7 - Intellectual Property and Genetic Sequences: A Jewish Law Perspective

Summary

An important, contemporary controversy is how the policy balance of incentives that provides the basic rationale for intellectual property (IP) protections should be assessed in the context of protection for genetic sequences. After summarizing this general rationale and the state of the law in the US concerning the protection of genetic sequences, the chapter consider the issues from the perspective of Jewish law. While the classic texts of Jewish law for the most part preceded the rise of IP law by centuries, we argue that a distinctly halakhic theory of IP can nonetheless be derived from the application of Talmudic unfair-competition principles to IP questions by halakhic authorities beginning in the Early Modern period. We further contend that because this Talmudic doctrine is equitable in nature and operates to protect broad social interests, it provided halakhic authorities with a more flexible, context-sensitive model for IP law than does the personal-property basis undergirding much of secular, contemporary patent and copyright law. Finally, we suggest that if contemporary courts were to adopt such a model for IP, halakha could offer various insights regarding policy considerations and value judgments pertinent to determining patent eligibility for genetic inventions.