Biotech Patents in the Age of Free Trade
Chapter 8: The Invention of Nature?
And God created great whales, and every living creature that moveth, which the waters brought forth abundantly, after their kind, and every winged fowl after his kind: and God saw that it was good. King James Bible: Genesis 1:21 In 1624 when James I signed Lord Coke’s Statute of Monopoly into law the idea that a natural phenomenon could be a ‘manner of new manufacture’ would have been as repugnant to him as the idea that God did not exist, for he believed that his entitlement to reign was a sacred contract between God and himself. Indeed so fundamental was his belief that ultimately his son, Charles I, would rather die than relinquish it. Indeed it was deeply ingrained into every Protestant and Catholic that God created the world and everything on it, and no man or woman could claim something Godmade as his or her own. So it was that when Burger CJ in Chakrabarty held once again that ‘laws of nature, physical phenomena and abstract ideas’1 were not patentable subject matter, he was applying a legal precedent which acknowledged that from the very beginning of Anglo-American patent law these things were to be ‘free to all men and reserved exclusively to none’.2 Yet when Kyle Jensen and Fiona Murray published the results of their study in their Science paper, ‘The Intellectual Property Landscape of the Human Genome’3 they showed ‘nearly 20% of human genes are explicitly claimed as US IP’.4 Of the 23 688 human genes that...
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