A major argument I make in my book, Who owns You? is about the nature of the natural genome as a "commons." It seems to me utterly clear and uncontroversial that that there are some things that simply cannot be claimed by any individual as their "property" in any meaningful sense of the term. The strongest analogy I make is to radio spectra, which can be monopolized only over short distances as long as someone else has a transmitter of identical strength. Brute force cannot make one the king of the radio waves, as long as others have the same potential force, in which case we end up with the classic tragedy of the commons, where a certain frequency ultimately becomes worthless as whomever wishes to and has the means tries in vain to monopolize something that cannot be enclosed. In many ways, this is the story of the encroachment by corporations in general over the domain of science.
Scientists deal in the natural world. They seek understanding, prediction, and ultimately control over natural laws. This cannot be accomplished without a community of scientists undertaking the tried and true methods of science, which depend in large part upon open critique and judgment of hypotheses, theories, and results of experiments by a community of peers. The domain of science is nature and its laws, and these can best be delved into, and nature's riddles best solved, with open and free exchange of information. All of which clearly annoys the powers that be who want as much as possible to cordon off vital knowledge so it can be put to use in profit-making. I am not, in general opposed to making profits, nor am I opposed to people being rewarded for inventiveness, except where the commons makes better sense, or in some cases, is a matter of justice.
We choose to make certain commons (which I call "commons by choice"). Thus, while land can be enclosed, and trains can be privately owned and possessed to the exclusion of others, in some cases we deem it in everyone's best interests to make certain resources freely available, or at least be heavily subsidized (as in the case of national parks and public transportation.) In other cases, like in the case of radio spectra, we allow the government to regulate an otherwise unencloseable space (what I call a "commons by necessity"), doling out monopolies to bidders at public auctions in order to prevent the breakdown of that commons. In some cases, nations negotiate to regulate commons (like the atmosphere) to prevent the collapse or ruination of an unencloseable space that benefits all. In the case of genes, an unencloseable, evolving, utterly natural and necessary commons has been parceled out to the first to file their bogus claims of invention where they are merely drawing lines on a landscape that nature drew long ago. Lots of money is now at stake, and there are entrenched interests, shares, and stakeholders who will fight tooth and claw to hold onto what they never should have gotten. But the commons are ours. Always have been. No property right can be taken where none ever truly existed, and as a classical liberal about property (in the A. Smith sense), I am perfectly comfortable that no right will be denied when we repeal the practice of gene patenting, and once again require invention, innovation, usefulness, and human need to drive the market rather than greed and the desire for bulging patent portfolios.
The commons is reemerging in many spheres, as a vital natural forum for both competition and cooperation. After all, the commons once devised under British common law were available for commoners, who had no other property or wealth, to eek out a living through their hard labor and a common agreement that some spaces were to be used for all. If one was productive, frugal, and lucky, one could rise above one's squalor and save, and even, eventually, become a tenant farmer (because then, the sovereign owned everything thanks to God). Recognizing the role and use of the commons was both a democratic and a market innovation, encouraging class mobility. The oceans are another example, rich with resources claimed by no one, the bravest and best, or the luckiest could garner wealth. The commons is a source of capital for anyone who uses it best. Intellectual capital, innovation, guts, grit, and fortitude, combined with a well-maintained commons, is not only right, it is just.