Steady the Course: Property Rights in Genetic Material
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Few issues today seem to generate more passion than the question of property rights in the human genome. The entire topic has become enmeshed in a multi-front war that takes place in successively narrower theaters. The battle begins with broad questions about attitudes that one has to property rights, writ large, whether it be in human beings, body parts, tissues, cells, or molecules. Do we think that these elements, or some large portion of them, are, by nature, inappropriate candidates for reduction to private ownership? For those—and there are many—who think that it is immoral or worse to reduce living substances to private ownership, the debate is over. But for those who find these moral objections either insufficient or misplaced, negotiating this initial hurdle requires that others be surmounted as well. Within the traditional economic framework, is the case made for creating private forms of property when “the commons” is useful for delivering at least some kinds of goods and services? That question, in turn, quickly leads to a discussion that is more focused on matters associated more generally with intellectual property law and patent law in particular. The first inquiry asks: Why it is appropriate for the law to adopt a system of patent protection instead of some other form of intellectual property protection, such as copyright or trade secrets? Or more generally, why the use of private property systems at all, as opposed to state systems of bounties for the production and dissemination of this information? But once it is assumed that patent protection counts as the dominant alternative, we must ask how the protection of the genome in its many phases comports with the broader objectives of the patent law on the one hand, and the particular doctrinal requirements of current patent law on the other. Let me state my conclusions quickly at the outset. I am not persuaded by categorical objections to creating property rights in human or other living substances. But once that question is left behind, we do have to face hard questions about the structure of property relations. For that question, I favor all-or-nothing solutions. There are some human and genetic substances that should be left in the public domain, and there are many that should be governed by the ordinary regime of patent protection, with some marginal adjustments for the distinctive problems of dealing with genetic substances and the biochemical agents used to treat them. I am suspicious of programs that seek to tweak the system with a variety of complex arrangements that rely on subsidies, tax breaks, rewards, honors, and, most notably, compulsory licensing to outperform this simpler set of rules. This position leaves a number of important degrees of freedom. All-or-nothing solutions can be altered by varying the length of the patent term or the scope of the patent. They can hold that a patent applies with respect to some uses, e.g., commercialization, but not with respect to others, e.g., basic research conducted on a not-for-profit basis. The argument here is not meant to bias the shift between private and public domain property and strongly endorses the traditional practice of treating the inventions contained in expired patents to fall into the public domain. So much for what the all-or-nothing approach does. But what it does not do is welcome those clever schemes designed to split the difference by weakening the normal rights of exclusion attendant on property rights and subjecting them to either schemes of government condemnation on the one hand, or compulsory licensing schemes on the other. It is tempting to think that the problems of monopoly inherent in any scheme of patent protection could be addressed by some system of forced exchanges, such as those that are involved under the law of eminent domain. But they will not work in this area. There is no coherent scheme to decide which patents should be condemned, or how the government should deal with them once condemnation has taken place. Nor do we have the enormous institutional capabilities to make all patent holders into public utilities who are obliged to do business with all comers under prices that are established and administered by the state. The current system is imperfect on any number of points. It is easy to find examples where current institutions lead to unhappy results. It is surely possible to envision intelligent forms of tinkering about the edges of established doctrine. There is a real question, for example, about the optimal scope of a patent. But the current legal structure, whatever its shortcomings, has fueled the enormous surge in biotechnology in the past generation. It is best to leave well enough alone. The all-or-nothing solutions—either its private property or in the public domain—dominate any and all efforts to carve out some elegant but inoperable middle position. The creation of a property rights system in genetic substances is part and parcel of this general debate. In order to place some order on the discussion, the chapter proceeds as follows: Section 1 addresses the moral arguments against property rights in human materials; Section 2 addresses the choices between common and private property; Section 3 addresses the various schemes for forced reassignment of property rights, first by condemnation and then by compulsory licensing; Section 4 addresses the issue in connection with genetic material. It concludes first that all expressed sequence tags (ESTs) should be left in the public domain, and second that the usual rules of patent protection work about as well as can be expected for most genomic products. We should not let the best become the enemy of the good.
Source Publication
Perspectives on Properties of the Human Genome Project
Source Editors/Authors
F. Scott Kieff
Publication Date
2003
Recommended Citation
Epstein, Richard A., "Steady the Course: Property Rights in Genetic Material" (2003). Faculty Chapters. 403.
https://gretchen.law.nyu.edu/fac-chapt/403
