Owning the Genome: A Moral Analysis of DNA Patenting

Notes

CHAPTER 3 1. Rights are moral, legal, or political claims that members of society can make against each other (Feinberg 1973). A person who has a right to due process in a legal system can make legal claims against people and governments who attempt to deny him of that right. A person who has a right to vote can make political claims against people and governments who would deny him this right. 2. Although I am careful to distinguish between property rights and the thing that is controlled by property rights I will frequently resort to the more common way of talking about property, which does not attend to this distinction. I do this to make the book more readable, not necessarily more clear or precise. Clarity sometimes must succumb to the demands of style. 3. I am assuming here that DNA sequences exist independently of human beings and are not original works. If one took an antirealist approach to DNA, it might be possible to argue that a DNA sequence can be copyrighted (but not patented) because it is an original work! On the realist approach, DNA exists independently of human beings and is not an original work, although a paper or other publication representing DNA would be an original work. 4. We will explore these slippery slope concerns in more detail in chapter 6. 5. This information was obtained by searching the PTO’s database and using the general search terms, DNA, gene, cell, protein, and mouse. Readers should note that I am construing the category of patents related to a subject matter as broader than the category of patents on a subject matter. Thus, it is not self-contradictory to claim that the PTO has awarded about 16,000 patents on DNA but over 50,000 patents related to DNA. 6. As a side note to the DNA patenting debate, the reader should be aware that protein patents will become increasingly important as researchers develop applications of proteins in drug discovery and diagnosis. Indeed, protein patents may prove to be nearly as important in biotechnology as DNA patents, since human beings have as many as two million proteins but only 30,000–40,000 genes (Service 2001). 7. Reasonable and reasonably are also great wiggle-words in the law. 203 Notes CHAPTER 4 1. The word deontological comes from Greek words deon (duty) and logos (law or science). Translated literally it means “law of duty.” Since all moral theories imply moral duties, one could say that all moral theories, including utilitarianism, are deontological . But this is not how the word has been used in moral philosophy. According to some writers, deontological, refers to acts or rules that are morally obligatory regardless of their consequences (Olson 1967). As Rawls (1971, 30) notes, this view does not make a great deal of sense because “All ethical doctrines worthy of our attention take consequences into account in judging rightness. One which did not would simply be irrational, crazy.” The better way of interpreting the word deontological is to say that deontological theories are not consequentialist, meaning that while such theories consider consequences they do not define moral rightness (i.e., right and wrong) via a direct link to consequences. Utilitarianism, on the other hand, makes a clear and direct connection between the definition of moral rightness and consequences. 2. For further discussion of controversies about rights, see Lyons (1979), Glendon (1991). 3. I use the phrase modern societies because some societies, including the US during the Colonial period, made property a prerequisite for basic rights under the law. Rights granted under the Constitution originally applied to adult, male, property holders. 4. There are some exceptions to my general claims that intellectual properties are not closely connected to individual welfare, dignity, and autonomy. For example, poems, songs, paintings, plays, and other artistic and literary works often bear a close and intimate connection to the individual author. These types of intellectual property would therefore merit greater protection than other types, on my view. This idea accords with Hegel’s self-expression approach to property discussed in chapter 3: intellectual properties that are essential to self expression deserves greater protection than those that are not essential to self-expression. CHAPTER 5 1. There is an important philosophical issue here about deciding what counts as human DNA. As stated earlier, only 2 percent of the DNA found in human beings occurs only in the species Homo sapiens, but this number is a bit of...