Business Law

General instructions:

Read this assignment carefully. Do not include background information, summaries of facts or irrelevant information. Your response should be about 5 well-written pages, double-spaced. Answer each question separately. To avoid a late penalty, your paper is due at the beginning of class on Monday, November 15. Please upload your paper to the assignment section of canvas. Do not change any facts; do not change the law; do not change the questions. 1.5 points will be awarded based on correct punctuation, spelling, grammar, syntax and paragraph formation. You do not need to consult sources other than those referenced in this assignment, but if you do, be sure to cite it. You may discuss this paper with classmates but every word must be written by YOU.

What does it mean “every word must be written by YOU”? You will be sent to the honor board if:

- your paper looks to me like you didn’t write it.

- your paper looks like the paper of another student.

- your paper looks like a source available on the web, in the Babson College online library, or any other published or e-published source.

Paper assignment:

We’ve talked in class a bit about what it means to own something. We mentioned that, in Western and Euro-centric legal systems, property ownership includes many rights: the right to sell a possession, to pledge it as collateral to secure a loan, to give it away, to pass it to heirs through your will, and usually, even to destroy it. We’ve also discussed different forms property takes – real property, personal property and intellectual property. This paper explores the boundaries of property ownership and the legal, business and ethical aspects and complications involved.

Choose from one of the following paper topic options:

I. Option 1: Henrietta Lacks and Bio-specimens

In 1951, a thirty year-old African-American woman with five children, Henrietta Lacks, was diagnosed with an aggressive form of cervical cancer. Ms. Lacks was a wife, mother to five children, and community leader. In the course of her diagnosis and treatment for cervical cancer, doctors at Johns Hopkins removed tissue samples from Ms. Lack’s tumor, without her knowledge or permission. Unfortunately, her cancer treatment was unsuccessful and she passed away later that year. Her tissue samples were given to a researcher at Hopkins who discovered they were the first human cells to survive outside of the human body for long periods of time, capable of dividing indefinitely and also cloned for widespread research. From Ms. Lacks’ cells, Hopkins developed a cell line (HeLa cells) which is made freely available to researchers worldwide. Ms. Lacks’ “immortal” cells have been critically important in groundbreaking medical research including the development of the polio and Covid-19 vaccines, cancer and AIDS research, as well as in-vitro fertilization. In fact, HeLa cells proved to be so valuable and important to medical research that over the years the cells have “been cloned for mass production, distributed all over the world, and linked to more than 17,000 patents. Doctors, pharmaceutical companies, hospitals and others in the medical industry have reaped millions of dollars directly and indirectly through HeLa cell use.[footnoteRef:1] By one estimate, patents using HeLa cells have generated more than $1 trillion.[footnoteRef:2] The focus of this paper topic is whether ownership or use rights to a person’s bio-specimens should include the intellectual property rights to products or innovations developed from the bio-specimens. [1: ] https://www.marketplace.org/2018/07/09/who-owns-henrietta-lacks-disembodied-cells/ ] [2: https://www.youtube.com/watch?v=pYpgwuK6bLY. ]

Listen/read/review the following:

1. Read “Estate of Henrietta Lacks sues biotechnical company for nonconsensual use of her cells”, October 5, 2021, Taylor Romine, CNN: https://www.cnn.com/2021/10/05/us/henrietta-lacks-estate-sues-biotech-company/index.html

2. View the film The Immortal Life of Henrietta Lacks (2017) which is available for viewing here through Babson’s collection: https://digitalcampus.swankmp.net/babson332258/watch/B9902BF7A3EEBEFC?referrer=direct

· Trigger Warning: the film is rated TVMA and contains a few brief but disturbing depictions of childhood physical and sexual abuse of Ms. Lacks’ children by extended family members following her death. You may skip past these scenes, which occur from approximately 1:08 to 1:11 in the film.

3. Read: “Henrietta Lacks Is Dead. Her Cells Are Immortal. So, Why Do Her Kids Want To Sue?” By Barbara Pfeffer Billauer JD MA (Occ. Health) PhD, October 4, 2021. https://www.acsh.org/news/2021/10/04/henrietta-lacks-dead-her-cells-are-immortal-so-why-do-her-kids-want-sue-15844.

4. Read: “Q&A: Could the Henrietta Lacks case happen today?” Malcolm Ritter. April 20, 2017. https://apnews.com/article/481edae2f5eb468fa086ccd85713638a .

5. Click on this link to see one of Thermo Fisher Scientific’s products from the HeLa cell line available for sale: https://www.thermofisher.com/order/catalog/product/R71407.

Think about and use the materials listed above to answer all of the following questions. Think broadly, carefully, and logically.

1. Individual Perspective. You have learned that contract law is based on the premise that parties are free to contract, and only when their agreement is the product of voluntary assent will courts enforce the agreement. Assume that you need a medical procedure, and you are required to sign an informed consent form, which waives your rights to any bio-specimen removed from your body and the subsequent use of your bio-specimens, including if a specimen leads to development of a new product. Review the section on assent and the enforceability of agreements in your textbook (including pages 467 and 499-500). Applying what you learned about voluntary assent, which legal theories do you think apply and suggest a lack of voluntary assent in these circumstances? An article from Pharmaceutical Technology[footnoteRef:3] states, "There’s . . . the . . . troubling question of whether informed consent is worth the potential benefits of medical research. If a person’s cell sample can be used to save millions of lives, should they be given the opportunity to say no to the research?" Do you agree? [3: “Immortal cells and informed consent: the legacy of Henrietta Lacks”, By Chloe Kent, February 17, 2021, Pharmaceutical Technology. https://www.pharmaceutical-technology.com/features/hela-consent-henrietta-lacks/. ]

2. Business Perspective. Assume that a patient signs an informed consent that permits use of a bio-specimen for research purposes but is silent on the question of ownership of intellectual property rights to a product developed from that specimen. Then, who owns the intellectual property rights to any products developed from the use of that bio-specimen? From the perspective of a company like Thermo Fisher Scientific, what are the arguments in favor of its ownership of IP rights to products or innovations developed from a patient’s bio-specimens?

3. Societal perspective. From the perspective of society-at-large, what are the systematic, structural or other inequities for different groups of people based on race, socio-economic or other factors? Which groups of people are at a greater disadvantage? Why?

4. Your recommendation. What is unfair about this situation at present (if anything)? In light of the law you have learned about this semester, and the ethical considerations involved, if you were the judge in the lawsuit filed by the Lacks’ estate against Thermo Fisher Scientific, what would you recommend is the fairest decision for all parties involved?

II. Option 2: Repairing what you own

Over the last few decades, it has become harder and harder – and in some cases, impossible – for consumers to repair products they’ve purchased or to get those products repaired. This is the case in many industries. For example, a consumer’s ability to repair an iPhone, a car, a John Deere tractor (used by farmers), a camera, television, washing machine, electric kettle or refrigerator is much more limited than it was years ago. The focus of this paper topic is whether property ownership does/should also include the right to repair the property you own.

Listen/read/view the following:

1. Listen to the first 13 minutes of this podcast: Marketplace “’Right to Repair’ is About More Than DIY,” Kai Risdall, July 13, 2021 https://www.marketplace.org/shows/make-me-smart-with-kai-and-molly/right-to-repair-is-about-more-than-diy/.

2. Watch Steve Wozniak, July 7, 2021, “Steve Wozniak Speaks on Right to Repair,” https://www.youtube.com/watch?v=CN1djPMooVY&t=3s

3. Read the executive summary of the Federal Trade Commission’s “Nixing the Fix: An FTC’s Report to Congress on Repair Restrictions,” and skim the Table of Contents. Parts of this report can be very helpful for this paper. May 2021. https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf.

4. Read (and view embedded clips) “Right to Repair Movement Gains Power in UK and US,” July 7, 2021. https://www.bbc.com/news/technology-57744091.

Think about and use the materials listed above to answer all of the following questions. Think broadly, carefully, and logically.

1. Business’ perspective. Explain all the ways businesses could and are limiting people’s ability to repair things they’ve bought. Why are businesses doing this? How do these limitations affect the businesses themselves? For example, what is the relationship between consumers’ ability to repair and the business’ revenue stream? What is the relationship between the ability to repair and the company’s intellectual property? What is the relationship between the ability to repair and a company’s business model? Does the ability to repair affect entrepreneurship and if so, how?

2. Purchasers’ perspective. Explain how the limitations on the ability to repair that you described in question 1 affect purchasers. Consider both consumer purchasers and also businesses that need to purchase equipment, as in the case of agricultural businesses buying John Deere tractors. What are the reasons consumers should have the right to repair their personal property?

3. Societal perspective. From the perspective of society at large: Does the right to repair debate have environmental implications? How does the debate affect the price of a product on initial sale? On resale? Do the limitations on the ability to repair disproportionately affect certain segments of the population? Do race, socioeconomic status and geography (e.g., whether a person resides in downtown Chicago or on a Native American reservation) play a part in who systemically sustains greater burden for the inability to repair consumer products?

4. Your recommendation. Write your reflection on this topic. What is unfair about this situation at present (if anything)? If you were asked to advise the Biden administration on this issue, what would you recommend is the fairest proposal for all parties involved, from multiple perspectives?

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