I think it's important to revisit some of the non-legal arguments I and others have made regarding gene patents. A striking feature I note from all my talks on the subject is the visceral reaction many have to learning that human genes are patented. Forget the fact that these patents violate the patent law because they are not of anything remotely new. Forget the argument, which is compelling, that granting these patents violate the US Constitutional grant of authority for patent because they actually hinder the progress of the useful arts and sciences. Forget even that these patents might violate the First Amendment because they interfere with a plausible right to research (especially if one buys that donating money to political campaigns is "free speech," then scientific inquiry into nature better damned well be). No, there's something else to it. Something that underlies the visceral reactions my audiences and readers note. It's invasive. It's theft.
Our genes might be practically open to discovery, there's very little physically I can do to prevent you from acquiring my genes and unraveling my genetic code. But that doesn't mean it wouldn't be disturbing or unethical if you did this. The knowledge you could get about me, and use against me, is just too potentially disruptive to decide that we are not somehow each custodians, and maybe even more properly guardians, of our individual genetic data.
At the same time, the genome we share cannot be cordoned off. To the degree that our genetic information is mostly the same, we should all have access to it. No one should be able to claim that if we want to peek around, learn some more, and do some studies on this common genetic code, we somehow have to pay for this. Our "common genetic heritage" is, I argue, an actual commons like the sky, sunlight, or international waters. We should treat it as such.
The visceral "icky" reaction is based on the intimate relation we each have to our individual genomes, and the common relation we share with the "human genome." Just as no one should profit from your image, and no one legally can without your consciously and knowingly signing away your rights to it, your genes cannot be exploited for private gain without your consent. Nor can a commons that is owned by all be exploited without common consent. Yet this is what is occurring, and this is why we are riled. It's time to take back our common genetic heritage. We have nothing to lose but our double-helical chains!