AuthorKevin E. Noonan
David and I have had a friendly disagreement about the subject (and even
the title) of this book ever since it was first published, and I am happy that
he asked me to write this Foreword to the Second Edition. The issues David
raises in the pages to follow continue to be relevant to a discussion of
philosophy and patent law, with events that have occurred since the first
edition justifying (indeed, demanding) this update.
Without getting into the deep waters of philosophy (David’s métier, not
mine), as we have discussed the issues in the book David contends that he
takes a deontological approach and has characterized mine as a utilitarian
one. Accepting that dichotomy I understand the difference to be that David
is operating from “first principles” about the rules society should impose on
human activity and specifically on what the law permits individuals to
“own” with regard to genes and more broadly naturally occurring substances.
I disagree with that approach on several levels, perhaps the most germane
of which is that if we posit rules we need to impose a rule‐giver and the
potential for improvident rules (if not outright abuse of the privilege) makes
me wary; in some ways I subscribe to Lani Gruinier’s suspicions about the
effects of the “tyranny of the majority” in this regard.
Part of that tyranny is also the tyranny of unintended or intentional
ignorance. The issue here—“gene” patenting—is one at the intersection of
molecular biology and modern genetics, on the one hand, and patent law
(an area notorious for its arcane minutiae). I used to joke with my col-
leagues about the effect of trying to explain my position to a lay audience of
any type and how I distrusted those who advocated that all that was needed
was to “educate” the public, the press, and policy makers. The problem for
proponents of gene patenting has been that opponents have gotten the
better part of the debate, not by making a reasoned philosophical argument
such as the one you will find in these pages but instead by making an

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