I dissent.
Contrary to the principal holding of the Court of Appeal, the majority conclude that the complaint does not—in fact cannot—state a cause of action for conversion. I disagree with this conclusion for all the reasons *161stated by the Court of Appeal, and for additional reasons that I shall explain. For convenience I shall discuss the six premises of the majority’s conclusion in the order in which they appear.
1.
The majority first take the position that Moore has no cause of action for conversion under existing law because he retained no “ownership interest” in his cells after they were removed from his body. (Maj. opn., ante, p. 137.) To state a conversion cause of action a plaintiff must allege his “ownership or right to possession of the property at the time of the conversion” (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 410). Here the complaint defines Moore’s “Blood and Bodily Substances” to include inter alia his blood, his bodily tissues, his cells, and the cell lines derived therefrom.1 Moore thereafter alleges that “he is the owner of his Blood and Bodily Substances and of the by-products produced therefrom . . . .” And he further alleges that such blood and bodily substances “are his tangible personal property, and the activities of the defendants as set forth herein constitute a substantial interference with plaintiff’s possession or right thereto, as well as defendants’ wrongful exercise of dominion over plaintiff’s personal property rights in his Blood and Bodily Substances.”
The majority impliedly hold these allegations insufficient as a matter of law, finding three “reasons to doubt” that Moore retained a sufficient ownership interest in his cells, after their excision, to support a conversion cause of action. (Maj. opn., ante, p. 137.) In my view the majority’s three reasons, taken singly or together, are inadequate to the task.
The majority’s first reason is that “no reported judicial decision supports Moore’s claim, either directly or by close analogy.” (Maj. opn., ante, p. 137.) Neither, however, is there any reported decision rejecting such a claim. The issue is as new as its source—the recent explosive growth in the commercialization of biotechnology.
The majority next cite several statutes regulating aspects of the commerce in or disposition of certain parts of the human body, and conclude in effect that in the present case we should also “look for guidance” to the Legislature rather than to the law of conversion. (Id. at p. 137.) Surely this argument is out of place in an opinion of the highest court of this state. As the majority acknowledge, the law of conversion is a creature of the common law. “ ‘The inherent capacity of the common law for growth and change is *162its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.’ [Citation.] [H] In short, as the United States Supreme Court has aptly said, ‘This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.’ [Citation.] . . . Although the Legislature may of course speak to the subject, in the common law system the primary instruments of this evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [115 Cal.Rptr. 765, 525 P.2d 669].)
Especially is this true in the field of torts. I need not review the many instances in which this court has broken fresh ground by announcing new rules of tort law: time and again when a new rule was needed we did not stay our hand merely because the matter was one of first impression.2 For example, in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [163 Cal.Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061], we adopted a “market share” theory of liability for injury resulting from administration of a prescription drug and suffered by a plaintiff who without fault cannot trace the particular manufacturer of the drug that caused the harm. Like the opinion in the case at bar, the dissent in Sindell objected that market share liability was “a wholly new theory” and an “unprecedented extension of liability” (Id. at pp. 614-615), and urged that in view of the economic, social, and medical effects of this new rule the decision to adopt it should rest with the Legislature (Id. at p. 621). We nevertheless declared the new rule for sound policy reasons, explaining that “In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer. The response of the courts can be either to adhere rigidly to prior doctrine, denying recovery to those injured by such products, or to fashion remedies to meet these changing needs.” {Id. at p. 610.) We took the latter course.3
The case at bar, of course, does not involve a drug-induced injury. Yet it does present a claim arising, like Sindell’s, from “advances in science and technology” that could not have been foreseen when traditional tort doc*163trine—here, the law of conversion—was formulated. My point is that if the cause of action for conversion is otherwise an appropriate remedy on these facts, we should not refrain from fashioning it simply because another court has not yet so held or because the Legislature has not yet addressed the question. We need not wait on either event, because neither is a precondition to an exercise of our long-standing “power to insure the just and rational development of the common law in our state” (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 394).4
2.
The majority’s second reason for doubting that Moore retained an ownership interest in his cells after their excision is that “California statutory law . . . drastically limits a patient’s control over excised cells.” (Maj. opn., ante, p. 140.) For this proposition the majority rely on Health and Safety Code section 7054.4 (hereafter section 7054.4), set forth in the margin.5 The majority concede that the statute was not meant to directly resolve the question whether a person in Moore’s position has a cause of action for conversion, but reason that it indirectly resolves the question by limiting the patient’s control over the fate of his excised cells: “By restricting how excised cells may be used and requiring their eventual destruction, the statute eliminates so many of the rights ordinarily attached to property that one cannot simply assume that what is left amounts to ‘property’ or ‘ownership’ for purposes of conversion law.” (Maj. opn., ante, pp. 140-141.) As will appear, I do not believe section 7054.4 supports the just quoted conclusion of the majority.
First, in my view the statute does not authorize the principal use that defendants claim the right to make of Moore’s tissue, i.e., its commercial exploitation. In construing section 7054.4, of course, “we look first to the words of the statute themselves” (Long Beach Police Officers Assn. v. City of *164Long Beach (1988) 46 Cal.3d 736, 741 [250 Cal.Rptr. 869, 759 P.2d 504]), and give those words their usual and ordinary meaning (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal.Rptr. 817, 621 P.2d 856]).
By its terms, section 7054.4 permits only “scientific use” of excised body parts and tissue before they must be destroyed. We must therefore determine the usual and ordinary meaning of that phrase. I would agree that “scientific use” at least includes routine postoperative examination of excised tissue conducted by a pathologist for diagnostic or prognostic reasons (e.g., to verify preoperative diagnosis or to assist in determining postoperative treatment). I might further agree that “scientific use” could be extended to include purely scientific study of the tissue by a disinterested researcher for the purpose of advancing medical knowledge—provided of course that the patient gave timely and informed consent to that use. It would stretch the English language beyond recognition, however, to say that commercial exploitation of the kind and degree alleged here is also a usual and ordinary meaning of the phrase “scientific use.”
The majority dismiss this difficulty by asserting that I read the statute to define “scientific use” as “not-for-profit scientific use,” and by finding “no reason to believe that the Legislature intended to make such a distinction.” (Maj. opn., ante, p. 141, fn. 34.) The objection misses my point. I do not stress the concept of profit, but the concept of science: the distinction I draw is not between nonprofit scientific use and scientific use that happens to lead to a marketable by-product; it is between a truly scientific use and the blatant commercial exploitation of Moore’s tissue that the present complaint alleges. Under those allegations, defendants Dr. David W. Golde and Shirley G. Quan were not only scientists, they were also full-fledged entrepreneurs: the complaint repeatedly declares that they appropriated Moore’s tissue in order “to further defendants’ independent research and commercial activities and promote their economic, financial and competitive interests.” The complaint also alleges that defendant Regents of the University of California (hereafter Regents) actively assisted the individual defendants in applying for patent rights and in negotiating with bioengineering and pharmaceutical companies to exploit the commercial potential of Moore’s tissue. Finally, the complaint alleges in detail the contractual arrangements between the foregoing defendants and defendants Genetics Institute, Inc., and Sandoz Pharmaceuticals Corporation, giving the latter companies exclusive rights to exploit that commercial potential while providing substantial financial benefits to the individual defendants in the form of cash, stock options, consulting fees, and fringe benefits. To exclude such traditionally commercial activities from the phrase “scientific use,” as I do here, does not *165give it a restrictive definition; rather, it gives the phrase its usual and ordinary meaning, as settled law requires.
Secondly, even if section 7054.4 does permit defendants’ commercial exploitation of Moore’s tissue under the guise of “scientific use,” it does not follow that—as the majority conclude—the statute “eliminates so many of the rights ordinarily attached to property” that what remains does not amount to “property” or “ownership” for purposes of the law of conversion. (Maj. opn., ante, p. 141.)
The concepts of property and ownership in our law are extremely broad. (See Civ. Code, §§ 654, 655.) A leading decision of this court approved the following definition: “ ‘The term “property” is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value.’ ” (Yuba River Power Co. v. Nevada Irr. Dist. (1929) 207 Cal. 521, 523 [279 P. 128].)
Being broad, the concept of property is also abstract: rather than referring directly to a material object such as a parcel of land or the tractor that cultivates it, the concept of property is often said to refer to a “bundle of rights” that may be exercised with respect to that object—principally the rights to possess the property, to use the property, to exclude others from the property, and to dispose of the property by sale or by gift. “Ownership is not a single concrete entity but a bundle of rights and privileges as well as of obligations.” (Union Oil Co. v. State Bd. of Equal. (1963) 60 Cal.2d 441, 447 [34 Cal.Rptr. 872, 386 P.2d 496].) But the same bundle of rights does not attach to all forms of property. For a variety of policy reasons, the law limits or even forbids the exercise of certain rights over certain forms of property. For example, both law and contract may limit the right of an owner of real property to use his parcel as he sees fit.6 Owners of various forms of personal property may likewise be subject to restrictions on the time, place, and manner of their use.7 Limitations on the disposition of real *166property, while less common, may also be imposed.8 Finally, some types of personal property may be sold but not given away,9 while others may be given away but not sold,10 and still others may neither be given away nor sold.11
In each of the foregoing instances, the limitation or prohibition diminishes the bundle of rights that would otherwise attach to the property, yet what remains is still deemed in law to be a protectible property interest. “Since property or title is a complex bundle of rights, duties, powers and immunities, the pruning away of some or a great many of these elements does not entirely destroy the title . . . .” (People v. Walker (1939) 33 Cal.App.2d 18, 20 [90 P.2d 854] [even the possessor of contraband has certain property rights in it against anyone other than the state].) The same rule applies to Moore’s interest in his own body tissue: even if we assume that section 7054.4 limited the use and disposition of his excised tissue in the manner claimed by the majority, Moore nevertheless retained valuable rights in that tissue. Above all, at the time of its excision he at least had the right to do with his own tissue whatever the defendants did with it: i.e., he could have contracted with researchers and pharmaceutical companies to develop and exploit the vast commercial potential of his tissue and its products. Defendants certainly believe that their right to do the foregoing is not barred by section 7054.4 and is a significant property right, as they have demonstrated by their deliberate concealment from Moore of the true value of his tissue, their efforts to obtain a patent on the Mo cell line, their contractual agreements to exploit this material, their exclusion of Moore from any participation in the profits, and their vigorous defense of this lawsuit. The Court of Appeal summed up the point by observing that “Defendants’ position that plaintiff cannot own his tissue, but that they can, is fraught with irony.” It is also legally untenable. As noted above, the majority cite no case holding that an individual’s right to develop and exploit the commercial potential of his own tissue is not a right of sufficient worth or dignity to be deemed a protectible property interest. In the absence of such authority—or of legislation to the same effect—the right falls within the traditionally broad concept of property in our law.
*1673.
The majority’s third and last reason for their conclusion that Moore has no cause of action for conversion under existing law is that “the subject matter of the Regents’ patent—the patented cell line and the products derived from it—cannot be Moore’s property.” (Maj. opn., ante, p. 141.) The majority then offer a dual explanation: “This is because the patented cell line is both factually and legally distinct from the cells taken from Moore’s body.” {Ibid., italics added.) Neither branch of the explanation withstands analysis.
First, in support of their statement that the Mo cell line is “factually distinct” from Moore’s cells, the majority assert that “Cells change while being developed into a cell line and continue to change over time,” and in particular may acquire an abnormal number of chromosomes. (Maj. opn., ante, p. 141, fn. 35.) No one disputes these assertions, but they are nonetheless irrelevant. For present purposes no distinction can be drawn between Moore’s cells and the Mo cell line. It appears that the principal reason for establishing a cell line is not to “improve” the quality of the parent cells but simply to extend their life indefinitely, in order to permit long-term study and/or exploitation of the qualities already present in such cells. The complaint alleges that Moore’s cells naturally produced certain valuable proteins in larger than normal quantities; indeed, that was why defendants were eager to culture them in the first place. Defendants do not claim that the cells of the Mo cell line are in any degree more productive of such proteins than were Moore’s own cells. Even if the cells of the Mo cell line in fact have an abnormal number of chromosomes, at the present stage of this case we do not know if that fact has any bearing whatever on their capacity to produce proteins; yet it is in the commercial exploitation of that capacity—not simply in their number of chromosomes—that Moore seeks to assert an interest. For all that appears, therefore, the emphasized fact is a distinction without a difference.
Second, the majority assert in effect that Moore cannot have an ownership interest in the Mo cell line because defendants patented it.12 The majority’s point wholly fails to meet Moore’s claim that he is entitled to compensation for defendants’ unauthorized use of his bodily tissues before defend*168ants patented the Mo cell line: defendants undertook such use immediately after the splenectomy on October 20, 1976, and continued to extract and use Moore’s cells and tissue at least until September 20, 1983; the patent, however, did not issue until March 20, 1984, more than seven years after the unauthorized use began. Whatever the legal consequences of that event, it did not operate retroactively to immunize defendants from accountability for conduct occurring long before the patent was granted.
Nor did the issuance of the patent in 1984 necessarily have the drastic effect that the majority contend. To be sure, the patent granted defendants the exclusive right to make, use, or sell the invention for a period of 17 years. (35 U.S.C. § 154.) But Moore does not assert any such right for himself. Rather, he seeks to show that he is entitled, in fairness and equity, to some share in the profits that defendants have made and will make from their commercial exploitation of the Mo cell line. I do not question that the cell line is primarily the product of defendants’ inventive effort. Yet likewise no one can question Moore’s crucial contribution to the invention—an invention named, ironically, after him: but for the cells of Moore’s body taken by defendants, there would have been no Mo cell line. Thus the complaint alleges that Moore’s “Blood and Bodily Substances were absolutely essential to defendants’ research and commercial activities with regard to his cells, cell lines, [and] the Mo cell-line, . . . and that defendants could not have applied for and had issued to them the Mo cell-line patent and other patents described herein without obtaining and culturing specimens of plaintiff’s Blood and Bodily Substances.” Defendants admit this allegation by their demurrers, as well they should: for all their expertise, defendants do not claim they could have extracted the Mo cell line out of thin air.
Nevertheless the majority conclude that the patent somehow cut off all Moore’s rights—past, present, and future—to share in the proceeds of defendants’ commercial exploitation of the cell line derived from his own body tissue. The majority cite no authority for this unfair result, and I cannot believe it is compelled by the general law of patents: a patent is not a license to defraud.13 Perhaps the answer lies in an analogy to the concept of “joint inventor.” I am aware that “patients and research subjects who contribute cells to research will not be considered inventors.” (OTA Rep., supra, at p. 71.) Nor is such a person, strictly speaking, a “joint inventor” within the *169meaning of the term in federal law. (35 U.S.C. § 116.) But he does fall within the spirit of that law: “The joint invention provision guarantees that all who contribute in a substantial way to a product’s development benefit from the reward that the product brings. Thus, the protection of joint inventors encourages scientists to cooperate with each other and ensures that each contributor is rewarded fairly.
“Although a patient who donates cells does not fit squarely within the definition of a joint inventor, the policy reasons that inform joint inventor patents should also apply to cell donors. Neither John Moore nor any other patient whose cells become the basis for a patentable cell line qualifies as a ‘joint inventor’ because he or she did not further the development of the product in any intellectual or conceptual sense. Nor does the status of patients as sole owners of a component part make them deserving of joint inventorship status. What the patients did do, knowingly or unknowingly, is collaborate with the researchers by donating their body tissue. ... By providing the researchers with unique raw materials, without which the resulting product could not exist, the donors become necessary contributors to the product. Concededly, the patent is not granted for the cell as it is found in nature, but for the modified biogenetic product. However, the uniqueness of the product that gives rise to its patentability stems from the uniqueness of the original cell. A patient’s claim to share in the profits flowing from a patent would be analogous to that of an inventor whose collaboration was essential to the success of a resulting product. The patient was not a coequal, but was a necessary contributor to the cell line. ” (Dan-forth, Cells, Sales, & Royalties: The Patient’s Right to a Portion of the Profits (1988) 6 Yale L. & Pol’y Rev. 179, 197, fns. omitted, italics added (hereafter Danforth).)
Under this reasoning, which I find persuasive, the law of patents would not be a bar to Moore’s assertion of an ownership interest in his cells and their products sufficient to warrant his sharing in the proceeds of their commercial exploitation.
4.
Having concluded—mistakenly, in my view—that Moore has no cause of action for conversion under existing law, the majority next consider whether to “extend” the conversion cause of action to this context. Again the majority find three reasons not to do so, and again I respectfully disagree with each.
The majority’s first reason is that a balancing of the “relevant policy considerations” counsels against recognizing a conversion cause of action in *170these circumstances. (Maj. opn., ante, p. 143.) The memo identifies two such policies, but concedes that one of them—“protection of a competent patient’s right to make autonomous medical decisions” (id. at p. 143)— would in fact be promoted, even though “indirectly,” by recognizing a conversion cause of action. (Id. at p. 144.)
The majority focus instead on a second policy consideration, i.e., their concern “that we not threaten with disabling civil liability innocent parties who are engaged in socially useful activities, such as researchers who have no reason to believe that their use of a particular cell sample is, or may be, against a donor’s wishes.” (Maj. opn., ante, p. 143.) As will appear, in my view this concern is both overstated and outweighed by contrary considerations.14
The majority begin their analysis by stressing the obvious facts that research on human cells plays an increasingly important role in the progress of medicine, and that the manipulation of those cells by the methods of biotechnology has resulted in numerous beneficial products and treatments. Yet it does not necessarily follow that, as the majority claim, application of the law of conversion to this area “will hinder research by restricting access to the necessary raw materials,” i.e., to cells, cell cultures, and cell lines. (Maj. opn., ante, p. 144.) The majority observe that many researchers obtain their tissue samples, routinely and at little or no cost, from cell-culture repositories. The majority then speculate that “This exchange of scientific materials, which is still relatively free and efficient, will surely be compromised if each cell sample becomes the potential subject matter of a lawsuit.” (Maj. opn., ante, p. 145.) There are two grounds to doubt that this prophecy will be fulfilled.
To begin with, if the relevant exchange of scientific materials was ever “free and efficient,” it is much less so today. Since biological products of genetic engineering became patentable in 1980 (Diamond v. Chakrabarty *171(1980) 447 U.S. 303 [65 L.Ed.2d 144, 100 S.Ct. 2204]), human cell lines have been amenable to patent protection and, as the Court of Appeal observed in its opinion below, “The rush to patent for exclusive use has been rampant.” Among those who have taken advantage of this development, of course, are the defendants herein: as we have seen, defendants Golde and Quan obtained a patent on the Mo cell line in 1984 and assigned it to defendant Regents. With such patentability has come a drastic reduction in the formerly free access of researchers to new cell lines and their products: the “novelty” requirement for patentability prohibits public disclosure of the invention at all times up to one year before the filing of the patent application. (35 U.S.C. § 102(b).) Thus defendants herein recited in their patent specification, “At no time has the Mo cell line been available to other than the investigators involved with its initial discovery and only the conditioned medium from the cell line has been made available to a limited number of investigators for collaborative work with the original discoverers of the Mo cell line.”
An even greater force for restricting the free exchange of new cell lines and their products has been the rise of the biotechnology industry and the increasing involvement of academic researchers in that industry.15 When scientists became entrepreneurs and negotiated with biotechnological and pharmaceutical companies to develop and exploit the commercial potential of their discoveries—as did defendants in the case at bar—layers of contractual restrictions were added to the protections of the patent law.16
In their turn, the biotechnological and pharmaceutical companies demanded and received exclusive rights in the scientists’ discoveries, and frequently placed those discoveries under trade secret protection. Trade secret protection is popular among biotechnology companies because, among other reasons, the invention need not meet the strict standards of *172patentability and the protection is both quickly acquired and unlimited in duration. (Note, Patent and Trade Secret Protection in University-Industry Research Relationships in Biotechnology (1987) 24 Harv. J. on Legis. 191, 218-219.)17 Secrecy as a normal business practice is also taking hold in university research laboratories, often because of industry pressure (id. at pp. 204-208): “One of the most serious fears associated with university-industry cooperative research concerns keeping work private and not disclosing it to the researcher’s peers. [Citation.] . . . Economic arrangements between industry and universities inhibit open communication between researchers, especially for those who are financially tied to smaller biotechnology firms.” (Howard, supra, 44 Food Drug Cosm. L.J. at p. 339, fn. 72.)
Secondly, to the extent that cell cultures and cell lines may still be “freely exchanged,” e.g., for purely research purposes, it does not follow that the researcher who obtains such material must necessarily remain ignorant of any limitations on its use: by means of appropriate recordkeeping, the researcher can be assured that the source of the material has consented to his proposed use of it, and hence that such use is not a conversion. To achieve this end the originator of the tissue sample first determines the extent of the source’s informed consent to its use—e.g., for research only, or for public but academic use, or for specific or general commercial purposes; he then enters this information in the record of the tissue sample, and the record accompanies the sample into the hands of any researcher who thereafter undertakes to work with it. “Record keeping would not be overly burdensome because researchers generally keep accurate records of tissue sources for other reasons: to trace anomalies to the medical history of the patient, to maintain title for other researchers and for themselves, and to insure reproducibility of the experiment.” (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. at p. 241.) As the Court of Appeal correctly observed, any claim to the contrary “is dubious in light of the meticulous care and planning necessary in serious modern medical research.”
The majority rely on Brown v. Superior Court, supra, 44 Cal.3d 1049 (hereafter Brown), but the case is plainly distinguishable. In a unanimous opinion that I authored for the court, we considered inter alia whether pharmaceutical manufacturers should be held strictly liable for injuries caused by “defectively designed” prescription drugs. We declined to so hold for several policy reasons. (Id. at pp. 1063-1065.) One of those reasons was our concern that “the fear of large adverse monetary judgments” might dissuade such manufacturers from developing or distributing potentially beneficial new drugs. (Id. at p. 1063.) The majority now seek to draw an *173analogy between Brown and the case at bar, but the analogy fails because liability exposure in the Brown context is qualitatively far greater. As we acknowledged in Brown, “unlike other important medical products . . . harm to some users from prescription drugs is unavoidable. ” (Ibid., italics added.) On an industry-wide basis, therefore, the imposition of strict liability for defective prescription drugs would inevitably result in hundreds, if not thousands, of meritorious claims by often seriously harmed plaintiffs, most of them likely to be seeking exemplary as well as compensatory damages.18 Given the innocence and vulnerability of the typical plaintiff in such cases, sympathetic juries might well return substantial verdicts again and again, and the industry’s total liability could reach intimidating proportions. Indeed, in Brown we chronicled actual instances in which the mere threat of such liability did cause the industry to refuse to supply new prescription drugs. (Id. at p. 1064.)
None of the foregoing is true in the case at bar. The majority claim that a conversion cause of action threatens to “destroy the economic incentive” to conduct the type of research here in issue (maj. opn., ante, p. 146), but it is difficult to take this hyperbole seriously. First, the majority reason that with every cell sample a researcher “purchases a ticket in a litigation lottery.” (Id. at p. 146.) This is a colorful image, but it does not necessarily reflect reality: as explained above, with proper recordkeeping the researcher acquires not a litigation-lottery ticket but the information he needs precisely in order to avoid litigation. In contrast to Brown, therefore, here the harm is by no means “unavoidable.” Second, the risk at hand is not of a multiplicity of actions: in Brown the harm would be suffered by many members of the public—the users of the end product of the process of developing the new drug—while here it can be suffered by only one person—the original source of the research material that began that process. Third, the harm to the latter will be primarily economic, rather than the potentially grave physical injuries at issue in Brown.
In any event, in my view whatever merit the majority’s single policy consideration may have is outweighed by two contrary considerations, i.e., policies that are promoted by recognizing that every individual has a legally protectible property interest in his own body and its products. First, our society acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona. One manifestation of that respect is our prohibition against direct abuse of the body by torture or other forms of cruel or unusual punishment. Another is our prohibition against indirect abuse of the body by its economic exploi*174tation for the sole benefit of another person. The most abhorrent form of such exploitation, of course, was the institution of slavery. Lesser forms, such as indentured servitude or even debtor’s prison, have also disappeared. Yet their specter haunts the laboratories and boardrooms of today’s biotechnological research-industrial complex. It arises wherever scientists or industrialists claim, as defendants claim here, the right to appropriate and exploit a patient’s tissue for their sole economic benefit—the right, in other words, to freely mine or harvest valuable physical properties of the patient’s body: “Research with human cells that results in significant economic gain for the researcher and no gain for the patient offends the traditional mores of our society in a manner impossible to quantify. Such research tends to treat the human body as a commodity—a means to a profitable end. The dignity and sanctity with which we regard the human whole, body as well as mind and soul, are absent when we allow researchers to further their own interests without the patient’s participation by using a patient’s cells as the basis for a marketable product.” (Danforth, supra, 6 Yale L. & Pol’y Rev. at p. 190, fn. omitted.)
A second policy consideration adds notions of equity to those of ethics. Our society values fundamental fairness in dealings between its members, and condemns the unjust enrichment of any member at the expense of another. This is particularly true when, as here, the parties are not in equal bargaining positions. We are repeatedly told that the commercial products of the biotechnological revolution “hold the promise of tremendous profit.” (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. at p. 211.)19 In the case at bar, for example, the complaint alleges that the market for the kinds of proteins produced by the Mo cell line was predicted to exceed $3 billion by 1990. These profits are currently shared exclusively between the biotechnology industry and the universities that support that industry. The profits are shared in a wide variety of ways, including “direct entrepreneurial ties to genetic-engineering firms” and “an equity interest in fledgling biotechnology firms” (Howard, supra, 44 Food Drug Cosm. L.J. at p. 338). Thus the complaint alleges that because of his development of the Mo cell line defendant Golde became a paid consultant of defendant Genetics Institute and acquired the rights to 75,000 shares of that firm’s stock at a cost of 1 cent each; that Genetics Institute further contracted to pay Golde and the Regents at least $330,000 over 3 years, including a pro rata share of Golde’s salary and fringe benefits; and that defendant Sandoz Pharmaceuticals Corporation subsequently contracted to increase that compensation by a further $110,000.
*175There is, however, a third party to the biotechnology enterprise—the patient who is the source of the blood or tissue from which all these profits are derived. While he may be a silent partner, his contribution to the venture is absolutely crucial: as pointed out above (pt. 3, ante), but for the cells of Moore’s body taken by defendants there would have been no Mo cell line at all.20 Yet defendants deny that Moore is entitled to any share whatever in the proceeds of this cell line. This is both inequitable and immoral. As Dr. Thomas H. Murray, a respected professor of ethics and public policy, testified before Congress, “the person [who furnishes the tissue] should be justly compensated. ... If biotechnologists fail to make provision for a just sharing of profits with the person whose gift made it possible, the public’s sense of justice will be offended and no one will be the winner.” (Murray, Who Owns the Body? On the Ethics of Using Human Tissue for Commercial Purposes (Jan.-Feb. 1986) IRB: A Review of Human Subjects Research, at p. 5.)21
There will be such equitable sharing if the courts recognize that the patient has a legally protected property interest in his own body and its products: “property rights in one’s own tissue would provide a morally acceptable result by giving effect to notions of fairness and preventing unjust enrichment. ...[][] Societal notions of equity and fairness demand recognition of property rights. There are bountiful benefits, monetary and otherwise, to be derived from human biologies. To deny the person contributing the raw material a fair share of these ample benefits is both unfair and morally wrong.” (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. at p. 229.) “Recognizing a donor’s property rights would prevent unjust enrichment by giving monetary rewards to the donor and researcher proportionate to the value of their respective contributions. Biotechnology depends upon the contributions of both patients and researchers. If not for the patient’s contribution of cells with unique attributes, the medical value of the bioengineered cells would be negligible. But for the physician’s contribution of knowledge and skill in developing the cell product, the commercial value of the patient’s cells would also be negligible. Failing to compensate the patient unjustly enriches the researcher because only the researcher’s contribution is recognized.” (Id. at p. 230.) In short, as the *176Court of Appeal succinctly put it, “If this science has become science for profit, then we fail to see any justification for excluding the patient from participation in those profits.”
5.
The majority’s second reason for declining to extend the conversion cause of action to the present context is that “the Legislature should make that decision.” (Maj. opn., ante, p. 147.) I do not doubt that the Legislature is competent to act on this topic. The fact that the Legislature may intervene if and when it chooses, however, does not in the meanwhile relieve the courts of their duty of enforcing—or if need be, fashioning—an effective judicial remedy for the wrong here alleged. As I observed above (pt. 1, ante), if a conversion cause of action is otherwise an appropriate remedy on these facts we should not refrain from recognizing it merely because the Legislature has not yet addressed the question. To do so would be to abdicate pro tanto our responsibility over a body of law—torts—that is particularly a creature of the common law. And such reluctance to act would be especially unfortunate at the present time, when the rapid expansion of biotechnological science and industry makes resolution of these issues an increasingly pressing need.
The inference I draw from the current statutory regulation of human biological materials, moreover, is the opposite of that drawn by the majority. By selective quotation of the statutes (maj. opn., ante, p. 137, fns. 22 & 23) the majority seem to suggest that human organs and blood cannot legally be sold on the open market—thereby implying that if the Legislature were to act here it would impose a similar ban on monetary compensation for the use of human tissue in biotechnological research and development. But if that is the argument, the premise is unsound: contrary to popular misconception, it is not true that human organs and blood cannot legally be sold.
As to organs, the majority rely on the Uniform Anatomical Gift Act (Health & Saf. Code, § 7150 et seq.; hereafter the UAGA) for the proposition that a competent adult may make a post mortem gift of any part of his body but may not receive “valuable consideration” for the transfer. But the prohibition of the UAGA against the sale of a body part is much more limited than the majority recognize: by its terms (Health & Saf. Code, §7155, subd. (a)) the prohibition applies only to sales for “transplantation” or “therapy.”22 Yet a diiferent section of the UAGA authorizes the transfer *177and receipt of body parts for such additional purposes as “medical or dental education, research, or advancement of medical or dental science.” (Health & Saf. Code, § 7153, subd. (a)(1).) No section of the UAGA prohibits anyone from selling body parts for any of those additional purposes; by clear implication, therefore, such sales are legal.23 Indeed, the fact that the UAGA prohibits no sales of organs other than sales for “transplantation” or “therapy” raises a further implication that it is also legal for anyone to sell human tissue to a biotechnology company for research and development purposes.
With respect to the sale of human blood the matter is much simpler: there is in fact no prohibition against such sales. The majority rely (maj. opn., ante, p. 137, fn. 23) on Health and Safety Code section 1606, which provides in relevant part that the procurement and use of blood for transfusion “shall be construed to be, and is declared to be . . . the rendition of a service . . . and shall not be construed to be, and is declared not to be, a sale . . . .” There is less here, however, than meets the eye: the statute does not mean that a person cannot sell his blood or, by implication, that his blood is not his property. “While many jurisdictions have classified the transfer of blood or other human tissue as a service rather than a sale, this position does not conflict with the notion that human tissue is property.” (Columbia Note, supra, 90 Colum. L.Rev. at p. 544, fn. 76.) The reason is plain: “No State or Federal statute prohibits the sale of blood, plasma, semen, or other replenishing tissues if taken in nonvital amounts. Nevertheless, State laws usually characterize these paid transfers as the provision of services rather than the sale of a commodity. . . . [1j] The primary legal reason for characterizing these transactions as involving services rather than goods is to avoid liability for contaminated blood products under either general product liability principles or the [Uniform Commercial Code’s] implied warranty provisions.” (OTA Rep., supra, at p. 76, fn. omitted.) The courts have repeatedly recognized that the foregoing is the real purpose of this harmless legal fiction. (See, e.g., Hyland Therapeutics v. Superior Court (1985) 175 Cal.App.3d 509 [220 Cal.Rptr. 590]; Cramer v. Queen of Angels Hosp. (1976) 62 Cal.App.3d 812 [133 Cal.Rptr. 339]; Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606 [109 Cal.Rptr. 132].) Thus despite the statute relied on by the majority, it is perfectly legal in this state for a person to sell his blood for transfusion or for any other *178purpose—indeed, such sales are commonplace, particularly in the market for plasma. (See OTA Rep., supra, at p. 121.)
It follows that the statutes regulating the transfers of human organs and blood do not support the majority’s refusal to recognize a conversion cause of action for commercial exploitation of human blood cells without consent. On the contrary, because such statutes treat both organs and blood as property that can legally be sold in a variety of circumstances, they impliedly support Moore’s contention that his blood cells are likewise property for which he can and should receive compensation, and hence are protected by the law of conversion.
6.
The majority’s final reason for refusing to recognize a conversion cause of action on these facts is that “there is no pressing need” to do so because the complaint also states another cause of action that is assertedly adequate to the task (maj. opn., ante, p. 147); that cause of action is “the breach of a fiduciary duty to disclose facts material to the patient’s consent or, alternatively, . . . the performance of medical procedures without first having obtained the patient’s informed consent” {id. at p. 129).24 Although last, this reason is not the majority’s least; in fact, it underlies much of the opinion’s discussion of the conversion cause of action, recurring like a leitmotiv throughout that discussion.
The majority hold that a physician who intends to treat a patient in whom he has either a research interest or an economic interest is under a fiduciary duty to disclose such interest to the patient before treatment, that his failure to do so may give rise to a nondisclosure cause of action, and that the complaint herein states such a cause of action at least against defendant Golde. I agree with that holding as far as it goes.
I disagree, however, with the majority’s further conclusion that in the present context a nondisclosure cause of action is an adequate—in fact, a superior—substitute for a conversion cause of action. In my view the nondisclosure cause of action falls short on at least three grounds.
First, the majority reason that “enforcement of physicians’ disclosure obligations” will ensure patients’ freedom of choice. (Maj. opn., ante, p. *179147.) The majority do not spell out how those obligations will be “enforced”; but because they arise from judicial decision (the majority opinion herein) rather than from legislative or administrative enactment, we may infer that the obligations will primarily be enforced by the traditional judicial remedy of an action for damages for their breach. Thus the majority’s theory apparently is that the threat of such an action will have a prophylactic effect: it will give physician-researchers incentive to disclose any conflicts of interest before treatment, and will thereby protect their patients’ right to make an informed decision about what may be done with their body parts.
The remedy is largely illusory. “[A]n action based on the physician’s failure to disclose material information sounds in negligence. As a practical matter, however, it may be difficult to recover on this kind of negligence theory because the patient must prove a causal connection between his or her injury and the physician’s failure to inform.” (Martin & Lagod, Biotechnology and the Commercial Use of Human Cells: Toward an Organic View of Life and Technology (1989) 5 Santa Clara Computer & High Tech L.J. 211, 222, fn. omitted, italics added.) There are two barriers to recovery. First, “the patient must show that if he or she had been informed of all pertinent information, he or she would have declined to consent to the procedure in question.” (Ibid.) As we explained in the seminal case of Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1], “There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such a causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.”25
The second barrier to recovery is still higher, and is erected on the first: it is not even enough for the plaintiff to prove that he personally would have refused consent to the proposed treatment if he had been fully informed; he must also prove that in the same circumstances no reasonably prudent person would have given such consent. The purpose of this “objective” standard is evident: “Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the *180patient’s bitterness and disillusionment. Thus an objective test is preferable: i.e., what would a prudent person in the patient’s position have decided if adequately informed of all significant perils.” (Cobbs v. Grant, supra, 8 Cal.3d 229, 245.)26
Even in an ordinary Cobbs-type action it may be difficult for a plaintiff to prove that no reasonably prudent person would have consented to the proposed treatment if the doctor had disclosed the particular risk of physical harm that ultimately caused the injury. (See, e.g., Morganroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, 534 [126 Cal.Rptr. 681] [affirming nonsuit in Cobbs-type action on ground, inter alia, of lack of proof that plaintiff would have refused coronary arteriogram if he had been told of risk of stroke].) This is because in many cases the potential benefits of the treatment to the plaintiff clearly outweigh the undisclosed risk of harm. But that imbalance will be even greater in the kind of nondisclosure action that the majority now contemplate: here we deal not with a risk of physical injuries such as a stroke, but with the possibility that the doctor might later use some of the patient’s cast-off tissue for scientific research or the development of commercial products. Few if any judges or juries are likely to believe that disclosure of such a possibility of research or development would dissuade a reasonably prudent person from consenting to the treatment. For example, in the case at bar no trier of fact is likely to believe that if defendants had disclosed their plans for using Moore’s cells, no reasonably prudent person in Moore’s position—i.e., a leukemia patient suffering from a grossly enlarged spleen—would have consented to the routine operation that saved or at least prolonged his life. Here, as in Morganroth {ibid.), a motion for nonsuit for failure to prove proximate cause will end the matter. In this context, accordingly, the threat of suit on a nondisclosure cause of action is largely a paper tiger.
The second reason why the nondisclosure cause of action is inadequate for the task that the majority assign to it is that it fails to solve half the problem before us: it gives the patient only the right to refuse consent, i.e., the right to prohibit the commercialization of his tissue; it does not give him the right to grant consent to that commercialization on the condition that he share in its proceeds. “Even though good reasons exist to support in*181formed consent with tissue commercialization, a disclosure requirement is only the first step toward full recognition of a patient’s right to participate fully. Informed consent to commercialization, absent a right to share in the profits from such commercial development, would only give patients a veto over their own exploitation. But recognition that the patient[s] [have] an ownership interest in their own tissues would give patients an affirmative right of participation. Then patients would be able to assume the role of equal partners with their physicians in commercial biotechnology research.” (Howard, supra, 44 Food Drug Cosm. L.J. at p. 344.)
Reversing the words of the old song, the nondisclosure cause of action thus accentuates the negative and eliminates the positive: the patient can say no, but he cannot say yes and expect to share in the proceeds of his contribution. Yet as explained above (pt. 4, ante), there are sound reasons of ethics and equity to recognize the patient’s right to participate in such benefits. The nondisclosure cause of action does not protect that right; to that extent, it is therefore not an adequate substitute for the conversion remedy, which does protect the right.
Third, the nondisclosure cause of action fails to reach a major class of potential defendants: all those who are outside the strict physician-patient relationship with the plaintiff. Thus the majority concede that here only defendant Golde, the treating physician, can be directly liable to Moore on a nondisclosure cause of action: “The Regents, Quan, Genetics Institute, and Sandoz are not physicians. In contrast to Golde, none of these defendants stood in a fiduciary relationship with Moore or had the duty to obtain Moore’s informed consent to medical procedures.” (Maj. opn., ante, p. 133.) As to these defendants, the majority can offer Moore only a slim hope of recovery: if they are to be liable on a nondisclosure cause of action, say the majority, “it can only be on account of Golde’s acts and on the basis of a recognized theory of secondary liability, such as respondeat superior.” (Maj. opn., ante, p. 133.) Although the majority decline to decide the question whether the secondary-liability allegations of the complaint are sufficient, they strongly imply disapproval of those allegations.27 And the *182majority further note that the trial court has already ruled insufficient the allegations of agency as to the corporate defendants. (Maj. opn., ante, p. 134.)
To the extent that a plaintiff such as Moore is unable to plead or prove a satisfactory theory of secondary liability, the nondisclosure cause of action will thus be inadequate to reach a number of parties to the commercial exploitation of his tissue. Such parties include, for example, any physician-researcher who is not personally treating the patient, any other researcher who is not a physician, any employer of the foregoing (or even of the treating physician), and any person or corporation thereafter participating in the commercial exploitation of the tissue. Yet some or all of those parties may well have participated more in, and profited more from, such exploitation than the particular physician with whom the plaintiff happened to have a formal doctor-patient relationship at the time.
In sum, the nondisclosure cause of action (1) is unlikely to be successful in most cases, (2) fails to protect patients’ rights to share in the proceeds of the commercial exploitation of their tissue, and (3) may allow the true exploiters to escape liability. It is thus not an adequate substitute, in my view, for the conversion cause of action.
7.
My respect for this court as an institution compels me to make one last point: I dissociate myself completely from the amateur biology lecture that the majority impose on us throughout their opinion. (Maj. opn., ante, fns. 2, 29, 30, 33 and 35, and text at pp. 138-139.) For several reasons, the inclusion of most of that material in an opinion of this court is improper.
First, with the exception of defendants’ patent none of the material in question is part of the record on appeal as defined by the California Rules of Court. Because this appeal is taken from a judgment of dismissal entered after the sustaining of general and special demurrers, there is virtually no record other than the pleadings. The case has never been tried, and hence there is no evidence whatever on the obscure medical topics on which the majority presume to instruct us. Instead, all the documents that the majority rely on for their medical explanations appear in an appendix to defendant *183Golde’s opening brief on the merits. Such an appendix, however, is no more a part of the record than the brief itself, because the record comprises only the materials before the trial court when it made its ruling. (See Cal. Rules of Court, rules 4 through 5.2.) Nor could Golde have moved to augment the record to include any of these documents, because none was “part of the original superior court file,” a prerequisite to such augmentation. (Cal. Rules of Court, rule 12(a).) “As a general rule, documents not before the trial court cannot be included as a part of the record on appeal.” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261].)
Second, most of these documents bear solely or primarily on the majority’s discussion of whether Moore’s “genetic material” was or was not “unique” (see maj. opn., ante, p. 139), but that entire discussion is legally irrelevant to the present appeal. As Justice Broussard correctly observes in his separate opinion, “the question of uniqueness has no proper bearing on plaintiff’s basic right to maintain a conversion action; ordinary property, as well as unique property, is, of course, protected against conversion.” (Cone, and dis. opn. of Broussard, J., ante, p. 157.)
Third, this nonissue is also a noncontention. The majority claim that “Moore relies . . . primarily” on an analogy to certain right-of-privacy decisions (maj. opn., ante, pp. 137-138), but this is not accurate. Under our rules, as in appellate practice generally, the parties to an appeal are confined to the contentions raised in their briefs (see Cal. Rules of Court, rule 29.3). In his brief on the merits in this court Moore does not even cite, less still “rely primarily,” on the right-of-privacy decisions discussed by the majority, nor does he draw any analogy to the rule of those decisions. It is true that in the course of oral argument before this court, counsel for Moore briefly paraphrased the analogy argument that the majority now attribute to him; but a party may not, of course, raise a new contention for the first time in oral argument.
Fourth, much of the material that the majority rely on in this regard is written in highly technical scientific jargon by and for specialists in the field of contemporary molecular biology. (See, e.g., articles cited in maj. opn., ante, fn. 30, 2d par., & fn. 35, 2d par.) As far as I know, no member of this court is trained as a molecular biologist, or even as a physician; without expert testimony in the record, therefore, the majority are not competent to explain these arcane points of medical science any more than a doctor would be competent to explain esoteric questions of the law of negotiable *184instruments or federal income taxation, or the rule against perpetuities.28 In attempting to expound this science the majority run two serious risks. First, because they have no background in molecular biology the majority may simply misunderstand what they are reading, much as a layman might misunderstand a highly technical article in a professional legal journal. Indeed, I suggest the majority have already fallen into this very trap, since some of their explanations appear either mistaken, confused, or incomplete (e.g., maj. opn., ante, fin. 29).
The second risk is that of omission. The majority have access to most of the legal literature published in this country; but even if the majority could understand the medical literature, as a practical matter they have access to virtually none of it. This is demonstrated by the fact that every one of the medical articles now relied on by the majority came into their possession as reprints furnished to this court by one of the parties to this lawsuit—obviously not an unbiased source. Because the majority are thus not equipped to independently research the medical points they seek to make, they risk presenting only one side of the story; it may well be that other researchers have reached different or even contrary results, reported in publications that defendants, acting in self-interest, have not furnished to the court. I leave it *185to professionals in molecular biology to say whether the majority’s explanations on this topic are both correct and balanced. Because I fear they may be neither, I cannot subscribe to any of them.
I would affirm the decision of the Court of Appeal to direct the trial court to overrule the demurrers to the cause of action for conversion.
Respondents’ petition for a rehearing was denied August 30, 1990. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
A cell line is a cell culture that is capable of continuous and indefinite growth in vitro. (U.S. Congress, Office of Technology Assessment, New Developments in Biotechnology: Ownership of Human Tissues and Cells (1987) p. 33 (hereafter OTA Report).)
See, e.g., the cases collected in Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at pages 394-396.
Other jurisdictions have followed us, most recently New York’s highest court. (Hymowitz v. Eli Lilly and Co. (1989) 73 N.Y.2d 487 [541 N.Y.S.2d 941, 539 N.E.2d 1069].)
The majority cite three cases declining to apply other tort doctrines in different factual contexts, but in each we based our decision mainly on traditional reasons of policy. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 294-300 [253 Cal.Rptr. 97, 763 P.2d 948]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 696-700 [254 Cal.Rptr. 211, 765 P.2d 373]; Brown v. Superior Court (1988) 44 Cal.3d 1049, 1061-1065 [245 Cal.Rptr. 412, 751 P.2d 470].) As will appear (pt. 4, post), in my view the single policy reason offered by the majority for rejecting a conversion cause of action here is unpersuasive and is outweighed by policy reasons to the contrary.
Section 7054.4 provides: “Notwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety.
“As used in this section, ‘infectious waste’ means any material or article which has been, or may have been, exposed to contagious or infectious disease.”
Zoning or nuisance laws, or covenants running with the land or equitable servitudes, or condominium declarations, may prohibit certain uses of the parcel or regulate the number, size, location, etc., of buildings an owner may erect on it. Even if rental of the property is a permitted use, rent control laws may limit the benefits of that use. Other uses may, on the contrary, be compelled: e.g., if the property is a lease to extract minerals, the lease may be forfeited by law or contract if the lessee does not exploit the resource. Historic preservation laws may prohibit an owner from demolishing a building on the property, or even from altering its appearance. And endangered species laws may limit an owner’s right to develop the land from its natural state.
Public health and safety laws restrict in various ways the manufacture, distribution, purchase, sale, and use of such property as food, drugs, cosmetics, tobacco, alcoholic beverages, *166firearms, flammable or explosive materials, and waste products. Other laws regulate the operation of private and commercial motor vehicles, aircraft, and vessels.
Provisions in a condominium declaration may give the homeowners association a right of first refusal over a proposed sale by a member. Provisions in a commercial lease may require the lessor’s consent to an assignment of the lease.
A person contemplating bankruptcy may sell his property at its “reasonably equivalent value,” but he may not make a gift of the same property. (See 11 U.S.C. § 548(a).)
A sportsman may give away wild fish or game that he has caught or killed pursuant to his license, but he may not sell it. (Fish & G. Code, §§ 3039, 7121.)
The transfer of human organs and blood is a special case that I discuss below (pt. 5).
E.g., a license to practice a profession, or a prescription drug in the hands of the person for whom it is prescribed.
The majority also assert that the patent constitutes an “authoritative” determination that the Mo cell line is a patentable invention. (Maj. opn., ante, p. 142.) But to the extent that ’’authoritative” implies “conclusive,” it is a misstatement of patent law. When granted by the United States Patent Office, a patent has only “prima facie validity”: it is presumed valid, but the defendant in an infringement action may undertake to “establish that the patent is invalid on any one of a number of possible grounds, such as lack of novelty, lack of invention, lack of utility, etc.” (Amdur, Patent Fundamentals (1959) p. 86, fn. 7.)
For example, it is hornbook law that “In patent [infringement] suits where equitable relief is sought, the defense of unclean hands may be interposed. The patent owner may have forced licensees under his patent to adopt illegal licensing provisions, or he may have committed any one of a large number of acts constituting fraud or fraudulent behavior. While only the United States government can bring suit to cancel a patent on the grounds of fraud, it is a valid defense in an infringement action that the patent was fraudulently issued to the patentee.” (Seidel, What the General Practitioner Should Know About Patent Law and Practice (ALI 1956) p. 118.)
On this record the majority’s solicitude for the protection of “innocent parties” seems ironic. The complaint is replete with factual allegations—which we must accept as true on this appeal—to the effect that defendants repeatedly lied to Moore about their commercial exploitation of his tissue. For example, the complaint contains detailed allegations that defendants falsely told Moore that his numerous postoperative trips from his home in Seattle to the Medical Center of the University of California at Los Angeles between 1976 and 1983 were necessary because his blood and other bodily fluids could be extracted only by them at the latter facility; that defendants falsely told Moore that the purpose of such extractions was to promote his health, when in fact it was solely to promote defendants’ ongoing research and commercial activities; and that even when Moore expressly asked if defendants had discovered anything about his blood that might have potential commercial value, defendants falsely told him “they had discovered nothing of any commercial or financial value in his Blood or Bodily Substances, and in fact actively discouraged such inquiries.” These are not the acts of “innocent parties.”
Biotechnology itself began as an academic research activity, and the universities remain a major source of expertise in the field. This connection has led to a relationship of unparalleled intimacy between universities and biotechnology companies: “Commercial ventures between universities and the biotechnology industry now include consulting arrangements, licensing of new technology for development, sponsored research projects, research partnerships, industrial associate programs, and the formation of research departments and institutes.” (Howard, Biotechnology, Patients’ Rights, and the Moore Case (1989) 44 Food Drug Cosm. L.J. 331, 338, fn. 65 (hereafter Howard); accord OTA Rep., supra, at pp. 61-62.)
“Besides patent protection, intangible property rights in human biologies arise through contractual ordering. Before the commercial potential of genetic engineering on human cells became evident, scientists freely transferred cell lines and cell products. As the commercial value of the cell lines developed, originators of cell lines and cell products found written agreements increasingly necessary to protect economic rights in their creations.” (Note, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue (1986) 34 UCLA L.Rev. 207, 223, fns. omitted (hereafter Toward the Right of Commerciality).)
In California, trade secret protection for new microorganisms is also expressly granted by the criminal law. (Pen. Code, § 499c, subd. (a)(2).)
Brown (44 Cal.3d at p. 1055) is itself an example of such multiplicity of actions: the case involved at least 69 lawsuits filed in the same court for personal injuries caused by just 1 drug, and a typical complaint named 170 or more pharmaceutical companies as defendants.
In a footnote at this point the cited article reports published estimates of the market for biotechnological products, by the end of this decade, ranging from $15 billion to $100 billion. (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. at p. 211, fn. 16.)
It bears reiterating that “human cells are indispensable to the creation and production of human biologies.” (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. at p. 209.) In a footnote at this point (id. at fn. 6) the article explains: “Many incorrectly believe that biotechnology permits scientists to ‘create’ life. This simply is not the case. Presently, biotechnology allows only the manipulation, not the creation, of life. Although biotechnologists are able to cut and splice genes, to fuse cells, and even to mix the genetic information of humans with that of bacteria, they must start with a living cell as the raw material.”
The quoted view of Dr. Murray stands in stark contrast to the majority’s disparaging remark that describes Moore’s right to share in these profits as “a highly theoretical windfall.” (Maj. opn., ante, p. 147.)
It also applies to the special case of sales for “reconditioning,” which refers to pacemakers. (See, e.g., Health & Saf. Code, § 7153, subd. (a)(4).)
“By their terms . . . the statutes in question forbid only sales for transplantation and therapy. In light of the rather clear authorization for donation for research and education, one could conclude that sales for these non-therapeutic purposes are permitted. Scientists in practice have been buying and selling human tissues for research apparently without interference from these statutes.” (Note, “She’s Got Bette Davis[’s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses (1990) 90 Colum. L.Rev. 528, 544, fn. 75 (hereafter Columbia Note).)
In the interest of brevity I shall refer hereafter to this compound cause of action simply as the “nondisclosure cause of action.”
This is also the rule elsewhere: a leading case recognized that “as in malpractice actions generally, there must be a causal relationship between the physician’s failure to adequately divulge and damage to the patient, [fl] A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it.” (Canterbury v. Spence (D.C. Cir. 1972) 464 F.2d 772, 790, fns. omitted; accord, 2 Louisell & Williams, Medical Malpractice (1989) Informed Consent, ([ 22.14, pp. 22-49 to 22-50.)
Again the rule is general: “the vast majority of jurisdictions that have considered the issue apply an objective standard,” focusing “on what a reasonable patient in the plaintilf’s position would have done if adequately informed.” (2 Louisell & Williams, op. cit. supra, 22.14, at pp. 22-50 to 22-51.)
The rule is also incorporated in a standard jury instruction: failure to disclose before obtaining consent results in liability “if a reasonably prudent person in the patient’s position would not have consented to the [treatment] [operation] if he or she had been adequately informed of all the significant perils.” (BAJI No. 6.11 (7th ed. 1986 bound vol.).)
Quoting a portion of the agency allegations stated in paragraph 4 of the third amended complaint, the majority criticize them as “egregious examples of generic boilerplate.” (Maj. opn., ante, p. 134, fn. 12.) But if being “boilerplate” were a valid objection, few pleadings would pass muster in this age of Judicial Council compulsory forms, widely used model form books, and drafting programs on law office computers. It is true that the quoted language of the complaint alleges the fact of agency in general terms, but that is the proper form of such an allegation. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 868, pp. 309-310.) It is also true that the complaint alleges a variety of different agency relationships that could support secondary liability (“agency, employment, partnership and joint venture”); but such allegations are a modest form of alternative pleading that should be permitted when, as here, the *182plaintiff is uncertain as to which one or more of these several forms of agency will be proved at trial. (4 Witkin, op. cit. supra, Pleading, § 355, at p. 410.)
In addition, the majority omit to mention paragraph 5 of the third amended complaint, which in my view contains sufficient allegations to the effect that Golde was an agent of the corporate defendants and that such defendants ratified his acts vis-á-vis Moore.
Contrary to the majority’s implication (maj. opn., ante, fn. 35, 3d par.), there is nothing inconsistent herewith in three opinions that I authored for the court on the admissibility of certain kinds of testimony. Thus in both People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 723 P.2d 1354], and People v. Guerra (1984) 37 Cal.3d 385 [208 Cal.Rptr. 162, 690 P.2d 635], we held inadmissible the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue. Although in so doing we had occasion to refer to professional literature in the field of psychology, both cases are distinguishable from the case at bar on several grounds. First, they came to us on records reflecting full trials in which expert witnesses testified at length on the point at issue. Second, we referred to the professional literature not for the truth of the matter asserted but simply to show that it “fully supports the testimony of [the expert witness]” and establishes that the challenged testimony is not generally accepted as reliable by the relevant scientific community and hence is inadmissible under the rule of People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240], and Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 [34 A.L.R. 145], (People v. Shirley, supra, 31 Cal.3d 18, 66.) As we explained in Shirley, in such circumstances “our duty is not to decide whether hypnotically induced recall of witnesses is reliable as a matter of ‘scientific fact,’ but simply whether it is generally accepted as reliable by the relevant scientific community.” (Id. at p. 55.) Third, the articles we cited discussed matters of human psychology that were much more accessible to laypersons than the highly technical medical research reports relied on here by the majority.
In the other case of this type (People v. McDonald (1984) 37 Cal.3d 351 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011]) we held admissible expert testimony on psychological factors shown by the evidence that may aflect the accuracy of an eyewitness identification. Although we cited certain psychological literature, the case is likewise distinguishable. It, too, came to us after a full trial, on a record that included a detailed explanation by the expert witness of his proposed testimony (id. at pp. 361-362). Again we referred to the professional articles primarily as support for that expert testimony (id. at pp. 368-369). And again the contents of those articles were much more accessible to laypersons than the medical research reports relied on by the majority.