Genetic identity and personalized medicine patenting: An update on myriad’s patents related to ashkenazim jewish ancestry

A central question in any inquiry about diversity – whether its relationship to intellectual property, as is the subject of this volume, or its meaning as a normative guidepost – is how to sort out the many dimensions in which differences among people are recognized. Diversity is often framed at the group level in racial, ethnic, religious, gender, or ideological terms. Appointments and admissions committees are often charged with finding representatives of certain groups. But diversity has an individual dimension framed in terms of personality, professional specialization, or recognized talent. Intellectual property interfaces with all of these dimensions of diversity. Scholars have written about group exclusion from intellectual property rights, such as African-American artists being left out from the world of music that benefits their less pigmented brethren, or women scientists unrecognized by the patent system. As a form of cultivating and channeling creative energies, intellectual property, particularly and trademark, targets individual talent, releasing the energies and personalities of artists, inventors, and other expressive and inventive people. Among the various group and individual traits identified exists the understudied, but increasingly recognized, notion of genetic identity. Diversity for the most part has been recognized at the level of phenotype in terms of identifiable traits. In the area of patenting in particular, concepts of diversity have taken a genetic turn. At worst, this may reflect genetic determinism, a dangerous concept whose terrifying implications have been revealed by history. Even when framed in terms of “beneficial eugenics,” genetic determinism is not a meaningful concept as scholars like Nathaniel Comfort have aptly shown. At the same time, however, as the map of the human genome unfolds and scientists and medical researchers better understand the role of genetics and heredity in disease, there is a tendency to categorize and identify individual characteristics in terms of genetic and ethnic categories.