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CHAPTER 086

The Oxnard courtroom was small and so cold Bob Koch thought he would catch pneumonia. He was feeling none too good anyway. His hangover had left a very sour feeling in his stomach. The judge was a youngish guy, about forty, and he looked hungover, too. But maybe not. Koch cleared his throat.

“Your Honor, I am here representing Alexandra Burnet, who is unable to be here in person.”

“This court has ordered her to appear,” the judge said. “In person.”

“I am aware of that, Your Honor, but she and her child are presently being pursued by a bounty hunter who intends to remove tissue from their bodies, and she is therefore in flight to prevent that.”

“What bounty hunter?” the judge said. “Why is there a bounty hunter involved in this?”

“We would like to know exactly that, Your Honor,” Bob Koch said.

The judge turned. “Mr. Rodriguez?”

“Your Honor,” Rodriguez said, standing, “there is no bounty hunter per se.”

“Well, what is there?”

“There is a professional fugitive-recovery agent at work.”

“With what authorization?”

“He is not authorized per se. In this case he is making a citizen’s arrest, Your Honor.”

“Arrest of whom?”

“Of Ms. Burnet and her son.”

“On what basis?”

“Possession of stolen property, Your Honor.”

“To make a citizen’s arrest, the possession of stolen property has to be witnessed by the person making the arrest.”

“Yes, Your Honor.”

“What has been witnessed?”

“The possession of the property in question, Your Honor.”

“You are talking about the Burnet cell line,” the judge said.

“Yes, Your Honor. As previously documented before this court, that cell line is owned by UCLA and licensed to BioGen, in Westview. The ownership is attested to by several prior court rulings.”

“How, then, is it stolen?”

“Your Honor, we have evidence that Mr. Burnet conspired to eliminate the cell lines in possession of BioGen. But whether that is true or not, BioGen has the right to restore the cell lines that it owns.”

“It can restore them from Mr. Burnet.”

“Yes, Your Honor. Presumably so, since the court has ruled that Mr. Burnet’s cells belong to BioGen, they can at any time take more. Whether the property is actually within Mr. Burnet’s body or not is immaterial. BioGen owns the cells.”

“You are denying Mr. Burnet’s right to the integrity of his body?” the judge said, raising an eyebrow.

“With respect, Your Honor, there is no such right. Suppose someone took your wife’s diamond ring and swallowed it. The ring is still your property.”

“Yes,” the judge said, “but I might be required to wait patiently for it to reappear.”

“Yes, Your Honor. But suppose for some reason the ring becomes stuck in the intestine. Don’t you have the right to retrieve it? Clearly, you do. It can’t be kept from you. It’s your property wherever it is. Whoever swallows it assumes the risk of retrieval.”

Koch thought he’d better move in. “Your Honor,” he said, “if I remember my high school biology correctly, anything swallowed is not actually inside the body, any more than something inside a doughnut hole is inside the doughnut. The ring is outside the body.”

Rodriguez began to sputter. “Your Honor-”

“Your Honor,” Koch said, raising his voice, “I trust we can all agree that we are not talking about diamond rings that have been stolen. We are talking about cells that reside inside the human body. The notion that these cells can be owned by someone else-even if the appellate court has upheld a jury finding-leads to absurd conclusions, as you see here. If BioGen no longer possesses Mr. Burnet’s cells, then they have lost them by their own foolish actions. They are not entitled to go back and get more. If you lose your diamond ring, you can’t go back to the diamond mine and get a replacement.”

Rodriguez said, “The analogy is inexact.”

“Your Honor, all analogies are inexact.”

“In this instance,” Rodriguez said, “I would ask the court to stick narrowly to the issue at hand, and consider the previous findings of the court that are relevant to the issue. The court has held that BioGen owns these cells. They came from Mr. Burnet but they are the property of BioGen. We argue that we have the right to retrieve these cells at any time.”

“Your Honor, this argument directly conflicts with the Thirteenth Amendment, against chattel slavery. BioGen may own Mr. Burnet’s cells. But they don’t own Mr. Burnet. Theycan’t. ”

“We never claimed to own Mr. Burnet, only his cells. And that is all we are asking for now,” Rodriguez said.

“But the practical consequence of your claim is that you effectively own Mr. Burnet, since youdo claim access to his body at any time-”

The judge was looking weary. “Gentlemen, I see the issue,” he said, “but what does any of this have to do with Ms. Burnet and her son?”

Bob Koch stepped back. Let Rodriguez bury himself on this one, he thought. The conclusion he was asking the court to draw was inconceivable.

“Your Honor,” Rodriguez said, “if the court accepts that Mr. Burnet’s cells are my client’s property, as I believe it must, then said cells are my client’s property wherever they are found. For example, if Mr. Burnet gave blood at a blood bank, the donated blood would contain cells that we own. We could assert ownership of those cells, and demand to extract them from the donated blood, since Mr. Burnet is not legally able to give those cells to anyone else. They are our property.

“Similarly, the same cells that we own-the identical cells-are also found in Mr. Burnet’s children and descendants. Therefore we have ownership of those cells as well. And we have the right to take the cells.”

“And the bounty hunter?”

“The fugitive-recovery specialist,” Rodriguez said, “is making a citizen’s arrest on the following basis. If he sees Mr. Burnet’s descendants, then, since they are by definition walking around with our property, they are self-evidently in possession of stolen property, and can be arrested.”

The judge sighed.

“Your Honor,” Rodriguez said, “this conclusion may strike the court as illogical, but the fact is that we are in a new era, and what seems strange to us now will in a few years not seem so strange. Already a large percentage of the human genome is owned. The genetic information for various disease organisms is owned. The notion that such biological elements are in private hands is only odd because it is new to us. But the court must rule in accordance with previous findings. The Burnet cells are our cells.”

“But in the case of descendants, the cells are copies,” the judge said.

“Yes, Your Honor, but that is not at issue. If I own a formula to make something, and someone Xeroxes that formula on a sheet of paper and gives it to another, it remains my property. I own the formula, no matter how it is copied, or by whom. And I have the right to retrieve the copy.”

The judge turned to Bob Koch. “Mr. Koch?”

“Your Honor,Mr. Rodriguez has asked you to rule narrowly. So do I. Previous courts held that once Mr. Burnet’s cells were out of his body, they no longer belonged to him. They did not say that Mr. Burnet was a walking gold mine that could be plundered at will, again and again, by BioGen. And they certainly said nothing to imply that BioGen had a right to physically take these cells no matter who carried them. That claim goes far beyond any implication of the court’s prior finding. It is, in fact, a new claim made out of nothing but wishful thinking. And we ask the court to require BioGen to call off this bounty hunter.”

The judge said, “I do not understand on what basis BioGen has simply acted on its own, Mr. Rodriguez. This appears hasty and unwarranted. You could certainly wait for Ms. Burnet to appear before this court.”

“Unfortunately, Your Honor, that is not possible. The business situation of my client is critical. As I said to you, we believe we are victims of a conspiracy to deprive us of what is ours. Without going into details, it is urgent that the cells be replaced immediately. If the court forces a delay, we may lose an enormous business undertaking in the meanwhile, such that our company goes out of business. We merely attempt a timely response to an urgent problem.”

Bob could tell the judge was going for it. All that timeliness crap was working on him; he didn’t want to be responsible for putting a California biotech company out of business. The judge swiveled in his chair, glanced at the wall clock, swiveled back.

Bob had to pull it out. And he had to do it now.

“Your Honor,” he said, “there is an additional issue that bears on your decision. I would like to bring to your attention the following affidavit from Duke University Medical Center, dated today.” He handed a copy to Rodriguez. “I will summarize the contents for Your Honor, and how it affects the issue before you.”

Burnet’s cell line, he explained, was capable of making large quantities of a chemical called cytotoxicTLA 7D, a potent anticarcinogen. It was that chemical that made BioGen’s cell line so valuable.

“However, last week the U.S. Patent Office issued a patent for the geneTLA 4A. This is a promoter gene that codes for an enzyme that snips out a hydroxy group from the center of a protein called cytotoxic T-lymphocyte associated protein 4B. This protein is the precursor of cytotoxicTLA 7D, which forms when the hydroxy group is removed. Unless the hydroxy group is snipped out, the protein has no biological activity. So the gene that controls the manufacture of BioGen’s product is owned by Duke University, and they assert ownership in the document now in your hands.”

Rodriguez was turning very red. “Your Honor,” he said, “this is an attempt to confuse what should be a very simple case. I would urge that you-”

“It is simple,” Bob agreed. “Unless BioGen makes a licensing agreement with Duke, they cannot use the enzyme made by the Duke gene. The enzyme and its product are owned by someone else.”

“But this is-”

“BioGen owns a cell, Your Honor,” Bob said. “But not all the genes inside that cell.”

The judge looked again at the clock. “I will take this under advisement,” he said, “and give you my ruling tomorrow.”

“But Your Honor-”

“Thank you, gentlemen. Arguments are concluded.”

“But Your Honor, we have a woman and her son being hounded-”

“I believe I understand the issue. I need to understand the law. I will see you tomorrow, counselors.”