Biotechnology and Patent Rights: Seeking the Common Good?
Biological research and its commercial applications are posing fundamental and complex questions for policy-makers, from privacy rights to reproductive rights to issues of whether there is a right to die, and even what constitutes death and how to define a human being. Recombinant DNA (rDNA) presents particularly complex issues across a number of categories: risks (for research as well as distribution and disposal), including intergenerational and long-term ecological effects on both national and international levels; expenditure of public funds for R&D; patenting rights; effects on domestic economies and on the international balance of payments; and effects on academic science. Last, and perhaps most important, are the potentially profound changes to society as rDNA products enter the market — from effects on small farms to changes in reproductive choices to the introduction of wholly new kinds of evidence admissible in court.
KeywordsEurope Marketing Assure Microbe Arena
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- 1.See, for example, Stephanie Chong, ‘The Relevancy of Ethical Concerns in the Patenting of Life Forms’, Canadian Intellectual Property Review, 10, 1 (September 1993): 189–207.Google Scholar
- 3.John Locke, Two Treatises of Government, Peter Laslett (ed.) (New York: New American Library, 1965), Second Treatise (II), Chap. V, §35, 21–3: 334. The Earth ‘is given to Men for the Support and Comfort of their being…and no body has originally a private Dominion, exclusive of the rest of Mankind, in any of [its fruits],…yet being given for the use of Men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular Man.’ Locke, V, §26, 3—12: 328. All references to Locke are to this edition of his Second Treatise.Google Scholar
- 12.More practical political reasons might have been a factor. See Mike Ward, ‘EU agrees on patents but nixes BST for 5 years’, Bio/Technology, 13 (1995): 212. The suffering of animals used for human benefit and profit is not a new issue and is certainly not unique to rDNA techniques.CrossRefGoogle Scholar
- See, for example, Rebecca Dresser, ‘Ethical and Legal Issues in Patenting New Animal Life’, Jurimetrics Journal, 28, 4 (Summer 1988): 422–4. However, it is reasonable to suggest that rDNA opens a new stage in human manipulation that raises new questions.Google Scholar
- 13.Public opinion surveys in the US, Europe and Japan show very clear differences in people’s risk perception depending upon the application. RDNA is deemed safer when applied to microbes than to animals or food products or humans. Bernhard Zechendorf, ‘What the Public Thinks About Biotechnology’, Bio/Technology, 12 (1994): 873–5. Research related to germ-line genetic changes is highly controversial, even among those involved in rDNA research. Concerns include disruptions in cell development and growth, and a slippery slope toward eugenics, fuelled (some fear) by an alliance between genetic engineers and big business.CrossRefGoogle Scholar
- 15.James Thompson, ‘Rogue Workers and Change Agents’, Government Executive, 28, 4 (1996): 49.Google Scholar
- 18.John Kinsman, ‘Farmer’s Rights: What is Fair?’ in June Fessenden MacDonald (ed.), Genes for the Future: Discovery, Ownership, Access (Ithaca, NY: National Agricultural Biotechnology Council, 1995): 106–7.Google Scholar
- 21.US liberalism consigns the care of the very qualities it requires to function well — the fostering of values, of principles of the common good — to the private realm. Walter Berns, ‘Privacy, Liberalism and the Role of Government’, in Robert L. Cunningham (ed.), Liberty and the Rule of Law (College Station: Texas A&M University Press, 1979): 210.Google Scholar
- 28.J. Travis, ‘Pig cells used for Parkinson’s disease’, Science News, 148, 40 (1995): 230. There is a large number of works available on the ethical issues surrounding fetal tissue use; see, for example, ‘Ethics of Fetal Tissue Transplantation’, Western Journal of Medicine, 159, 3 (September 1993): 400–7.CrossRefGoogle Scholar
- 29.Russ Hoyle, ‘Biotech is still searching for a bioethics forum’, Bio/Technology, 13 (1995): 736.Google Scholar
- 33.Utilitarianism does rely on the principle of general welfare, but its intense support of the legitimacy of preferences and hostility to moral rights cannot provide a basis for public policy, particularly at the margins of knowledge. David Lyons, ‘Utility and Rights’, in J. Roland Pennock and John W. Chapman (eds), Ethics, Economics and the Law, Nomos XXIV (NY: New York University Press, 1982): 107–38, argues the hostility of utilitarianism to moral rights.Google Scholar
- 34.Langdon Winner has recently commented on a ‘know-nothing policy’ that abandons any attempt by government to seek the public good, denying that there is an identifiable public good which could serve to guide public policy for technological development. All guidance comes from the private sector, which is to say, the market place. Langdon Winner, ‘Know-Nothing Technology Policy’, Technology Review, 99, 2 (February/March 1996): 55.Google Scholar
- 38.Moore v. Regents, University of California, 51 Cal. 3d 120, 793 P.2d 479 (1990) cited in Michael A. Gollin, ‘Biological Materials Transfer Agreements’, Bio/Technology, 13 (1995): 243. Gollin notes that the Thirteenth Amendment of the US Constitution, in abolishing slavery, made property rights in the human body problematic.CrossRefGoogle Scholar