Patenting Oranisms

 INTRODUCTION

Nowadays, scientists have isolated genes that cause particular diseases and modified genes that alter organisms for particular reasons. The technology has been manipulated to allow scientists to alter DNA by adding to or changing targeted sections. By doing so, scientists hope to eliminate genetic diseases. The mention of gene editing may invoke up images of rampaging dinosaurs in the film, Jurassic World, but this image is far from the truth. The closest to the truth about the rampaging dinosaurs is watching the endless Jurassic Park franchise. In general, the predominating opinion is that it is almost impossible to patent a living being. This pre-conceived notion is often based on grounds such as the lack of novelty, how can you patent something that already exists in nature, or unsurprisingly, the ethical impediments. However, whether it is possible to patent a living being, depends on the type of living being and the territory in which protection is to be obtained. Putting the ethical quagmire of human gene editing to one side, the realities of animal gene editing through the CRISPR technology is debated in terms of de-extinction and conservation. On October 18, 2016, a biopharmaceutical company called CRISPR Therapeutics AG that focused on translating CRISPR/Cas9 gene-editing technology into transformative medicines, announced the pricing of its IPO. It is a type of technology based on the natural functioning of bacteria called Clustered Regularly Interspaced Short Palindromic Repeats, abbreviation as CRISPR. the CRISPR/Cas9 edits genes by precisely cutting DNA and then letting natural DNA repair processes to take over. The system consists of two parts: the Cas9 enzyme and a guide RNA. The technology applied in modified bacteria to defend against invading viruses by remembering the genetic codes of previous invaders. If attacked again, the remembered code allows the bacteria to target the viruses’ DNA and disable the virus. Ethically sensitive and scientifically thrilling, CRISPR technology is sparking international debates that aren’t likely to be readily resolved. Whether the answer is to bring back extinct species or focus on those currently under threat, scientists are delving into gene editing as a way of repairing a damaged world. 

The CRISPR PATENT DISPUTE

As we learned above, much has been written about the power of CRISPR, the genetic-editing system first elucidated in 2012. But there has also been extensive interest in the variety of intellectual property issues surrounding CRISPR. While the intellectual property disputes concerning CRISPR are far from over, new characters central to the dispute continue to materialize five years of hindsight has given some perspective on their ethical, legal, and social implications. Since the first U.S. patent applications were filed for an engineerable CRISPR system in 2012, the IP landscape has become significantly more crowded, with several researchers controlling a few significant battlements. 

However, most of the commentary on the CRISPR patents has been negative. But, aside from money, there are some significant social positives as well. Patents are not the only means of private governance to reign in ethically unruly technology. At their core, patents are rights to exclude others from practicing the claimed invention. The corollary to this axiom is that patents, therefore, allow their owners to dictate to the rest of the world how to use the inventors’ technology. Although the claimed technology raises ethical or social concerns, patent holders have the right to tell their technologies’ users to behave ethically and to provide access to downstream inventions. The patents, when used well, can function as a powerful form of private governance. Those scientists have proposed patenting the use of CRISPR-based gene drives to prevent others from using the technology without rigorous scientific and ethical controls. Rather than using patents to ethically restrict access to controversial technologies, patents can be used to ethically promote access to the same. That is, patent holders can demand licensees promise that they make their technology available to broad segments of society and on fair terms. And, patents could also be used to ensure research access to a variety of technologies. Patent holders can publicly commit to refuse to execute their patents against researchers or academic institutions. In addition, patent holders can also use open licensing systems to researchers interesting in developing and sharing the technology for the public good. 

One potentially inappropriate use of CRISPR is its use in gene drives, a daisy chain of genetic editing that essentially forces future generations to inherit and subsequently pass on only a single variant of a particular gene. The concern is that gene drives, because they are forcibly heritable, become difficult to control once put in place. If later research finds negative, unintended effects of the particular genetic variant driven through the population, it may be too late. The legal mechanics of enforcing patent protection in this manner leave some gaps that likely need to be addressed. Moreover, the overreliance on patents as vehicles promoting the ethical uses of technology may crowd out other equally effective and less restrictive forms of control. 

IN CONCLUSION

Despite claims that the CRISPR patent dispute is a unique event, there are some greater lessons to be learned about the ethical, legal, and social implications of intellectual property in research science. The CRISPR patent controversies teach us that patents, like kitchen knives, are simply tools, without a moral valence separate from their users. Patents, like the CRISPR patents, can be used in ways that impede further research, or they can be used to promote, if not demand, their ethical application. The patents themselves do not do these things. The outcomes depend entirely on who's wielding them. To that end, the CRISPR patent controversies should encourage researchers to think about how, and by whom, their inventions will ultimately be used.

CASE IN POINT - Diamond v. Chakrabarty, 447 U.S. 303 (1980)

Diamond v. Chakrabarty, 447 U.S. 303 (1980), was a United States Supreme Court case dealing with whether living organisms can be patented. Chief Justice Warren E. Burger held that human-made bacterium could be patented under the patent laws of the United States because such an invention constituted a kind of manufacture or composition of matter. However, other Justices argued that because Congress had not expressly authorized the patenting of biological organisms, the Court should not extend patent law to cover them. Diamond v. Chakrabarty was a significant legal case, particularly with respect to the patent laws and the biotechnology industry. 

The story began with a genetic engineer Ananda Mohan Chakrabarty who works for General Electric for developing a bacterium capable of breaking down crude oil, which he proposed to use in treating oil spills. General Electric filed a patent application for the bacterium in the United States, but it was rejected by a patent examiner. Because, under patent law at that time, living things were generally understood to not be a patentable subject matter. And, of course, they appealed.

The Congress intended for the patent laws to be given a broad scope that was not unlimited and laws of nature, physical phenomena, and abstract ideas were not patentable. However, the GE was not trying to patent a kind of natural phenomenon but rather a human-made bacterium he developed. But, the Supreme Court here held that Chakrabarty had not merely discovered the bacteria's existence, he created it by himself and adapted it to a particular purpose. 

To summarize the case, a live, human-made micro-organism is a patentable subject matter under the organism that constitutes a manufacture or composition of matter within that statute. While laws of nature, physical phenomena, and abstract ideas are not patentable, the respondent's claim is not to an unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter, a product of human ingenuity. Moreover, the passage of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection does not evidence congressional understanding that the terms manufacture or composition of matter. The U.S. Supreme Court reads the term manufacture in 35 U.S.C.S. § 101 in accordance with its dictionary definition to mean the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery. Eventually, the court found that the respondent had produced a new bacterium with markedly different characteristics from any found in nature and which had the potential for significant utility. The court held that the language of 35 U.S.C.S. § 101 embraced Chakrabarty's invention.

Reference

Academic.oup.com. (n.d.). Retrieved December 12, 2021, from https://academic.oup.com/jlb/article/4/3/565/4706243. 

Corral, M. (2021, July 7). Can living beings be patented? ABG IP. Retrieved December 12, 2021, from https://abg-ip.com/living-beings-patented/.

CRISPR therapeutics announces pricing of Initial Public Offering. CRISPR Therapeutics. (n.d.). Retrieved December 12, 2021, from http://ir.crisprtx.com/news-releases/news-release-details/crispr-therapeutics-announces-pricing-initial-public-offering/. 

Diamond v. Chakrabarty, 447 U.S. 303 (1980). Justia Law. (n.d.). Retrieved December 13, 2021, from https://supreme.justia.com/cases/federal/us/447/303/. 

Haven, A. (2019, June 24). Forget jurassic park – the realities of gene editing in the animal world. UX Connections. Retrieved December 12, 2021, from https://www.uxconnections.com/forget-jurassic-park-the-realities-of-gene-editing-in-the-animal-world/.

ScienceDaily. (2018, October 8). Genetic disease healed using genome editing. ScienceDaily. Retrieved December 12, 2021, from https://www.sciencedaily.com/releases/2018/10/181008183347.htm.   

How important is the protection of property rights to the effort to promote strong, prosperous businesses?

 How important is the protection of property rights to the effort to promote strong, prosperous businesses? 

Typically, property rights are defined as the ownership, an owner’s right to use a good or asset for consumption, income generation, the right to contract with other parties by renting, pledging, or mortgaging a good or asset, by allowing other parties to use it, or trades, the right to transfer property to others. And, trades facilitate business and economic development. Most economic theories indicate that stronger property rights should lead to a higher rate of investment and economic growth. 

So, how do property rights affect economic activity? Insecure property rights imply that individuals or business owners may fail to realize the returns of their investment and efforts, and it is also unproductive while everyone has to defend their own property all by themselves. Trade is also one of the crucial economic activities that require private assets to be used by those who can do so most productively and strong property rights facilitate trades. Finally, how we use and dispose our property is a right like freedom. If we lost the freedom of how we live our life, how do we get our dreams to come true?

To what extent should governments restrict property rights to protect other important rights?

Typically, when a government restricts some rights of its citizens, it must be for public benefit or at least reasonable. During the pandemic of COVID-19, governments around the world are all trying to prevent and block it. Some cities or states require people to get vaccinated before they back to work. Airlines require their customers to show their COVID-19 PCR test results before boarding. These regulations are great examples of restricting property rights to protect other important rights, which is the public benefit. Suppose that many business owners refuse to do those restrictions and keep doing their businesses without any preventing measures, the virus will outbreak briskly, and more highly transmissible variants will appear to spark concerns that vaccines may be less effective against them.

Reflection

At the end of this week's journal, I draw a picture that captures the relationship between business activities, individuals, and governments. I usually draw something to help me better a concept, a notion, or an idea. Although the picture does not include all the elements of the protection of property rights to the effort to promote strong, prosperous businesses, it described the basic interactions involved.

Reference

Reforming property rights and economic development. VOX, CEPR Policy Portal. (n.d.). Retrieved December 13, 2021, from https://voxeu.org/article/reforming-property-rights-and-economic-development. 

If you found a prototype of a revolutionary new mobile phone lying on a public bench, what would you have done with it?

 If you found a prototype of a revolutionary new mobile phone lying on a public bench, what would you have done with it? 

Personally, I don't care if it is a revolutionary new one or not, I am not going to hold it as mine since I do not own it since it was supposed to be unintentionally relinquished or set down for later retrieval. Most of the time, I may be struggling within my mind. Should I pick it up and hand it to a police officer or just ignore it? Because some of the good guys in Taiwan who pick it up and try to deliver it to the police, or relinquish it to its owner, may be treated impolitely when the owner returns to get it back. The real world is not like a video game where you can hit someone or monsters freely, pick up the coin and pieces of equipment they dropped, and take possession of it. 

What would be the consequences of your chosen action?

In this case, I don't know if the owner has abandoned the prototype and intends to relinquish ownership in it, or not. If he(or she) did intend to relinquish ownership, the prototype probably belongs to the new owner, probably me. However, if the prototype was simply mislaid, then the finder must relinquish it once the rightful owner demands its return. If I refuse to return the mislaid prototype to its rightful owner, the owner probably sue me for conversion, which is considered a tort. In addition to the consequences, I reckon if it is really a prototype of a revolutionary new mobile phone, the owner or the creator, must be very anxious after mislaid it. The creator's hard work will go down the drain and it is a bad news for all humankind. Most people probably say that, what does it even matter to me if it is not my property. The truth is, everyone can be the victim. Even though you did not innovate anything, you still don't want to be invaded, stolen, or robbed. However, I believe some prizes are valid for encouraging honorable behaviors based on reciprocity.

Does the value of a parcel of land come only from the profits it can generate? If not, what makes land valuable? Does it have an “inherent” value that has nothing to do with human profit?

To my knowledge, the value of a parcel of land does not only from the profit it can generate. First of all, we are essentially one of the terrestrial animals. We are not Aquaman who can live and breathe underwater. So, the land supports our lives, to provide a place to live such as building a house on the land, even though the land does not generate any profit at all. How would you measure that with money? Secondly, the treasury underground such as water, raw materials, or petro oil. The inherent value of land would also arise from an ecological, landscape, cultural, heritage, scientific attribute, or characteristic of a natural resource or historic place. Living in the desert or the arctic are two different experiences.

A Brief Stroy

In 1998, on Malleny Street, Sydney, Bill Gertos noticed a house that was in dilapidation while visiting a client, and he learned that the person who originally lived here had passed away for a while after inquiring. Gertos then spent about A$150,000 to repair the house and rent it out. In 2017, he filed to claim for the ownership of the house based on squatter's rights. The descendants of the original owner learned it from the police's announcement and were aware of the situation.

This house was actually owned by a man named Henry Thompson Downie in 1927. The Downie family moved to Ashfield, New South Wales during Second World War. With the coming conversion of the house, Downey’s descendants are of course very disgruntled, claiming that Gertos has not fulfilled his obligation of public notification and therefore has no right to claim for the ownership.

The Squatter's Rights, Adverse Possession

The so-called adverse possession refers to a possessor who continuously and publicly occupies the other party’s property without the original owner’s consent. If the rightful owner does not claim to be the owner of the real estate within a certain period, this possessor can legally obtain the ownership. However, strictly speaking, the initial behavior of the occupier is not legal and risky. Before enough time has passed, the rightful owner still possibly sue the occupant with trespass. Until the required time period has passed, the rights of the occupier will be protected. In New South Wales, Sydney, this period was at least 12 years. 

How is intellectual property a true form of property? 

Different from physical property, such as real estate, jewelry, or cars, intellectual property is intangible personal property. It is the rights that protect your right to utilize your original creation except for the idea itself. Some intellectual property rights last for a specific amount of time, while others can theoretically last forever. So, to summarize, intellectual property is movable, intangible, and personal property. In addition, another intangible personal property that is shot to fame recently is NFT. A non-fungible token (NFT) is a unique and non-interchangeable unit of data stored on a digital ledger (blockchain). NFTs can be associated with reproducible digital files such as photos, videos, and audio. In the simplest terms, NFTs transform digital works of art and other collectibles into one-of-a-kind, verifiable assets that are easy to trade on the blockchain.

Do you think it is appropriate for governments to protect intellectual property just like any other form of property? 

A patent grants the right to exclude others. The rule of law would protect your right to exclude against the intrusions of others and confers the legal right to exclude others from making, using, or selling the patented product without a licensing agreement. I reckon that it is vital to protect intellectual property. The only question is, HOW? We all know how to protect our private land or house when someone trespass. But, are there the same way to protect those intangible things? To legally protect it like a legally enforceable contract, we have to define it first, to know what we are actually protecting. However, I believe the key point here is that we do not want to protect it way too much cause the monopoly exists forever or diminish innovation. Therefore, we must keep balancing it by analyzing consumers and producers. Other forms of property are mostly something we earned or purchased through exchange or trades. But, the government does not protect your land or house only for a limited time period or prevent others to build the same house with the same materials. Overall, I think it is inappropriate for governments to protect intellectual property just like any other form of property because they are inherently different. After all, creations from human minds are not the same as creations by mother nature or God. Finally, the procedures to get the rights still need to be improved. Many innovators and creators may be waiting for the results for months or even years and postpone many new products that may benefit or even change our world. Those rigorous application and approval processes with the government will kill those inventions.

Reference

Burke, K. (2020, March 7). Property developer makes $1.4M after claiming squatter's rights on Ashbury House. Domain. Retrieved December 10, 2021, from https://www.domain.com.au/news/property-developer-bill-gertos-make-1-4-million-after-claiming-squatters-rights-on-ashbury-house-937780/. 

Lau, T. & Johnson, L. (2011). The Legal and Ethical Environment of Business (Vol. 1). Flat World Knowledge.