Re: Patenting indigenous peoples' cells (was: Wow!)

I haven't been following this issue closely, but in Jamie Boyle's book, "Shamans, Software, and Spleens" he discusses a case where a patient was told that his spleen needed to be removed for medical reasons that would benefit him though the persons involve in the removal already knew they were going to use the cells. From the discussion in the book it appeared that no tailoring was done to the genetic material before it was patent by the medical researchers. The patient sued, and but lost on the patent case. Moore v. The Regents of the University of California, 793 P.2d 479 (Cal 1990) Cert denied, 111 S. Ct. 1388 (1991).

The reasoning of court seemed to be that let individuals own their own genetic material would hinder research, but to let researchers patent found genetic material provided an incentive for research. In the copyright arena this sounds a lot like saying you can't copyright a fact but you can copyright a compilation of facts. However, individuals can still access the facts from other sources. What would happen under patent if someone else found an other individual with very similiar (if not identical) cell characteristics and sold those cells for same purpose that the original patent holder was selling their cells? Also, could the discoverer (or is it inventor) of the second set of cells patent them?

Maybe I've read too much science fiction where androids (individuals that are human in all respects except for being genetically engineered and conceived in test tubes) are treated like cattle or slaves, though they had a full range of human intellect and emotions to believe in ownership of human genetic materials. Perhaps we need a new type of law that allows exclusive research rights but not ownership rights. Haven't really developed this concept, but thought I'd throw it out anyway.

S. Warwick
swarwick[_at_]sprynet.com Received on Thu Jul 02 1998 - 18:17:56 GMT