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

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.
Nature, Genes, and the Scientific
A Social Ontology of Invention
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

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