S

Synthetic Biology: Caught between Property Rights, the

Public Domain, and the Commons

Arti Rai and James Boyle

Presented by Pei-Ann LinMay 11, 2011

Synthetic Biology and Intellectual Property Law

What is the best method for creating “openness” and thus, greater innovation? Public Domain—not anyone’s property The Commons—Use copyright, patents, etc. to

leverage requirements of openness for future improvements

Obstacles to Establishing Copyright

Products of synthetic biology do not fit well into the current conceptual limits of copyright law Not discussed as copyrightable subject matter in the

US copyright statute Copyright law is restricted from covering functional

articles or methods of operation and requires expressive choices (Can copyright be invoked for genetic code?)

Effects of Patents on Growth of Synthetic

Biology

Probably low “nonobvious” threshold

Broad foundational patents can impede innovation 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)

Patent thickets or “anti-commons” Very specific and large in quantity

Patent-based “Commons” and Copylefting

Normal patent law situation allows for new patents to be filed based on improvements Splits rights to a technology over many parties, eventually

greatly hindering access

BioBricks Foundation

BIOS (Biological Innovation for an Open Society) 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

MIT Registry of Standard Biological Parts has placed its parts into the public domain Protects against the threat of patents impeding

innovation

Alternative SolutionsStrategy 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 InexpensiveStrict limits on information dissemination

SUI GENERIS LEGISLATION

Narrowly tailored to problem; “open” databases or “social patents”

Legislative solutions are difficult and SLOW

Discussion Questions

Why are there concerns about antitrust and patent misuse with regards to the BIOS patent-based commons?

How does the (sad but true) financial incentive for innovation play into each of the presented strategies for swift progress in synthetic biology?

Is there an ideal solution??