Pragmatic Considerations of Gene Ownership

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.
Pragmatic Considerations
Gene patenting is impacting the realm of scientific inquiry as well as
individual rights such as privacy and autonomy. Moreover, there are
economic consequences due to the burdens of the patent system on small or
emerging biotech companies. We should consider not only the practical
effects of the status quo, but also look at what might happen in a world
without gene patents. The marketplace and commerce are impacted, as are
more abstract things such as rights, privacy, autonomy, and other more
strictly philosophical matters. Let us look at some of the practical conse-
quences of the recent and evolving situation in both science and industry,
and forecast how altering the law might affect each.
Public policy may turn on philosophical issues, but it more commonly
turns on the marketplace and commerce. The law of intellectual property
was developed as an engine of economic growth and balances the need for
increased public knowledge with private economic incentives. If we alter
the practice of granting gene patents, we will be affecting the patent portfo-
lios of numerous large companies, universities, and individuals who profit
from the current system. Any change requires significant justification as
well as some sort of plan to absorb the economic effects. It could well be
that some middle path exists so that the impact of losing patents, if we
decide that they are unjustly held, is lessened. It could also be that the cost
is not worth adjusting the law and that the injustice of granting property
rights over unpatentable objects is worth putting up with for now.
Finally, economic consequences aside, some things are so unjust that our
sense of justice demands change regardless of consequences. The institution
of slavery was abolished because of its injustice and property “rights” were
138 Pragmatic Considerations ofGeneOwnership
altered abruptly and without regard to the economic consequences. We
should consider at least three possibilities: (1) justice demands eradicating
patenting genes no matter what the consequences, (2) justice and economic
efficiency demand altering the current system to meet both concerns, or
(3)the economic effects of altering or eradicating the present system out-
weigh both the concerns of justice or economic efficiency, and so the status
quo should be maintained. We will explore each of these possibilities with
an eye toward actually proposing rational public policy scenarios that could
The Evolution of the Institutions of Science
Modern science, until recently, was conducted with little concern for profit.
The institution of science as it originated in the modern era through the
great Enlightenment scientific societies like the Royal Society was driven
not by the potential economic rewards of scientific discovery but by more
esoteric rewards.1 These rewards included the following: recognition by
peers, university lectureships or other appointments, and partaking in the
general onward march of knowledge and innovation. Profits were for tech-
nologists, who began to abound in the nineteenth century. People like
Thomas Edison could concern themselves with patents and profits, but Sir
Isaac Newton, Marie Curie, and James Watson profited us with their dis-
coveries as much or more than they did themselves, at least monetarily
speaking. Science moves forward by more or less idealistic forces and has
done so since its inception. Its combination with industry is a rather recent
turn of events and hinges upon a few notable changes in the way that uni-
versities treat science in the United States. Let us briefly look at the history
of science in the United States following World War II to the present day
and ask how profits became mixed up with academic research to begin
with. We will also consider whether other successful models for moving
from discovery to invention exist.
Before World War II, science was conducted at universities, funded gen-
erally by tuition and university endowments that paid for labs and materials
for their researchers. There was no such thing as “big science” yet, not of the
type that was necessitated by the war. The threat to civilization posed by
Nazi science, which was organized nationally and well‐funded, and which
developed productive new technologies geared toward war as well as a

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