Fair Governance of Biotechnology: Patents, Private Governance, and Procedural Justice

This is a response paper to Feeney et al, 'Patenting Foundational Technologies: Lessons From CRISPR and Other Core Biotechnologies', American Journal of Bioethics 18(12):36-48, co-authored with Nienke de Graeff, Karin R. Jongsma and Annelien L. Bredenoord. While we are sympathetic to the nonideal perspective adopted by Feeney and colleagues and agree that it is important to address the distributive justice concerns of biotechnology patents, their approach fails to address concerns of procedural justice raised by the use of exclusivity rights for private governance. Like Feeney and colleagues (2018), we consider it praiseworthy that patentees such as Editas aim to pursue a socially responsible approach in their licensing agreements, but we argue that using property rights in this way raises concerns beyond the mere issue with the voluntariness of adopting a socially responsible approach that they bring forward. In the article, we discuss why this is the case, why procedural justice matters, and propose a potential solution to mitigate these concerns.