Admittedly, Next does not purport to be a genetics textbook or a treatise ... 1.pdf; Lisa Gross, Scientific Illiteracy and the Partisan Takeover of Biology, 4 PUB.
BOOK REVIEW
NEXT Michael Crichton HarperCollins, 2006 448 pages, $27.95 ISBN-13: 978-0-060-87298-4 ISBN-10: 0-060-87298-5 (hardcover)
NEXT AND MICHAEL CRICHTON’S FIVE-STEP PROGRAM FOR BIOTECHNOLOGY LAW REFORM Jorge L. Contreras* Like Mary Shelley’s classic tale of science gone astray, Frankenstein, Michael Crichton’s latest techno-thriller, Next, 1 portrays the harm that can occur when science collides with Nature. In Crichton’s novel, however, the villain is not a lone scientist who seeks to master the secrets of life, but the entire biotechnology industry. Here, avaricious companies, universities, and venture capitalists create increasingly bizarre genetic variants for profit and pervert the legal system to their own ends in the process. The reader confronts new plot twists supporting this dire message at every turn, and is ultimately subjected to a “nonfiction” postscript, in which Crichton sets forth five policy recommendations that, if implemented, would presumably prevent the depredations described in the novel. They are: (1) Stop patenting genes, (2) Establish clear guidelines for the use of human tissues, (3) Pass laws to ensure that data about gene testing is made public, (4) Avoid bans on research, and
*Mr. Contreras is a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, D.C., and a member of the National Advisory Council on Human Genome Research. 1. MICHAEL CRICHTON, NEXT (2006) [hereinafter NEXT].
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Contreras (5) Rescind the Bayh-Dole Act. While some of these recommendations echo the views of mainstream legal scholars, others are either too vague or too broad to provide useful guidance to policy makers. But whatever their merits, Crichton’s use of the farfetched scenarios in his novel to support these policy recommendations both undercuts the force of otherwise reasonable arguments and, more insidiously, overstates (or misstates) the actual threats that his recommendations seek to address. Next is not the first work of fiction in which Crichton exploits the dangers that can arise from technological innovations. On the contrary, the Harvardeducated physician most famous for creating the rampaging dinosaurs of Jurassic Park 2 takes aim at biological weapons in The Andromeda Strain, 3 global climate change in State of Fear,4 and nanotechnology in Prey.5 In each of these bestselling novels, Crichton depicts a particular technological advance as a corrupting and potentially destructive influence. In Next, however, Crichton outdoes himself in terms of the sheer number of issues that he attempts to tackle. These include virtually every legal and ethical dilemma that has arisen in the biomedical research arena over the past two decades, including the black market in human organs, grave robbery, ownership of discarded human tissue, gene patenting, court-ordered genetic testing, genetic discrimination, liability of sperm donors, scientific misconduct, industrial sabotage, informed consent, failed clinical trials, transgenic humananimal hybrids (from three different species), embryonic stem cell research and even a vague hint at human cloning. The novel itself comprises a sprawling patchwork of plot fragments that revolve loosely around the misdeeds of BioGen Research, a struggling California start-up, and a diverse cast of characters that include, to name just a few, its unscrupulous CEO, a ruthless venture capitalist, a renegade scientist, a renegade lab technician, a corrupt pathologist and his equally corrupt staff, the evangelical (and corrupt) director of the National Institutes of Health, crooked lawyers, avant garde artists, bounty hunters (“fugitive recovery specialists,” as they prefer to be called), and a corporate security officer with a penchant for prepubescent girls. And these are just the human characters. Crichton also manages to populate his novel with an improbable assortment of self-aware, wisecracking transgenic animals who would give even Dr. Doolittle a run for his money. Admittedly, Next does not purport to be a genetics textbook or a treatise on bioethics. It is, as are many of Crichton’s other novels, a work of speculative fiction. A subtle danger exists, however, when novels like Next presume to offer the reader something more than fiction. At the very outset of the novel Crichton conflates the distinction between fact and fiction, stating, “This novel
2. MICHAEL CRICHTON, JURASSIC PARK (1990). 3. MICHAEL CRICHTON, THE ANDROMEDA STRAIN (1969). 4. MICHAEL CRICHTON, STATE OF FEAR (2004). 5. MICHAEL CRICHTON, PREY (2002).
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Review Essay is fiction, except for the parts that aren’t.”6 Like many didactic works, Next contains an abundance of scientific and policy “background” material. But in this case Crichton goes even further than most. His novel is peppered with fictitious “news” stories from seemingly-legitimate sources (Science,7 the Wall Street Journal,8 and even the Massachusetts Office of University Technology Transfer9); real scientists and politicians make cameo appearances, usually to support some aspect of Crichton’s arguments; 10 and a bibliography of authentic legal and scientific references is included at the end. With these devices Crichton blurs the line between fact and fiction, lending unwarranted credence to his fictional creations. While readers will hopefully recognize that orangutans who swear like French sailors 11 and bioluminescent fish whose bodies display corporate logos12 are creatures of pure fantasy, the distinction between fact and fiction may not be so well understood by the reading public when it comes to laws regarding the custody of human tissue or the feasibility of treating drug addiction with a gene-altering spray developed for rats. The unfortunate fact is that the American public has a relatively limited understanding of basic scientific principles. 13 In fact, according to Jon D. Miller, director of the Center for Biomedical Communications at the Northwestern University Medical School, less than a quarter of Americans are “scientifically savvy and alert,” most cannot define a molecule, and less than one-third know that DNA is a key to heredity.14
6. NEXT, supra note 1, at epigraph. 7. Id. at 147 (fictitious article about the discovery of a Neanderthal gene associated with “species death”). 8. Id. at 149 (fictitious article linking the alleged Neanderthal genetic predisposition to resist change with free market principles). 9. Id. at 124 (fictitious article about growth of an artificial human ear in an MIT laboratory and potential financial interest by hearing aid companies). 10. For example, below is a fictitious exchange between Senators Diane Feinstein (D – Cal.) and Robert Wilson (D – Vt.) that occurs during a ride on the Senate’s underground tram: “I think we ought to be more proactive on this genetic thing. For example, we should consider a law that would prevent young women from selling their eggs for profit.” “Young girls are already doing that, Bob,” Feinstein said. “They sell their eggs now.” “Why, to pay for college?” “Maybe a few. Mostly, they do it to buy a new car for their boyfriend, or plastic surgery for themselves.” Senator Wilson looked puzzled. “How long has that been going on?” he said. “A couple of years now,” Feinstein said. “Maybe in California . . .”
Id. at 300. 11 See id. at 37-38. 12 See id. at 232. 13. See NATIONAL SCIENCE FOUNDATION, SCIENCE AND ENGINEERING INDICATORS 2006, Ch. 7 (2006) [hereinafter NSF], available at http://www.nsf.gov/statistics/seind06/pdf/volume 1.pdf; Lisa Gross, Scientific Illiteracy and the Partisan Takeover of Biology, 4 PUB. LIBR. SCI. BIOLOGY 680 (2006), available at http://biology.plosjournals.org/perlserv/?request=getdocument &doi=10.1371/journal.pbio.0040167. 14. Cornelia Dean, Scientific Savvy? In U.S., Not Much, N.Y. TIMES, Aug. 30, 2005, at F3.
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Contreras When members of the public have limited scientific expertise, it is likely that they will rely on popular entertainment media, particularly television, for information about science and technology.15 When popular television shows contain misinformation about science and technology, such misinformation can creep into the general public understanding of the relevant science and technology issues, often with undesirable results. 16 Like television, popular print media such as magazines, newspapers and novels supply information about science-related topics to the public and help to form the public understanding of science. 17 Thus, Crichton’s fictional tale about genetic engineering, biotechnology and transgenic cross-fertilization could lead readers to believe that the dubious scientific “advances” he describes are possible and, perhaps, occurring today. Fueling popular misconceptions about the capabilities of modern science is bad enough. However, the more pernicious aspect of Next is that Crichton uses his novel as a platform to advocate for legal policy change.His policy arguments are based, in large part, on fictional scenarios derived from fabricated (or, at best, stretched) scientific principles, but which are presented in a manner that may appear factual to uninformed readers. At best, this argumentation technique is intellectually dishonest, and, at worst, it is dangerous, as public opinion regarding science and technology policy should be based on facts rather than fiction. This is not to say, of course, that fiction should never be used to argue for social change. On the contrary, novels such as Frankenstein, George Orwell’s Nineteen Eighty-Four and Margaret Atwood’s The Handmaid’s Tale make powerful arguments for social change through the medium of science fiction. Unlike Next, however, these novels make no pretense to factualism. They are unabashedly fictional, and the force of their arguments stems from their eloquent warnings about what could be, not what is. Below are the five policy recommendations that Crichton makes at the conclusion of Next: 1. Stop Patenting Genes In Next, Crichton’s characters express shock and indignation over the extent to which various companies and universities have obtained patents over 15. NSF, supra note 11, at 7–5 to 7–10 (noting that television is the primary source of science and technology information for most Americans). 16. See, e.g., Susan J. Diem et al., Cardiopulmonary Resuscitation on Television: Miracles and Misinformation, 334 NEW ENG. J. MED. 1578 (1996); Science Friday, The Science of ER, (National Public Radio radio broadcast Nov. 21, 1997), transcript available at http://www.science friday.com/pages/1997/Nov/hour2_112197.html (discussing misinformation in the popular medical television drama E.R., which was created by Michael Crichton); NSF, supra note 11, at 7–9 (citing scientists who consider television programs featuring psychics and other pseudoscience to be harmful). 17. See CELESTE MICHELLE CONDIT, THE MEANINGS OF THE GENE 259 (1999) (stating “[t]here can be little doubt that fictional discourse plays a substantial part in forming the public dialogue”).
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Review Essay human genes. 18 The debate over so-called “gene patents” has received extensive attention from legal scholars, scientists, bioethicists and the popular media over the past several years, 19 and in February 2007, Congressmen Becerra (D. Cal) and Weldon (R. Fla) introduced legislation seeking to ban the patenting of human genetic material in the United States.20 Thus, Crichton is not alone in calling for limitations on the ability to obtain patent protection for human genetic sequences. In Next, Crichton argues that “genes are facts of nature,” and are thus not eligible for patent protection.21 This position has been argued by many over the past twenty years, and is one of the principal points of contention in the debate over gene patenting. Crichton fails to acknowledge the standard response to this argument, however, which has been made by those seeking such patents and accepted, to a certain degree, by the U.S. Patent and Trademark Office (PTO). The response is that such patents do not claim to cover genes as they exist in the human body, but only the isolated and purified form of the genes, which are created through human intervention and do not occur in nature.22 Whatever the merits of this counterargument, any even-handed treatment of the subject should at least acknowledge its existence. Even worse are the examples that Crichton uses to support his recommendation. He compares a gene patent to a patent covering fictional detectives, which, he argues, would deprive the world of beloved characters ranging from Sherlock Holmes to Miss Marple.23 He also likens a gene patent to a patent claiming “noses” and goes on to argue that such a patent would prevent others from making “eyeglasses, Kleenex, nasal sprays, masks, makeup, or perfume because they all rely on some aspect of noses.”24 Not only is this argument facially ridiculous, but it subtly misrepresents the nature of patents. If Crichton’s “nose patent” did, in fact, exist, it would not prevent others from making accessories that rested on the nose, unless the patent claims were drawn, for example, to “a resting place for sunglasses comprising a fleshy protuberance from the face situated above the mouth and below the eyes.” By the same token, such a claim would not prevent one from applying suntan lotion to the nose, and gene patents, in the form in which they are currently issued by the PTO, do not have a scope of nearly the breadth implied by Crichton’s examples. 18
NEXT, supra note 1. at 140-41 and 157. 19. See, e.g., WHO OWNS LIFE? (David Magnus, et al., eds., 2002); Kyle Jensen & Fiona Murray, Intellectual Property Landscape of the Human Genome, 310 SCIENCE 239 (2005); NATIONAL RESEARCH COUNCIL, REAPING THE BENEFITS OF GENOMIC AND PROTEOMIC RESEARCH (Stephen A. Merrill & Anne-Marie Mazza, eds., 2006) [hereinafter NATIONAL RESEARCH COUNCIL]; Gary Stix, Owning the Stuff of Life, SCI. AM., Feb. 2006 at 76; Lori Andrews, Patenting Life, J. LIFE SCI., May 2007 at 38 (in which the author also discusses Next). 20. Genomic Research and Accessibility Act, H.R. 977, 110th Cong. (2007). 21. NEXT, supra note 1, at 417. 22. See NATIONAL RESEARCH COUNCIL, supra note 16, at 75–78. 23. NEXT, supra note 1, at 418. 24. Id.
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Contreras The scope of “gene patents” as they are issued today is significantly narrower than the early gene patents to which Crichton alludes. In January 2001, in response to criticism of earlier patents, the PTO issued guidelines clarifying the standard of “utility” that must be met in order for a patent to be granted.25 These guidelines require the utility of claimed gene sequences to be “specific, substantial and credible.”26 In explaining the new guidelines, the Director of the PTO testified before Congress that “[o]ne simply cannot patent a gene itself without also clearly disclosing a use to which the gene can be put.”27 What’s more, the number of DNA-based U.S. patent applications has declined every year since 2003 due to a number of factors, including more stringent PTO utility guidelines.28 Thus, while many still argue that the patenting of genetic sequences is still too prevalent and that gene patents may still have undesired effects on medical research,29 the early abuses attacked by Crichton have largely been addressed. In Next, Crichton commits an even graver misdirection in support of his argument against gene patenting. He implies, through the character of Dr. Robert Bellarmino, an unethical director of the National Institutes of Health (NIH), that NIH leadership publicly supports the practice of gene patenting. Dr. Bellarmino testifies before a Congressional subcommittee: The notion that someone owns part of the human genome strikes some people as unusual . . . . But it’s what makes America great and keeps our innovation strong. True, it causes the occasional glitch, but over time, all that will get resolved. Gene patenting is the way to go.30
In reality, Dr. Bellarmino’s testimony contradicts NIH’s well-known public position regarding gene patenting. Recent pronouncements by the NIH make it clear that the agency discourages patent protection on genetic discoveries, at least to the extent that they are supported by Federal funding. For example, NIH’s Best Practices for the Licensing of Genomic Inventions state: [I]n considering whether to seek patent protection on genomic inventions, institutional officials should consider whether significant further research and development by the private sector is required to bring the invention to practical and commercial application. . . . [W]hen significant further research 25. USPTO Utility Examination Guidelines, 66 Fed. Reg. 1092 (Jan. 5, 2001). The Federal Circuit recently confirmed the utility standard set forth in the 2001 Utility Guidelines in In re Fisher, 421 F.3d 1365, 1372–75 (Fed. Cir. 2005) (affirming the USPTO’s rejection of five patent claims on express sequence tags (ESTs) of the maize plant). See also Tashica T. Williams, In re Fisher: Raising the Utility Hurdle for Express Sequence Tags, 21 BERKELEY TECH. L.J. 123 (2006). 23. USPTO Utility Examination Guidelines, 66 Fed. Reg. at 1098. 27. LORI B. ANDREWS ET AL., GENETICS: ETHICS, LAW AND POLICY 203 (2nd ed., 2006). 28. Ann E. Mills & Patti M. Tereskerz, Changing Patent Strategies: What Will They Mean for the Industry?, 25 NATURE BIOTECHNOLOGY 867 (2007). 29. See, e.g., Roger D. Klein, Gene Patents and Genetic Testing in the United States, 25 NATURE BIOTECHNOLOGY 989 (2007). 30. NEXT, supra note 1, at 123 (emphasis added).
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Review Essay and development investment is not required, such as with many research material and research tool technologies, best practices dictate that patent protection rarely should be sought.31
Likewise, in NIH’s recent Policy for Sharing of Data Obtained in NIH Supported or Conducted Genome-Wide Association Studies (GWAS), the agency states, with respect to the association of particular segments of genetic code with physiological effects: It is the hope of the NIH that genotype-phenotype associations identified through NIH-supported and NIH-maintained GWAS datasets and their obvious implications will remain available to all investigators, unencumbered by intellectual property claims. . . . The intent is to discourage the use of patents to prevent the use of or block access to any genotype-phenotype data devel32 oped with NIH support.
Ordinarily, the attribution of questionable politics and other ethical shortcomings to a fictitious character would simply be part of the author’s artistic license. However, Crichton’s depiction of Dr. Bellarmino in this manner seems particularly inappropriate, as Crichton marries the fictional plot of Next with real policy recommendations. Implying, even in a fictional work, that the nation’s primary medical research funding agency supports the patenting of genetic discoveries, when the truth is precisely the opposite, is potentially misleading to readers and inappropriately bolsters the author’s call for change. 2. Establish Clear Guidelines for the Use of Human Tissues In addition to gene patenting, the use and ownership of human tissue, and the inadequacy of current laws protecting tissue donors, is one of Crichton’s major targets in Next. In the novel, Frank Burnet is a retired welder whose cells manufacture a potent cancer-fighting cytokine. While treating him for leukemia, Burnet’s physician at UCLA discovers the cytokine and surreptitiously “sells” the cell line to BioGen. When the cells in BioGen’s repositories are contaminated by a saboteur and Burnet mysteriously disappears, the company kidnaps Burnet’s daughter and grandson in an attempt to extract the valuable Burnet cells from them. In a court proceeding seeking to compel these unwilling donors to submit to the extraction procedure, the company’s lawyer confidently argues that BioGen has the right to “restore” the cell lines that it owns, whether or not they reside in the body of the original donor, and thus to forcibly extract tissue from members of the Burnet family.33 Although this subplot may seem farfetched, the germ of the story can be found in the real 1990 case of John Moore, who was treated for leukemia at 31. Best Practices for the Licensing of Genomic Inventions: Final Notice, 70 Fed. Reg. 18,413 (Apr. 11, 2005) (emphasis added). 32. Policy for Sharing of Data Obtained in NIH Supported or Conducted Genome-Wide Association Studies (GWAS), 72 Fed. Reg. 49,290 (Aug. 28, 2007) (emphasis added). 33. NEXT, supra note 1, at 373–74.
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Contreras the UCLA Medical Center.34 Like the fictional doctor in Next, Moore’s doctors extracted cells from his spleen and blood, patented the cell line, licensed the patent to a biotech company, and then profited from the resulting drug sold by the company. Moore sued to recover a share of the profits.35 After a lengthy legal battle, the California Supreme Court denied Moore’s claim for damages, holding that he did not possess a property interest in discarded tissue from his body, and that recognizing such a property right would stymie valuable medical research.36 In Next, Crichton stretches the facts of the Moore case to absurd extremes, likening the cells manufactured within the bodies of the Burnet family to “stolen property” that BioGen is legally entitled to recover,37 and even suggesting that UCLA, as a state university, would have the power to seize these cells through eminent domain. 38 Neither of these theories were advanced in the Moore case or any other legal case of which the author is aware. Thus, while the unlikely scenarios and implausible legal arguments in Next may make the stuff of good fiction, they should not form part of the justification for the author’s real-life policy recommendations. Over the years, the Moore case has been cited by commentators pointing out the need for more stringent regulation of human tissue usage and the need to obtain the informed consent of patients before tissue is used.39 In the seven34. Moore v. Regents of Univ. of Cal., 793 P.2d 479, 480 (Cal. 1990). 35. Id. at 481–82. 36. Id. at 493–95 37. See below for the tortured legal advice provided to Rick Diehl, the CEO of BioGen Research, by his lead attorney: “Three courts have ruled that Burnet’s cells are your property. You therefore have a right to take them.” “You mean, take them again.” “Correct.” “Except the guy has gone into hiding.” “That is inconvenient. But it does not change the material facts of the situation. You are the owner of the Burnet cell line . . . . Wherever those cells may occur.” “Meaning . . .” “His children. His grandchildren. They probably have the same cells.” ... Diehl frowned. “Let me see if I understand. You’re telling me I can just grab his kids off the street and haul them to a doctor and remove their cells? Whether they like it or not?” “I am. Yes.” “And how,” Rick Diehl said, “can that be legal?” “Because they are walking around with cells that are legally yours, hence with stolen property. . . . Under the law, if you witness a felony being committed, you are entitled to perform a citizen’s arrest, and take the offender into custody. So if you were to see Burnet’s children walking on the street, you could legally arrest them.” NEXT, supra note 1, at 251–52. 38. Id. at 54–55. 39. See, e.g., MICHELE GOODWIN, BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS (2006); LORI ANDREWS & DOROTHY NELKIN, BODY BAZAAR: THE MARKET FOR HUMAN TISSUE IN THE BIOTECHNOLOGY AGE (2001).
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Review Essay teen years since the California Supreme Court’s decision, significant federal and international guidelines have, in fact, been enacted in this area.40 Today, there are probably few researchers who would seek to deceive their patients in the manner alleged by Moore. Informed consent is obtained as a matter of course in any procedure involving human subjects, and current policy debates center around the more nuanced issues of how much information to share with patients and how well patients understand this information, 41 rather than whether such consent is needed at all. On balance, Crichton’s second recommendation seems to attack problems that have already been addressed by the scientific and legal communities without making any useful suggestions for further policy change. 3. Pass Laws to Ensure that Data about Gene Testing Is Made Public In Next, Crichton portrays a widespread conspiracy by the biotechnology industry to conceal the deadly effects of failed gene therapies. 42 In his recommendations, he argues that biased drug studies and undisclosed negative results from clinical trials are harmful to the public. This argument has been made, in one form or another, by legal commentators for decades,43 and as a result of pressure from Congress, the FDA and medical journals, drug companies are increasingly making this data available to the public. 44 Crichton’s recommendation is thus on solid ground, though somewhat outdated. Inexplicably, however, while he cites examples relating to drug testing generally, he limits this recommendation to data about gene therapy trials.
40. See NATIONAL BIOETHICS ADVISORY COMMISSION, ETHICAL AND POLICY ISSUES IN RESEARCH INVOLVING HUMAN PARTICIPANTS (2001); Department of Health and Human Services, Regulations on Protection of Human Subjects, 45 C.F.R. § 46 (2004); Council for International Organizations of Medical Science (CIOMS) in Collaboration with the World Health Organization, International Ethical Guidelines for Biomedical Research Involving Human Subjects (2002). 41. See, e.g., K.A. Kaphingst et al., Views of female breast cancer patients who donated biologic samples regarding storage and use of samples for genetic research, 69 CLINICAL GENETICS 393 (2006). 42 “’Do you know the history of gene therapy? It’s a horror story… At least six hundred people we know about have been killed. And plenty more we don’t know about. You know why we don’t know? ‘No, why? ‘Because they claimed – get this – that the deaths couldn’t be reported, because they were proprietary information. Killing their patients was a trade secret.” NEXT, supra note 1, at 330-31. See also id. at 162-63. 43. See, e.g., Thomas O. McGarity & Sidney A. Shapiro, The Trade Secret Status of Health and Safety Testing Information: Reforming Agency Disclosure Policies, 93 HARV. L. REV. 837 (1980); Barry Meier, Results of Drug Trials Can Mystify Doctors Through Omission, NY TIMES, Jul. 21, 2004, at C1. 44. See Anna Wilde Mathews, Sequel for Vioxx Critic: Attack on Diabetes Pill, WALL ST. J., May 22, 2007 at A1.
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Contreras 4. Avoid Bans on Research Crichton states that “[v]arious groups of different political persuasions want to ban some aspect of genetic research,” and then states his opposition to any form of governmental prohibition on research and technology. 45 He argues that such bans are both unenforceable and ill-advised, likening them to ill-fated efforts such as Prohibition and the “war on drugs.”46 It is not entirely clear what proposed research bans Crichton intends to attack in this strongly worded recommendation. He may be alluding to prohibitions on the use of Federal funding to pursue research on certain embryonic stem cells, a topic that the novel addresses via a lengthy ersatz article from the “Beaumont College Alumni News.”47 This restriction, however is not an outright ban on stem cell research, but a set of rules regarding permissible uses of federal research funding.48 Thus, attacking it as a “ban on research” would not be accurate. It is also possible that Crichton is alluding to potential bans on human cloning, which have been proposed in one form or another for several years.49 If human cloning bans are his target, however, it is unclear why, elsewhere in Next, Crichton cites a 1922 G.K. Chesterton work condemning eugenics research, 50 and portrays supporters of human cloning negatively throughout the novel.51 Can Crichton seriously be proposing that research bans of every kind be abolished? Does he oppose the recently enacted Fetus Farming Prohibition Act, which prohibits the “farming” of human fetuses for body parts?52 Would he support the lifting of restrictions on research into virulent diseases, deadly toxins and nuclear weapons, not to mention human experimentation that is repugnant to modern sensibilities? Can his reference to the “war on drugs” mean that he is opposed to legal prohibitions on the use of narcotics? It is more likely that Crichton’s sweeping recommendation “avoid bans on research” simply suffers from a lack of literary restraint, and that his true targets are, in fact, current restrictions on embryonic stem cell research. The fact
45. NEXT, supra note 1, at 422. 46. Id. 47. Id. at 59–62. 48. These rules are set forth in a series of Presidential orders and statements including: Expanding Approved Stem Cell Lines in Ethically Responsible Ways, Exec. Order No. 13,435, 72 Fed. Reg. 34,591 (Jun. 20, 2007) and President George W. Bush, President Discusses Stem Cell Research (Aug. 9, 2001). 49. See American Association for the Advancement of Science, AAAS Policy Brief: Human Cloning, http://www.aaas.org/spp/cstc/briefs/cloning/index.shtml (last visited Mar. 5, 2008); NATIONAL BIOETHICS ADVISORY COMMISSION, CLONING HUMAN BEINGS (1997), available at http://www.bioethics.gov/reports/past_commissions/nbac_cloning.pdf. 50. NEXT, supra note 1, at 426–27 (discussing G.K. CHESTERTON, EUGENICS AND OTHER EVILS: AN ARGUMENT AGAINST THE SCIENTIFICALLY ORGANIZED SOCIETY (1922)). 51 See, e.g., id. at 243-44. 52. Fetus Farming Prohibition Act of 2006, 42 U.S.C. § 289g-2 (2006).
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Review Essay that this recommendation is so plainly overstated, however, substantially diminishes its persuasive force and clouds the issues that it seeks to address. 5. Rescind the Bayh-Dole Act Crichton rounds out his recommendations with an exhortation to repeal the Bayh-Dole Act of 1980, 53 legislation that permits recipients of federal research funding to obtain patents on resulting inventions and to commercialize those inventions to benefit the U.S. economy. Crichton is not alone in arguing that the Bayh-Dole Act has, in various ways, tainted academic research, and that some U.S. universities may now value patents and licensing revenue more than the pursuit of knowledge. 54 In Crichton’s words, “[s]cientists who once felt a humanitarian calling have become businessmen concerned with profit and loss. The life of the mind is a notion as quaint as the whalebone corset.”55 But suggesting that a law that has shaped scientific research funding in the United States for the past twenty-eight years simply be repealed begs the obvious question: what would replace it? Would the United States return to the pre-1980 situation, in which each federal agency employed its own independent and mutually-inconsistent policies regarding ownership of federally funded inventions? Or should patents on federally funded inventions be abolished altogether? Would this promote innovation, as Crichton seems to imply? Unfortunately, Crichton has no constructive recommendations regarding the nature of a post-Bayh-Dole landscape, and this notable absence makes his proposal both ill-considered and potentially misleading.56 Moreover, even if some limitation on the scope of Bayh-Dole were appropriate in the context of genetic discoveries, is it reasonable that such limitations should apply equally in all other fields of scientific research? Do Crichton’s objections to the commercialization of science also apply in the case of solar panel research, the development of seismological instruments, or the creation of new computer software? Have patents corrupted researchers in 53. 35 U.S.C. § 200 et seq. (1980). 54 . See, e.g., DANIEL S. GREENBERG, SCIENCE FOR SALE: THE PERILS, REWARDS AND DELUSIONS OF CAMPUS CAPITALISM (2007), JENNIFER WASHBURN, UNIVERSITY INC. — THE CORPORATE CORRUPTION OF AMERICAN HIGHER EDUCATION (2005); Clifton Leaf, The Law of Unintended Consequences, FORTUNE, Sept. 19, 2005 at 250; Charles R. McManis & Sucheol Noh, The Impact of the Bayh-Dole Act on Genetic Research and Development: Evaluating the Arguments and Empirical Evidence to Date (unpublished manuscript), available at http://law.wustl.edu/CRIE/publications/ mcmaniscommercializinginnovationpaper.pdf. 55. NEXT, supra note 1, at 423. In addition, and even more fantastically, Crichton portrays the staid world of university patent licensing as one steeped in intrigue and sex (“’Ms. Maurer has just negotiated the license agreement with Duke University. On extremely favorable terms.’ The woman smiled. A sphinx-like smile. ‘I get on with scientists,’ she said.” Id. at 399). 56. Other commentators who have criticized the Bayh-Dole Act have not gone so far as to suggest a wholesale repeal of the legislation. See, e.g., WASHBURN, supra note 54, at 231–33 (proposing several modest amendments to the Bayh-Dole Act) and Arti K. Rai and Rebecca S. Eisenberg, Bayh-Dole Reform and the Progress of Biomedicine, 66 LAW & CONTEMP. PROBS. 289 (2003).
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Contreras these fields to the same extent that they have, in Crichton’s view, corrupted biomedical researchers? If so, he cites no authority or evidence supporting such conclusions. Again, Crichton makes a sweeping recommendation that is too broad to be taken seriously and fails to provide evidence supporting his proposal or even a suggested course of action should his recommendation be implemented. Michael Crichton’s Next is a work of fiction and, as such, would ordinarily not be judged too harshly for its many scientific and legal fallacies. Like Mary Shelley in Frankenstein, the author portrays the dark fate of scientists who recklessly tamper with nature. Unlike Shelley, however, Crichton makes a number of specific legal and policy recommendations that will be imparted to each of the millions of readers of his novel. As noted above, these recommendations are flawed in numerous ways. Crichton’s support of policy proposals using science fiction that may be easily confused with fact by the uninformed reader has the potential to distort further the public debate over these very serious issues.
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