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December 21, 2009



Why does Caulfield's finding that there is no evidence to support gene patenting as impacting research not surprise me? The whole "anti-commons" hysteria is driven by "wishful thinking" without factual evidence to support it.

Of course, some of us are unconcerned with utilitarian arguments, and focus instead on the ethics of taking what are essentially laws of nature, unmodified in any significant way, and turning them into profitable monopolies. I argue in my book Who Owns You that “isolation and purification” of genes, by means essentially the same as that used naturally by mRNA in reading genes, is not inventive, and infringes upon what I call a “commons by necessity.” The genome is such a commons not because of utilitarian agreements about enclosing a space (like we make with national parks) but because it is simply “unencloseable,” like laws of nature, mathematics or radio spectra. I argue that attempts at enclosure are a priori unethical because of this, and not due to any utilitarian concerns.


Be careful in making arguments based on "ethics." In my opinion, that's a very slippery slope. I find too many arguments that are based on something being "unethical" are due to a person's subjective view of what the "ehics" are. For example, I find certain types of stem cell research to be an "ethical and moral" concern because of my view (driven by my particular faith view) of the particular ethics and morality. But others do not because they have a different view.

More importantly, characterizing the “isolation and purification” of genes, as carried out by a researcher in a lab, as essentially doing what occurs in nature is, in my opinion, a gross and inaccurate overgeneralization. For example, PCR and electrophoresis used in such research are not what "nature" does.

I also find your argument that "attempts at enclosure [of genomes] are a priori unethical" illogical. Patents don't (and can't) enclose the genome: that's what in "nature," not the isolated geneic material which does not exist in "nature." For example, cDNA which is an isolated genetic material does not exist in nature, only in the lab.

Dear David:

So we have come to it, haven't we? I respect your ethical views, and I'm sure you respect mine (that it is more unethical to structure patent law in a way that discourages disclosure and investment, so that we may hew to some (your) standard of ethics but not have the benefits I think the patent system brings to diagnostics and therapeutics). We disagree, and that's fine.

But it does render the dialog a little futile, since we can't agree to adopt your ethics (in view of our own) and you have no use for our "utilitarian" arguments, refusing to see the ethical implications of those arguments. It is unfortunate, but I think your comment solidified in me the impression that the only thing left is to agree to disagree (and of course espouse our respective positions to the undecided).

Happy holidays, David. I hope to see you again in the New Year.

It is interesting that David is "unconcerned with utilitarian arguments" yet chooses a very utilitarian approach in taking one side in this debate to pawn his book. Ni$e moral ground.


There is actually substantial evidence that patents have increased basic and applied research as well as dissemination of these technologies. Those countries with weak patent protection (nonexistent) for genetic inventions lag both in basic research and applied research in genetic engineering. The most likely reasons for this is not only the incentive that a property rights give for investment, but also the incentive they give for people to spend money disseminating information.

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