Who owns me?

Who owns me?


One of the most disturbing ideas I've encountered in intellectual property law is the peculiar idea of owning and being able to patent naturally occuring gene sequences, such as those in the Human Genome project. Even though we have been fortunate that most of that information is not under restrictive licensing conditions, that the laws allow such a thing is something I find bad enough. How can it be that this holy of holies, the fundamentally defining data that makes every cell in my body uniquely me, should be treated as property to be owned. And if it is owned, why is it not owned by me?

When talking about the idea of “free software” there are a number of ambiguities. The most popular topic is the distinction between zero-cost and providing freedom. But another ambiguity is who is given the freedom, the user, the developer, or the software itself? We aren't accustomed to assigning agent status to software, but what about when the “software” is a gene sequence, and the “compiler” is your mother's womb?

In our society, we argue for the idea of ownership of information, we permit the ownership of living beings, but we deny the ownership of people. Yet, the information that makes a person—his or her “source”—is something that can be bought and sold. Have we drawn the line in the right place?

What if someone comes into possession of your genome and uses that knowledge to create a clone of you? This is still on the edge of what is technically possible, but the pieces are all there: sequences can be used to generate DNA (achieving this on the chromosome scale is still not possible yet—but of course, the information could be in the form of an already extant genome: just one cell of your body is all that is needed); DNA can be used to create a viable zygote, and that zygote can be incubated to an embryo in vitro; the embryo can be implanted in a surrogate mother and brought to term. Maybe someday this will be refined: the sequence might be generated from digitally-coded sequence data, or the surrogate mother replaced by a completely artificial womb. But the key technology for reproducing a human being—even against their will—are available today.

What's more, it might well be legal. Certainly, it is permitted by the intellectual property laws. A medical establishment that removes any part of you has a right to exploit the genes they find there (and of course, a sample of the genes). And who will be the legal guardian of that newly created being? You? The experimenter? A corporation?

It might be argued that no one has abused this right so far, but what kind of defense is that?

It seems to me that it is a natural extension of the freedom of individuals that their genomes must also be free (or most naturally, perhaps, owned by them). Surely you ought to have a right to the data that makes up you, be it in your genes or in your memories.

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Comments

Scott Carpenter's picture

We're going to get in to Monsanto vs Canadian Farmer territory. That's the case where some of Monsanto's patented seeds contaminated a farmer's fields and then they sued him for infringement.

Just wait: you'll be sued for gene patent infringement and then forced to prove that they're really your genes and that you didn't steal them. (And maybe even then you'll still be liable.) ;-)

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Scott C.
http://www.movingtofreedom.org/

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

It is not the gene, as an entity in and of itself, that is patented. Rather, it is its functional characteristics or relative application of a particular version of the gene.

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

If it is the function of a gene that is patented, then what about a similar gene with the same functions? both have almost identical base sequences with the exception of a change in 1 or more codons in this similar gene, so that there would not be any change in the desired function of the gene. The two genes are different even though the function and application are the same.

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

Well, if the gene exists in you or in your parents then that should be considered prior art.

Scott Carpenter's picture

Absolutely, but we better start saving our money now for the lawsuit (or appeals process or whatever) to get the patent thrown out.

Imagine the basketball player with "tall" genes. "We're sorry Mr. Smith, we understand you claim to have prior art on these genes, but we have this injunction against you to prevent you from playing until the matter has been settled in court..."

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http://www.movingtofreedom.org/

Terry Hancock's picture

That [edit: the argument that the patents apply to applications rather than the genes themselves] sounds like evasion to me. Patents have been awarded for "all applications resulting from" gene sequences, when the company doesn't even know what they have. That's the same as claiming the gene itself as property. You can dress it up with double-speak, but the meaning is the same.

Likewise, cell-lines (e.g. of cancer cells) become the property of research institution, completely ignoring the fact that they came from human beings. These are cases of treating discoveries as if they were inventions, and they furthermore ignore what might be thought of as the natural right of a person to own their own genome (just as you (should) own your own body).

This seems to me like an important principle of freedom.

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

I'm a big opponent to patenting or owning any (intellect) idea what so ever. In my belief; ideas are common human property. No one can or should claim ownership of an idea. In my openion the whole patent system is one of the evil products of greed and imperialism. Let alone patenting my genes.

IMO, freesoftware is the manifestation of the good human collaboration and the concept should be applied everywhere.

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

1. You are the product of your tens of thousands of genes, the other genetic material that affects their expression, your past and present environment, and the choices you make and have made. Even if you were right about the ownership of a gene, that would not constitute ownership of you. An author can copyright his book as the expression of his ideas, but owns neither the individual words in the book, nor the ideas themselves.
2. As someone else wrote, if a gene already exists in nature there is no innovation its replication, and innovation is a condition for granting a patent. What might be new is discovering a new use for a gene, etc.
3. A patent is a special kind of ownership. It allows its holder to exclude others from the commercialization of the patented item. Someone patenting a novel use of a gene that happened to be part of your genome would not limit your body from expressing that gene in any way it would otherwise express it.

Scott Carpenter's picture

Let's hope that story ideas don't become patentable, but things like this concern me. With the current "IP" climate, it wouldn't surprise me that much if the USPTO started allowing story idea patents. (More money for an even newer USPTO campus someday, I guess. But hey, at least they're self-supporting.)

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http://www.movingtofreedom.org/

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

But like all patents, they would prevent me from studying myself, coming up with the patent knowledge independently, and trying to commercialize it.

And don't talk about novel. What a joke that is in theory (and a much bigger joke in practice). If Einstein2 was just as capable of coming up with General Relativity, he should be allowed to commercialize it when s/he does (including keeping things zero cost).

Patents are an extension of the mentality of "to the victor go (all) the spoils." Or the mentality of First means everything, second and the rest mean the same: nothing. It is this extremism that makes it possible for a few to be ridiculously wealthy instead of simply better off.

I am waiting for this and other anti-society body of laws to be made a little more equitable, but this won't happen until there is greater competition by the majority of the population for top notch jobs, that is, for when the masses provide enough competition for the elite positions in society (or when they become clued in to what is going on).

Anonymous visitor's picture
Submitted by Anonymous visitor (not verified) on

If a mother's womb is truly the compiler, and the prior art is the parents of the person whose genes are being analyzed and copywritten, then I think parents should start to sue. No one can argue that they have prior art for the genes that exist in my body, since by definition, they came into being when I came into being.

Author information

Terry Hancock's picture

Biography

Terry Hancock is co-owner and technical officer of Anansi Spaceworks. Currently he is working on a free-culture animated series project about space development, called Lunatics as well helping out with the Morevna Project.