 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

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 Solutions StrategyAdvantagesDisadvantages 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 CONTRACTSInexpensive 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  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??