David Koepsell – Who Owns You?

May 08, 2009

David Koepsell is an author, philosopher, and attorney whose recent research focuses on the nexus of science, technology, ethics, and public policy. He is Assistant Professor, Philosophy Section, Faculty of Technology, Policy, and Management at the Technology University of Delft, in The Netherlands, and Senior Fellow, 3TU Centre for Ethics and Technology, The Netherlands. He is also the author of The Ontology of Cyberspace: Philosophy, Law, and the Future of Intellectual Property, as well as numerous scholarly articles on law, philosophy, science, and ethics. His latest book is Who Owns You? The Corporate Gold Rush to Patent Your Genes.

In this interview with D.J. Grothe, David Koepsell discusses the implications of corporations patenting parts of the human genome, and how current patent practices negatively impact basic scientific research in genetics. He reviews the history of the practice of patenting genes and contrasts private ownership of gene sequences found in nature with that of the public ownership of the work of the Human Genome Project. He contrasts discovery with invention, and argues that patents should apply only to the latter. He details the relationship of human genes being patented with the practices of big agribusiness owning engineered crops, such as Monsanto’s “terminator corn.” He discusses the ACLU’s recent lawsuit against Myriad Genetics on behalf of scientists and cancer patients, and how it may lead to one of the most important legal battles in the history of biotechnology. He talks about “upstream” and “downstream” patents, and how this impacts genetic research. And he discusses various solutions currently proposed for the problems resulting from private ownership of naturally occurring gene sequences.

Mark Colvin, this is point of inquiry for Friday, May 8th, 2009. Welcome to Point of inquiry, I’m DJ Grothe fee point of inquiries, the radio show and the podcast of the Center for Inquiry, a think tank advancing reason, science and secular values in public affairs and at the grass roots. Before we get to this week’s guest, I’d like to invite our listeners to find us on Facebook and on Twitter to get updates throughout the week about the kinds of topics that we care about on the show. I’m happy to have David Capsule on the show this week. He’s an author, a philosopher, an attorney whose recent research focuses on the nexus of science, technology, ethics and public policy. Formerly the executive director of the Council for Secular Humanism, a vital part of the Center for Inquiry. He’s now assistant professor of Philosophy Section in the Faculty of Technology Policy and Management at the Technology University of Delft. And he’s also senior fellow at the three T.U. Center for Ethics and Technology in the Netherlands. He’s the author of The Ontology of Cyberspace, Philosophy, Law and the Future of Intellectual Property, as well as a number of scholarly articles on law, philosophy, science and ethics. He’s formerly Donohue Initiative Fellow in Research Ethics at the Yale Interdisciplinary Bioethics Center, where he did a lot of the thinking on the book that he’s going to talk with me today about. It’s Who Owns You? The corporate gold rush to patent your genes. David Capsule, welcome back to a point of inquiry. 

Hello, DJ Grothe. I’m happy to be back. Thank you. 

Yeah. Longtime. We haven’t talked. You’ve been all over the world. Hi. You’re embarking on what this career in philosophy as opposed to just running a kind of educational nonprofit that dabbles in philosophy? 

Well, yeah, I’ve turned philosophy into my full time profession, and I’m still trying to be out there in the world affecting public policy. But then I’m probably from a more academic position. 

Right, in talking about affecting public policy. Well, that’s why you’re on the show to talk about your new book, which has real public policy implications. Who owns you? The corporate gold rush to patent your genes? David, I’m really optimistic about the future generally. You know, one of the only things I’m no longer allowed to talk about at cocktail parties is, you know, transhumanism and the singularity and all this stuff. But your new book, Who Owns You, describes this kind of future scenario or even. Right. You know how it is right now where corporations are using patents to claim rights over our own genes. And if we’re talking about corporations owning people, this great future of the world tomorrow, it’s actually filled with a kind of slavery. 

OK. I address the slavery argument to let me just say that this is actually not a futuristic problem. It’s an actual problem that’s existed now for about a decade. The practice of patenting genes dates back to the time when the corporations solaro, which is Craig Venter’s. You’ve heard of him, of course. His company was basically trying to do his own private version of the Human Genome Project. And in order to justify the expense of that to a shareholders, his lawyers encouraged him to begin patenting genes as they found them. Well, of course, the Human Genome Project was doing the opposite as it was finding genes or during the process of this public science. These were laid out for the world. They were they were made into part of the public domain Jim Underdown. 

Let me just jump in there. The Human Genome Project, while it was publicly funded, it. It created a lot of profit for private enterprise. 

Absolutely. In fact, like many big science projects, there were all sorts of profitable spin off that were properly patentable. In fact, Celera had one of those. What I would say was properly bendable and they developed a really good, inventive new technology to rapidly sequence genes. And they patented that. And I think that’s brilliant. That’s exactly what patent is for. It’s for new inventions. 

Yeah. As opposed to new discoveries. 

Well, yeah. So when you don’t use your intelligence to bring something new to the world, when you simply to use your intelligence to discover something that’s also extremely important. That’s what most science is about, is discovering truths about nature. It’s just not what pattern is about. And it’s about bringing your intelligence to bear in a certain way to manipulate nature, to change something about nature and create something new. 

I want to talk about Ben and say, but let’s just get back to the slavery question. Sure. Because is it just metaphorically that, you know, corporations are owning parts of us or they’re literally owning parts of us? 

Well, if you’ve ever worked for a corporation, you know that they own you in some way. 

I’m not worried really about the notion of slavery when I’m talking about the. Owning of jeans. What I’m worried about is that you and I. Who are all part of what Dawkins calls the river of life flowing out of Eden, right? That is genetic. Amazing. Evolution of the genome. Don’t get to share in their profits and have no say basically over what parts of us get used. And I think, you know, our genetics. Her vital components of us. I’m not a complete genetic determinist, but I think that, you know, our genes have a fair amount to do. And science is showing us genes have a fair amount to do with our identities. 

Mm hmm. How’s all this related to biotech firms owning genetic sequences of of plants or making it illegal for some, you know, farmers in the Third World or whatever? You hear these horror stories about Monsanto? I haven’t figured it out. You know, I don’t know what side of the fence I’m on about this stuff. 

But big agro business making it illegal for, you know, farmers to grow corn on their land or something is what Monsanto is doing in agriculture. Is it that other corporations are doing that in genetics and it’s all about money and there’s no way I can patent my genes and get rich off of them? It’s just the corporations that are doing it. 

My objection isn’t really to the sort of justice implications of the corporate nature of the ownership, but to the fact that these are the sorts of things that just cannot be owned. Let me address the Monsanto and their Terminator Courteney’s, as it’s called, kind of, you know, horrific name Terminator, quite literally. It’s a it’s an interesting technology that is an engineered corn that can’t be used to reseed your farms. The point of making it for Monsanto was to increase their profits because farmers often keep, you know, some some amount of the corn they’ve grown to replant so they don’t have to buy as many seeds next year. 

So Monsanto did it. So you had to keep going back to them to buy new seed? 

Yeah. Now, of course, you have a choice. You don’t have to buy Monsanto seeds. So I think it’s the end. And it’s not like they’re hiding the fact that they’ve created this corn to do this. The patent, in fact, lays bare their invention and then. But I think it’s a nasty thing to do. If I were a farmer, I wouldn’t buy those seeds unless they had some great advantage for me. The issue is the patenting of human genes and other what what we’d call wild type genes or sequences found in nature is very different because Monsanto actually engineered that corn, which is a proper basis upon which to get a patent. When you’ve created something new. But biotech firms since the 1990s have been patenting things they’ve discovered in nature to which they have brought no inventiveness. And that is they’re sequences of DNA. Now, recently in the news, this has become a big issue because of the ACLU is sort of visible suit against a company called Myriad. And I’ll tell you about that if you’d like. 

I am interested in that. But I guess I. I don’t know the science well enough or really the field well enough might be kind of coming to this. My take was that there are these big scientific corporations, right. Who are it’s called genetic engineering. It seems like they are changing the genetic makeup in order to benefit us medically or in other ways, cause sometimes maybe it’s just cosmetic or something. But that seems like they’re not just discovering stuff out there, but they’re actually refashioning nature. You know, according to their own visions. 

Right. And that that would be patentable if they were doing that. And in fact, there are examples. An example is the Harvard mouse, the Hanko mouse, which is a mouse that has engineered its altered its genetic sequence has been tampered with by humans to make it susceptible to cancers because that makes it a very good model for cancer research. That isn’t a mouse that occurs in nature. 

If a corporation if a biotech firm does genetic engineering to increase human lifespan, that that’s not just finding something in nature. And owning it. That’s changing something in nature. Our genome and making us kind of last on the planet longer. But then it sounds like you wouldn’t have a beef with them owning those genes in us because they were engineered. 

If if they engineered something new. Yeah. Now, that’s not happening in humans, obviously. But if they engineered something new and they got a patent on it, then I wouldn’t be having this sort of beef I’m having with it. And others have Lindus practice as well. The problem is one that affects basic science when we talk about patenting. We’re interested in the relation. Science to technology patent is a tool that is invented, that allows an inventor to receive some monopoly over their invention for a period of time. It’s a bargain between the public and the inventor that creates a government sponsored monopoly, something that can happen in a free market. Now, the deal is that bargain. The point of that bargain is to encourage people to create new things. And in the Patent Act, the role of patent is to encourage the useful arts and sciences. But there’s a ways in which patent can actually stifle basic science and hinder innovation. If it’s not properly applied and that that’s exactly what’s going on in the patenting of human unaltered human genes and on other how their own altered genes. And the myriad case which I’m happy to talk about is a prime example. 

Yeah. Why don’t you, given the myriad case? Because for you, it kind of crystallizes the argument that owning genes is not the only way that real research. Groundbreaking research can get done. 

In fact, yeah. That it was the case since the mid 1940s, that basic research was largely financed through public money institutions like the NIH and the NSF. And yet corporations were able to make money through new innovations that they created based on the basic research that was being done through public money. Now, the myriad case does sort of crystallize everything. I mean, everything I talk about in the book and it couldn’t come out at a better time, really. While I was writing the book, I was wondering, well, now who’s gonna do something about this? And I’m happy to see somebody is doing something about it. In that case, Myriad is a biotech company that identified the two major sequences involved in the propensity to get breast cancer. And then they created a test to help detect whether somebody has those genes and therefore whether they’re likely to develop breast cancer. And these tests are very useful in deciding whether or not one should be vigilant for possibly developing breast cancer. And then and especially, you know, for people who have family relatives with breast cancer, it’s it’s a good thing to be able to do to get a test. The thing is, when they got their patent for the tests, they also filed as many biotechs now do a pattern for the sequences themselves. So the sequence at the end of the amino acid sequence that composes at up to CGA and T string that composes those genes and they got those patterns. Now, that means that they control every replication of that sequence by anyone for a period of time. Now, the problem is that that affects basic research and that that’s why the ACLU has finally sued Myriad on behalf of scientists and cancer victims, because there were scientists who were actually being told by Myriad, you cannot do this research without paying us a royalty. Now that that’s going too far when you’re applying. Pamela, if you are infringing basic science, a couple of researchers at Yale. And this is talked about in all the media attention on the myriad who were sent cease and desist letters because they were doing breast cancer research. Now, when you’re researching a gene, you have to replicate it in the lab and basic science in order to research the gene, you have to make copies of it. 

And again, this isn’t an engineered gene. This is a naturally occurring gene in nature that Myriad just discovered. 

That’s correct. And it was a good thing that they discovered it. And that’s something that basic science is all about, is discovering things about nature and myriad. Had they brought something inventive to this test? You know, some new process or new method and applied it to a natural law or fact or process or compound, they might have been able to get a patent justly. But in this case, that’s not what happened. And it’s also the case in about for about 8000 other patents out there on an unmodified human genes. And that represents about 20 percent of the human genome. 

You see a number like that, and it really looks like the floodgates have opened. There’s no putting the genie back in the bottle. There’s no way to fix this. I’m really interested in your proposed solutions or your your kind of hedging toward those. And that’s what I want to conclude with. But clarify something for me real quick. Let. Say medical technology continues improving. You know, like the futurists hope and hope it will. And at some point in the future, we’ll be able to, you know, genetically reengineer ourselves or because of discoveries of genes in nature, we’ll just be able to muck around with our makeup better and kind of improve our neurochemistry, say, from the bottom up so we can become happier or smarter or we can rewire our genes. So we’re not, you know, fat or, you know, whatever, you know, the promise of genetic engineering. Let’s say that turns real. If a company owns those genes, there’s really the implication that we won’t have the legal right to change our genetic makeup if we don’t own it. 

That’s correct, T.J.. If you have a patent, you can prevent the reproduction of the thing. You have a patent, which means that if somebody claims a patent on some new combination of genes or some existing combination of genes that you want to use, you would have to pay royalties, some sort of license to the patent holder in order to use that. 

And you’re saying it’s it’s there now. This isn’t something that’s happening in the future, that right now companies own parts of the human genome. 

They do. And the ones that are most disturbing, of course, are these disease patents. There’s a number of monogenic diseases meaning there. They involve one gene. These are HOTE. Another prime example is the cannabinoids disease. Gene, can Ivins’s is a genetic disease that happens to affect Ashkenazi Jews more frequently than other populations. And there is a company I actually was a Miami Children’s Hospital, which got a patent on that. Now that ownership stifles research into the disease. Now the different areas you’re talking about should also concern us, since there are going to be enhancements and other fruits of genetic research that we want to enjoy. That might be stifled again because of some companies ownership of the gene. 

What you’re basically saying is that the argument that patents encourage motivate because the profit motive, it motivates a discovery. You’re saying it actually flips that on its head and undercuts new developments. Now, not just regarding new research in the future, but stuff that’s happening right now. The thing that confuses me about all of this, don’t I have a right to privacy? Don’t I have a right to keep my genes to myself and not let someone else own them? 

Well, for the most part, you and I share most of our genes. And so if I want to know what genes you have, it’s likely I can come up with a pretty good understanding that just by looking at the human genome map and looking at a cross-section of the population’s own genes, there’s not much genetic dissimilarity among humans. And if you want to protect your genetic information, then we’ll have to create some laws to do that. I could follow you around with a vacuum cleaner and, you know, pick up your dad flecked skin and analyze it and know what genes are in you. There’s nothing naturally preventing me from doing that. 

And right now, there are no constitutional safeguards to say that those are my genes, you know. 

Exactly. Get out. Right. And that there has been an attempt actually, in our old my old hometown’s representative Louise Slaughter, introduced a bill, the Gina Bill, G.I. NDAA, which ensures if a little bit of genetic privacy, at least from insurers, which is, of course, a big issue. 

Right. And that’s something you don’t really touch in the book. But that raises other scary questions that if if we don’t have ownership rights over our genes, privacy rights over our genes, then big business can kind of figure out our genetic makeup in order to make money off of us, even in other ways, you know, by avoiding insuring us or only choosing the right ones to insure because they won’t get sick. 

Yeah, the genome and our knowledge of the genome is just one of those areas where the technology has proceeded a lot faster than rational public policy. And that’s an excellent example. Where at. 

David, you draw a distinction in the book between upstream and downstream patents. Flesh that out for me. That really figures into your argument. 

Right. This is a argument. Well, this is actually these are terminologies that are present in the law already. And essentially, you don’t want to grant patents too far upstream. And that means. And you can’t give a patent on something that forecloses innovation. Let me give you an example with the laws of gravitation. OK? You can’t. And you wouldn’t give a patent to the laws of gravitation in general. That would be way too far upstream. What you can do is allow for patents and downstream applications of natural laws. So the technology that causes an elevator to go up and down is an application of a law of nature. And it’s far enough downstream that it encourages innovation because there’s more than one way to lift an elevator. 

And moreover, it’s an invention, not a discovery of kind of a law of nature. Scientists and corporations can’t own what like the fact that they just discovered a new quantum particle or a celestial body. But they actually can own discoveries about our genetic makeup. And that’s the tension you’re talking about? 

That’s correct. And I think that’s still too far upstream. And lots of scientists agree with this. It’s what you want is to give patents where they are applying this important knowledge about the human genome to something new, to some treatment, to some remedy, and not so far upstream that it’s preventing those treatments and remedies from being developed. 

Is there consensus growing about this? And it sounded like you suggested that there was around this upstream downstream distinction. 

Yeah. Well, that’s a that’s a distinction that, as I said, has been in the law for a while. It’s just not being applied. In this particular case, the Patent and Trademark Office didn’t view it, I think, correctly. They have allowed the patents too far upstream. And there’s a consensus, I think, among scientists that that that’s the case as well. 

How much of all this is a function of, you know, just different administrations in the United States that under Bush, the corporate elite, whatever, had a leg up and they’re the people who made policy turned a blind eye and maybe under Obama, is all of this just too much fuss? And we shouldn’t worry about it? 

I think that it’s not going to change because of the administration. In fact, the practice of banning teens began under the Clinton administration. It’s a function of bureaucrats and the bureaucrats at the Patent and Trademark Office. And as we know, civil service and bureaucrats don’t really change when new administrations come in. It’s just the people at the top. 

So the problems here to stay on, we’re going to get worse, you’re saying? So what’s the solution then? If you’re arguing that corporations shouldn’t benefit by owning the fruit of their labors? I mean, the discoveries, at least then, is the solution that the state is going to own it and give it’s free use to everybody, kind of lend our genes back to us. Or is it just going to be this bad and brave new world no matter what happens regarding the property rights over our genes? 

I think there’s sensible solutions and there’s different sensible solutions. One would be to say that to the Bad and Trademark Office, you can’t give patents anymore to an ARAA sequence of human genes. There has to be some change, some material alteration in that gene in order to get a patent. And that that could easily be done either by legislation. In fact, legislation has been proposed by some people in Congress right now. I won’t give them the plug because this is not an opportunity for them to get some political points. But that’s one way to go get legislation that tells the PTO you can’t do this anymore or the other road is already being explored. Thanks to the ACLU, they’ve brought this lawsuit and the courts could say, you can’t do this anymore. Patent and Trademark Office. 

Well, maybe the Patent and Trademark Office does the right thing on its own. They can do this. It can change the way it applies its own rules. 

Slightly off topic, but I love that you mentioned the court kind of creating law through judgments you hear from the far right. Oh, we don’t want activist judges. We shouldn’t legislate from the bench. But in fact, that’s what court rulings do all the time. They sassily law. 

And so that I mean, that just seems like a harebrained argument that you get from the talking points on the the far right activists on TV. But in fact, we might look to the courts to set law about this issue and they have before. 

So when faced with situations where the Patent and Trademark Office was being ambiguous or incorrectly applying its interpretation of a law, a court has said no. You’ve done that wrong. From now on, you can only do it this way. So that absolutely that’s what courts are there to do, is to help interpret law for legislators and federal. They do that all the time to finish up where. 

Where do you come out on all of this in terms of like how optimistic do you feel that all of this is going to work out? Or is this just going to be another really negative thing about the future that science minded and rationalist minded people are going to be wringing their hands about? 

I’m optimistic, actually surprisingly optimistic about this because there’s suddenly a great deal of attention. And I think that the tide is moving in the right direction. 

The NIH recently concluded public comments section about the applicability of gene patents to genetic testing, the exact same issue that is being litigated by the ACLU against Myriad. So there’s attention from a federal agency, a big one, NIH. 

There’s attention in the courts and in the media now, thanks to this suit against Myriad. There’s my book, which I hope brings some attention to the issue as well and hand. I believe that the public is on my side on this issue. If everybody I have spoken in front of for the most part, everybody agrees that this is going a little too far. 

Well, David, I really appreciate the discussion. I’d like to let our listeners know that you can get a copy of Who Owns You, the corporate gold rush to patent your genes through our website point of inquiry, dawg. I really enjoyed the back and forth, David. We’ll see if your if you’re a naysayer or a prophet of doom or an instead of a prophet kind of leading us to the promised land with this kind of argumentation. Thanks so much. 

Thank you, DJ Grothe. 

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Contributors to today’s show included Sarah Jordan and Debbie Goddard. I’m your host DJ Grothe. 

DJ Grothe

D.J. Grothe is on the Board of Directors for the Institute for Science and Human Values, and is a speaker on various topics that touch on the intersection of education, science and belief. He was once the president of the James Randi Educational Foundation and was former Director of Outreach Programs for the Center for Inquiry and associate editor of Free Inquiry magazine. He previously hosted the weekly radio show and podcast Point of Inquiry, exploring the implications of the scientific outlook with leading thinkers.