Can you repeat that? Genetic technology and IP

The most striking thing about intellectual property frameworks and cloning is perhaps the way both appear to rely upon the ability to repeat the unrepeatable - the idea (?), the individual (?)

In an opinion piece in the New York Times, Denise Caruso says, "Someone (Other Than You) May Own Your Genes."

Caruso is responding to the recent approval by the US Food and Drug Administration (FDA) of food products derived from cloned animals, meaning that such products need not be labelled as such for consumers.

Caruso points to a survey by the Pew Initiative on Food and Biotechnology (Pew), which contradicts the often cited view that US citizens accept biotechnology in the food industry, and identifies similar concerns with industry and loss of consumer confidence that have been surveyed in Europe.

When it comes to biotechnology, the concerns raised by campaigners and researchers alike frequently refer to the specific character and base material of research in biotechnology, and a fundamental incompatibility with the patent system and its arguably greater suitability for "mechanical" innovation. Caruso quotes a comment from Tim Hubbard of the Human Genome Analysis Group at the Wellcome Trust Sanger Institute, "If you have a patent on a mousetrap, rivals can still make a better mousetrap. This isn't true in the case of genomics. If someone patents a gene, they have a real monopoly."

Under European patent law a patentable invention must be useful (industrial application), and the European Biotechnology Directive requires utility for patent protection to be available for genetic sequences (in other words, a use/purpose must be identified). Classical interpretation of patent protection might indeed mean that the identification of one use might result to protection over all uses - effectively, protection for a naturally-occurring substance. But, developments towards purpose-bound protection in Europe mean that this anomaly would be reconciled within the system. Similarly, in the US, efforts to patent isolated gene sequences in 1994 were defeated for lack of utility.

On the "property" aspects, Caruso considers the work of Stephen Hilgartner (pictured at right), Department of Science and Technology Studies (STS), Cornell University, who published a paper on these issues. "Acceptable Intellectual Property" is articulated upon the notion of "risk" and the conventional concept of "balance" in intellectual property protection, Hilgartner asks whether the protection of biotechnology fulfils that balance.

And indeed, strikingly, he suggests that theories of real property and the attending expectations and obligations might be more applicable for these technologies - that is, a certain reconciliation of the unrepeatable.

The game IS worth the candle ...

Last night, as part of the UCL Current Legal Problems Series, Professor Jeremy Phillips gave an engaging presentation on the application of game theory to strategic planning in intellectual property enterprises. From fast food restaurants to toy shops, from sporting goods to medicines, Jeremy demonstrated with increasing persuasion the practical and constructive results that could be achieved if more strategic decision-making is put into action to minimise losses and maximise returns. The novel twist to what might sound like common sense is that in certain situations this could lead to some surprising and yet potentially extremely rewarding actions in a corporate environment. For instance, manufacturing your own "fakes" ... why buy the counterfeit fake when you can buy the original? In other words, imitating yourself may prove the most effective means of consolidating your position as the original.

In the context of patents and life forms, game theory may provide a means to similar returns - not only (or perhaps merely) from an economic perspective, but also from a cultural and ethical view. A more strategic and innovative understanding of the interactions between ethical issues, cultural concerns, and commercial interests would broaden the way in which these questions are conceptualised - beyond the possibly limiting economic models that are mediated through sometimes over-simplified intellectual property equations. Indeed, more strategic planning when it comes to policy and legal developments, that might seem to "twist" the economic model, may prove to deliver greater commercial benefit in the process. Why proceed from a particular model as the starting point when it might be far more effective to imagine a whole new set of moves? Why play a game of repetition when you can win a game of strategy? For intellectual property applications, and for life patents in particular, perhaps the game is worth the candle.