Academic journal article
By Jones, Ida M.
Journal of Legal, Ethical and Regulatory Issues , Vol. 10, No. 1
Developments in biotechnology raise a myriad of issues relating to intellectual property law and ethics. Intellectual property law and specifically patent law, has been forced to create guidelines for patenting living matter. Patent law permits patent-holders to obtain a limited-time monopoly for patents of novel, useful, non-obvious processes and devices. Matter found in nature cannot be patented. However, processes to discover stem cells and transgenic animals have been approved by the U.S. Patent and Trademark Office. This paper explores the definition of legal definitions of property and intellectual property and the legal basis for patentability of stem cells. It points out some inconsistencies in the laws relating to property as contrasted to the laws of "personhood" and explores ethical issues. It ends with several suggestions to use the information to stimulate critical analysis and evaluation of cases in the classroom.
POTENTIAL INTEREST: Faculty that teach business law and who incorporate business ethics into their courses can use the information in this paper to construct class activities and to enhance their presentation of information on property law and ethics. This paper can be used to generate research projects for students relating to these topics.
"[P]roperty is that sole and despotic dominion which man claims and exercises over the external things of the world in total exclusion of the right of any other individual in the universe" (Blackstone, 1883). Blackstone's declaration forms the core of the traditional common law conception of property and property law: some thing that a person owns, controls and exerts complete power over. Although there has been a gradual shift in the analysis of property under the law, Blackstone's core explanation remains valid. In a market-driven economy, a commonly accepted legal and social definition of property and the legal rights involved are essential. Effective, efficient transfer of these rights is one of the foundations of the free exchange of goods along with an agreed definition of contract law.
Research and advances in biotechnology have created new challenges for the courts and the legal system. Courts must apply property law principles to define legal rights and entitlements to the processes and results of these scientific advances. Specifically, stem cell research has, on the one hand, been heralded as a new scientific wave for developing treatment and cures for intractable diseases and on the other hand, attacked as a scientific symbol of society's moral decay. In this paper, the author presents an overview of the issues that arise with this intersection of intellectual property law, scientific advances and morality and an explanation of how the legal system has attempted to reconcile very different and sometimes opposing concerns. The paper concludes with several recommendations to assist instructors to incorporate discussions of these issues into in class and online discussions that critically analyze these issues.
BACKGROUND: PROPERTY AND INTELLECTUAL PROPERTY
What is property and how is it defined under the law? For the past hundred years, courts and scholars have primarily focused on property as "a malleable, divisible, disaggregable, functional set of rights among people. New property interests can be created in intangibles, as well as tangibles, and in abstract concepts, as well as concrete realities." (Arnold 2002). Under this definition, property includes all manner of things. Property rights are frequently defined as a bundle of rights that include ownership, exclusive control and dominion, and present and future interests (Arnold, 2002). Although in common parlance, property is an "intangible or tangible thing" the legal definition focuses on the property holder's power (and attendant rights) over that "thing."
Real property includes land, easements to land, estates in land (temporary to permanent rights to use land), buildings, vegetation growing on the land and the airspace above and the subsurface below. …