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.

Deferred Gratification and Income Inequality

The Economist reports on an interesting new study showing that members of a Bolivian tribe who understood the value of deferred gratification also experienced higher income gains:

One phenomenon that is almost unique to humans is deferred gratification—in other words, patient anticipation of a reward. Dr Reyes-Garcia and her colleagues therefore guessed that as the Tsimane’ became more enmeshed in modern society, the more patient of them would do better than the less. The Tsimane’s traditional subsistence economy depends on folk knowledge and learned skills that have quick pay-offs. Formal schooling does not pay off for years, but opens the door to bigger potential incomes. To test their idea, the researchers offered all 151 adults in two Tsimane’ villages a choice between receiving a small amount of money or food immediately, getting a larger amount if they were willing to wait a week, and getting a larger amount still in exchange for several months’ wait for payment. They found that the more education a villager had, the longer he was willing to delay gratification in return for a bigger reward. Five years later, Dr Reyes-Garcia and her colleagues came back again. They re-interviewed 100 of their volunteers (the other 51 were unavailable for one reason or another) and found that those who had shown most patience in the original experiment had also seen their incomes increase more than those of their less patient counterparts. The effect was relatively small—the incomes of the patient had grown 1% a year faster than those of the impatient. Over a lifetime, though, that adds up to a significant amount of inequality. The patient, then, could take their place alongside the lucky, the smart and the violent at the top of society’s heap.

These results are similar to research in advanced societies. All other things equal, successful people tend to recognize the value of sacrificing today in order to enjoy more income/consumption/wealth in the future. But consider what this research implies for the current political debate about income inequality. Leftists are beating the drums for higher tax rates and more income redistribution, in part because they insist that rich people are either lucky or that their wealth is earned at the expense of the less fortunate (the fixed-pie fallacy). But if income differences are the result of individual choices, these arguments are less persuasive. Rather than seeking to punish success, honest leftists should focus their energies on figuring out how to create a culture of deferred gratification in poor communities.

Utah Vouchers: What Should We Expect?

I’ve got an op-ed in the American Spectator today about Utah’s newly passed, and nationally unprecedented, statewide voucher program.

The upshot is this: it is the most significant school choice legislation ever passed in the United States, but it isn’t going to create a vigorously free market in education overnight, and it will have to be stalwartly defended if it is to preserve the independence of participating private schools.

So let’s all sing along with George Harrison:

It’s gonna take patience and time, ummm
To do it, to do it, to do it, to do it, to do it
To do it right

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.

Why the United States Must Leave Iraq

The U.S. military occupation of Iraq has already cost more than 3,000 American lives and $350 billion. In “Escaping the Trap: Why the United States Must Leave Iraq,” Cato scholar Ted Galen Carpenter argues for a rapid and comprehensive withdrawal from Iraq. “It is time to admit that the Iraq mission has failed and cut our losses. We need an exit strategy that is measured in months, not years.” Carpenter also examines alternative prescriptions offered by opponents of immediate withdrawal—gradual or partial withdrawal, escalation, and partitioning—and concludes that they are unrealistic, expensive, and insufficient to stem the violence in Iraq.

Swiss Leaders Defend Low Taxes, Reject Complaint from Brussels

The tax bureaucrats at the European Commission apparently believe that low tax rates and territorial taxation (the common-sense principle of only taxing income earned inside national borders) are a violation of free trade rules. The Swiss, not surprisingly, have a different perspective. This European fight has long-term implications for America. If the Euro-crats succeed in characterizing good tax policy as an unfair trade subsidy, it will be only a matter of time before high-tax nations use the same theory at the World Trade Organization. Ideally, Switzerland will hold firm and this will never happen. As explained by tax-news.com, the EU has very little leverage in this battle unless they are willing to impose protectionist barriers against Switzerland, but there are a number of low-tax EU nations that presumably would side with Switzerland and block any sanctions:

Switzerland has rejected criticism from the European Commission of corporate tax rates in some cantons, saying it will not yield its sovereignty over this issue. …Finance Minister Hans-Rudolf Merz shot down the EU proposal, saying in Bern that there was nothing to negotiate. …The commission wants the Swiss to change tax rules that it claims offer unfair advantages to firms operating out of Switzerland. It said low corporate taxes offered by cantons such as Obwalden and Zug violated a 1972 trade agreement, calling it a disguised state subsidy. …Merz said he does not fear a backlash from Brussels since so far all the talk is about negotiations. He reckons that sanctions are also unlikely, as some EU member states would probably not back them. The finance minister admitted though that the European initiative was aimed at stopping firms – and their tax money – leaving the union for Switzerland’s greener pastures.