Should Genes Be Patented?, a recent article by engineer David Holcberg, writing in the Objectivist Capitalism Magazine, answers “Yes”. The article’s reasoning illustrates the confusion on the part of libertarians who defend intellectual property. Holcberg, being an Objectivist, does not even consider whether patent rights are valid property rights; he takes this for granted, and only asks whether they should be extended to cover genes.
Holcberg originally opposed patents on genes, arguing back in 2000 “that naturally occurring genes should not be patented because they are not inventions, but discoveries of what already exists in nature” (emphasis added). What is somewhat amusing is that Holcberg changed his mind due to reasoning later supplied by the Patent and Trademark Office (PTO), a federal agency. Amazing, government agencies not only defend us and protect us, they also help us find solutions to difficult philosophical issues! (By the way, Holcberg’s flip-flop and struggle with this issue illustratates how non-objective is the distinction between “inventions” and “discoveries”.)
Holcberg accepts the PTO’s argument that “an isolated and purified DNA molecule that has the same sequence as a naturally occurring gene is eligible for a patent because that DNA molecule does not occur in that isolated form in nature.” Writes Holcberg:
The PTO’s argument is that in discovering and isolating a gene, a scientist creates something that has never existed before: the isolated gene. A patent is therefore given as recognition that a gene, once identified, isolated, and shown to have a specific utility, acquires commercial value, value that it did not have before. Only then can it be manipulated and used for commercial purposes.
But note, a gene “discovery” of this sort can only be used commercially if it is first granted a patent (why else advocate a patent, if not to make the thing patented commercially valuable?). But then it is circular reasoning to argue that its “commercial value” justifies granting to the thing the very patent that confers commercial value on it.
In any event, Holcberg has changed is mind. Instead of opposing patents on genes on the grounds that they are mere discoveries, not inventions, he now concludes, “It would indeed be utterly unjust not to grant a patent to a scientist for a gene he worked to discover, isolate, and find a use for.” He does not, however, deny that they are still just discoveries; apparently, the standard itself for conferring patent protection has changed. Amazing! It appears Holcberg has adopted a new rule, something like this: one is entitled to a state-granted monopoly (for how long? 17-18 years? yeah, that sounds objective and “just about right”) on “things” that a person “works” to “discover” if the thing has “commercial value” (that is, after it is given a patent monopoly).
Where in the world does such reasoning come from? It is amazing to me that Objectivists, who pride themselves on trying to find clear, rational, serious justifications for their moral and political views, would endorse such sloppy, ambiguous, vague, and circular reasoning. Of course the reason is that Rand herself made a mistake: she incorrectly concluded that there should be property rights in creations such as inventions; and now the Objectivists are stuck trying to square the circle, instead of taking the easy way out–admitting Miss Rand got this one wrong.
Interestingly, the PTO recognized one danger of extending patent rights to genes–the patentee would theoretically own the body of anyone else having that gene! This is because the person whose body contains the patented gene is “using” the gene, thus infringing the patent. Holcberg cheerfully buys into the PTO’s makeweight argument extricating itself from the difficulty its own absurd new property right creates:
But if isolated genes identical to genes in our own bodies can be patented, wouldn’t we be violating their patents just by being alive and making use of our genes in our metabolic processes?
No, argued the PTO. “A patent on a gene covers the isolated and purified gene but does not cover the gene as it occurs in nature. Thus, the concern that a person whose body includes a patented gene could infringe the patent is misfounded. The body does not contain the patented, isolated and purified gene because genes in the body are not in the patented, isolated and purified form.”
Well, lucky us! =Whew= that was a close one; thank heavens, a government agency confirms that such concerns are “unfounded” (in its view). But who knows, maybe a court will someday accept the PTO’s argument in favor of genetic patents but strike down the makeweight argument, thus opening the door for a slave-society with genetic scientists owning the rest of us. Well, who are we to stand in the way of Randian justice?
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