DNA and The Commons

• Author: David Koepsell
• Profession: Author, philosopher, attorney, and educator whose recent research focuses on the nexus of science, technology, ethics, and public policy
• Pages: 119-136

Who Owns You?: Science, Innovation, and the Gene Patent Wars, Second Edition. David Koepsell.

© 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd.

DNA and The Commons

8

We have discussed a bit the various modes of existence for property, rang-

ing from intellectual property to moveables and real property (land). As

I have argued, and as is apparent through history and legal institutions,

occupation and possession of land and moveables create prima facie pre-

sumptions of ownership. These customs are rooted in brute facts recog-

nized by social and, eventually, legal norms. The facts of possession and of

generally recognized indicia of ownership give rise to valid claims of prop-

erty rights over these sorts of objects once legal institutions form. On the

other hand, the physical ability to exclude others from possession, which is

absent from the realm of ideas (except for mere secret‐keeping, to an

extent), makes intellectual property regimes necessarily creations of positive

law, ungrounded in any way in the world of brute facts of possession. Thus,

we may generally devise intellectual property laws as we see fit and consis-

tent with our pragmatic goals of encouraging innovation or Lockean

notions of intellectual labor and morality, as well as providing access to new

innovators in due course. For nearly two decades, nonengineered human

DNA was patented without challenge.1 I have argued, and the US Supreme

Court recently agreed that many of those patents do not fit accurately into

any currently accepted scheme of intellectual property protection. Now we

should consider (1) whether DNA fits into other forms of property protec-

tion (land, moveables, chattels, etc.), (2) whether DNA warrants a new and

unique form of property protection, or (3) whether DNA belongs to the

class of objects we generally consider to be “the commons.”

Once we answer these questions we will better be able to determine whether

there are any bona fide ethical problems flowing from nonengineered gene

120 DNA and The Commons

patents and what alternatives may exist. We may decide that, even if no

current scheme of legal protection suffices to secure an individual’s rights

over his or her own genes, some new form of property‐like protection ought

to exist. Such a property right could protect the rights of individuals or it

may even protect “discoverers” of wild‐type (nonengineered) genes. Current

schemes of patent protection for genes are entirely new, unwarranted by

precedent, and utterly aberrant in applying the law of patent. Nonetheless,

it bears examining how intellectual property schemes might serve as

guidance for new forms of intellectual property protection for genes, if

indeed those genes fit into classical dimensions of intellectual property.

Current Schemes of Intellectual Property Protection

Genes are very much like expressions except for one major legally and

philosophically relevant distinction. While the type/token distinction pre-

sent in other forms of expression argues for classifying genes as similar to

other expressions, they are not the products of human intention. As I have

argued before, however, deciding that something is an expression does not

determine whether it is properly copyrightable or patentable given that

both types of objects are expressive. The determining factor is actually is its

usefulness more utilitarian or more aesthetic? Machines are expressive of

ideas as are books and the words in books, and there are types and tokens

for each. The blueprint of a machine is a representation of the type, while

the individual machine is a token. Reproducing a patentable object without

license violates the patent‐holder’s property rights just as reproducing a

work of authorship without license violates copyright. We have made

pragmatic decisions to grant more latitude for potential overlap of aesthetic

expressions than for primarily utilitarian expressions. We have also decided

to move primarily utilitarian expressions more quickly into the public

domain than primarily aesthetic ones. These decisions reflect pragmatic

concerns, dictated by societal priorities rather than by any natural right over

types. Perhaps this dichotomy reflects our Protestant roots in preferring

utility over mere aesthetic pleasures.

Current schemes of intellectual property protection reward human inven-

tiveness. Copyright rewards aesthetic inventiveness, and patents reward

technological inventiveness as opposed to scientific discovery. Scientific dis-

covery has been historically rewarded through the institutions of science,