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13 Berkeley Technology Law Journal 667 (1998)


Building on a model by Anthony Kronman, the author argues that biotechnological researchers searching for valuable cells should occasionally be allowed to deceive research subjects whose cells prove valuable. The wish to preserve proper incentives for these searches justifies this exception to the law's usual abhorrence of deception. The subject's ability to "hold up" the researcher once the subject learns of his cells' value combined with the law's likely refusal to force an unwilling subject to continue his cooperation with the researcher poses risks for biotechnologists that other producers of information do not face and that the right to deceive helps to alleviate. The author explains the variables that limit the proposed right to deceive, examines arguments against the proposed rule, and describes the current law.

Bioprospecting, the search for valuable cells, also presents three related issues on which the author comments. One issue is whether the subject's assignment of all his rights in his cell samples to the researcher should be enforced ex post when the cells prove valuable. A second issue is whether, in the absence of a clear assignment of rights to the cell samples, the subject or patient should possess a claim against the researcher to a share of revenues derived from those cell samples. A third issue is whether a patient whose samples are used for research or commercial purposes without his express consent should possess some dignitary claim against the researcher regardless of whether the samples have proven valuable. On each issue, the author supports an approach that favors the biotechnological researcher.