Topic: Law and Civil Liberties

Genes, Patents and Honest Dealings

Michael Crichton wrote an excellent op-ed, “Patenting Life,” in Tuesday’s New York Times.

I find it hard to disagree with Crichton’s comments, but it might be worth mentioning that his article really deals with two separate arguments. One is that taking something that belongs to others, i.e., actual physical material, without their permission is wrong. The second issue is that innovation is the proper subject of patents, not mere discovery. In the first situation, the question is whether patients should have a right to share in patents developed using their tissue or genes. In the second, the question is whether the genes themselves – not just the products created with them – should be patentable.

Self-determination and self-ownership are essential in a free society. Actual physical material such as tissue samples or actual genes taken from a person’s body should not be acquired or used without informed consent – that includes not using a patient’s tissue to develop and market cell lines or to develop and market medical therapies without the patient’s express consent. It is dishonest to provide patients with misleading consent forms. Some give the impression a patient’s tissue is medical waste that the hospital or doctor should be free to dispose of as necessary. Other consent forms acknowledge that a patient’s tissue may be used to gain knowledge but say nothing of the potential profits to be gained either from that knowledge or from the actual use of the tissue itself.

For consent to tissue acquisition to be informed it must clearly identify a patient’s options: 1) Is the patient making a gift of the tissue and expressly relinquishing any potential profits from medical products developed with that tissue? 2) Is the patient being paid for his tissue and willingly relinquishing any claim to profits from products that may be developed using that tissue? Or, 3) Is the patient being promised a percentage of the profits, should any materialize? Patients must not only be aware of these options but also understand them for there to be true informed consent. To do otherwise is to take something from them under false pretenses.

Patents on genes themselves is a different issue. I’m not a patent lawyer, but if Crichton is correct, it seems the courts have confused the discovery of something new in nature with the creation of something new, i.e., confused pure discovery with innovation. Scientists are awarded Nobel Prizes for discovering new elements, new species, or new diseases, but they usually aren’t, and shouldn’t be, awarded patents for such discoveries. Patents should only be awarded if something new is created – a new process, a new test, a new technique, a new cure, etc. Imagine if Casey and Jacobi had been awarded patents for their 1973 discovery of the Hawaiian Po’ouli Honeycreeper. Anyone who wanted to go looking for the Po’ouli bird would have to pay Casey and Jacobi a licensing fee. Innovative processes used to test for certain genes or their mutations or special processes for recording information about genes should potentially be patentable, but, not the genes themselves – no more than it makes sense to patent the rare and hard to find Po’ouli.

One further distinction is worth making. A patent might be justified if a scientist manipulated a gene to create something new. If a patent were awarded, the patent holder should be required to share his profits with the person from whom the original gene was acquired unless, after full and complete disclosure, that person had willingly and with full understanding relinquished his rights to such profits.

Some Sensible Thoughts on the REAL ID Act

Today I’ll be testifying on the REAL ID Act in a state legislature for the second time in two days. In the morning yesterday, I spoke to the Government Operations Committee of the Utah House of Representatives, along with the Committee’s Chairman Glenn Donnelson (R-North Ogden). His resolution to reject the REAL ID Act was passed unanimously by the committee and sent to the full House.

Mid-day, I flew from Salt Lake City to Boise, Idaho to speak on a panel about REAL ID convened in the capitol building by Representative Phil Hart (R-Athol). Today, Hart’s resolution opposing REAL ID will be heard in the House Transportation and Defense Committee.

Among the people on yesterday’s panel in Boise was Bill Bishop, Director of the Idaho Bureau of Homeland Security. You might think that a homeland security guy would support REAL ID. He doesn’t. Knowing full well he might be making it harder on himself the next time it comes time to getting grants from the U.S. Department of Homeland Security, he laid out his opposition to REAL ID.

Along with his philosophical objections to a national ID, he pointed out its practical weaknesses as a security tool. You can nail down the identity of everyone and you’ll be no better off in preventing something like a terrorist attack. And as soon as you come out with a highly secure, highly valuable ID like the REAL ID, the hackers and forgers will go to work on faking it or corrupting someone in order to get it. It’s a good security practice to diversify your protections rather than creating a single point of failure like the REAL ID Act does. You might make yourself less safe if you rely on a uniform ID system for your security.

What frustrates me about this kind of guy (I say, tongue firmly in cheek) is that I had to study security and risk management for a couple of years before I understood these concepts well enough to put in my book. The Bill Bishops of the world just kinda know it. Not fair.

Summarizing REAL ID’s utility as a national security tool, Bishop said: “I don’t believe in the Easter Bunny, I don’t believe in Santa Claus, and I don’t believe in the Lone Ranger. Which means I don’t believe in silver bullets.”

We ought to take advantage of this kind of wisdom, and the obvious benefits of local knowledge - maybe by coming up with some kind of decentralized governmental structure. I don’t know how you would do that. Just putting an idle thought out there.

Free Kareem Rallies February 15

Friends of freedom will be at dignified rallies in cities around the world on behalf of Abdelkareem, who is awaiting sentencing in Egypt for expressing his opinions on his blog. Rallies will be held in New York, London, Ottawa, Chicago, Bucharest, Washington, Rome, and Paris, and we are hoping for other cities.

In Washington, friends of freedom will gather at noon on February 15 at the Egyptian Cultural and Educational Bureau: 1303 New Hampshire Ave, NW; Washington, DC, near Dupont Circle.

Visit http://www.freekareem.org/ for more details. If you can spare an hour on February 15, please join those who are standing for freedom of speech….and for the freedom of a young man who – agree with him or not – merely spoke his mind.

‘Symbolic Immolations’

Stuart Taylor: “The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling getting sent to prison for 25 and 24 years, respectively, reminded me a bit of Roman emperors throwing criminals to the lions and bears to gratify circus crowds.” 

Good piece – because he not only hits the white-collar, but the blue-collar sentences as well.  For related Cato work, go here, here, and here.  I invited Taylor to moderate a panel discussion on the disastrous drug war here at Cato a few years ago.

Property Rights Promote Conservation

My daily visit to Marginal Revolution continues to pay dividends. Alex Tabarrok comments on a New York Times story that explains how giving people private ownership of trees has improved conservation and led to millions of additional trees: 

Recent studies of vegetation patterns, based on detailed satellite images and on-the-ground inventories of trees, have found that Niger, a place of persistent hunger and deprivation, has recently added millions of new trees and is now far greener than it was 30 years ago. These gains, moreover, have come at a time when the population of Niger has exploded, confounding the conventional wisdom that population growth leads to the loss of trees and accelerates land degradation, scientists studying Niger say. …Another change was the way trees were regarded by law. From colonial times, all trees in Niger had been regarded as the property of the state, which gave farmers little incentive to protect them. Trees were chopped for firewood or construction without regard to the environmental costs. Government foresters were supposed to make sure the trees were properly managed, but there were not enough of them to police a country nearly twice the size of Texas. But over time, farmers began to regard the trees in their fields as their property, and in recent years the government has recognized the benefits of that outlook by allowing individuals to own trees. Farmers make money from the trees by selling branches, pods, fruit and bark. Because those sales are more lucrative over time than simply chopping down the tree for firewood, the farmers preserve them.

Blacks Used Gun Ownership to Fight the KKK

Ken Blackwell’s Townhall.com column favorably comments on how 2nd Amendment rights enabled oppressed blacks to defend themselves in the Jim Crow south:

In his 2004 book, The Deacons for Defense: Armed Resistance and the Civil Rights Movement, Tulane University history professor Lance Hill tells their story. Hill writes of how a group of southern working class black men advanced civil rights through direct action to protect members of local communities against harassment at schools and polling places, and to thwart the terror inflicted by the Ku Klux Klan. He argues that without the Deacons’ activities the civil rights movement may have come to a crashing halt.

…Following a KKK night ride in Jonesboro, the Deacons approached the police chief who had led the parade and informed him that they were armed and unafraid of self-defense. The Klan never rode through Jonesboro again. Local cross burnings ceased when warning shots were fired as a Klansmen’s torch met a cross planted in front of a black minister’s home. The initial desegregation of Jonesboro High School was threatened by firemen who aimed hoses at black students attempting to enter the building. When four Deacons arrived and loaded their shotguns, the firemen left and the students entered unscathed. It was this series of efforts by the Deacons that caused the Klan to leave Jonesboro for good.

Similar work in Bogalusa, Louisiana drove the KKK out of that town as well, and led to a turning point in the civil rights movement. Acting as private citizens in lawful employment of their constitutional rights, the Deacons demonstrated the real social impact of the freedoms our nation’s founders held dear.

…Gun control measures, from the slave gun bans of the 1700s South to the Brady Bill regulations of the 1990s, have unfairly targeted black Americans and have worked to curtail a disproportionate number of their constitutional rights.

Atlanta Shooting Update

Several weeks ago an elderly lady was shot dead by police in another drug raid gone bad.  All too often these events are just swept under the rug.  In this case, the prosecutor is saying the right things:

“The death of Mrs. Johnston constitutes one of the greatest tragedies ever to occur in Fulton County,” Howard wrote. “I will not rest until every person responsible for her death is held accountable. …

“When homicides occur in Fulton County, whether committed by a civilian or a law enforcement official, it is the obligation of the District Attorney’s Office to take the appropriate legal actions.”

Looks like one officer will face charges and the investigation is still on-going. 

Experience shows that the publicity brings close scrutiny, and that helps to prod police departments and prosecutors into action.  I doubt there would have been much publicity if the shooting victim had been a 22 year old black male with a “criminal record,” such as drug possession.  Still, this case might set a favorable precedent for how such incidents ought to be handled.

Thanks to Instapundit for the link.