One Sample, One Share! A Proposal to Redress an Inequity with Equity
Biomedical research is built on the contributions of the trinity of donors (samples), universities (inventions) and industry (investments). While the law allows universities and industry to capitalize on their contributions, it denies donors of samples bo
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One Sample, One Share! A Proposal to Redress an Inequity with Equity Jasper Adriaan Bovenberg
6.1 Prologue On September 17, 2010, Johnson & Johnson (NYSE: JNJ) and Crucell N.V. (NYSE Euronext, NASDAQ: CRXL; Swiss Exchange: CRX) announced that they were in advanced negotiations for a potential public offer for all outstanding ordinary shares of Crucell not already held by JNJ, for approximately C1.75 billion, which represented a purchase price of C24.75 per share. According to the press release announcing the bid, JNJ intends to continue to invest in the development of Crucell’s products and pipeline. The main driver behind these products and pipeline is the R cell line, an immortalised factory for the manufacturing of pharmaceutiPER.C6 cals and vaccines. This cell line is derived from a single, human retina-derived cell, which was purposely immortalised using recombinant DNA-technology as follows:
Fig. 6.1 Crucell’s E1 cell line technology (source: http://www.crucell.com/Description)
Crucell maintains extensive documentation on the origin, establishment, and R cell line, establishing it as the most completely characterization of the PER.C6 J.A. Bovenberg (B) Legal Pathways Institute for Health and Biolaw, Aerdenhout, The Netherlands e-mail: [email protected] C. Lenk et al. (eds.), Biobanks and Tissue Research, The International Library of Ethics, Law and Technology 8, DOI 10.1007/978-94-007-1673-5_6, C Springer Science+Business Media B.V. 2011
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documented cell line to date. The person who donated the cell, however, is not known to Crucell. Most certainly, it is a cell from a foetus which was donated for scientific research. This “donation” took place at a time when (maternal) consent was not required.
6.2 Introduction The Crucell story is but one of many illustrations that the biomedical research enterprise is built on the contributions of the trinity of donors (samples), universities (know why) and industry (know how and capital).1 It is also one of multiple illustrations of the double standard which continues to govern the commercialization of biological materials. While the law allows universities and industry to capitalize on their contributions, it denies donors of biological materials both the right to compensation for and the right to control the use of their contributions.2 To resolve this donor “cash and control deficit”, many solutions have been advanced, ranging from direct control through the recognition of inalienable property rights in the tissue,3 to indirect forms of control (co-determination by donors through governance mechanisms4 ) and forms of benefit sharing through a tissue-tax.5 This paper explores a novel solution. Both universities and industry capitalize on their contributions by contributing them to a corporation in exchange for shares in the corporation’s capital. This form of capitalisation triggers an obvious, but hitherto unasked question: if inventors and investors can contribute in exchange for shares, then why can’t donors? Could issuing shares
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