[ExI] gene patent challenge

Stefano Vaj stefano.vaj at gmail.com
Tue Nov 3 17:34:41 UTC 2009

2009/11/3 spike <spike66 at att.net>:
> Hey some of you cluemeisters here, check this out and tell me who are the
> good guys and who are the bad guys and why.
> http://www.wired..com/threatlevel/2009/11/genes/

I think the decision is mainly concerned with US legal technicalities,
such as the costitutional relevance of gene patenting, which are
rather immaterial to the broader discussion on who is the good guy and
the bad guy from our POV.

The question, which is not made IMHO for a very clear-cut answer is
the following:

Intellectual property is a prince-granted temporary monopoly invented
in order to reward a private party for
a) paying a small tax (which in the meantime has become irrelevant
both for the inventor and for the prince)
b) investing the money necessary for R&D rather than playing the
free-rider game, thus unraveling the economic feasibility of R&D in
the first place
c) disclosing one's invention instead of (when possible) protect it
with the alternative strategy of "industrial secret", so that at the
end of the monopoly period everybody can profit from it, and
inventions become a part of the "state of the art", suffering a lesser
risk of going "lost" for an unpredictable time.

The problem of course is that
a) monopolies in free-market regimes suffer the notorious related
marked efficiency losses;
b) the existence of a valid and effective patent may prevent other
player from improving on the tech concerned (dissuasion of "inventing
c) the same people may be induced to reallocate their R&D effort to
equivalent or inferior solutions, simply because they are not
protected (encoragement of "inventing around"), rather than in really
innovative techs;
d) patents may be sought, obtained or purchased simply for the purpose
of *barring* the adoption of a technology, or of drawing parasitic
revenues from it at the expense of the system.

Moreover, patents protect inventions which have been the ultimate
fruit of collective, sometimes innumerable efforts and pre-requisites,
and mainly reward the capitalists who find themselves in the position
to profit from the IP system.

This concerns the pros and cons of the IP system per se, which is just
a tool, not some kind of nature-mandated obviousness. For instance,
communist countries have adopted for decades the alternative and
equally plausibile system of "inventor's prize" (not sure the
expression in English is the same).

But the gene patents add a supplementary, specific issue which is
purely internal to the latter in its present form.

The traditional doctrine, much weakened by the US trend of granting
patents also for apple pie recipes in the last decades, is that in
fact what can exclusively be patented is an *industrial* invention. If
something is not industrial, but, e.g., theoretical, commercial,
artistic, etc., it should not be patentable. If something is not an
invention (as in "technology"), but is a discovery (as in "science" or
"technique"), it should not be patentable, nor the employment of the
related knowledge can be monopolised.

Now, a DNA based nanobot surely qualifies for patentability. It has
been argued that genes which already exist in nature, and are simply
identified, described and studied in their possible expression(s) and
correlation with the remaining (epi)genetic scenario, would not.

Personally, even though I am deeply concerned by the underfinancing of
bio research which have no immediate military or safety dividends, I
am inclined to share the mistrust towards the facile granting of bio
patents in this area...

Stefano Vaj

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