Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons Nahum Seifeselassie May 16, 2012

Intellectual Property Rights The constitution states property rights are granted to “promote the progress of…the useful arts” Without property rights laws: – Intellectual theft – No personal reward for years of effort – Inhibits motivations to innovate Overbearing property rights laws: – Inhibits access to standard parts – Hikes up experiments of any project based on previous research

Motivations Assimilation of synthetic biology into existing intellectual property laws Methods of creating “openess” – The public domain vs. “Commons”

Copyright Protection for original works of expression Excludes works that are functional Examples: Movies, Books, Music… Patent Intellectual Property Right for an inventor Requires functionality Inventions be “nonobvious” to ordinary scientist working in the area Excludes formulas and algorithms or any word-based content Copyright vs. Patent

Patents: Low Threshold for “Nonobviousness” Cloning genes is a widely understood method US Court of Appeals continues to treat gene products of such methods as patentable Justification: Focus on DNA molecules as chemical compounds vs. the method for isolating DNA DNA sequence only obvious if prior act recites a similar or identical sequence Allows for plethora of narrow patents Gene Cloning Unwritten information in determination of obviousness prohibited “Molecular Computing Elements, Gates and Flip Flops” Patent Nucleic-acid binding proteins and nucleic acids Logic gates for Boolean algebra Any device or system containing boolean algebra parts Allows for broad patents Genetic Switches

Broad and Narrow Patents Broad Patents: Slow growth in the industry Computer hardware industry US government forced licensing of different AT&T, Texas Instruments, and Fairchild Instrument products Narrower Patents: Various DNA binding proteins, specific gene regulation mechanisms Patent “thickets” also inhibit growth Products in Synthetic biology rely on combinations of dozens of patented parts “Reach-through” royalties

The Public Domain Outside the world of property Registry of Standard Biological Parts Avoids patents on trivial improvements

The Commons Promotes intellectual sharing via intellectual property laws Open source software “Commons expanding” and “copyleft” licenses Similar concept used with Patents

Obstacles to Establishing Copyright Commons Synthetic Biology products not discussed in US copyright statute Expressive Choice? Depends on project Base pairs that don’t appear in nature vs. genetic code Copyrights and “copyleft” rights diminish incentive to develop and commercialize drugs

Obstacles to Securing Patent “Commons” Antitrust and Patent Misuse Violations Expense MIT Registry of Standard Biological Parts contains more than 2,000 parts A single patent can cost tens of thousands Possible Solutions Statements of non-assertion “Clickwrap” license Sui generis property rights

Conclusion Every solution has significant problems “Copyleft” licenses have been most successful in creating a software “Commons” Patents are needed monetary incentive Why go public?

Questions?