Gene Concepts, Gene Talk, and Gene Patents

Full-text available at SSRN. See link in this record.Since the existence of a discrete unit of heredity was first proposed by Gregor Mendel, scientific concepts of the “gene” have undergone rapid evolution. Beyond obvious epistemic and operational importance to the scientific community, changing gene concepts have exerted strong effects on institutions such as medicine, the biotechnology industry, politics, and the law. A particularly rich example of this is the interplay between gene concepts and patent law. Over the last century, biology has elaborated gene concepts that variously emphasized genes as discretely material, genes as information, and genes as extremely complex. By contrast, patent law has steadily adhered to a simpler, more stable concept of the gene since the advent of gene patents in the late 1970s. In fact, while the biology community has increasingly engaged in vigorous internal debate regarding the gene’s complexity and uncertainty, it has tended simultaneously to emphasize the simplicity and certainty of the gene to constituencies outside the biology community, most notably the United States Patent and Trademark Office (USPTO) and the Federal courts. Rather than allow gene concepts to become contested by constituencies outside biology, the biology community appears to have used its authority to maintain a portrayal of the gene that facilitates the appropriation of rents from genes through the patent system. This use of “gene talk” has undergirded the growth of biotechnology into a powerful industry that has economically rewarded investors, academic institutions, and biologists. Not only may gene talk have facilitated the patenting of genes, but the prominence of gene patents describing a relatively simpler gene concept may have fed back into biological science to promote a simpler, and more patentable, concept of the gene even among members of the biology community

Open Source Human Evolution

Part I of this Article introduces the biology of evolutionary change. Part II discusses the current state of genetic engineering and its potential application to human genetic enhancement. Parts III and IV discuss the legal contours of proprietary patent and open source genetics models of innovation, respectively, and consider what differences the two alternative models might have on rates of genetic innovation and access to genetic innovations. Part V analyzes the effects that proprietary patent models and open source genetics models could have on the future trajectory of human genetic enhancement, and suggests that open source genetics would likely yield a relatively lower rate of genetic innovation coupled with democratized wider access to the resulting smaller number of genetic enhancements

Patenting Human Evolution

This is the published version

Better to Give than to Receive: An Uncommon Commons in Synthetic Biology

The emerging scientific field of synthetic biology offers an array of technical and scientific approaches new to the biological sciences. In addition, the community of scientists leading synthetic biology tends to agree on an ethos of openness and collaboration that marks a departure from the previous proprietary norm predominant in biology. While traditional biologists have long relied upon the patent system to protect and foster commercialization of their inventions, the synthetic biology community has tended to promote the very different ethos of open innovation and has created knowledge commons governance institutions to support that ethos. In fact, many in the field suspect patents of chilling research and believe that patenting ought to be avoided. Instead, many synthetic biologists prefer to contribute the new strands of DNA that they create to a commons, whose contents are available to all. This chapter first provides some background on the field of synthetic biology. It next describes some of the institutions that synthetic biologists have put in place to create and maintain a synthetic biology commons. It then shares the first empirical evidence from synthetic biology that in the synthetic biology commons, giving behavior is overwhelmingly more frequent than taking behavior. In other words, instead of being dominated by free riders, the synthetic biology knowledge commons appears to offer free rides

Patenting Human Evolution

Full-text available at SSRN. See link in this record.Patent protection for genetic enhancements would tend to spur genetic innovation, but would tend to limit access to those genetic enhancements through discriminatory mechanisms such as price and favoritism. The patent system would likely ensure high rates of genetic enhancement innovation, research, and development, efficiently mediate access to genetic enhancements, but would also likely allow access to genetic enhancements to fewer members of society. Most importantly, the patent system has the potential to promote the kinds of genetic enhancements that might lead to human evolutionary change. Public policy and the law must grapple with the implications of genetic enhancement before current technological possibilities become societal realities. The patent system is an odd candidate to become a substantial arbiter of parental decisions regarding genetic enhancement of their offspring. It is certain that the implications the patent system has for future human genetic enhancement should be subjected to thorough analysis and debate prior to the imminent arrival of human genetic enhancement technologies. Otherwise, patent law may drive human evolution in directions either unplanned - or worse - undesired

Patents and The Regress of Useful Arts

Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is to simulate the behavior of inventors and competitors experimentally under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems ("PatentSim"), this study compares rates of innovation, productivity, and societal utility. PatentSim uses an abstracted and cumulative model of the invention process, a database of potential innovations, an interactive interface that allows users to invent, patent, or open source these innovations, and a network over which users may interact with one another to license, assign, buy, infringe, and enforce patents. Data generated thus far using PatentSim suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system. These data also indicate that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection. The results of this study are inconsistent with the orthodox justification for patent systems. However, they do accord well with evidence from the increasingly important field of user and open innovation. Simulation games of the patent system could even provide a more effective means of fulfilling the Constitutional mandate "to promote the Progress of . . . useful Arts" than does the orthodox assumption that technological innovation can be encouraged through the prospect of patent protection

All Patents Great and Small: A Big Data Network Approach to Valuation

Measuring patent value is an important goal of scholars in both patent law and patent economics. However, doing so objectively, accurately, and consistently has proved exceedingly difficult. At least part of the reason for this difficulty is that patents themselves are complex documents that are difficult even for patent experts to interpret. In addition, issued patents are the result of an often long and complicated negotiation between applicant and patent office (in the United States, the United States Patent & Trademark Office (USPTO)), resulting in an opaque "prosecution history" upon which the scope of claimed patent rights depends. In this Article, we approach the concept of patent value by using the relative positions of issued United States (U.S.) patents embedded within a comprehensive patent citation network to measure the importance of those patents within the network. Thus, we tend to refer to the "importance" of patents instead of "value," but there is good reason to believe that these two concepts share a very similar meaning

If We Could Talk to the Animals, How Should We Discuss Their Legal Rights?

The intricate tapestry of animal communication has long fascinated humanity, with the sophisticated linguistics of cetaceans holding a special place of intrigue due to the cetaceans’ significant brain size and apparent intelligence. This Essay explores the legal implications of the recent advancements in artificial intelligence (AI), specifically machine learning and neural networks, that have made significant strides in deciphering sperm whale (Physeter macrocephalus) communication. We view the ability of a being to communicate as one—but not the only—potential pathway to qualify for legal rights. As such, we investigate the possibility that the ability to communicate should trigger legal rights for beings capable of communicating, whether they be cetaceans or other creatures. As the Cetacean Translation Initiative (CETI) project, which is actively working to unlock sperm whale language, moves closer to enabling meaningful human-cetacean dialogue, we stand on the precipice of a transformative understanding that may compel a radical reevaluation of animal legal rights and, perhaps, human legal rights as well. In fact, viewing eligibility for legal rights through a more objective lens, such as a communication criterion, may even improve our understanding of human legal rights, their origins, extent, application, and even entitlement itself. We begin with an overview of animal communication, emphasizing the complex acoustic patterns of sperm whale songs and clicks, which have been captured and analyzed through the collaborative efforts of marine biologists and computer scientists. This cross-disciplinary effort has yielded what the Dominica Sperm Whale Project has named “Flukebook”—a robust dataset that informs machine-learning models with acoustic signals, contextual behavioral data, genetic data, and geospatial information—that opens the door to the potential of an interspecies large language model (LLM) useful for communication among sperm whales and humans. Having established that the prospect of communicating with another species is becoming increasingly feasible, we then delve into the philosophical and ethical considerations that accompany such a breakthrough. Drawing upon the perspectives of thinkers such as Jeremy Bentham, Professor Peter Singer, and Professor Martha Nussbaum, we investigate the ethical foundations for considering the legal rights of cetaceans, or other nonhuman animals. This investigation is juxtaposed with historical whaling laws and modern legal frameworks, probing the adequacy of current laws, norms, practices, and attitudes regarding emerging interspecies communication. Finally, we propose a novel legal paradigm that contends with the implications of cetacean communication capabilities. As we inch toward potentially understanding requests, preferences, or even rules or laws of sperm whales, the ethical imperative to reexamine their legal standing becomes undeniable. This Essay examines practical legal issues such as jurisdiction, standing, representation, autonomy, and the feasibility of animal citizenship. In fact, it envisions innovative legal constructs such as a “Magna Carta Cetacea” and a “United Species” extension of the United Nations. In addition, we endeavor to articulate an objective standard by which any being capable of the requisite communication qualifies for legal rights. In this potential legal frontier, the communication of preferences by an animal may necessitate that we seriously consider conferring legal rights to those animals. This groundbreaking dialogue could not only elevate the rights of whales, but also provoke a broader discussion about the principles underlying human legal rights themselves, challenging our current anthropocentric legal systems to evolve. As we decode the “codas” of sperm whales, we are challenged to reenvision the legal and normative matrix of life on Earth and our place within it, guided by potential principles such as mutual respect and legal recognition that transcend species boundaries