DNA and The Commons

AuthorDavid Koepsell
ProfessionAuthor, philosopher, attorney, and educator whose recent research focuses on the nexus of science, technology, ethics, and public policy
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
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,

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