In Marxist theory, capitalist drones afflicted by false consciousness are constantly indulging in the fetishism of commodities -- placing material possessions on an absurdly high pedestal.
Likewise, critics of the practice of obtaining patent protection on life forms -- generally found on the neo-Marxist left -- object that by patenting life we heartlessly commodify it.
More fundamentally than either the argument from exploitation (or that from enclosure), the commodification objection confronts the very essence of the practice of patenting life.
If exploitation critics focused on the potential for suffering by one side of the transaction, and if the enclosure opponents railed against unfair gains accruing to the other side of the bargain, commodification objectors attack the internal characteristics of the deal itself. The first two challenge the terms of the bargain, the last, its very existence.
In general, the commodification criticism states that the very practice of patenting -- and, by extension, buying and selling -- forms of life inherently demeans and cheapens those life forms. Some things, according to this latter line of reasoning, simply do not belong on the market.
While this objection runs deeper and implicates more central values than either of the previous challenges to the patenting of life -- examined in the foregoing installments in this series -- it too can be addressed by examining the nature of the transaction and by seeking to understand the fundamental purpose or telos of living beings.
According to the commodification argument, we ought not freely assign monetary value to a given item, especially when such an assignment conflicts with the "proper" way of interacting with the item. When we buy and sell something in a manner inconsistent with the right way of treating it, we offend its dignity and reflect poorly on ourselves.
This argument depends critically, then, on a useful and accurate understanding of what an item's "proper" use or character really is. Unfortunately, such a definition is as elusive as it is crucial.
One attempt at appreciating an item's proper treatment can be found in conventionalism: examine how a society typically views the item and test whether placing it on the market comports with that accepted viewpoint.
Such a method has the virtue of convenience but it slips easily into an almost tautological description: it is (or is not) perfectly acceptable to buy and sell the item because the general public does (or does not) treat the item as something appropriate to buy or sell.
Looking to prevailing custom offers only a shallow, unsatisfying understanding of an item's proper use, not the rich, morally significant meaning that commodification critics seek.
Instead, then, this line of reasoning appeals to the Aristotelian idea of telos or purpose. Commodification objectors seek to tease out, in some deep, conceptual sense, the item's ultimate purpose or intrinsic significance.
In general, this may prove a Herculean task: on what basis can anyone evaluate an item's end purpose?
Yet at least in the context of patenting life, commodification critics might argue that living beings, from animals to single-celled paramecia, deserve to be let alone and to live their own lives. The telos of life, then, is simply to live freely and free from interference from other species.
Such a purpose conflicts fundamentally with the attempts of humans to buy, sell, or otherwise manipulate life for their own purposes. Commodifying living organisms, by this logic, gravely and inherently demeans their worth.
Yet this criticism of patenting life, like its predecessors, is not without its flaws.
First, patenting an item does not necessarily place it on the market. The patent regime is a balancing mechanism, designed to promote public disclosure of inventions while rewarding inventors with a property right, i.e. the right to prevent others from selling or using the invention without a license. In a sense, then, owning a patent over a life form bestows on the patentee one stick of the bundle of all property rights and as such commodifies life.
Yet that single stick is a relatively thin reed, yielding its owner neither the inherent right to practice the invention nor, necessarily, monetary gain in exchange for it. The patent right, properly defined, furnishes the inventor only with the negative right to exclude others from marketing or practicing the invention.
Second, while money almost always insinuates its way into the patent regime through licensing or direct profits, commodification objectors often use monetary arguments as a stand-in for their fundamental objection to genetic manipulation in general. Almost two decades ago, The New Republic editorialized that "invariably, the moral objections to patenting animals are the moral objections to genetic engineering itself."
In its 1988 report on a patent bill relating to transgenic inventions, the House Judiciary Committee argued that "many of the arguments against patenting animals are, in reality, arguments against the existence of the research in the first place. The patent law is not the place to exercise moral judgments about scientific activities."
In short, the red herring of money melts away once one digs deeper beneath the veneer of many commodification critics' claims.
But third and most importantly, granting that, notwithstanding the above, patenting life does indeed implicate commodification issues, the practice nonetheless does not necessarily violate moral norms and may even promote ethical ends. For if many commodification objectors contend that the patent regime corrupts an organism's proper telos of living freely, one might instead propose an alternate purpose.
Perhaps, broadly speaking, the telos of life, to the extent that it has one at all, is to preserve and enhance life itself. Individual life forms do not exist or belong in a vacuum, simply striving to be let alone. Instead, life constitutes a web of interspecies interactions, from bacteria that aid in animal digestion to insects promoting plant reproduction. Life sustains life.
In this context, human attempts to splice the gene in the service of the betterment and preservation of life remains quite consistent with this alternate, and arguably superior, telos.
Bioethicist Leon Kass offers an eloquent statement of this view. In the context of organ donation, Kass argues that far from demeaning the dignity of the human body, the transfer of organs represents "a reaffirmation of the self's embodiment." Others like Dr. John Fletcher, testifying before Congress, have noted that we, as humans, find ourselves "morally obliged to learn how to modify human genes because of the great suffering that might be relieved or avoided."
The patent regime inspires and promotes this process of spreading nature's bounty, its genetic treasures, as widely as possible among all species, whether animal, plant, or bacterial. To be sure, profit as well as altruism motivates scientists' forays into the realm of the genetic. Yet far from corrupting life forms, those inventive adventures inevitably further life's telos of sustaining, lengthening, and enhancing itself.
In this way, the commodification objection comes up short in its attempt to stigmatize patenting life as a cynical and manipulative ploy to dominate other creatures. However, by developing a methodology of defining an item's telos and then insisting that that purpose inform the item's treatment, the commodification concern adds great value to a moral understanding of the propriety of patenting life.
Precisely because the genetic experimentation that the patent regimes underwrites seeks primarily, if not exclusively, to improve life the world over, the patenting of living creatures receives further endorsement from anti-commodification objectors. Fortified by the responses to exploitation and enclosure concerns described earlier, this idea of promoting a major telos of life through the inventive monopoly is a final, potent ethical defense of the practice of patenting life.
Michael M. Rosen, TCS Daily's IP columnist, is an attorney in San Diego. He thanks Harvard Professor Michael Sandel for leading the seminar in which the seed of this series germinated.