Nature, Genes, and the Scientific Commons: A Social Ontology of Invention

• Author: David Koepsell
• Profession: Author, philosopher, attorney, and educator whose recent research focuses on the nexus of science, technology, ethics, and public policy
• Pages: 155-164

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.

Nature, Genes, and the Scientific

Commons

A Social Ontology of Invention

10

Introduction

The current law of intellectual property is intended to promote innovation

by granting a temporary right of exclusion to authors and inventors. In

therealm of patent, that right has been interpreted over time to include

exclusive rights to processes for artificially creating what we would

ordinarily consider to be “products of nature” as well as to the artificially

produced products themselves. As described in previous chapters, until

recently, the legal regime by which isolated genes and genetic sequences

came to be patented can be traced back to such cases as Parke‐Davi s from

the early twentieth Century. Recent rulings from the US Supreme Court

seem to have effectively narrowed the trend toward allowing patents on

artificially produced natural products. Let us consider the implications for

both regimes and see if we can develop a rational and useful ontology of

invention and discovery in the process.

Products of Nature and Inventiveness

The owner of a patent has the right to exclude anyone else from the produc-

tion or practice of the invention claimed. So, let us consider the aforemen-

tioned proscriptions as applied to a tricky example and then see how the

courts have hopelessly confused things. Consider Joseph Priestley, who in

1774 discovered oxygen by heating mercuric oxide. He found that the gas

released from heated mercuric oxide was quite combustible. He had isolated