SOL Lawyer Magazine_Fall 2021

& Q HOW SHOULD THE U.S. PATENT-GRANTING PROCESS BE CHANGED TO INCLUDE MORAL AND SOCIAL JUSTICE CONSIDERATIONS? IS CHANGE HAPPENING? In the U.S. process currently, it’s more a matter of resisting efforts to eliminate some of the existing, proper limits on gene patents. The courts have long ruled, and the Supreme Court recently reaffirmed, that you can’t patent a naturally occurring thing; even if you discovered a basic sequence of genes, you didn’t invent it and


that they involved “owning life” and “playing God.” But by 2013, when the Supreme Court decided in the Myriad case that some forms of genetic material could be patented – but not others – only one amicus brief in the case was from a religious group. The religious input fizzled because it completely lacked nuance. Patents, when properly defined, work to encourage the invention and commercialization of new things. They don’t give total ownership rights, and gene patents in particular only apply to artificially created material that’s not in the form found in the human body. Gene patents do raise important

A adding such a requirement are moving forward in international forums after many delays. DO YOU HAVE ANY FOLLOW- UP PROJECTS OR ACTIVITIES PLANNED IN THIS AREA OF STUDY? Trademark law also raises issues of morality and justice including for vulnerable groups; I’m interested in exploring those. I’d also like, long-term, to articulate an overall, big-picture Christian theological approach to issues about intellectual property and the ownership of creativity and innovation. For now, I want to help continue to grow IP programs at St. Thomas. In recent years we’ve added courses on patent prosecution and on international IP, a Trademark Clinic and student teams in two national advocacy competitions, where we’ve had great success. We aim to build on those advances by integrating the help of our accomplished and enthusiastic alums who practice IP law, and by strengthening our connections with the practicing IP bar in the Twin Cities and elsewhere. I believe IP law has a bright future at St. Thomas.

shouldn’t have control over it. But there’s a bill in Congress — supported by both Democrats and Republicans — to eliminate that particular limit, which would be a bad idea. On the global stage, the main issue is how to ensure that when companies use an Indigenous community’s traditional knowledge or biological resources to obtain a patent, they disclose that use and provide fair compensation. That requirement would be strengthened if it were integrated into the international patent system—so that you had to make such disclosures in order to get a patent—and negotiations on

moral questions like: Are there certain technological

manipulations we shouldn’t be encouraging through patents? Patents generally encourage innovation by allowing companies to recoup their R&D costs, but if they give exclusivity that’s too broad, will they end up making biotech advances available only to those able to pay? But those questions require nuanced analysis that chapters in our book aim to provide.

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