Patented Genes: An Ethical Appraisal
Sagoff, Mark, The World and I
The biotech industry's pursuit of patents on products of nature raises questions about intellectual ownership of materials that are discovered rather than invented.
On May 18, 1995, about 200 religious leaders representing 80 faiths gathered in Washington, D.C., to call for a moratorium on the patenting of genes and genetically engineered creatures. In their "Joint Appeal Against Human and Animal Patenting," the group stated: "We, the undersigned religious leaders, oppose the patenting of human and animal life forms. We are disturbed by the U.S. Patent Office's recent decision to patent body parts and several genetically engineered animals. We believe that humans and animals are creations of God, not humans, and as such should not be patented as human inventions."
Religious leaders, such as Ted Peters of the Center for Theology and Natural Sciences, argue that "patent policy should maintain the distinction between discovery and invention, between what already exists in nature and what human ingenuity creates. The intricacies of nature ... ought not to be patentable." Remarks such as this worry the biotech industry, which has come to expect as a result of decisions over two decades by the U.S. Patent and Trademark Office (PTO) and by the courts that genes, cells, and multicellular animals are eligible for patent protection. The industry is concerned because religious leaders have considerable influence and because their point of view is consistent with the longtime legal precedent that products of narrate are not patentable.
Representatives of the biotech industry argue that their religious critics fail to understand the purpose of patent law. According to the industry view, patents create temporary legal monopolies to encourage useful advances in knowledge; they have no moral or theological implications. As Biotechnology Industry Organization president Carl Feldbaum noted: "A patent on a gene does not confer ownership of that gene to the patent holder. It only provides temporary legal protections against attempts by other parties to commercialize the patent holder's discovery or invention." Lisa Raines, vice president of the Genzyme Corporation, summed up the industry view: "The religious leaders don't understand perhaps what our goals are. Our goals are not to play God; they are to play doctor."
The differences between the two groups are not irreconcilable. The religious leaders are not opposed to biotechnology, and the industry has no interest in being declared the Creator of life. The path to common ground must begin with an understanding of the two purposes of patent law.
Patent law traditionally has served two distinct purposes. First, it secures to inventors what one might call a natural property right to their inventions. "Justice gives every man a title to the product of his honest industry," wrote John Locke in his Two Treatises on Civil Government. If invention is an example of industry, then patent law recognizes a preexisting moral right of inventors to own the products they devise, just as copyright recognizes a similar moral right of authors. Religious leaders, who believe that God is the author of nature (even if evolution may have entered the divine plan), take umbrage, therefore, when mortals claim to own what was produced by divine intelligence.
Second, patents serve the utilitarian purpose of encouraging technological progress by offering incentives--temporary commercial monopolies--for useful innovations. One could argue, as the biotech industry does, that these temporary monopolies are not intended to recognize individual genius but to encourage investments that are beneficial to society as a whole. Gene patents, if construed solely as temporary commercial monopolies, may make no moral claims about the provenance or authorship of life.
Legal practice in the past has avoided a direct conflict between these two purposes of patent policy--one moral, the other instrumental--in part by regarding products of nature as unpatentable because they are not "novel. …