David, Koepsell. 2009. Who owns you? The corporate ... - Springer Link

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Oct 23, 2009 - Who Owns You?, by juris doctor and philosopher. David Koepsell, examines the law and ethics of gene patenting while addressing a range of ...
Bioethical Inquiry (2010) 7:129–131 DOI 10.1007/s11673-009-9192-z

David, Koepsell. 2009. Who owns you? The corporate gold rush to patent your genes Malden, MA: Wiley-Blackwell. ISBN 978-1-4051-8730-5. 200 pp. Aaron Fellmeth

Received: 21 August 2009 / Accepted: 24 September 2009 / Published online: 23 October 2009 # Springer Science + Business Media B.V. 2009

Who Owns You?, by juris doctor and philosopher David Koepsell, examines the law and ethics of gene patenting while addressing a range of loosely related policy issues, from medical research ethics to privacy rights. An introductory work on these subjects for the lay public could fill a conspicuous gap in the non-fiction literature. The subject of gene patenting practically sells itself as inherently interesting and troubling. Judging by its provocative yet rhetorical title, informal tone, and modest number of citations to the work of others, Who Owns You? is clearly not addressed to the academic or research communities; nonetheless, it contains a good deal of helpful information for the lay public relating to the relevant (and some irrelevant) biology and biochemistry, intellectual property law, and ethics of gene patenting. Koepsell’s gift of conversational writing facilitates communication of complex ideas to the uninitiated. On the whole, the book explains much of its subject matter well. That said, the frequent repetition of Koepsell’s observations and the profusion of lengthy, tangential forays unnecessary or irrelevant to his thesis often tries the reader’s patience. Who Owns You? begins with a simple discussion of genomics and the concept of patent, then follows with A. Fellmeth (*) College of Law, Arizona State University, P.O. Box 877906, Tempe, AZ, USA e-mail: [email protected]

a potpourri of general observations about the kinds of practical and legal problems raised by gene patenting and the nature of intellectual property. The book explores diverse issues ranging from the philosophical nature of “personhood” and “common heritage” to the ownership of body parts to the potential practical consequences of gene patenting. Koepsell’s main objection to the current philosophical debate over gene patenting is the unexamined assumption that genes can be equated to humanity or persons. Koepsell accordingly proposes to explore the relationship between genes on one hand and ethical values such as human dignity on the other before judging whether gene patenting poses ethical problems. This insistence on understanding how genes relate to human moral rights as a precondition to evaluating the ethical implications of gene patenting is well advised. From there, Koepsell launches into a somewhat roundabout discussion intended to lead ultimately to the question of whether gene patenting creates ethical concerns and what the possible solutions to any identified objections might be. Unfortunately, Koepsell never properly raises and addresses the questions the book is intended to advance toward resolution. One of the most disappointing aspects of the book is Koepsell’s consistent failure to argue his conclusions. For example, although he repeatedly asserts that gene patents are improper as a legal matter, he engages in no legal analysis, but rather leaps to his

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conclusion without a solid discussion of the relevant constitutional provisions, legislative history of the Patent Act, or case law. The book also tends to refute straw man arguments without carefully examining the advantages and disadvantages of the relevant policy choices. For example, in arguing that the U.S. intellectual property law system should continue to disallow patents on newly discovered laws of nature because they might impose burdens on scientific research, Koepsell never thoroughly considers the potential response that patents could be justified as a means to encourage discoveries of natural phenomena. There are several possible rejoinders, but Koepsell never really attempts one. The same weakness pervades his philosophical discussion. He periodically claims that gene patents have moral implications. In his opinion, the patents “may deprive any or all of us of rights” to the genes, and gene patenting may accordingly be considered immoral (134). But he nowhere says which specific moral rights are being infringed or how. Similarly, he concludes that genes are the “common heritage” not only of humankind but of “all known life” (126, 163). What it means for genes to be a “common heritage” and what rights are implicated, and for whom, are never explored. What, exactly, can “any or all of us” not do that we could have done if gene patents never issued? Of what aspects of the “common heritage” that we had before gene patents began issuing are we deprived after they issue? Although Koepsell acknowledges that there may be no real consequences to individuals (125), this does not seem to influence his conclusions. We do not get anything approaching satisfying answers to these key questions. What can be gleaned from the published reasoning amounts mainly to tautology, non sequitur, and argumentum ad consequentiam. For example, gene patents are unethical, he implies, because DNA lacks attributes traditionally required for patent protection (126). While these failings undermine the academic value of the book, they do not alter the fact that it contains helpful information for lay readers. Unfortunately, Who Owns You? also includes more than the usual misinformation. Some of Koepsell’s explanations of the relevant science are so simplified, or sometimes flatly incorrect, that they undermine the value of his exposition. For example, he asserts that there is “a gene ... for growing knee-caps” (2). An accurate account would have explained that multiple genes and

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biochemical processes play roles in such developmental functions. This inaccuracy may mislead lay readers into believing that individual gene patents claim exclusionary rights over much broader functions than they commonly do. Some of Koepsell’s explanations of philosophical issues are similarly dubious (e.g., he classifies ethics as a branch of ontology), but the most troubling errors in his analysis are legal. He claims that a patent grants an exclusive “right to make” the patented invention (67). It would be more accurate to say that a patent is not a “right to make” anything; it is a right to exclude others from exploiting (more technically, from making, using, selling, or offering to sell in the United States, or importing into the United States) the claimed invention (35 U.S.C. § 271). While this may sound like a technicality, it has potential ethical consequences. Owning a patent on a method for cloning a human being does not give the patentee the legal right to clone a human being. Koepsell makes a few other mostly minor legal errors, but one in particular underlies his main argument: he condemns DNA patents without having quite grasped what they cover. He repeatedly asserts that such patents merely claim natural or “unaltered” DNA sequences as they occur in nature (92, 113, 121). If that were accurate, he would be right to conclude that such DNA patents are improper, notwithstanding the popular myth that the Patent Act’s definition of patentable “inventions” to include “discoveries” permits patents on newly discovered natural substances. But Koepsell is mistaken on the claimed subject matter. Gene patents always claim “purified” DNA sequences, meaning complementary DNA (cDNA) sequences containing only those portions of the naturally occurring DNA (“exons”) that code for the desired enzyme. The claimed cDNA molecules are, in other words, always physically different from their corresponding natural DNA molecules. One of Koepsell’s main bases for arguing that gene patents are legally improper is that they are not “new” products created by “human intentions” (126). Although one could contend that the difference between cDNA and natural DNA should be considered legally irrelevant (and that argument was made long ago by others—see Demaine and Fellmeth (2002, 322 (n.75)) or ethically neutral, the argument can be convincing only if actually made. Understanding the facts might not have changed his argument. Koepsell points out several times that

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natural human cell regeneration or reproduction could theoretically infringe a patent on a gene contained in that cell—another argument previously made by others (Demaine and Fellmeth 2002, 434–35). But this contingency remains merely a theoretical problem, because no court would allow a patent owner to enforce the right, and a serious attempt to do so would almost certainly cause Congress to pass prompt legislation preventing such abuses. Given that no individual will ever be subjected to coercive control by a gene patent owner, on what grounds can the practice of gene patenting be considered immoral? In 170 pages, Koepsell never begins to answer this question.

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Ultimately, Who Owns You? does not suffer excessively from its dearth of original ideas, considering its intended audience. It does suffer from sloppy reasoning and some important errors in the relevant science, law, and ethics. Aiming at breadth of scope, the book sacrifices accuracy. Aiming at sensationalism, it forfeits cogency.

References Demaine, L. J. and A. X. Fellmeth, 2002. Reinventing the double helix: A novel and nonobvious reconceptualization of the biotechnology patent, 55 STAN. L. REV. 303.