WOW

...on holiday at the moment, and this keyboard is too odd to do a detailed post, but suffice it to say for the moment that I am stunned and thrilled that the District Court ruled against Myriad! Much more soon!

Commons Sense

One of my recurring frustrations in making my case against gene patents is the failure by some to grasp the argument I am trying to make regarding the nature of "the commons". Perhaps I have been unclear, or maybe the approach I am taking to property law and justice is too far afield from those more frequently made to be immediately understood. Yesterday, however, I gave a guest lecture in an ethics course for ICT students (software programmers, mostly), and gained a lot from the experience. These students not only grasped the argument, but embraced it, and helped to clarify a subtlety that I need to elaborate upon in defining the "commons by necessity" that I believe genes and other parts of the universe belong to.

Briefly, to summarize, I argue that the justice of property rights derives from the logical and practical ability of people to enclose a space, and the need for a rival to use violence to dispossess a possessor of the space. Thus, property rights in land and movables are grounded in these brute facts. There is no such grounding for intellectual property rights. Moreover, there are parts of the universe that cannot be justly owned, and IP claims over these "commons by necessity" are unjust. These are parts of the universe which cannot be held exclusively by anyone, as a matter of brute fact. Examples include: the laws of nature, radio spectra, and genes which are de facto unencloseable. My thanks to Stephan Kinsella who helped me to realize that this applies, actually, to all ideas, and thus makes all IP law a similar incursion on an unencloseable commons by necessity.

My thanks go to some of the students yesterday who pointed out a fine distinction in the realm of objects belonging to the commons by necessity (as opposed to the commons by choice, which includes encloseable spaces over which we make choices to maintain no private ownership). They pointed out that there are commons not just by logical necessity like radio spectra and laws of nature, but also those that might be called commons by practical necessity which includes sunlight. So one could, given enough time and technical capabilities, enclose the sun and harness its power monopolistically, but this is a very remote technical possibility.

Genes, I argue, are logically unencloseable, and thus clearly belong to the commons by necessity, and attempts to give monopolistic control over them are per se unethical. If there's only one point I hope readers take away from my book, this is it.

**update: I just learned Who Owns You? is being translated into Portuguese! My first book came out in Japanese and Portuguese, so maybe Japan will soon follow suit. I'll keep you updated.

Brief update

The blog is in a holding pattern these days, waiting for courts to do their thing, and trying not to hold my breath. There are still some promising developments to report in the fight against gene patents, including the fact that soon, The Australian Senate inquiry into gene patents should conclude with some form of decision. My friend Luigi Palombi has been heavily involved in that fight, and my fingers are crossed. A good decision there will give us momentum here, and, of course, vice versa.

Also, Congressman Becerra's bill, The Genomic Research and Accessibility Act is once again (or still) on the horizon. I hear that they are looking for a Senate sponsor, and then hopefully, that effort will move forward. The timing is right, with Sebelius confronted with making a decision on the recommendations of the panel regarding limiting gene patents, the ACLU case under deliberation, and continued and growing public attention to the issue, something has to break soon.

Bayh-Dole, IP giveaways, and TARP: an analogy

Were you upset by TARP? You know, the big government giveaway to banks that were "too big to fail"? Many on both the right and the left were outraged at this huge, unwarranted redistribution of taxpayer funds to prop up banks whose woes related to their own mismanagement of risks. Questions remain now about how that money was distributed, including questions about conflicts of interest and the choices of which banks should receive the money. The underlying practical and ethical question is: should taxpayers be forced to underwrite the profits (or losses) of private entities?

Well, the answer given by the experience of the Bayh-Dole Act is: absolutely, stop asking questions. We've been doing this for decades now, and the Bayh-Dole Act is but one example. Publicly-funded scientific research can be used to the exclusive profit of private entities, thanks to essentially the same mechanism behind TARP. The PTO (rather than Tim Geithner) is the arbiter of who reaps the rewards. What is certain is that patent attorneys have profited, and found new places to work in "technology transfer offices," even while there is no evidence that society as a whole (meaning you, the taxpayers) have gotten anything we wouldn't have gotten without the act.

Well now those crying about the SACGHS report calling for slight modifications in the patenting of human genes, are claiming that this will totally undo Bayh-Dole. Of course, this is ridiculous, as the SACGHS suggestions do not go nearly far enough in recognizing the immorality of allowing exclusive control over parts of nature. If only the Congress would look critically at Bayh-Dole, and undo it completely as yet another government-sponsored redistribution of wealth from the poor to the rich. We could also talk about how it has corrupted science, and academia, and leads to all sorts of new conflicts of interest, but that's for another time. Suffice it to say that hypocrisy abounds when it comes to those who profess to embrace free markets. What they really embrace is state-supported profiteering on the backs of taxpayers. Bayh-Dole is but one example, as is IP law in general. And now that the corporations can influence the political debate directly through political contributions, the fight for our individual rights seems ever more Sysiphaen.




UPDATE Bahy-Dole and our lesser angels: did tech transfer, Bayh-Dole, and IP prompt a recent multiple murder??

Scientists get it

A very nice and thorough review at Yalepatents.org, by Joseph B. Franklin. Unlike many in the patent community, he comprehends the ontological argument I make about the injustice of gene patents, as well as my broader arguments about IP law and its lack of grounding in natural law.

I've also heard from attorney, engineer, and professor Kenneth M. Alfano of the University of Michigan, who writes an excellent piece for the Mississippi Law Journal arguing that the doctrine of non-obviousness should bar gene patents. His reasoning is a well-considered expansion of some existing arguments, and breaks new ground in this fight. It's good to see more people paying attention, and making these necessary arguments, and I hope to collaborate with him on an editorial piece.

**UPDATE** The Boston Globe today (Feb 1) has a good editorial coming down on the right side of this issue.

LA Times hits the nail on the head

Echoing many of my own sentiments, this editorial in the LA Times gets it right. The patents involved cover naturally-occurring entities, not artifacts, and as such fall squarely outside of what ought to be considered patentable subject matter. I have drafted an editorial of my own which I am shopping around, trying to focus the debate on this crucial issue, and clear up the purposeful confusion generated by pro-gene patent attorneys. As usual, Kevin Noonan over at Patent Docs disparages the editorial authors for getting everything wrong and not understanding patent law. This is the typical line. We understand it completely, just not the way you want us to do so, Kevin. Your interpretation strains logic, and reason, and protects your clients and your vested interests, but the public is beginning to see through this charade, and challenge the status-quo. Let's hope the judge does too.

Nice Review in the Yale Journal of Biology and Medicine

Since it's Open Access, I'm also reproducing it here in its entirety:

Copyright ©2009, Yale Journal of Biology and Medicine
Who Owns You? The Corporate Gold Rush to Patent Your Genes
Reviewed by Molly C. Kottemann
Molly C. Kottemann, Yale University, Department of Genetics;

David Koepsell
Who Owns You? The Corporate Gold Rush to Patent Your Genes.
2009. Wiley-Blackwell: West Sussex, UK. ISBN: (Paperback) 978-1405187305. US $24.95 200 p

This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial No Derivatives License, which permits for noncommercial use, distribution, and reproduction in any digital medium, provided the original work is properly cited and is not altered in any way.


“Science cannot stop while ethics catches up,” claimed the president of the American Association for the Advancement of Science in 1950. In Who Owns You? The Corporate Gold Rush to Patent Your Genes, the author, philosopher, and legal scholar David Koepsell describes and dissects the tangle that results when science, in the form of wide-scale genomic sequencing, is permitted to proceed without a strict ethical and legal framework. Part primer, part prescription, Koepsell’s book offers a portrait of the current state of sequencing technology and the laws that regulate the use and status of its products, then proceeds to interrogate the fundamental validity of our existing system.

It is surprising — not to mention existentially disturbing — to learn that more than 20 percent of the human genome is currently owned by corporations, research institutes, and universities. Even more surprising is that the author claims that these patent systems have been cobbled together in a manner that is largely unmindful of legal precedent or philosophical soundness. Despite the sensationalist title, Koepsell generally steers clear of reactionary recoil, instead providing a measured consideration of the issues that arise at the intersection of intellectual property and human biology.

Beginning with the as-yet ignored basics, the author first deconstructs the relationship between genes and people, deftly highlighting the difficulty in owning and regulating the former without infringing upon the rights of the latter. Next, he sets out a history of patent law and how it traditionally has treated naturally occurring objects and resources, pointing out the discrepancies between these treatments and the management of genetic property rights. Finally, Koepsell evaluates the pragmatic consequences of this regulatory practice and examines our current system to see if it is tenable within the context of scientific progress.

At a time in which science is becoming increasingly rarified, the author presents a refreshingly interdisciplinary treatment of his subject. Difficult concepts in biology, policy, and ethics are each patiently explained, making it a book suitable for readers of diverse backgrounds. The author’s own background in philosophy, however, lends the text a syntax and vocabulary that may be unfamiliar — even uncomfortable — to the scientist or doctor. In this sense, the book feels subtextually targeted at legal scholars or philosophers despite its ambitions toward broadness, but Koepsell’s obvious passionate belief in the topical importance of this debate maintains the reader’s interest.

Who Owns You? is the first long-form, comprehensive treatment of the implications of gene patenting. As such, it deserves much credit for bringing the debate into the public eye, though it’s no template for policy change in itself. Perhaps most important is its application of philosophical analysis to bio-policy, an underutilized approach critical to scientific advancement. Koepsell’s book serves as a worthy starting point for anyone interested in interconnecting genetics, property law, and philosophy.