Pragmatic Considerations of Gene Ownership

• Author: David Koepsell
• Profession: Author, philosopher, attorney, and educator whose recent research focuses on the nexus of science, technology, ethics, and public policy
• Pages: 137-154

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

ofGeneOwnership

9

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

beadopted.

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