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Chapter 4
- State University of New York Press
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Chapters 2 and 3 discussed some of the scientific and legal aspects of DNA patenting. At this point it should be apparent that there is currently a solid legal foundation for DNA patents, although lawyers and judges continue to argue about various legal issues in DNA patenting. In the remainder of the book, we will use this scientific and legal framework to consider the moral and social issues regarding DNA patents. Should DNA be patentable? If we accept DNA patenting, how should we regulate or control the patenting of DNA? These are moral questions relating to the justification of patenting laws and policies. This chapter will present moral arguments for DNA patents. Chapters 5 through 9 will address various moral arguments against DNA patents. Although this chapter will present a moral analysis of this topic, many of the premises used in various arguments and counterarguments will depend on economic, social, psychological, and biological facts and assumptions. CONSEQUENTIALISM AND DEONTOLOGY REVISITED Chapter 1 indicated that this book would examine consequentialist and deontological arguments for and against DNA patents.1 Chapter 3 explored one of the most influential consequentialist arguments for intellectual property protection , utilitarianism. This theory also offers some justification for DNA patents. According to the utilitarian view, DNA patents should be legal because they are likely to lead to a greater balance of good/bad consequences for society. Although DNA patents may have some harmful effects, the good effects far outweigh the bad effects when one considers the economic, scientific, medical, 63 4 Arguments for DNA Patenting and agricultural benefits of DNA patents. Of course, it is possible that one might tally all of the various effects of DNA patents and reach the opposite conclusion .Thus, one may make consequentialist arguments against DNA patents. Consequentialist arguments for or against DNA patents are forward-looking and depend heavily on empirical facts and assumptions relating to the likely effects of DNA patents on society. To evaluate these arguments, one must have a good understanding of the effects of DNA patents on science, medicine, agriculture , industry, and culture (Resnik 1997; Resnik 2001a). Chapters 6 through 9 will consider consequentialist arguments against DNA patents. Most of these arguments raise the objection that DNA patents threaten science, agriculture, medicine, and our respect for the value of human life. Chapter 6 will introduce a strategy for evaluating threats known as the Precautionary Principle. Chapter 3 also discussed the libertarian argument for intellectual property , which takes a nonconsequentialist or deontological approach to the issue. Libertarianism is generally regarded as a deontological theory because its key terms are not defined by referring to the consequences of actions. Libertarians hold that all human beings are endowed with certain natural rights such as rights to life, liberty, and property (Nozick 1974). A libertarian argument for free speech, for example, would derive this right from an inherent right to liberty and not from an analysis of the overall good consequences of having rules in society that allow free speech. A libertarian argument for DNA patenting would focus not on the consequences of patenting rules but on the inherent right to patent, which would be based on the right to property. This book will also examine deontological arguments against DNA patents. Chapter 6 will examine the deontological argument that DNA patents are immoral because they violate human dignity (Resnik 2001b). THE LIBERTARIAN ARGUMENT FOR DNA PATENTS The U.S. Constitution addresses many different rights, but it does not speak of a right to patent. Patenting entered the Constitution as one of Congress’ enumerated powers, similar to the power to raise taxes, spend money, coin money, declare war, or regulate interstate commerce (U.S. Constitution 1787, art. 1, sec. 8). It is Congress that has the power to grant patent rights to inventors (for limited times), which it does through the Patent Act.The Patent Act, however, does not create a federal right to patent; it merely states rules the government will follow in deciding whether to grant a patent (U.S. Patent Act 1995). Once a person obtains a patent, the patent becomes his property, and he therefore has property rights that are protected by the fourteenth Ammendment’s due process clause (Resnik and De Ville 2002). If one has a patent, the government cannot take it away without due process of law. However, U.S. laws do not create a legal right to patent. Is there something like a moral right to patent? 64 Owning the Genome [34.206.64.143...