LAWS3111 T1 Preparation, 2011

Tutorial 1: Spleens and Genes

Moore v Regents of the University of California

  • Had spleen removed, spent the next 7 years being treated by Golde
  • 3 years after removal, Golde established cell line, and kept taking samples from Moore. Finally patented cell line early 1983 – Moore found out late 1983.
  • Arguments that cells should be protected as unique products failed – the cells were not considered unique.
  • Arguments that the spleen should be protected as property failed, as it was already protected by ‘informed consent’ requirements, and the fact that statutes required the destruction of organs suggested that the government didn’t want people to possess them.
  • And the property at issue wasn’t the cells themselves, but the rights to the cell line based on them – which had never been part of Moore.
  • Policy considerations – strict liability tort of conversion could potentially halt medical research (as cells acquired unknowingly from third parties would still be the property of the original owner)
  • Mosk dissented – held that Moore should have the right to at least choose what to do with his tissue on removal, rather than letting the hospital/doctor do so. Felt that informed consent was insufficient protection, due to difficulty of proving it.
  • Held that NO CLAIM for conversion exists for the use of body parts for medical research without knowledge or consent
  • Held that a doctor DOES have a duty to disclose any economic benefits obtained from the patients tissue as part of the duty to provide for informed consent.

Do I think it was the correct outcome?

Yes and no – I don’t think normal property rights would be appropriate, as the need for medical research significantly outweighs the value of waste cells and excised organs, however I believe the legal system should be able to punish and discourage this behaviour – otherwise doctors can simply start taking larger tissue and blood samples, and profit from the leftovers. As mentioned in the ruling, a statutory scheme would probably be the appropriate solution. Perhaps the imposition of a statutory requirement that any future waste cells without explicit patient consent to use for medical research are destroyed, with the hospital/doctors being subject to hefty fines and the forfeiture of any profits obtained for failing to do so.

Reasoning that underpinned the majority decision

The key policy consideration was that imposing strict liability under conversion would make any medical researchers potentially liable for the cells they paid hospitals/doctors for, despite the fact that they didn’t know they were obtained without consent. This would (at the very least) substantially increase costs and potentially open the floodgates for similar suits – imagine what Henrietta Lacks family could recover. They also identified that there was already a form of protection in place, the requirement for informed consent and the disclosure element therein that would serve a similar purpose without the same ramifications. Other lines of thought included the fact that he didn’t own them (they would have been destroyed under the Health and Safety Code if they hadn’t been used for medical research) and the fact that the statute specifically prevents him from receiving ‘valuable consideration’ for his organs. If he can’t keep the waste cells or profit from them, can he truly claim to own them? They also rejected the ‘uniqueness’ on the grounds that Lymphokines are identical in all humans, and Moore’s were not special or unique.

Justifications for Biotechnology Patents

Primarily economic – without the ability to protect the biotechnology research via patents, it is unlikely to take place – and both scientific understanding and potentially beneficial technology are less likely to exist. Also moral - the person who does the work deserves to benefit from it.

Concerns relating to granting patents for inventions claiming isolated gene sequences?

The fact that an isolated gene sequence is unlikely to be of any benefit by itself - and allowing their patenting serves only to stop potentially beneficial use of more complex products that incorporate that gene sequence.
My knowledge of patents is rather limited, but if I had to guess, I’d say prior artwork may also be an issue – after all, if the organism that the gene sequence exists in already embodies it, suggesting it’s derivative work rather than an invention.

What does this teach us about the circumstances in which a thing is considered to be a form of personal property?

It teaches us that the common law in particular is reluctant to classify human beings as property, while the patent office and statutes seem to bear a similar reluctance regarding human/animal cloning (s 18 (2) and (3) of the Patents Act 1990 (Cth)) but sees nothing wrong with classifying microbiological processes as patentable – I think it speaks more about societal morals and taboos (and judicial and legislative landmines that nobody wants to step on) than anything specific – as property laws are fine, as long as they don’t encourage the sale of human tissue/organs or facilitate cloning.