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Whose Body is it Anyway? Human Cells and the Strange Effects of Property and Intellectual Property Law

37 Pages Posted: 28 Dec 2010  

Robin Feldman

University of California Hastings College of the Law

Date Written: October 15, 2010

Abstract

Whatever else I might own in this world, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin, other than with the components of the tangible corpus that all would recognize as "me?" The law, however, does not view the issue so neatly and clearly, particularly when cells are no long in your body. As so often happens in law, we have reached this point, not by design, but by the piecemeal development of disparate notions that, when gathered together, form a strange and disconcerting picture.

This article examines both property and intellectual property doctrines in relation to human cells that are no longer within the body. In particular, the article discusses the Bilski decision, in the context of life science process patents, and the Molecular Pathology case, in the context of gene patents. For patent law, the article concludes that the problem lies not with the fact that genes constitute patentable subject matter, but rather with the extent of the reach that is allowed. For both property and intellectual property law, the article concludes that a more careful application of basic legal principles would better reflect the interests of society as a whole and the interests of individual human subjects, as well as the interests of those who innovate.

Keywords: Intellectual Property, Patent, Patents, Real Property, Land, Gene Patents, Genes, Bilski, Myriad, Association for Molecular Pathology, Biotech, Biotechnology, Life Science, Genetic Patents, Molecules

Suggested Citation

Feldman, Robin, Whose Body is it Anyway? Human Cells and the Strange Effects of Property and Intellectual Property Law (October 15, 2010). Stanford Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1731648

Robin Feldman (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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