1.) I argue property rights over land and moveables are grounded in brute facts of possession
2.) I argue that IP rights are not grounded, and so we can generally alter them at will except where they may conflict with grounded rights
3.) I explain that patents protect expressions (manifesting a type in some way in the world of tokens) of a type, not the type itself. They are exclusionary, not possessive rights, giving the patent holder the right to exclude another from reproduction or practice of his or her type
4.) A gene is the arrangement of nucleotides that codes for a protein. Its action involves the creation of proteins by mRNA, which as it creates the proteins, reads the beginning and end of the gene, and leaves out the introns. This is the same mechanism employed by humans when we make cDNA.
5.) A patent on cDNA, I argue, is not different than the patent on the gene itself as there is nothing new about the cDNA. Nature devised long ago the methods of reading genes and making proteins. cDNA is thus not novel and not properly patentable. (ultimately, though, my commons argument trumps all of this).
6.) Newly created genes, not otherwise found in nature but assembled from intentional action by humans are properly patentable.
7.) The human genome is a constantly evolving object that involves every member of the species, and is, I argue, a commons by necessity, like outer space, the atmosphere, sunlight, and radio spectra. Discovering its nature, replicating its processes and using them to our benefit cannot ethically be done to the exclusion of others. Granting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.
8.) Myriad, for instance, when it uses its patent on the BRCA1 and 2 genes that are linked to breast cancer, prohibits meanwhile the replication by others of the genes themselves. It has sent cease and desist letters to scientists who were doing lab work on those genes. I argue that it is our right in common to explore and investigate our individual genomes, as well as the human genome, unhindered by claims of others. What Myriad "owns" is a right to stop you from doing that, and they have exercized that right to the our common detriment.
9.) Miami Children's Hospital has done the same thing with the Canavan's disease gene, and while their right is not one of standard, possessory ownership, it is the right to exclude others from doing research on that disease. This is, I claim, an unethical usurpation of the commons of DNA.
10.) My argument differs from what lawyers know as an "anti-commons" argument, which I do discuss in my book, but which my argument does not rely upon. Anti-commons are created where over-patenting has hindered research. This may well be happening, as the Murray article tends to point that way, but my argument about the commons and DNA is a totally new, totally different argument founded on my ontology of commons by necessity.
I hope this clears up my arguments a bit. In a bit, I will also point out how I believe Holman and others have distorted my discussions of the law (as I begin to discuss above in justifying my discussion of Moore based on its use by Celera's attorneys). I have also tried to point out, in relation to Holman's lengthy selection accusing me of creating "fictions," that my position on these issues is correct if you don't buy (as I don't, and argue against) the "isolation and purification" argument, which I argue is a fiction.
I find it still very strange that Holman's review cites my chapter 7 as a re-hash of the anti-commons arguments of others, when nowhere in that chapter do I ever make anything like that argument.
But I see all that discussion as a distraction, and my book spends about 10 out of its 200 pages discussing cases, none of which are determinative of the argument or conclusions.
Friday, August 21, 2009
Thursday, August 20, 2009
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.
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.
More hate from the lawyers...
Below is a letter I sent to Brian Leiter in response to his piling on in defense of Holman, who I still contend is out of his league in reviewing a book on public policy, and then focusing only on his legal disagreements and characterizing them as me being "wrong." In many ways, this event reminds me of the town hall meetings going on back in the US. When faced with the potential of losing a monopoly on a questionable practice that has earned patent attorneys millions in fees, they resort to invective, threats, attacks, ad hominem, etc. Always skirting the central policy arguments and rationale, they seek to destroy reputations, to allege lies, deceit, and to claim their worldview is privileged. In many ways it is. Corporations hold the reins, and purse strings, and anyone challenging their primacy and modus operandi is open game. I never thought it would be an easy fight, but I never realized it would get so ugly.
It's a shame, I think if Leiter would read my book, and saw the naturalistic arguments I make about the nature and ontology of law, he'd be more sympathetic. Instead, he is defending his vetting of the reviewer (though he didn't select him), who really was nonetheless not an appropriate person to review my book. While accusing me of digging in, he digs in. Too bad. Instead he accuses me of "incompetence" ... it's a shame. It all hinges on accepting Holman's and other's interpetation of the "isolation and purification" smokescreen, which I dispel in my book and have done so numerous times, in numerous analogies, since then. If one doesn't accept that "isolation and purification" creates anything new and thus patentable, then all of the claims I make, characterized by Holman and now Leiter as "figments of the author's imagination resulting from his profound misunderstanding of patent law" are not at all, but rather real concerns.
I note that there are critical reviews of Leiter's books out there too, but I would never leap to the conclusion that any of them were "bad" books and that he should simply own up to that fact. It's a shame he does so, so very publicly, and without an opportunity for me to set the record straight on his blog:
----
Hey Brian,
Hardly was a "smear campaign," as I think asking about his industry ties is certainly appropriate.
"Mr. Koepsell protests that his book was really about ethics and policy, not law, so apparently his complete misunderstanding of patent law doesn't matter."
Actually, Holman admits it is a book on ethics and policy, not law. It is part of a series devoted to public policy, and was never marketed as a legal primer to gene patents. Moreover, I don't think it's fair to say I have a "complete misunderstanding of patent law." Holman and I disagree about the nature and effect of gene patents, and if you read my book, I lay out a logical argument and arguments by analogy challenging the "isolation and purification" notion. Obviously, well-intentioned attorneys and jurists disagree. The current suit against Myriad for the BRCA1 and 2 gene patents shows that at least some attorneys agree with my perceptions about the nature and effects of these sorts of patents. Since you lack a comments section to your blog, which really is quite harsh and rather offensive given that the book has in fact been received positively by others, I am posting this to my blog, along with a link to your blog.
I find it odd that you claim also: "Koepsell spews forth a series of ad hominem allegations against the reviewer, disputes no actual point of substance, and tries to explain away his other mistakes as "proofreading" errors (yeah, right)"
What "series" of ad hominems are you speaking of? I raised a legitimate concern given Holman's past positions and potential vested stake in the outcome of this debate. I see nothing else that could be characterized as an ad hominem. Please enlighten me?
Not sure why even legal scholars like yourself must resort to vitriol. My aims and goals are to change public policy about gene patenting. My arguments and understandings of the current state of gene patenting accord with those of many other legal scholars and philosophers, and my methods have always been the use of logic, ontology, and argument rather than personal attacks. This issue seems to have raised the ire of patent attorneys especially, even as scientists and progressive-minded lawyers have rallied to the cause.
All my best,
David
It's a shame, I think if Leiter would read my book, and saw the naturalistic arguments I make about the nature and ontology of law, he'd be more sympathetic. Instead, he is defending his vetting of the reviewer (though he didn't select him), who really was nonetheless not an appropriate person to review my book. While accusing me of digging in, he digs in. Too bad. Instead he accuses me of "incompetence" ... it's a shame. It all hinges on accepting Holman's and other's interpetation of the "isolation and purification" smokescreen, which I dispel in my book and have done so numerous times, in numerous analogies, since then. If one doesn't accept that "isolation and purification" creates anything new and thus patentable, then all of the claims I make, characterized by Holman and now Leiter as "figments of the author's imagination resulting from his profound misunderstanding of patent law" are not at all, but rather real concerns.
I note that there are critical reviews of Leiter's books out there too, but I would never leap to the conclusion that any of them were "bad" books and that he should simply own up to that fact. It's a shame he does so, so very publicly, and without an opportunity for me to set the record straight on his blog:
----
Hey Brian,
Hardly was a "smear campaign," as I think asking about his industry ties is certainly appropriate.
"Mr. Koepsell protests that his book was really about ethics and policy, not law, so apparently his complete misunderstanding of patent law doesn't matter."
Actually, Holman admits it is a book on ethics and policy, not law. It is part of a series devoted to public policy, and was never marketed as a legal primer to gene patents. Moreover, I don't think it's fair to say I have a "complete misunderstanding of patent law." Holman and I disagree about the nature and effect of gene patents, and if you read my book, I lay out a logical argument and arguments by analogy challenging the "isolation and purification" notion. Obviously, well-intentioned attorneys and jurists disagree. The current suit against Myriad for the BRCA1 and 2 gene patents shows that at least some attorneys agree with my perceptions about the nature and effects of these sorts of patents. Since you lack a comments section to your blog, which really is quite harsh and rather offensive given that the book has in fact been received positively by others, I am posting this to my blog, along with a link to your blog.
I find it odd that you claim also: "Koepsell spews forth a series of ad hominem allegations against the reviewer, disputes no actual point of substance, and tries to explain away his other mistakes as "proofreading" errors (yeah, right)"
What "series" of ad hominems are you speaking of? I raised a legitimate concern given Holman's past positions and potential vested stake in the outcome of this debate. I see nothing else that could be characterized as an ad hominem. Please enlighten me?
Not sure why even legal scholars like yourself must resort to vitriol. My aims and goals are to change public policy about gene patenting. My arguments and understandings of the current state of gene patenting accord with those of many other legal scholars and philosophers, and my methods have always been the use of logic, ontology, and argument rather than personal attacks. This issue seems to have raised the ire of patent attorneys especially, even as scientists and progressive-minded lawyers have rallied to the cause.
All my best,
David
Monday, August 17, 2009
Tide is turning in Australia?
An ongoing inquiry and effort in the Australian Senate looks to be heading toward a ban there on gene patents. Let's hope it sets the stage for similar moves in other countries and regions.
Sunday, August 16, 2009
Monday, July 20, 2009
We're all commoners now
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.
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.
Monday, July 6, 2009
Speech rights and innovation
I am working on a paper for a special issue of The Monist, forcing myself to refine and expound on themes I have developed in the past about artifice and expression. In the course of it, I have come to see the strength of the ACLU's arguments about free speech. They are quite technically right, and we should acknowledge that intellectual property is a governmental interference with speech rights. It might well be one we are willing to endure, like so many other speech rights we have chosen to let the government curtail, but it is simply a governmental restriction on speech. If you own the copyright of a song, you are granted a monopoly, by the grace of the sovereign, over that song for an obscene (see above) period of time. During that time, I cannot record your song, even with my own creative arrangement of instruments or voices, or editing of the lyrics, without paying you for that pleasure. So, my speech has been restricted. If we take the court's current, small "l" liberal interpretation of what constitutes speech then I'd argue that building a machine, which after all expresses an idea (brings an idea into the physical world outside of a mind) is as much a matter of free expression as sculpting a statue could be argued to be. Patents limit my right to express certain ideas, just as do copyrights. One way to get beyond the implications of these restrictions is to make IP all a matter of private contract: agreements between authors/inventors and end users, without the institutional necessities of government (except, maybe, the courts in case of breach). This is precisely what is going on with the use of copyleft, creative commons, open source, and other forms of licensing that avoid traditional IP laws. Seems to me that this sort of private alternative to big government bureaucracy ought to appeal to conservatives... if there are any left.
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