David Koepsell - Who Owns You?

May 8, 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.

Books Mentioned in This Episode:

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Ronald A. Lindsay - Future Bioethics
August 30, 2008

Comments from the CFI Forums

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I finally got around to listening to this podcast and its pretty interesting. The main argument revolves around whether companies should have a right to own naturally occurring gene sequences that they haven’t created but only determined the sequence and significance of. Many biotech companies have apparently been obtaining patents for just these types of discoveries. One example he gives involves Myriad genetics attempt to stop scientists from replicating the naturally occurring BRCA gene even when its being used to do further research on breast cancer. Myriad discovered the gene and developed a test for it that is used today to help determine a woman’s breast cancer risk. When doing research scientists often use PCR to make thousands of copies of a gene to work with when doing their research. Myriad is claiming that anyone copying the gene is infringing on their patent. The ACLU is now suing them on this matter for the benefit of scientist who would like to do further research.

I think there are valid points on both sides of the argument but personally I think the current law may need to be amended ( shorter patent lives perhaps). One thing that came to mind as I listened to the discussion though was this. Myriad is suing scientists for making copies of this gene and yet many people make copies of the gene every day. Anyone who caries this gene as part of their genome copies this gene every time their cells replicate. They make billions of copies every day. While that method of copying is unintentional and unavoidable sexual reproduction is neither unintentional or unavoidable. Every time we give birth to a child we are creating an individual with may trillions of copies of these patented genes within them. While this may sound crazy it is conceivable that a company could claim patent infringement every time someone with a patented gene reproduces especially if the gene is one for a positive trait. What about someone who donates cells sometime in the future so that an organ can be cloned or a pancreas that has a gene that provides natural resistance to diabetes?

There is a lot to think about here especially when you start introducing future technologies that may be impacted or harmed by decisions we make regarding these issues. Just some food for thought.

Posted on Jun 16, 2009 at 8:13am by macgyver Comment #1

I have no idea how the patent office could patent a naturally-occurring gene sequence. How does that count as a new, useful, and non-obvious invention—the basic requirements for a patent? I would’ve wanted Keopsell to talk about that more. It has to be a more nuanced issue than he is letting on.


Posted on Jun 16, 2009 at 4:05pm by Jordan Comment #2

Good questions and input, thanks.  The PTO began this in the 90s, as I detail in my book, based upon misinterpretation of some key precedent that allowed patenting life forms, and patenting products of human cells.  In 2001 they limited patents to “isolated and purified” genes, or cDNA, which is made simply with mRNA, which translates only the protein-coding portions of DNA, and leaves out the introns.  But this occurs in nature, and isn’t inventive.  There’s plenty more discussion of the details of what is happening in my book, and if you want some more for free, check out my blog: http://whoownsyou-drkoepsell.blogspot.com/

Posted on Jun 17, 2009 at 4:34am by David R. Koepsell Comment #3

What is the legal argument that the corporations attorney’s use in claiming the patent?  How do they justify the claim that they are creating something new and unique when they are only defining an already existing sequence?

Posted on Jun 17, 2009 at 8:53pm by Hawkfan Comment #4


Because I have written or said all this before, I don’t want to repeat myself, so here’s a link to start with: http://whoownsyou-drkoepsell.blogspot.com/2009/06/lawful-vs-just.html

If you need more detail, I can point you to more of my and other explanations.



Posted on Jun 17, 2009 at 11:00pm by David R. Koepsell Comment #5

Thank you.  As you note with your example, that regulation could be used to justify such absurdities as patenting natural formations like the Devil’s Tower.

Posted on Jun 18, 2009 at 4:49am by Hawkfan Comment #6

Thank you for the reply, Dr. Koepsell. My Law School training in this field ending with Moore and Chakrabarty. Neither seems terribly on point. I can’t believe case law hasn’t spoken to this issue by now. Boggles the mind.


Posted on Jun 25, 2009 at 1:06pm by Jordan Comment #7

Here’s the latest (that I know of) on this case:

In ACLU Suit, Judge Rules Myriad’s Genetic Patents Invalid


Encouraging, but of course there will be appeals up the yazoo.

Posted on May 24, 2010 at 11:45pm by vaytw Comment #8