DNA, Species, Individuals, and Persons

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, Species, Individuals,
The sciences of genetics and genomics are revealing more all the time
regarding our statuses as individuals relative to our particular genomes.
The more we learn about our individual genetic uniqueness relative to one
another within the human species, the more it appears likely that individu-
ality is tied strongly and very intricately to our genes as well as our environ-
ments. The law of property and ownership, as well as emerging notions of
autonomy and privacy, hinge both historically and rationally upon notions
of individuality. Let us look at some of the scientific and genetic bases for
individuality and relate it if we can to implications for self‐ownership and
gene patenting.
There is a substantial body of philosophical discussion and debate
regarding the nature of individual persons and consciousness, considering
questions about the roles of minds, brains, and consciousness in defining
ourselves as individuals. Our concern here is with DNA and genes and how
they either define the individual or otherwise relate to individuals. These
questions are related to questions about the nature of property and other
rights over other sorts of objects. For instance, in intellectual property law,
there is a clear distinction between the ownership rights granted under
patent and copyright laws to types (species) rather than tokens (individuals).
The law of real property and of moveables differs from that of intellectual
property, tracking both philosophical and practical distinctions among their
objects relating to notions of individuality.
Underlying our decisions about rights over various forms of property is
adistinction between types and tokens. Tokens are individuals, and types
are universals. Both types and tokens may be “owned” in different ways, but
DNA, Species, Individuals, andPersons 53
under different legal schemes, and for agreed‐upon philosophical reasons.
Thus, I can sell my record collection (a collection of tokens each of which
represents some type) without infringing the authors’ rights to the types
(the songs themselves). Similarly, I can sell or give away other sorts of prop-
erty, such as machines or other utilitarian objects protected under patent
law, without violating the patent right. I cannot myself make tokens from
the types because unauthorized reproduction is forbidden. This brings up
all sorts of very interesting and troubling concerns regarding the current
regime of patent protection for unmodified genes or other natural genetic
products where ownership is clamed over the information (types) expressed
by the genes or the entire genome of an organism.
If you own a patent, you exclusively have the right to make tokens rep-
resenting the type that you invented. Anyone who makes unauthorized
tokens of your patented type must pay you if you sue them and the court
finds they infringed your patent. Being the first to have filed a patent on a
type makes you the prima facie owner of the patent against all latecomers.
If you own a patent on a gene, then no one may reproduce the type in any
token without paying you royalties. Ownership of the type in patent law
is really an exclusionary device preventing others from making tokens
of the type owned. Since unmodified (or wild‐type) genes propagate
throughout the natural world, often in numerous species, individual
tokens are constantly being reproduced without anyone having any intent
to infringe on anyone’s patent. This happens constantly and outside the
realm of any reasonable control by the patent holder. No other sort of
ownable object does this in quite this way. In other words, while you
might own a particular sheep, you cannot own every sheep in the world
by virtue of a claim over the type—sheep. If you have successfully filed a
patent over a nonengineered sheep gene, however, you suddenly do
become the owner of at least a part of every new and existing sheep in the
world. This is a state of affairs that simply could not exist for hammers or
steam engines because they do not reproduce themselves, but they require
human intention to produce them.
In the law of ownership claims over types and tokens, we can see how
philosophical notions of individuality and uniqueness strongly relate to
decisions we make about legal rules for ownership and reproduction. How
do these notions apply to genes and genomes, and do scientific concepts of
genetic individuals and species help inform us in making rational and just
policies regarding gene patenting or self‐ownership?

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