Patent but not obvious

Law and Human Genetics
March 5, 1999

One does not need to be a fully paid- up prophet to foresee that questions about the regulation of the biotechnology revolution will increasingly occupy lawyers in the next few years, whether they be of primary legislation or of the interpretation of existing law. This collection of essays is therefore timely, and useful. Colin Campbell, chairman of the Human Genetics Advisory Commission (set up in 1996), supplies a judicious and intelligible introduction.

The matter of intelligibility is of paramount importance in a book such as this, which will be read by lawyers as well as geneticists, and will, very properly, be consulted, for several years to come, by scientific and legal journalists, seeking to explain the facts (and the values) to ordinary newspaper readers. For my own part I have to confess to finding writers who address the problems from the point of view of the social sciences less intelligible than those who are biologists or lawyers. There has for many years been an attempt to make the social sciences respectably scientific, which has led to the development of a particular jargon and of a high degree of abstraction rendering their output extraordinarily opaque to outsiders. There are two contributions to this book that display such opacity, both concerned with important issues, but likely to defeat the ordinary reader. These are the long central essay by Julia Black, from the law department of the London School of Economics, "Regulation as facilitation", the other the final essay, on the crucial subject of patent law, by Alain Pottage, of the same department.

It is, in my view, especially important to initiate a debate, based on a proper understanding of the facts and of the law, on the subject of what may and may not be patented, especially by international pharmaceutical companies, as more and more is discovered about the human genome, and more potentially lucrative (and probably beneficial) visions open up of the uses to be made of the new knowledge. There is a particular danger, in this field, of succumbing to the rhetoric of "patenting life", which suggests that to take out a patent on a length of DNA or some human tissue is somehow to enslave the person whose DNA or tissue this was. There is, on the other side, a powerful argument that research cannot continue, or be financed, unless pharmaceutical companies take out patents, and thus have the freedom, for a number of years, to continue with their own research and development. Yet, in the middle, there is also a genuine fear that disinterested, non-commercially driven research is thereby increasingly inhibited. It may be that patent law is simply not able to deal with these new patentable objects, uneasily lying between discoveries and inventions, (any more than, as I suspect, questions of the "ownership" of tissue can be dealt with by laws governing property). If a change in the law is necessary, we ought all of us to be enabled to understand the issues. It is therefore a pity that the discussion of such subjects is not clearer and simpler in the book.

But there is a lot to be grateful for. There is an especially good essay on the questions surrounding genetic intervention by Sheila McLean, of the University of Glasgow school of law. There is a serious attempt by Deryck Beyleveld and Roger Brownsword of the Sheffield Institute of Biotechnological Law and Ethics to unravel the extraordinarily tangled concepts involved in the term human dignity, increasingly used, in place of argument, as a prop in all kinds of regulatory proposals, especially in Europe. And, from the same institute, there is an excellent introductory essay, "Human genetics: the new panacea?" by Julian Kinderlerer and Diane Longley.

My only other disappointment is an essay on the possible impact of the genetic revolution on family law, by Ruth Deech, coming to the end of her chairmanship of the Human Fertilisation and Embryology Authority. This seems curiously superficial, coming from the pen of someone with her experience and influence.

Overall, this is a book to be turned back to in five years' time, to check on how the predictions have been fulfilled.

Baroness Warnock was formerly mistress, Girton College, Cambridge.

Law and Human Genetics: Regulating a Revolution

Editor - Roger Brownsword, W.R. Cornish and Margaret Llewelyn
ISBN - 1 84113 006 0
Publisher - Hart
Price - £15.00
Pages - 180

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