Musical Condoms: Make Mine Whistle "Dixie"
by Wendy McElroy

In stating my musical preferences, I refer to United States Patent 5,163,447, the force-sensitive, sound-playing condom. "The proximal end ... contains a chip-controlled piezoelectric sound transducer which plays a melody or voiced message" during intercourse.

If this patent seems absurd, at least it does no harm. Unlike, for example, the patent application filed by the U.S. Secretary of Commerce in the early '90s on the genome of a Guaymi Indian women from Panama. More precisely, the proposed patent attempted to claim the woman's cell line -- a group of cells that could be sustained and cultured in a lab. The woman had no knowledge of the impending monopolization of her identity. When she found out, the outraged President of her tribe demanded that the United States drop the application. He argued, "I never imagined people would patent plants and animals. It's fundamentally immoral ... to take human DNA and patent its products."

Today, only a few years later, Celera Genomics -- an American biotechology firm -- is beginning to patent parts of the human genome, the genetic information that makes us human. According to J. Paul Gilman, Celera's director of policy planning, "We ... will try to develop intellectual property on somewhere between 100 and 300 genes." The company intends to grant access to this 'blueprint' for a subscription fee. This intention directly contradicts that of the international governmental effort underway to chart the genome -- HUGO, the Human Genome Organization. It wishes to make the human genome available for free on the Internet. Yet currently there are a reported 6,000 plus patents pending on genetic material.

The implications of patenting genes are enormous. For example, in 1998, after Myriad Genetics Laboratories Inc. of Salt Lake City received patents on the sequences of the BRCA1 gene, it sent a letter to the University of Pennsylvania. The university was warned not to perform BRCA1 diagnostic tests unless a fee was paid for each one. The university lab's research and development director, Arupa Ganguly declared, "It seems that in this country, if you have a patent, that's it. You can monopolize testing ... [T]his will happen with every gene that can be patented."

Those who advocate free market solutions, rather than governmental ones, seem to be in an awkward situation. The patents issued to commercial ventures -- that is, the market approach -- may well present a huge barrier to future research and medical services. It may seriously hinder human progress. The governmental approach of providing genetic information for free seems to promote human well being. But these statements rest on the assumption that the patents themselves are a free market phenomenon rather than a grant of governmental privilege.

What are patents? A patent is a form of intellectual property. In turn, intellectual property is the ownership claim to an intangible thing -- namely, to an idea. If the idea is expressed in an original work, the ownership claim is called a copyright. If it is expressed through an implementation, the claim is called a patent. Because it is the idea that is owned, the holder of the patent can prevent anyone else from expressing that idea through an identical implementation. At its root, copyrights and patents are about freedom of expression and when it can be rightfully restricted.

These restrictions are meant to serve a specific purpose. Article I, Section 8 of the United States Constitution states, "Congress shall have the power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Thus, in 1790, Congress passed the Great Patent Act and Thomas Jefferson became the first U.S. Patent Examiner.

Traditionally, copyrights and patents have been treated differently under the law. For example, patents last for 20 years from the filing date, while copyrights last for 70 years past the author's death. One of the main reasons for this difference is the possibility of 'simultaneous discovery.'

A patent involves identifying and using a law of nature or a fact of reality that has not been created by the discoverer. Often, the patent occurs because a field of endeavor has reached a stage that makes certain inventions or other breakthroughs almost inevitable. It is not uncommon for two people to independently invent the same process or machine. The most famous example of simultaneous discovery may well be calculus, which was independently developed by both Newton and Liebnitz. The 19th century libertarian Benjamin Tucker captured a fundamental objection to patents in general when he wrote: "The central injustice of ... patent laws is that it compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today although some other man ... in many cases very probably would have discovered it tomorrow."

By contrast, simultaneous discovery doesn't apply to copyrighted materials, such as novels and poetry. Two independent men might well discover the principles of a generator, but it is unthinkable that they would both independently write Hamlet. Thus, those who advocate copyrights have sometimes denied the propriety of patents. And the law has always applied different standards to them.

For one thing, what can be patented has been carefully circumscribed. Intellectual property attorney, N. Stephan Kinsella explains, "The Supreme Court has identified three categories of subject matter that are unpatentable, namely 'laws of nature, natural phenomena, and abstract ideas.' [Diamond v. Diehr, 1981] Reducing abstract ideas to some type of 'practical application' ... is patentable, however." To be patentable, inventions are supposed to be novel, to have utility and be nonobvious. Novelty means that the invention has not been anticipated by a prior invention or existing knowledge. Moreover, it should be inventive over and above what is obvious to anyone skilled in that area at that time.

The question becomes, "how does the mere discovery of a gene constitute a new and unique product, especially when independent discovery is a virtual certainty?" Indeed, independent researchers are racing to discover the genome. Although it may be reasonable to make proprietary claims about particular methods or equipment developed in the process of this pursuit, how can the genes themselves be patented?

In its model of patents, America broke with the early history of such laws. Historically, patents were grants of privilege awarded by a ruler to an elite few who were either 'favorites' or willing to pay the requisite bribe. The purpose of the American patent was to extend protection to every single person, without privilege, so that individuals could rise through merit and inventiveness. Granting patents for genes -- a naturally occurring phenomena -- violates the purpose of patents and returns us to the days of royal privilege. Again, a privileged few are being granted a government monopoly.