Dialogue Concerning Natural Appropriation

Two utilitarian defenses, traceable to Bentham and Mill, are commonly offered for patents. It is contended that patents induce innovation, and that patents induce disclosure of innovation. Patents on some or all of the human genome pose particular challenges for these defenses. In the first instance, patents on nucleotide sequences entail the perverse notion of human reproduction qua infringement. In the second place, when such patents are available (as is presently the case), the two defenses involve a counterfactual claim, viz., that if there were no such patents, biotechnological progress would wane. Even if these challenges are met, concerns about respect for humanity generate opposition to property interests in compounds manipulated outside the human body but significantly homologous to compounds found in humans. This stance about things human might appear to commit the fallacy of division. In a dialogue between a Kantian and a utilitarian, arguments for and against property interests in the human genome are presented. In discussions whether governments should grant patents on nucleotide sequences of human deoxyribonucleic acid (“DNA”), one often hears predictions of social costs and benefits consequent on territorial division of the human genome. Costs and benefits come to the fore because a patent is an economic privilege that transforms otherwise concealed knowledge into a marketable public good, and because in studying the optimal provision of public goods, economists often employ cost-benefit analysis. Prospective inventors and investors follow suit, often seeming to presuppose consequentialist morality as they defend the patent system on which their expectations rest. The orthodox defense of the patent system leans on incentive effects. Nonconsequentialist views are more likely to be found among those who have no stake in the patent system. The following conversation occurs as Hugh, a utilitarian, encounters Ike, a follower of Kant’s moral philosophy. HUGH. I suggest that governments should grant patents on life forms, including human DNA sequences, because allowing such patents will yield higher preference satisfaction, regardless of harm to some in any given case, than not allowing them. We utilitarians differ amongst ourselves whether aggregate or average preference satisfaction should be the maximand, but that difference matters only when population is nonconstant. I shall put this difference to one side by referring only to “preference satisfaction.” Patents effect two principal benefits. First, they provide inSynthese 136: 321–336, 2003. © 2003 Kluwer Academic Publishers. Printed in the Netherlands.