Download Synthetic Biology: Caught between Property Rights

Synthetic Biology: Caught between
Property Rights, the Public Domain,
and the Commons
Arti Rai and James Boyle
Presented by Pei-Ann Lin
May 11, 2011
S
Synthetic Biology and
Intellectual Property Law
S What is the best method for creating “openness” and thus,
greater innovation?
S Public Domain—not anyone’s property
S The Commons—Use copyright, patents, etc. to leverage
requirements of openness for future improvements
Obstacles to Establishing
Copyright
S Products of synthetic biology do not fit well into the current
conceptual limits of copyright law
S Not discussed as copyrightable subject matter in the US
copyright statute
S Copyright law is restricted from covering functional articles or
methods of operation and requires expressive choices
S
(Can copyright be invoked for genetic code?)
Effects of Patents on Growth of
Synthetic Biology
S Probably low “nonobvious” threshold
S Broad foundational patents can impede innovation
S U.S. Department of Health and Human Services holds a
patent covering the use of combination of nucleic-acid binding
proteins and nucleic acids to set up data storage and logic gates
(2004)
S Patent thickets or “anti-commons”
S Very specific and large in quantity
Patent-based “Commons” and
Copylefting
S Normal patent law situation allows for new patents to be filed
based on improvements
S Splits rights to a technology over many parties, eventually greatly
hindering access
S BioBricks Foundation
S BIOS (Biological Innovation for an Open Society)
S Uses patent protection on a few key plant gene transfer
technologies to force licensees to put improvements to those
technologies into the commons
Current Solution:
Public Domain
S MIT Registry of Standard Biological Parts has placed its
parts into the public domain
S Protects against the threat of patents impeding innovation
Alternative Solutions
Strategy
Advantages
Disadvantages
PATENTS
Exclusive use of invention
for 20 years and gives clear
property right basis for
copyleft license
Expensive
COPYRIGHT
Exclusive rights to copy or
improve; inexpensive; clear
property right basis for
copyleft license
Unclear legal basis for
assertion of copyright for
synthetic biology creations
CONTRACTS
Inexpensive
Strict limits on information
dissemination
SUI GENERIS
LEGISLATION
Narrowly tailored to
problem; “open” databases
or “social patents”
Legislative solutions are
difficult and SLOW
Discussion Questions
S Why are there concerns about antitrust and patent misuse
with regards to the BIOS patent-based commons?
S How does the (sad but true) financial incentive for
innovation play into each of the presented strategies for
swift progress in synthetic biology?
S Is there an ideal solution??