Why the lawyers just don't get it

"It is difficult to get a man to understand something
when his salary depends upon his not understanding it."
-- Upton Sinclair

(Full disclosure, in response to the anonymous commenter, when all is said and done, I will have made roughly half the billable hours of a single patent application from the advance and royalties from my book. I have also spent nearly as much of my own money on travel and expenses. Such is the nature of academic publishing)

Central to my argument is the notion that DNA is what I call a "commons by necessity" which I make a detailed ontological argument regarding. Thus, my chapter 7 is critical, and is not at all an anti-commons argument of which IP lawyers are familiar, but a metaphysical/ontological argument about the underlying objects. Despite any differences lawyers might have with me regarding the present nature and effect of gene patents, my critical ethical argument, the central thesis of the book, hinges not on the law but on this ontological argument about the nature of certain things in the world that I claim simply cannot be ethically enclosed by any claim whatsoever.

I see the legal arguments attorneys want to raise as being utterly orthogonal then to my argument, which despite our disagreements about the nature and effects of the current patent regime, brings unmodified genes out of the range of any property scheme for ontological reasons. If you grasp this point, then you'll understand my frustration that quibbling over the current state of the law doesn't get around my central thesis.

Thus, the attorneys defend their turf by claiming I know nothing about patent law (I know a fair amount) and its practice in regards to genes. They claim, for instance, that there are no patents on unmodified genes, I claim that the allegations of "isolation and purification" somehow modifying genes is utterly illogical, and provide numerous analogies to back this argument up. They go after my legal analysis, although it ultimately does not affect my conclusion, even were I totally uninformed about the present nature and extent of gene patents. My philosophical argument implies that any patent on genes would nonetheless be unethical. This critical point, the ontological argument, remains unassailed in any review or critique.