Book review: David Koepsell’s Who Owns You?:
The Corporate Gold-Rush to Patent Your Genes
Science & Technology Writer/ Policy Analyst
Journal of Evolution and Technology - Vol. 20 Issue 2 – December
2009 - pgs 80-85
Who Owns You: The Corporate Gold-Rush to Patent
Your Genes. David Koepsell. Wiley-Blackwell,
Pasteur patented a form of yeast for making beer in 1873, and scientists received patents for hybrid plants in the early 1900s. In the 1980s, however, patents issued on drugs derived from genetically engineered human proteins and genetically modified bacteria intended to break down oil brought activists out of the woodwork. Bioconservatives challenged the patents for moral reasons and liberals for economic reasons based on their own system of values.
With the more recent ability to sequence genomes and the subsequent increase in gene patents, opposition has once again resurfaced. This year the ACLU, representing a number of clients, is challenging the constitutionality of patents on two breast cancer genes and the proprietary licensing of a diagnostic test to detect the presence of these genes.
In Who Owns
You?: The Corporate Gold-Rush to Patent Your Genes, David Koepsell, trained
as a lawyer and philosopher, approaches the topic of gene patents by discussing
the science of
To discuss the first hot button of gene ownership and perceived
issues relating to personhood relating to patenting genes, it is first necessary
to consider the basics of patenting
Koepsell's discussion should take the fight out of any critic’s moral argument against patenting genes. Yet it is unclear why the author chooses to repeat the concept of ownership of genes throughout the book, as well as the title. If the reader is not knowledgeable about patent law and misses several sentences which accurately state that patents are not a possessory right, together with the reference to the Thirteenth Amendment, they may actually believe patent holders own genes, rather than owning a patent. The latter is, of course, totally different. This is the first weakness of the book. The concept would be less confusing to the reader had the repeated use of “owning genes” been more rigorously and consistently qualified throughout. Koepsell is well aware of this issue, and he concedes nobody actually owns genes. Why, then, insist on such misleading and tendentious language?
To press the second hot button in the title, corporate greed, Koepsell credits Craig Venter as leading “The Corporate Gold-Rush to Patent Your Genes,” and the mere mention of Venter's name is guaranteed to rally critics of patenting genes. But in reality, a number of companies patented genes decades earlier than Venter. In developing this theme of profit and greed, Koepsell claims that legal errors were made by the courts in allowing gene patents. He calls for “reasoned introspection,” since he believes the American federal government failed to provide adequate public discussions. This argument assumes that public input is crucial for public decision making on the legality of gene patents.
Compare the situation that arose in 1976: when confronted by the novel and misunderstood field of genetic engineering, scientists in the field organized the Asilomar Conference to discuss the future direction for their research. This meeting engaged the public through education and addressed public perceptions, but did no involve the public decision making in the highly specialized field. Today, genetic engineering remains harmless, and Asilomar is a successful paradigm for evaluating the consequences of emerging technologies.
In contrast, lawmakers in the
If you were an American taxpayer in the late 1980s and
1990s, you helped pay for the sequencing of the human genome. In 1988, James
Watson justified the hefty $3 billion price tag by convincing Congress that the
project had the potential to advance medical treatments and provide a
tremendous boost to the biotechnology and pharmaceutical industries. In Origins of the Human Genome Project, Robert
Science administrators and members of Congress who shepherded the budgets for genome research (and their counterparts in other nations and international organizations) supported the project not only because of its medical benefits, but also because they saw it as a vehicle for technological advance and creation of jobs and wealth. The main policy rationale for genome research was the pursuit of gene maps as scientific tools to conquer disease, but economic development was an explicit, if subsidiary, goal. (Cook-Deegan 1994.)
While Venter and other biotech companies
have legally patented genes, they are not alone. Educational institutions and
hospitals, and even the
Koepsell rightly gives attention to the
case of Moore v. Regents of the University of California, where
Notably absent from Koepsell’s book, however, is the inconvenient truth about government greed, notably the Clinton Administration’s actions that led to the demise of the Human Genome Diversity Project (HGDP).
In 1991, a group of scientists led by Luca Cavalli-Sforza of
The Department of Commerce filed for a second patent
on a cell line from a native of the
Debra Harry, an activist and member of an advocacy group called The Indigenous Peoples Council on Biocolonialism, then called for a boycott of the HGDP. The strong and persistent opposition that Luca Cavalli-Sforza and his colleagues received from such groups led to the program’s demise. A 1997 National Academy of Sciences report recommended that the National Science Foundation and the NIH no longer fund the HGDP.
By selectively choosing the facts, Koepsell presents an unfair argument for the prevalence of corporate greed. This may persuade readers who are unfamiliar with the full story, but it can only undermine the book’s credibility for those who are more knowledgeable in the field. They will, rightly, see the book as portraying an incomplete and unrealistic picture. This is the second weakness of Who Owns You?
Koepsell uses the strategy of placing the current biotechnology
infrastructure on trial, rather than providing an example where the concept of
a genetic commons has achieved success or adequately demonstrated its economic
effectiveness. This is the third weakness in his case. Despite Koepsell’s
argument, a number of developed countries allow the private sector to patent
genes as a means to the end of increased quality of life through wealth
creation, cures for diseases, and useful products.
Historically, useful products were frequently not
developed in the absence of incentives – so society could not receive the
benefits. For example, Scottish bacteriologist Alexander Fleming accidentally
discovered penicillin in 1928 after leaving a Petri dish of Staphylococcus
bacterial culture uncovered for several days and later found it covered with
mold. Fleming then discovered the mold was dissolving all the bacteria
surrounding it. However, he did not file for a patent or pursue drug
development. The antibacterial properties produced by molds in penicillin did not become commercially available until
1941, after the
Scientists have an incentive not to share with others because of the free-rider problem: other parties can benefit from an invention although they did not share the costs of product development. When inventions are underutilized because public goods or services are not developed, a government failure occurs. Situations that lead to government failures require government regulations to correct the situation. Patents provide an economic incentive to commercialize products and ensure they are made available to the public rather than developing trade secrets or not pursuing them.
Following the Cold War, a shift to applied research
took place which led to biotech hubs that included
Because of a lack of incentives to create useful
Because of the interdisciplinary nature of discussions
that relate to the merits of patenting
Because the topic caters to a relatively small audience, this book is part of Wiley-Blackwell's public philosophy series, which engages the public with discussions of topics of public importance. Does the book succeed in this aim? The only other review of the book that I have seen is by Chris Holman (Holman 2009), a patent attorney with a doctorate in biochemistry and molecular biology. His review pointed out Koepsell’s errors in patent law. In response, Koepsell dismissed Holman as unqualified to review his book, since he did not have advanced training in metaphysics (Koepsell 2009). Surely this act is counter to the intentions of the publisher. Unfortunately, it appears that Koepsell will accept no one as properly qualified to review his work unless they possess qualifications similar to his own.
Some activists, including Koepsell, remain determined to take on the tremendous task of challenging, and ultimately overturning, the current intellectual property infrastructure that supports the biotechnology industry. This leads me to the book's fourth weakness: I concur with Holman that Koepsell’s arguments have what might be called a pastiche factor, and that the book was published a decade too late. All of the arguments presented were argued ad nauseam by previous activists without success in influencing public policy, and Koepsell has little to add that is genuinely new.
Despite all the activists’ arguments, including Koepsell’s, it remains unclear how preventing pharmaceutical and biotech companies from seeking profits will speed up the search for cures to diseases. Since the release of Koepsell’s book, advocates of the genetic commons idea have suffered another blow. In Prometheus v. Mayo (2009), the U.S. Court of Appeals for the Federal Circuit unanimously reversed a district court’s ruling and consequently protected the intellectual property of a diagnostic test for metabolites; this test is important in personalized medicine, and the case sets an important legal precedent.
While activists including Koepsell argue against gene patenting, other scholars and activists have taken another route. They are more solution oriented, concentrating on patent reform to overcome ineffective government patent regulation, and on translational genomics to actually find cures for diseases thus justifying the use of hard-earned taxpayer dollars.
Cook-Deegan, R. M. 1994. Origins of the human genome project. Risk: Health,
Safety & Environment. Vol.5. Spring. 97–118. www.piercelaw.edu/risk/vol5/spring/cookdeeg.htm
Holman, C. 2009. Book review of Who Owns You?
Koepsell, D. 2009. Why I believe gene patenting is wrong, although it is currently legal. August 16. p. 6.
Whelan, M. 2006. What, if any, are the ethical obligations of the U.S. Patent
Office?: A closer look at the biological sampling of indigenous groups. Duke Law and
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Wilson, J. 2002. No patents for semantic information. The American Journal
of Bioethics. 2(3):15-16.