Sunday, August 23, 2009

New Book Perpetuates Popular Misperceptions Surrounding Gene Patents

I was recently invited to review a book entitled "Who Owns You? The Corporate Gold Rush to Patent Your Genes" for the Notre Dame Philosophical Review, an online publication. My review is available here.

Based on the title, I had some idea of where the book was going, but was frankly shocked by the gross misstatements of patent law, particularly with respect to so-called "gene patents." For example, at one point he states that one who has "successfully filed a patent over a non-engineered sheep gene [suddenly becomes] the owner of at least a part of every new and existing sheep in the world." Later he argues that gene patents "might be an affront to individual liberty and equality" because patent owners "have rights over parts of ourselves over which we as possessors of those parts have no particular rights." He goes on to conclude that "having babies would actually technically violate a patent if that baby carries a patented gene given it is the result of an unauthorized reproduction." He then asserts that "technically, each of us carrying a gene that has been patented runs the risk of making unauthorized reproductions simply by virtue of reproducing. When we passed that gene onto our progeny we have technically violated the patent."

All of these scenarios would indeed raise serious ethical concerns if they had any basis in reality, but in fact all are mere figments of the author's imagination resulting from his profound misunderstanding of patent law. I would guess that most readers of this blog recognize how badly this book mischaracterizes the nature of gene patents. Unfortunately, with celebrities like Michael Crichton making similar assertions, these alarmist and irrational fears surrounding gene patents have been adopted by some members of Congress, as exemplified by the bill introduced a couple years ago by Congressman Becerra to outlaw gene patents (H.R. 977, 110th Congress (2007)).

The author of the book, David Koepsell, has posted his response to my review, which questioned my motives based on my past employment in the biotechnology industry but failed to identify any substantive errors in my attempt to correct his misstatements of law.

The author's response to my book review seems to have generated more controversy than the review itself, as exemplified by this blog post by a law professor at the University Chicago.

The book was also panned by Patent Doc Kevin Noonan last June (I published my review prior to seeing Kevin's take on the book).

39 comments:

David said...
This comment has been removed by the author.
David said...

Actually, Chris, Noonan panned my post at IPWatchdog, not my book. He had not yet read book yet, as you still seem to have totally missed the bulk of it. See my point-by-point response to your allegations of error here

Given your penchant for accuracy, I thought I'd correct that bit of the record for you.

all best,
David

David said...

...and I am not trying to be snarky, I really just wanted to make it clear that Noonan at most was panning the title of my book, and my post at IPWatchdog, and not the book itself which he had not yet read. I expect if he does read it, he'll have the same or similar objections you have, though.

all my best,
David

Dale B. Halling said...

Chris, unfortunately this is just another in a series of anti-patent diatribes by people who have not taken the time to understand the law or the facts. This decade has seen a concerted effort to demonize our patent system. One of the most egregious cases has been the attempt to suggest that intellectual property rights are not consistent with property rights. The proponents of this theory state that property rights are based on “scarcity.” This is incorrect both historically and logically – For more information on the fallacy that property rights are based on scarcity see http://hallingblog.com/2009/06/22/scarcity-–-does-it-prove-intellectual-property-is-unjustified/

Michael R. Samardzija said...

David,

I have read your book and I agree with Chris's review of your book. Having come from a university setting (full disclosure: I am in private practice representing clients in the biotech sector although I own no shares directly in any biotech company), I must tell you that faculty fears about lawsuits are imaginary. If anything, I have encountered faculty members that are fiesty and eager to push the envelop.

I would have loved to read about your position with the facts and law interpreted in their current state. However, being that your arguments are flawed by these factual and legal statements, I find it difficult to understand the logic to its conclusion (fruits of the poisonous tree). Please note that it is not my position that your argument is poisonous. I am open to consider an argument so long as you are not distorting the law and the facts.

Cordially,
Michael

David said...

Michael,

Since you read the book, you'll note that the central argument is not an economic one, nor a practical one, nor a legal one, but rather an ethical one. The summary of the logic of the argument is up at my blog

I believe it addresses your question, and hope it provokes some commentary and discussion there (it's easier than keeping track of all the various blog discussions).

As for my responses to Chris, linked to on my comment above, they explain why I disagree that I am either distorting the law or facts. Please feel free to discuss your disagreements with my position on that as well at the WOY blog.

Thanks for reading and keeping an open mind.

all my best,
David

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