Foreword

• Author: Kevin E. Noonan
• Pages: 14-23

Foreword

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