectual Property “rights” are completely unlike rights to other forms of property.  I believe that real and personal property is “grounded” in “brute facts” whereas IP rights are utterly creations of the “positive” law, created for a pragmatic purpose, and alterable at will.  IP laws only conflict with notions of justice when they impinge on some other, grounded right, as I argue they do with the genetic commons. 

This critical argument remains un-assailed by either of the two detractors discussed here, which seems like an admission that they have no particular response.  There are counter-arguments, and given the critical nature of this argument to my ultimate conclusions in both books, I am dumbstruck about why no one goes after that linchpin argument.  I would welcome that kind of discussion. 

Instead, we get Holman’s complete disregard for this underlying policy argument, and Mayes who skims past it even while claiming he will address “why the moral case against patenting DNA fails.”  I seem to have missed his reasoning, as he merely claims that the title of my book is an ad hominem argument, and talks about John Sulston’s argument regarding DNA’s role as part of the “common heritage of mankind” while completely bypassing my argument about types of things that cannot be claimed at all – commons – and why DNA is part of the commons. 

Mayes also reiterates, in addressing my and others’ arguments that DNA is a discovery and not an invention, the same legal arguments that Holman relies on, essentially claiming that because other courts have upheld it in the past, then gene patents are, like courts ruled in the case of synthetic adrenaline, inventions rather than discoveries.  Of course, I have some detailed analogies in my book showing the logical problem with this chain of reasoning, and I conclude that these court cases were wrongly decided. 

Nowhere do I claim that patenting living things is per se immoral, but Mayes feels he needs to address the argument, and I support his arguments in that regard.  I have never argued otherwise.

We disagree starkly on the remaining parts of our discussions of the topic, including the economic and scientific arguments.  I claim that it is inefficient to grant government-sponsored monopolies (which are valuable to the share prices of biotech companies, but often prove less than valuable in the actual process of drug discovery), and that we ought to make biotech companies and other corporations compete with the actual values of their products, and speed to market.  Even setting this radical argument aside, I argue, as Venter and others confirm, that gene patents are not the most economically efficient way to exploit publicly-funded science, nor necessary to spur useful innovation in drugs. 

Finally, I am moved by Fiona Murray’s in-depth examination of the actual chilling effect of gene patents on scientific research.  Her empirical evidence seems to indicate that basic research is being hindered by the existence of patents on genes, and this should concern us all.  Perhaps this is why so many scientists have come out against the practice, and are being represented in their fight against it in the Myriad case.

Listen to a Changesurfer Radio discussion of David Koepsell’s book Who Owns You?

As with any argument, there are counter-arguments and it would be hubris to pretend mine is the only tenable position.  I am glad for Mayes’s honest contribution to the debate, although we differ in the end.  I am dismayed by Holman’s given it seems a less than honest attempt to review a book, and more of a brief in opposition to my legal arguments (which do not form the central part of my many arguments in the long run).  But you are the judge, and to do justice to these arguments such as they are on both sides, you should read them yourselves.  You may agree, and you might not. 

It gratifies me that there is some public support for my position, as well as significant support among the community of scientists.  I leave it to you, ultimately, to come to your own conclusions, and I can only hope that when read in the depth I afford the topic in my book, you’ll find you agree that the human genomes is a commons and cannot be claimed by any person, institution, or corporation.


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