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Nature, Genes, and the Commons: Who Owns You?

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David Koepsell

on 20 May 2016

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Transcript of Nature, Genes, and the Commons: Who Owns You?

Who Owns You?
Nature, Genes, and the Commons
Today's talk:
David Koepsell
Delft, University of Technology
http://davidkoepsell.com

pt 1: the BRCA patents described
pt 2: a priori theory of the commons
pt 3: an ontology of nature and artifact
1998, Skolnick patents mutations found to be correlated to increased risk of breast and ovarian cancers, licensed to his company Myriad.
Gene Patents: BRCA1&2: Case in Point
The patent's claims (the "metes and bounds" of a patent - its territory) include sequences identified in nature linked to a predisposition to cancers
2009 The ACLU and Association for Molecular Pathology sue Myriad and USPTO over BRCA gene patents, claiming they are ineligible subject matter under US Patent Act sec. 101 - District court agrees, appeals court (CAFC) overturns but upholds "method" claims, Supreme Court meanwhile decides "Prometheus" and kicks back to CAFC which doesn't change its mind. Let's consider the reasoning...
Judge Sweet, district court, concludes both product and method claims are invalid as they cover "natural products." S.Ct. has previously excluded from 101 subject matter "abstract ideas, natural phenomena, and products of nature" - the "isolation and purification" argument was deemed a "lawyer's trick"
Myriad decisions:
CAFC overturns, holding that by breaking bonds that ordinarily connect the BRCA1 & 2 genes to the adjoining genome, an isolated, man-made molecule is created, not existing in nature, and thus eligible for patent. appealed to Supreme Court
Supreme Court decides "Prometheus" case, striking down patents on diagnostic methods because they were equivalent to laws of nature." Sends Myriad case back to CAFC to reconsider in light of Prometheus.
CAFC upholds itself, this was appealed to the Supreme Court, Supreme Court reversed, mostly.
The "commons" was at one time land that was consciously set aside by a sovereign for use by "commoners" (for grazing sheep, cultivating, etc.)
A Theory of the Scientific Commons
We could call this "
commons-by-choice
"
it could be enclosed and exclusively possessed (and thus "owned")... a priori justice of ownership of real property is grounded in brute facts of exclusive possession (Reinachian apriorism)
But some things cannot be possessed to the exclusion of others
laws of nature
products of nature
abstract ideas
Commons-by-necessity
(material/logical)... simply cannot be enclosed to the exclusion of anyone.

commons-by-necessity cannot be ethically owned.
(these are specifically excluded by patent law)
The law recognizes a distinction between the "scientific commons" and the "man-made" world of artifacts. Thus, explicit exclusion from patent eligibility of "laws of nature" and "products of nature."
Nature vs. Artifact: A Legal Ontology
Two factors have complicated this and result in confusion:

1) the "isolation and purification" doctrine
2) the distinction between "man-made" and artifacts
Logical implication of "isolation and purification" doctrine: isolated O2 is patent-eligible.
Patent attorneys have argued this point
alleging that because "pure" O2 does not occur in nature, granting a patent on the product is not a patent on a product of nature.
The Ontology of Artifacts
I argue neither isolation nor purification necessarily creates an artifact. Purified O2 is a man-made product of nature
Laws/Products
of Nature
"true" artifacts
synthesized natural products
No human intention
No human design
human intention
No human design
human intention
human design
Question is: but for the design and intention
of a human, would the thing exist? If yes, then no patent
O2, answer is:
yes

Unmodified gene sequences: answer is
yes
Process of identifying a gene: answer is
no
Process of purifying O2: answer is
no
Full transcript