ABSTRACT
Intellectual property law is commonly understood to be a regime that is concerned with the management of intangible goods, such as information, artistic creativity and scientific ingenuity. The rationale of intellectual property law is taken to serve an economic function. On the one hand, it is to provide incentives and reward inventors for their work, and on the other hand, to promote public interest by the dissemination of the ideas embedded in an invention by their publication in patent documents. Therefore patent law is understood to entail a trade-off between the assignment of a temporary monopoly right in the tangible invention to the patentee and making freely available intangible information about the patented invention to the public (Eisenberg 2002). Consequently, most intellectual property scholarship has been commonly based on utilitarian considerations, with the ultimate aim of identifying the ideal equilibrium of the bargain, whilst taking into account the different political and economic interests arising in specific situations occasioned by new technologies. Seen from such a functionalist, regulatory viewpoint, patent law’s operation
does not seem to affect the meaning of human personhood or of human constitution in any way. However, with continuing controversies surrounding the practice of patenting human genetic materials and information, and also in the context of the question of patenting of stem cells of human origin (Laurie 2004), there have been calls for a ‘larger debate over gene patents’ (Boyle 2003). The difficult process of adoption and implementation of the 1998 Biotechnology Directive (98/44/EC) has been a poignant case, which depicted the political and moral contentiousness of patent law. Not only did the Directive result in several legal disputes between a number of member states and the Commission at the European Court of Justice,1 but France banned the patenting of inventions related to human genetic sequences outright, whereas Germany limited the scope for patents on human and primate gene sequences (Report from the Commission to the Council and the European Parliament 2005). Various national bioethics committees have recognised the moral unease about the practice of patenting
human genetic material and have especially raised concerns that patenting practices may be contrary to human dignity (e.g. Nuffield Council on Bioethics 2002; German National Ethics Council 2004). It is by no means clear, however, what the value of human dignity entails
in relation to the question of property and especially that of gene patents. The meaning of humanness itself appears to be subject to many shifts by technoscientific practices in the area of genomics, which makes it difficult to pinpoint what one should understand as the essence of humanity (Pottage 1998; Strathern 1999). At first sight, the problem seems to relate to the fear of commodifying the human person and treating it like an object. Nevertheless, this recognition does not suffice to explain exactly how inventions relating to the human genetic material or information have come to be associated with the essence of human personhood. In what ways does patent law implicate questions of personhood? Can a patented invention relating to human genetic material be understood as a human element, despite the fact that it has acquired an existence apart from the human body? What kind of picture of the human person, in other words what kind of human persona, does patent law portray? The aim of this chapter is to examine the way in which patent law brings
about a certain image or persona of the human subject by reference to the orthodox property law division between persons and things. Precisely because the legal property doctrine holds that persons cannot be objects of property relations, it seems pertinent to examine what kind of status and association inventions acquire that are in some sense held to be ‘human’. Rather than approaching the property distinction as an object of criticism or evaluating its adequacy in the context of human genetic patents, I take the property distinction as a starting point into the analysis of the legal understanding of personhood and seek to infer meanings of human persona which are engendered by the legal application of the property distinction. This chapter does not mean to evaluate the internal or moral adequacy of the present patent law framework with respect to its application to genetic material and information, nor for that matter, to assess the desirability of application of an (intellectual) property regime on these matters. More precisely, what seems important at this point is to trace the narrative of human personhood that is implicitly contained within patent law practice in order to get a better understanding of the ways in which patent law delineates and shapes these ideas. I refer back to the controversial case of Moore v Regents of University of California (henceforth Moore 1990)2 in order to explore these concerns. The case has been enormously well documented and discussed, especially from the perspective of ethical dilemmas that the reality of commodification of human bodily materials has raised (e.g. Andrews 1986; Gold 1995; Kahn 2000; Harrison 2002). It is not the intention of this chapter to add another voice to those concerns, as valid and important as they may be, but here the focus of analysis lies in Moore’s understanding of the distinct material which his
body produced and which subsequently gave rise to the US patent no. 4,438,032 on the so-called ‘Mo cell line’ that was assigned to the Regents of the University of California and named Dr David Golde and Shirley Quan as its inventors. The Moore case represents a curious concoction in which questions of intellectual property law, human material body, technoscientific practice and human subject/object positions have become entangled, and thus offers an ideal context from which to explore the status of human subjects and the processes of objectification in relation to these questions. The chapter is organised as follows. The first part examines Moore’s
relationship to himself and the patented Mo cell line. The discussion suggests that, contrary to the common belief that the ‘living body is part of the person, it is not an object’ (Moufang 1994), Moore seems to relate to himself already as an object and a potential commodity. The commodification of genetic material and information in the form of a patent seems to extend an already existing logic of self-ownership, which had long been the basis of the political rationality of citizenship, and particularly of legal subjecthood, but which had not been recognised in the legal discourse of property (Collier et al.; Davies and Naffine 2001). What seems novel, however, is the visual form in which property claims have to be embedded as they will have to fit the patent law’s definitional requirements of a patentable invention. The second part offers some theoretical observations on the legal property distinction between persons and artefacts and on the relations which this distinction engenders. Despite patent law’s rhetoric of neutral utility optimisation, patent law practices in the area of human genetic technologies seem to quietly and significantly contest, as well as uphold, a peculiar vision of the human persona. It appears that patent law reflects the human person’s fragmented relationship to herself as an object, while at the same time reconstructing and affirming the wholeness of human personhood by self-reference to the property law doctrine of the division between persons and things.
