Tuesday, March 30, 2010


Synonyms: Private, Chattel

Classification: Euphemism, moral rationalization

Definition: Adjective used to describe items over which the exclusive right to use and dispose are legally vested in a self-selected individual or group of individuals.

The principle of private ownership is one of the concepts most central to the ideology of info speak. In its abstract, theoretical sense, it is also one of the least controversial ideas. But from a very narrow construction of that principle flow the flawed but powerful dynamic of patronage and the dubious conflation of wealth with moral virtue.

For at least thirty years it has not been possible to hold a serious discussion about the nature and extent of private ownership as a promoter of the public good. Experiments with various Marx-inspired philosophies in the 20th century have led to a stable consensus that a state's generalized opposition to the private holding of property, even when promoted sincerely and not merely used as a ruse to dupe a gullible populace, always heralds the advent of an incompetent kleptocracy. The strength of this consensus has given the principle of private ownership a kind of priviledged status that effectively short circuits any serious discussions to better define its extent and limits as a promoter of the public good.

Until March 29th, that is, when Justice Sweet of the U.S. District Court for the Southern District of New York issued a ruling denying several patents to Myriad Genetics, Inc. over naturally occurring genes involved in the development of certain types of breast and ovarian cancers.








The Association for Molecular Pathology (a non-profit promoting genetic medicine) initiated the suit as plaintiff to deny these patents and was represented by the American Civil Liberties Union and the Public Patent Foundation.

The defendant, the U.S. Patent and Trademark Office, had earlier granted the disputed patents to Myriad Genetics, Inc., a privately owned biotechnology company which had developed several products based on the patents to obtain a practical monopoly over the market for certain types of cancer screening.

The primary judicial grounds for invalidating these patents was their inherent unconstitutionality, holding that under the First Amendment (i.e., "Free Speech") and the Fourteenth Amendment (i.e., guarantee to "Life, Liberty,Pursuit of Happiness"), it is not possible to grant patents over " . . . products of nature, laws of nature and/or natural processes, and abstract ideas or basic human knowledge or thought."

Numerous supporting briefs were submitted by third parties elaborating their consideration of the consequences of granting or denying patents over such naturally occurring genes. Not surprisingly, those filed in support of Myriad's patents tended to emphasize the advantage of exclusive rights over the genes when attracting investment for biotechnology firms. Briefs against the patents asserted that the monopoly resulting from such patents actually stifles innovation by making competitors' research too expensive and places the cost of life-saving treatments out of reach of many women, effectively denying them their basic human rights.

Groups submitting briefs included the American Medical Association and March of Dimes in opposition to the patents and the Boston Patent Law Association in support.

Though there will almost certainly be a lengthy series of further appeals, it nonetheless marks a turning point in the debate of private property in this country. The Myriad case is the most serious challenge to private ownership over the genetic code of living organisms since the controversial 1980 case Diamond v Chakrabarty.


The subject of Diamond v Chakrabarty, however, was the genetic code of a bacterium which had been significantly altered by the party claiming the patent, whereas Myriad seeks to hold exclusive rights over an unaltered human gene.

As referenced within the court's opinion, a Dr. Fiona Murray has estimated that to date approximately 20% of the genome in every human being--you and me--is currently held under exclusive patent. And I'm fairly certain that none of those patents are held in my name.

So while the final disposition of this controversy may be far off, many important ideas have received a new lease on life; and the idea that private ownership is an absolute moral good, that it always and necessarily guarantees economic progress now seems to be open for serious debate. Maybe others will be encouraged to articulate more complete notions of the public good or better distinguish between wealth and virtue or even work on some non-sectarian notion of a sacred space, out of the reach of the venal or profane.

Etymology: French proriƩtaire < Latin proprietarius

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