Fox on 23andMe’s Designer Baby Patent

Check out blogger Dov Fox‘s new op-ed over at HuffPo discussing 23andMe’s Designer Baby Patent.  Here’s a quick taste: 

Even if 23andMe doesn’t bring its donor selection technique to market, there’s still reason to resist granting such patents in the first place. Patents do more, after all, than incentive innovators to disclose their inventions to the public. When the government confers a patent for a particular invention, it implicitly approves of that invention as an object worthy of exclusive rights. A patent award sends the message that this is an invention whose development should be protected and promoted.

The utility standard in patent law requires that a patented invention be “socially beneficial.” That requirement once contained a morality condition that rendered ineligible for patent protection inventions whose sole use was deemed “injurious to the well-being, good policy, or sound morals of society.” But this morals dimension of patent law’s utility requirement has more recently fallen out of favor. The PTO expressly rejected the argument that “patents should not issue for [human] genes because the sequence of the human genome is at the core of what it means to be human,” and the Supreme Court declined even to consider such morality-based arguments in last summer’s gene patenting case of Myriad Genetics.

Congress should consider amending the patent law to appoint ethical representatives to the PTO. Its present staff, given their alternative professional backgrounds and competing professional responsibilities, cannot reasonably be expected to account for the relevant methodology and literature. But qualified experts could equip the PTO to enlarge the range of arguments that it draws upon to determine whether an invention serves social utility.

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About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.