Abstract

Two utilitarian defenses, traceable to Bentham and Mill, arecommonly offered for patents. It is contended that patents induce innovation, and thatpatents induce disclosure of innovation. Patents on some or all of the human genomepose particular challenges for these defenses. In the first instance, patents on nucleotidesequences entail the perverse notion of human reproduction qua infringement. In the second place, when such patents are available (as is presently the case), the two defenses involve a counterfactual claim, viz., that if there were no such patents, biotechnological progress would wane. Even if these challenges are met, concerns about respect for humanity generate opposition to property interests in compounds manipulated outside the human body but significantly homologous to compounds found in humans. This stance about things human might appear to commit the fallacy of division. In a dialogue between a Kantian and a utilitarian, arguments for and against property interests in the human genome are presented.