Three cheers for Crichton, who points to an abomination in patent law (NYT)--the Patent Office's decision to allow patenting of genes. I have always been astounded that this policy came down, although you can see that it would make lots of money for various parties. If I could copyright a common word I'd make a pot of cash, too, but would I deserve it? Would it encourage more words, or more accurately, would it encourage more books?
No. A lucrative copyright on a book encourages more books, but a copyright on a word stops new books.
And even this metaphor is stretched too thin to show the true lunacy of patentable genes. A closer analogy might be staking an ownership claim on an interesting star, and charging money for any research on it. This is like the Hepatitis C genome, which is privately owned now, and which earns money for the owner when the disease is researched.
Patented genes lead to the situation where one has to pay royalties on a genetic test, not because the test is patented but because the gene it tests for is. According to Crichton, the test for BRCA genes 1 and 2, which looks at a propensity to breast cancer, is inflated by royalty income paid to the owner of the two genes.
Perhaps the best analogy would be patented elements. Present everywhere, invented by nobody. I'm not familiar with patent history, but I suspect the door was opened when some novel compound was patented. Whereas it would be sensible to patent a process that allowed formation of the compound, if such process was not found in Nature, it makes no sense to patent the compound itself, since it could occur naturally by other means.
Fortunately, Xavier Becerra, a Democrat of California, and Dave Weldon, a Republican of Florida, have sponsored the Genomic Research and Accessibility Act, to ban the practice of patenting genes found in nature. As Crichton says, the bill deserves our support. The current practice does not benefit society, only a few lucky companies. Since the original intent for patents and copyrights was to reward creativity and innovation, this recent policy decision must be overturned.
We have to assume that, since most articles I found with Google look at the downside of gene patenting, only a few monied players wanted this and found allies in the Patent Office. Crichton thinks the US Patent and Trademark Office misinterpreted the Supreme Court decision allowing patenting of novel life forms. Personally, I find that decision much too broad.
The patent decisions seem of a piece with copyright extensions and vigorous prosecution of infringers. The only thing being protected is property, and that of only the pre-existing wealthy. Why should Disney continue to enjoy copyright on work done by people no longer living? Intellectual property, like personal property, is not an inalieanable right, but a privilege granted by society. Personal property is somewhat variable and subject to seizure, with eminent domain, and only valued according to society’s wishes. (Not that I am happy with the Kelo decision which expanded eminent domain.)
It is appropriate for society to set some limits on what is definable as intellectual property.
