Owning the Genome: A Moral Analysis of DNA Patenting

Chapter 5

The previous chapter introduced the utilitarian argument for DNA patents, which chapters 7 through 9 will explore in more depth. This chapter and the following one will consider some deontological arguments against DNA patents as well as argument that address some of the negative social consequences of DNA patents. Deontological arguments assert that the very practice of DNA patenting is in some way inherently wrong, regardless of its consequences; the wrongness of DNA patenting lies in the act itself. This chapter will address the argument that DNA patents are immoral because they are patents on nature. NO PATENTS ON NATURE? Ever since the courts recognized patents on biological materials, opponents have argued against these patents on the grounds that they are immoral patents on nature. As we saw in the Chakrabarty case, one of the fundamental issues in biotechnology patenting is whether living things are products of nature or products of human ingenuity (Resnik 2001a; Sagoff 1999).The U.S. Supreme Court decided that living things can be patented if they are the result of (or caused by) human ingenuity. The courts and the patent agencies have decided that DNA in its natural state cannot be patented; but also that DNA that has been isolated and purified or in some significant way modified, can be patented, because it results from human ingenuity. Human labor and effort can create DNA in a form that does not exist in a natural state (Doll 1998). Most people who oppose DNA patents are not arguing against the patent system per se, since they recognize the distinction between products of nature 73 5 Patenting Nature? and products of human ingenuity (Evans 1999). Many opponents of DNA patents argue, however, that all DNA, whether created in the wild or in the lab, is a product of nature, not a product of human ingenuity, and therefore should not be patented under any circumstances (Rifkin 1998; Andrews and Nelkin 2001; Shiva 1996; Kimbrell 1997). The press release from the Joint Appeal against Human and Animal Patenting states: “We believe that humans and animals are creations of God, not humans, and as such should not be patented as human inventions” (Joint Appeal 1999, 169). Although this statement mentions only humans and animals, the rest of the declaration implies that a prohibition on patenting should apply to all biological materials (Peters 1997).The Council for Responsible Genetics (2000, 1), a nonprofit group concerned with ethical and social issues in genetics, has adopted a Genetic Bill of Rights, which states: “All people have the right to a world in which living organisms cannot be patented.” These declarations hold DNA should not be patented, regardless of the consequences for science, medicine, or agriculture. The patenting of DNA is simply and straightforwardly immoral, according to these critics of DNA patenting.These declarations also do not recognize a distinction between natural and nonnatural DNA. All DNA patenting is wrong. On the other hand, many international agreements and declarations take a view similar to the ruling in Chakrabarty: they draw a distinction between natural and non-natural DNA and declare that biological materials in their natural state should not be patented. As noted in chapter 3, a 1997 UNESCO declaration condemns profiteering from the human genome in its natural state. According to Article 4 of this declaration, “The human genome in its natural state shall not give rise to financial gains” (United Nations Educational , Scientific and Cultural Organization 1997). Chapter 3 also noted that the EPC holds that biological materials and processes can be patented if they result from an inventive step (European Patent Convention 1998). According to the European Parliament and Council (1998), natural varieties of plants, animals, and processes cannot be patented, but biological materials that have been isolated from nature and purified can be patented. Clearly, any coherent discussion of DNA patenting must resolve the following two issues: (1) Is DNA a product of nature or a product of human ingenuity? (2) Why should there not be patents on products of nature? I will begin with a discussion of the second question. THE UTILITARIAN ARGUMENT AGAINST PATENTING NATURE There are several arguments against patenting products of nature. The argument , which I consider to be the most convincing one, is essentially utilitarian 74 Owning the Genome (or consequentialist) in form. The three other arguments are deontological. According to the utilitarian argument, we should not allow products of nature to be patented...