This was my answer to question #1 of the Ethics of Scientific Research Philosophy Class from Autumn Quarter 2009
From the researcher’s perspective, is gene patenting a good thing? Articulate your stance on gene patenting and justify your thesis using either Kantian theory or utilitarianism. Discuss and respond to one possible objection to your argument.
The Human Genome Project advanced the technology involved in exploring the genetic code found within the human cell as well as all living beings. Gene patenting, a serious legal and ethical issue, arose from this advance in science and technology. Attitudes regarding the patenting of genes vary among the stakeholders, but from the researcher’s perspective, gene patenting is not a good thing. The ethical nature of gene patenting, however, is ultimately not subject to the perception of the stakeholders. The patenting of genes is not an ethically sound use of intellectual property laws and Kantian ethical theory supports this stance.
A gene is the sequence of nucleic bases, adenine, guanine, thymine and cytosine (A, G, T, C) present in DNA that ultimately produces, via mRNA transcription, ribosome mRNA translation and tRNA assembly, a protein in a cell of a living entity. The technology and science of gene sequencing involves the extraction of DNA from an individual living being and the determination of the sequence of the nucleic bases in that DNA. Defining the particular sequences of nucleic bases that constitutes a gene involves determining what chromosome contains the gene, what portion of that chromosome contains the gene, and determining what protein the gene encodes. The genes and chromosomes are inherent in the total genome of an individual, whether that individual is a bacterium, a plant, or an animal, including humans. Human ingenuity is involved in these discoveries; however, the particular DNA sequence that defines a gene and the protein that it encodes was present within the population long before the advent of gene sequencing.
Patents are intellectual property rights conferred upon an inventor or assignees for a limited amount of time, usually 20 years from the time of filing an application for the patent. A patent guarantees exclusive rights to an inventor to prevent others from using the invention without the inventor’s permission. However, academic researchers have an exemption that allows for the production or use of the invention for research use only, without the permission of the patent holder.
Patents are awarded for an invention based on the following considerations: it is a product of human ingenuity, its novelty, its non-obviousness, its usefulness, and its reduction to practice. Prior to the Supreme Court of the United States’ ruling in Diamond v. Chakrabarty in 1980, living things were held to be unpatentable, since they appeared to fail the aforementioned considerations. However, that ruling changed the allowable items that can be patented to include living beings.
Diamond v. Chakrabarty (1980) involved the patenting of a genetically modified bacterium to clean up oil spills. The ruling, which awarded a patent to Dr Chakrabarty, set the legal precedence for all the subsequent biotechnology patents including genetic patents. The legal leap from a human defined, genetically modified bacterium, which in many ways has the characteristics of being a product of human ingenuity, to the patenting of portions of the genetic code inherent in all living beings, exposed several ethical issues. The legal details of the leap are not relevant to the ethical issues at hand, and will not be discussed further.
A patent on a gene guarantees the exclusive rights to the use of the genetic information and its associated protein. These rights confer on the researcher or assignee a monopoly on the gene and protein that may be present in all living organisms due to the genetic interconnectivity of all life on Earth. When applied to genes found in the human genome, this property right, to a part of all of our bodies, is conferred to a limited group of people. This essentially treats living beings and people as no more than assemblages of commercial products. This is the core of the ethical issue at hand.
In Kantian ethical theory, the respect of humanity version of the Categorical Imperative (CI) states that one should treat humanity always as an end in itself, never only as a means. Human beings have intrinsic moral dignity or worth, we should not abuse, manipulate, exploit, or deceive people in order to achieve specific goals. The universality version of the CI, that people should act in such a way that one's conduct could become a universal law for all people, is also relevant to this discussion. The concept and practice of gene patenting violates the ethical principle that human beings have intrinsic moral dignity or worth. A property right to parts of a body is different only in scale to a property right to the entire body. Property rights to an individual are a denial of the intrinsic moral worth of the individual. This violation of such an important ethical principle is not a practice that should become a universal law for all people, and therefore, the patenting of genes is not an ethically sound use of intellectual property laws.
Academic researchers are motivated by the “Publish or Perish” nature of academia and have a desire to monopolize information prior to publication. Tenure, promotions, further grants, and possibly reduction in teaching duties are rewards for being the first to publish and significantly contribute to a field. Ideally, academic researchers have no interest in patent protection, while their academic employers, while interested in institutional reputation, may be interested in the financial gain from the monopolization of intellectual property. Non-academic researchers while still motivated by the pure science involved are ultimately motivated by the financial rewards associated with success as well as the financial reward of continual employment. Their employers are interested in the return on the investment made and often insist on the complete ownership of all intellectual property created by the employees.
At first glance, the commercial operation and researcher have a vested interest in monopolizing the fruits of their efforts via patent protection. But researchers should be wary of this approach. Applying the universality version of the CI, they should act such that their behavior should become a universal law but the universality of such behavior would severely hinder further research. Due to the nature of the US Patent system, applications for a patent are not public knowledge, and research into a gene could be unwitting patent infringement. Fear of litigation being such a strong deterrent to action, research would grind to a halt. Hence, one of the prime arguments for gene patenting, that it promotes competition, is compromised by the squelching of all research.
The protections offered by a patent on a gene may provide a motivation to finish first and to beat the competition. Without that protection of the intellectual property rights, the desire to invest resources to an endeavor that would not have guaranteed returns due to monopolization would not be present. The consequences from not competing could be waste of resources and even the avoidance of research. However, Kantian ethical theory is not concerned with consequences; it is concerned with the duty of moral agents to act morally. If all researchers patented a portion of the genome, then individual humans would in essence be parceled out into a mosaic of intellectual properties. Human beings have an intrinsic moral worth and gene patenting is a clear violation of that ethical principle.