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

Dan Burke <burkdanl[_at_]shu.edu> wrote:
>
> If you read the case (or look at the patent) you will find 1) that the
> subject matter of the patent was not Moore's genetic material, but
> rather a cell line derived from Moore's cells, and 2) the cell line
> (like all cell lines) was artificially manipulated. As a rule, normal
> human cells don't just grow in the laboratory on thier own, they have
> to be immortalized (the process of creating a cell line).

Obviously human cells don't just grow on their own... but what was the extent of the manipulation? Was it just enough to keep the cell line going to utilize a unique property of Moore's cells, or did the unique property result from the work of doctor? It appears to me that the unique property was in Moore's cells (or why not just take any available cells) and that it was recognized (discovered - not invented) by the doctor. I'm not really up on patent law, but in copyright one of the basis for denying protection to facts is that they are discovered and do not owe their origin to an author. It makes no sense to me that someone can patent a property that they observed in someone else's cells, especially when the cells were removed without informing the individual of the doctor's intent to use the cells for study let alone profit. Prof. Boyle has a very interesting discussion of the decision in the case whereby it was reasoned that if individuals were allowed property rights in their own cells it would block research but to allow medical researchers property rights would promote research. Again, to go back to a copyright approach, this seems equivalent of telling an author their work is not eligible for copyright protection then granting that protection to a publisher who has taken the work without permission. Both the publisher and the researcher have worked to make the original material accessible (the publisher through printing, advertising, distribution, and perhaps editing - the researcher through culturing the cell line and perhaps strengthening it). Why should the researcher be considered the author of the cells rather than the publisher of the cells? Why shouldn't Moore be the author?

-- 
S. Warwick
swarwick[_at_]sprynet.com