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Indiana Journal of Global Legal Studies 11.1 (2004) 1-30

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The Art and Science of Genetic Modification:

Re-Engineering Patent Law and Constitutional Orthodoxies


I am delighted and honored to inaugurate the Harry T. Ice Chair of Law and to have this opportunity to thank my colleagues for their wonderfully warm welcome to Bloomington. They have created a supremely stimulating and collegial environment in the Law School and have done so much to include me in all aspects of this outstanding community. I am extremely grateful to them and to the Ice Miller partnership for the immense privilege of being the holder of the Chair endowed by the partnership in honor of the great Harry T. Ice.

After graduating from Harvard Law School in 1929, Harry T. Ice joined a firm then known as Matson Carter Ross & McCord. At that time, the firm consisted of a small group of talented lawyers; by the time of Harry's death in 1982 it had, under his inspired leadership and guidance, grown into a firm of ninety lawyers with an outstanding national reputation. It has been a particular pleasure to meet Harry's family today and to share their joy at this occasion in his honor.

Shortly after I arrived in Bloomington, Bill Riggs, one of the senior partners of Ice Miller, very kindly gave me a book written by Harry T. Ice about the firm.1 Reading it reinforced my sadness at never having met Harry. Despite his considerable modesty about his achievements, he was clearly a pivotal member of the partnership, inspiring his colleagues through his own example and his love for the firm as a group of individuals engaged in a common purpose. The book whetted my appetite to know more about the man himself, so with the help of Colleen [End Page 1] Pauwels and her excellent staff in the Law School's Library, I learned more about Harry Ice's unstinting contributions to the life of his firm and wider community. He was, by all accounts, always finding ways to assist others to achieve their goals, both within the firm and in Indianapolis, which was the focal point for his many charitable activities. His willingness to make his time and talents available to the many who would benefit from them is reflected not only in his colleagues' comments but also in the newspaper records of his many civic good works.

I trust that Harry would not have disapproved of my topic today, for all that I have heard and read about him suggests that he would encourage a struggling colleague in the law, and I shall hope for that indulgence from you too. The title of this lecture speaks of re-engineering and modification because my topic today is genetic engineering, or recombinant DNA technology. This includes cloning because, as we shall see, even cloning involves a small amount of recombination of DNA: clones are not absolutely genetically identical to the organism from which they are cloned.2

It was our own Hoosier, James Watson, who—in collaboration with Francis Crick, and basing his hypotheses on work by Rosalind Franklin3 —discovered the magnificent double-helix structure of the DNA molecule. This is one of the many scientific structures that we can admire almost as if they were works of art: there is great beauty in that complex but symmetrical form. Watson and Crick did not patent their discovery. In the 1950s,4 it would have been thought both absurd and offensive to patent what would rightly have been regarded as the discovery of a natural element (such as the structure of a molecule or the molecule itself), regardless of whether it was as fundamental to life as this one. A patent grants a limited monopoly right over the subject matter of the patent, as part of a so-called intellectual property, designed to provide incentives for the production of inventions rather than the discovery of natural elements or forces. Although that point has been...


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