Team:Lyon-INSA/HP

From 2012.igem.org

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<div class="introduction contenuTexte" style="margin:20px;font-size:15px;margin-top:0px;">
<div class="introduction contenuTexte" style="margin:20px;font-size:15px;margin-top:0px;">
<p>Our human practice project includes two themes raising many very different questions.
<p>Our human practice project includes two themes raising many very different questions.
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The first one is about various intellectual property issues. The other theme relates to the relation between scientists and public stake holders.</p>
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The first one is about various intellectual property issues. The second theme deals with the relation between scientists and public stake holders.</p>
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<p>We have chosen to divide the theme "intellectual property" into three parts because this theme is the main part of our reflexion and it required a longer development.   
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<p>We have chosen to divide the theme "intellectual property" into three parts because it represents the main part of our reflexion and required a longer development.   
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As a summary : the first part deals with the intellectual property rights inference towards the iGEM contest and is made up by a reflexion on the economic challenges the synthetic biology industry faces. Then we give some answers through a FAQ to the questions you could have after reading our main intellectual property essay. In the third part we sum up our collaborative work on the intellectual property with the <a href="http://2012.igem.org/Team:British_Columbia">University of British Columbia iGEM team</a> which consists in a survey about IP issues in iGEM.  
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As a summary : the first part deals with the intellectual property rights inference towards the iGEM contest and was made by a reflexion on the economic challenges the synthetic biology industry faces. Then we give some answers through a FAQ to the questions you could have after reading our main intellectual property essay. In the third part, we sum up our collaborative work on the intellectual property with the <a href="http://2012.igem.org/Team:British_Columbia">University of British Columbia iGEM team</a> which consists in a survey about IP issues in iGEM.  
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In the two last parts we develop our actions towards the public. </p><br>
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In the two last parts, we develop our actions towards the public. </p><br>
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<h3>Introduction</h3>
<h3>Introduction</h3>
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Free knowledge sharing is part of the foundational principles of the iGEM contest. Consequently, protecting the possible commercial uses of the iGEM team members’ projects seems difficultly feasible by common ways (especially patents and copyrights). However, the intellectual property rights in general and patents in particular are commonly known to be the only way to promote innovation in a profit-making logic: if companies cannot secure the economic outcome of their investments in R&D, they will not invest in it. A simple conclusion could then easily be drawn from these very statements:iGEM projects would be unlikely to be industrially and commercially developed, to the extent that it would be difficult for companies to capture the economic returns of their investments.
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Free knowledge sharing is part of the foundational principles of the iGEM contest. Consequently, protecting the possible commercial uses of the iGEM team members’ projects seems difficultly feasible by common ways (especially patents and copyrights). However, the intellectual property rights in general and patents in particular are commonly known to be the only way to promote innovation in a profit-making logic: if companies cannot secure the economic outcome of their investments in R&D, they will not invest in it. A simple conclusion could then easily be drawn from these very statements : iGEM projects would be unlikely to be industrially and commercially developed, to the extent that it would be difficult for companies to capture the economic returns of their investments.
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The aim of this human practice project is to show that patents are not the only way, not even always the best mean to promote innovation. Viable alternative models do exist, such as the "Common's system", which will be discussed further on. We will assume the iGEM team members form a commons similar to the Open Source community of the IT sector to strike up a reflexion on the development of alternate economic solutions to patents.<br>
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The aim of this human practice project is to show that patents are not the only way, not even always the best mean to promote innovation. Viable alternative models do exist, such as the "Commons' system", which will be discussed further on. We will assume that iGEM members form a commons similar to the Open Source community of the IT sector to strike up a reflexion on the development of alternate economic solutions to patents.<br>
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<div class="introduction contenuTexte" style="display:inline-block;width:70%;">
<div class="introduction contenuTexte" style="display:inline-block;width:70%;">
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We will most notably refer to both Joseph Stiglitz’s (Nobel prize in economics in 2001) and Elinor Ostrom’s (Nobel prize in economics in 2009) theoretical work in the economics of innovation and intellectual property to back up our study.
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We will most notably refer to both Joseph Stiglitz’s (Nobel Prize in Economics in 2001) and Elinor Ostrom’s (Nobel Prize in Economics in 2009) theoretical work in the economics of innovation and intellectual property to back up our study.
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<div class="petitSsTitre">What is a patent, how is it awarded?</div>
<div class="petitSsTitre">What is a patent, how is it awarded?</div>
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  A patent grants its owner a monopoly in a country on an invention he was the first one to describe and claim. At a firm's scale, this also means being able to shield the potential commercial exploitation of the R&D work which has led to the invention, against the company's competitors. It rewards this work by granting the patent’s owner an economic advantage that will probably make the financial cost of the R&D be worth it. The perspective of this heavy economic asset is the major reason why patents are said to be a driving force that encourage innovation.<br>
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  A patent grants its owner a monopoly in a country on an invention he was the first to describe and claim. At a firm's scale, this also means being able to shield the potential commercial exploitation of the R&D work which has led to the invention, against the company's competitors. It rewards this work by granting the patent’s owner an economic advantage that will probably make the financial cost of the R&D be worth it. The perspective of this heavy economic asset is the major reason why patents are said to be a driving force that encourage innovation.<br>
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Nonetheless, such a profit-making privilege has a cost for both the claimer (patent offices fees, attorney fees, translation expenses if necessary, and so on) and the society, namely the "monopoly rent" it generates (see below). Indeed, targeted invention have to meet tough conditions for a patent to be granted. Consequently, knowing the granting conditions is very important to fully understand the patent system.<br>
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Nonetheless, such a profit-making privilege has a cost for both the claimer (patent offices fees, attorney fees, translation expenses if necessary, and so on) and the society, namely the "monopoly rent" it generates (see below). Indeed, targeted inventions have to meet tough conditions for a patent to be granted. Consequently, knowing the granting conditions is very important to fully understand the patent system.<br>
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A patent is granted:<br>
A patent is granted:<br>
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<i>NB : A patent has to be paid annually for its delivery and maintaining.</i><br>
<i>NB : A patent has to be paid annually for its delivery and maintaining.</i><br>
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The 1930 plant patent act marked the beginning of a new economic era for biology as emerged with it the patentability of the living world. Nowadays, even the genetically modified bacterias may be patentable (the latter have been patentable in the USA and then in Europe since the beginning of the 80s even if the precise conditions to be met to make "living things" patentable remain quite fuzzy.).<br>
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The 1930 plant patent act marked the beginning of a new economic era for biology as emerged with it the patentability of the living world. Nowadays, even genetically modified bacteria may be patentable (the latter have been patentable in the USA and then in Europe since the beginning of the 1980s even if the precise conditions to be met to make "living things" patentable remain quite fuzzy).<br>
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The goal of this brief study though, is not to discuss this matter.<br>
The goal of this brief study though, is not to discuss this matter.<br>
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<div class="contenuTexte" style="display:inline-block;width:74%;margin-top:30px;">
<div class="contenuTexte" style="display:inline-block;width:74%;margin-top:30px;">
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In France, patents have been created after the 1789 French Revolution. They were then considered as a human right : their aim was to recognize the inventors’ rights on their ingenuity. And so was born the first legal mean to claim authorship of an invention: a new age for intellectual property began.<br>
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In France, patents have been created after the 1789 French Revolution. They were then considered as a human right : their aim was to recognize the inventors’ rights on their ingenuity. And so was born the first legal mean to claim authorship of an invention: a new era for intellectual property began.<br>
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Instead, the justification for patents became quickly socio-economic. Patents are now conceived as an incentive for production and knowledge spreading. When a patent is awarded, the description of the invention goes public, in exchange for a maximum twenty-years commercial monopoly to the owner.
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Yet, the justification for patents became quickly socio-economic. Patents are now conceived as an incentive for production and knowledge spreading. When a patent is awarded, the description of the invention goes public, in exchange for a maximum twenty-years commercial monopoly to the owner.
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Patents are actually supposed to promote innovation and the disclosure of technological knowledge, which means allowing the latest inventions to be known by anyone, though their commercial use is forbidden without a license from the patent owner until the patent ends. On the one hand, the benefits that patents are expected to offer to society are very clear as their design is specifically supposed to improve the global technological level. Indeed, huge technological steps have been made since the patent’s creation (although it is not the only factor). On the other hand, stimulating the competition FOR the market (i.e for “new” markets) by granting some kind of monopoly rents generates economic costs for society, which derive from a weakening in the competition IN the market (i.e. in the “same” market).
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Patents are actually supposed to promote innovation and the disclosure of technological knowledge, which means allowing the latest inventions to be known by anyone, though their commercial use is forbidden without a license from the patent owner until the patent ends. On the one hand, the benefits that patents are expected to offer to society are very clear as their design is specifically supposed to improve the global technological level. Indeed, huge technological steps have been made since the patents’ creation (although it is not the only factor). On the other hand, stimulating the competition FOR the market (i.e. for “new” markets) by granting some kind of monopoly rents generates economic costs for society, which derive from a weakening in the competition IN the market (i.e. in the “same” market).
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<li>What is the patentability scope ? What can be patented ? ;</li>
<li>What is the patentability scope ? What can be patented ? ;</li>
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<li>How patents are granted ? (i.e. the toughness of the conditions required) ;</li>
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<li>How patents are granted ? (i.e. the toughness of the conditions required) ;</li>
<li>What are the rights of the patent owner ? ;</li>
<li>What are the rights of the patent owner ? ;</li>
<li>How long do these rights last ?</li> </ul>
<li>How long do these rights last ?</li> </ul>
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For instance, narrow patents are sometimes granted to different companies on very specific elements, the gathering of which may be necessary to develop an innovation (a new product for example). Nowadays, major worldwide companies use patents as defensive or offensive tools to block competition by preventing (potential) rivals to use specific useful components.When powerful enough, these rivals strike back by doing the exact same thing on other components so that they are mutually blocked. This case is known as the "patent thicket" problem. As an example Google has recently bought Motorola Mobile and its 17000 patents for 12 billion dollars, which means they spent a lot of money to get these patents probably as offensive / defensive ends instead of spending it into pure R&D. Consequently patents sometimes paradoxically discourage innovation.<br>
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For instance, narrow patents are sometimes granted to different companies on very specific elements, the gathering of which may be necessary to develop an innovation (a new product for example). Nowadays, major worldwide companies use patents as defensive or offensive tools to block competition by preventing (potential) rivals to use specific useful components. When powerful enough, these rivals strike back by doing the exact same thing on other components so that they are mutually blocked. This case is known as the "patent thicket" problem. As an example Google has recently bought Motorola Mobile and its 17,000 patents for 12 billion dollars, which means they spent a lot of money to get these patents probably as offensive / defensive ends instead of spending it into pure R&D. Consequently patents sometimes paradoxically discourage innovation.<br>
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Contrary to the previous case, some patents may protect wide discoveries (also known as foundational patents). For instance, the patent granted to Myriad genetics covered the whole gene functions of BRCA1 and BRCA2 and all applications that could follow on possible ways to diagnose and cure breast cancer. This kind of patent stood against innovation, preventing any creative use of those genes by any other actor than Myriad Genetics, or leading to any other use linked to this DNA sequence (possibly there would have been many, considering the complexity of biological regulations).<br>
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Contrary to the previous case, some patents may protect wide discoveries (also known as foundational patents). For instance, the patent granted to Myriad Genetics covered the whole gene functions of BRCA1 and BRCA2 and all applications that could follow on possible ways to diagnose and cure breast cancer. This kind of patent stood against innovation, preventing any creative use of those genes by any other actor than Myriad Genetics, or leading to any other use linked to this DNA sequence (possibly there would have been many, considering the complexity of biological regulations).<br>
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<div class="introduction contenuTexte" style="display:inline-block;width:65%;">
<div class="introduction contenuTexte" style="display:inline-block;width:65%;">
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As a consequence, the patent system may allow the formation of major entry barriers on some industrial domains. It is notably the case in some markets of the pharmaceutical industry in which new companies cannot easily enter anymore because they would need to buy the licences of many expensive patents from the incumbent firms.<br>
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As a consequence, the patent system may allow the formation of major entry barriers on some industrial domains. It is notably the case in some markets of the pharmaceutical industry in which new companies cannot easily enter anymore because they would need to buy the licenses of many expensive patents from the incumbent firms.<br>
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Last but not least, the philosophical questions raised in the last two centuries concerning patents are to be considered. As this is not a philosophical essay, we will content ourselves with a brief resume. According to the American economist Thorstein Veblen (1908), a patent is illegitimate as it privatizes a collective work any invention crucially depends on the previous ones : how would a trolley have been invented if the wheel had not been invented before ? Veblen emphasizes this idea when he argues that:
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Last but not least, the philosophical questions raised in the last two centuries concerning patents are to be considered. As this is not a philosophical essay, we will content ourselves with a brief summary. According to the American economist Thorstein Veblen (1908), a patent is illegitimate as it privatizes a collective work any invention crucially depends on the previous ones : how would a trolley have been invented if the wheel had not been invented before ? Veblen emphasizes this idea when he argues that:
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<i>The initiative and technological enterprise of individuals, such, e.g., as shown in inventions and discoveries of more and better ways and means, proceeds on and enlarges the accumulated wisdom of the past. Individual initiative has no chance except on the ground afforded by the common stock, and the achievements of such initiative are of no effect except as accretions to the common stock. And the invention or discovery so achieved always embodies so much of what is already given that the creative contribution of the inventor or discoverer is trivial by comparison. (1908)</i><br>
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<i>The initiative and technological enterprise of individuals, such as shown in inventions and discoveries of more and better ways and means for instance, proceeds on and enlarges the accumulated wisdom of the past. Individual initiative has no chance except on the ground afforded by the common stock, and the achievements of such initiative are of no effect except as accretions to the common stock. And the invention or discovery so achieved always embodies so much of what is already given that the creative contribution of the inventor or discoverer is trivial by comparison. (1908)</i><br>
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This thinking still applies nowadays on different themes. So the question remains : why should a sole actor gather all the economic benefits from this collective process?<br>
This thinking still applies nowadays on different themes. So the question remains : why should a sole actor gather all the economic benefits from this collective process?<br>
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Consequently, in some cases, having an economic alternative to the patent system may actually be a good thing.In this perspective the leading economists Claude Henry and Joseph Stiglitz assert that :<br>
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Consequently, in some cases, having an economic alternative to the patent system may actually be a good thing. In this perspective the leading economists Claude Henry and Joseph Stiglitz assert that :<br>
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In a recent paper, Claude Henry and Joseph Stiglitz (2010) argue that the open source system, which has been widely used in the IT sector, can be an alternate solution to the patent framework to promote innovation.The aim of our approach is not to precisely characterize the way the "open source approach" could be adapted to the synthetic biology. It is to urge the iGEM community to embark on a collective reflexion on its contribution to the development of a "synthetic biology commonns”.
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In a recent paper, Claude Henry and Joseph Stiglitz (2010) argue that the open source system, which has been widely used in the IT sector, can be an alternate solution to the patent framework to promote innovation. The aim of our approach is not to precisely characterize the way the "open source approach" could be adapted to the synthetic biology. It is to urge the iGEM community to get involved in a collective reflexion on its contribution to the development of a "synthetic biology commons”.
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The open source software's users have been in ever greater numbers for the last few years. According to a study made by Markess International in France in 2009, on 160 French companies 92% used open source software during that year. The viability of its mere founding principle explains its success : the involved software can be used freely with a license (“open source license”) authorizing it and even allowing its source code to be modified and enhanced by the licensed one. At first glance, such a model would seem to be inefficient as the software should not generate any profit : their license makes them indeed free to use. However, companies have opted for a business model involving services and proprietary software (“proprietary bricks”) that complement the open source product.
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Open source softwares' users have been in even greater numbers for the last few years. According to a study made by Markess International in France in 2009, on 160 French companies, 92% had used open source softwares during that year. The viability of its mere founding principle explains its success : the involved software can be used freely with a license (“open source license”) authorizing it and even allowing its source code to be modified and enhanced by the licensed one. At first glance, such a model would seem to be inefficient as the software should not generate any profit : their license makes them indeed free to use. However, companies have opted for a business model involving services and proprietary software (“proprietary bricks”) that complement the open source product.
<br>Besides, the mere nature of this emerging sector makes it very innovative : a whole community back it up by enhancing the software's source codes. This system also allows companies to make profit on a patent-free position. That is why such a successful example could serve as an inspiration for our reflexion.
<br>Besides, the mere nature of this emerging sector makes it very innovative : a whole community back it up by enhancing the software's source codes. This system also allows companies to make profit on a patent-free position. That is why such a successful example could serve as an inspiration for our reflexion.
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<div class="petitSsTitre">From the open source software to the commons approach</div>
<div class="petitSsTitre">From the open source software to the commons approach</div>
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The open source system functions thanks to a wide community literally owning the diverse software under license.This community defines the rights and duties attached to the use and development of this software. As a consequence, the open source can be considered as a case of commons, i.e. a resource jointly owned by a group. This vague and ancient term has covered various kinds of resources, namely natural resources (e.g. fisheries, pastures and forests) as well as the immaterial ones such as knowledge.
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The open source system functions thanks to a wide community literally owning the diverse software under license. This community defines the rights and duties attached to the use and development of this software. As a consequence, the open source can be considered as a case of commons, i.e. a resource jointly owned by a group. This vague and ancient term has covered various kinds of resources, namely natural resources (e.g. fisheries, pastures and forests) as well as the immaterial ones such as knowledge.
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However, Elinor Ostrom's (1933-2012) work, which led her to win the Nobel prize in economics in 2009, broadened the economists' mind on this particular topic.
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However, Elinor Ostrom's (1933-2012) work, which led her to win the Nobel Prize in Economics in 2009, broadened the economists' mind on this particular topic.
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<div class="petitSsTitre">The new commons</div>
<div class="petitSsTitre">The new commons</div>
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Ostrom emphasizes the fact that Hardin “was actually discussing open access rather than managed commons” (Hess & Ostrom, 2006). Using this argument among others, she pointed out the weaknesses of Hardin's thinking : contrary to his theory, a lot of resources have been responsibly managed as communal goods over many centuries in Europe, before being privatized through the “enclosure” movement from the 15th to the 18th century.
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Ostrom emphasizes the fact that Hardin “was actually discussing open access rather than managed commons” (Hess & Ostrom, 2006). Using this argument among others, she pointed out the weaknesses of Hardin's thinking : contrary to his theory, a lot of resources have been responsibly managed as communal goods over many centuries in Europe, before being privatized through the “enclosure” movement from the 15th to the 18th centuries.
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Her study made her precise the commons' concept. Throughout many examples, she ended up characterizing it as a “jointly owned legal set of rights”. Besides, in contrast to Hardin who offered only two solutions (privatization or nationalization) to the supposed “tragedy of the commons”, she distinguished this form of property and management of resources from both traditional private (market, companies) and public (planning, State) economic approaches: each community managing a commons fixes its own rules by defining a governance frameworkl and some “bundles of rights”. The latter which specifies the access, withdrawal, management, exclusion and alienation rights are distributed to the different actors exploiting the resource in order to manage it jointly, and efficiently according to a defined hierarchy.
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Her study made her precise the commons' concept. Throughout many examples, she ended up characterizing it as a “jointly owned legal set of rights”. Besides, in contrast to Hardin who offered only two solutions (privatization or nationalization) to the supposed “tragedy of the commons”, she distinguished this form of property and management of resources from both traditional private (market, companies) and public (planning, State) economic approaches : each community managing a commons fixes its own rules by defining a governance framework and some “bundles of rights”. The latter which specifies the access, withdrawal, management, exclusion and alienation rights are distributed to the different actors exploiting the resource in order to manage it jointly, and efficiently according to a defined hierarchy.
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Ostrom insisted on the uniqueness of every case of commons she (or her students) studied. Nevertheless she succeeded in identifying a set of founding principles each sustainable commons fits.
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Ostrom insisted on the uniqueness of every case of commons she (or her students) studied. Nevertheless she succeeded in identifying a set of founding principles each sustainable commons fits :
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Consequently, we propose the iGEM community to develop a genuine reflexion on this important matter in order to form a strong “synthetic biology commons” whose technological and economic success could be compared to the open source movement.
Consequently, we propose the iGEM community to develop a genuine reflexion on this important matter in order to form a strong “synthetic biology commons” whose technological and economic success could be compared to the open source movement.
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The results of the UBC team’s survey, to the analysis of which we have collaborated, confirm that most of the iGEM community members oppose the patentability of the BioBricks designed in the frame of iGEM. Promoting the intellectual as well as economic value of iGEM outcomes, without resorting to the traditional intellectual property regime, should thus interest most actors in the iGEM commons.
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The results of the UBC team’s survey, to the analysis of which we have collaborated, confirm that most of the iGEM community members oppose the patentability of the BioBricks designed in the frame of iGEM. Promoting the intellectual as well as economic values of iGEM outcomes, without resorting to the traditional intellectual property regime, should thus interest most actors in the iGEM commons.
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<div class="contenuTexte">
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Our adventure in Amsterdam made us realize how abstract our reflexion was. We decided then to deepen it in a more concrete way through this FAQ which was inspired by the very questions we were asked in Holland.
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Our adventure in Amsterdam made us realize how abstract our reflexion was. We decided then to deepen it in a more concrete way through this FAQ which was inspired by the very questions we were asked in The Netherlands.
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First of all, we shall remind the patent granting requirements :
First of all, we shall remind the patent granting requirements :
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<li>the novelty condition (i.e. the invention must be partially or totally new);</li>
<li>the novelty condition (i.e. the invention must be partially or totally new);</li>
<li>the non-obviousness condition (U.S. patent law) or the inventiveness condition (in European patent law);</li>
<li>the non-obviousness condition (U.S. patent law) or the inventiveness condition (in European patent law);</li>
<li>the usefulness condition (U.S. patent law) or the industrial applicability condition (in European patent law).</li>
<li>the usefulness condition (U.S. patent law) or the industrial applicability condition (in European patent law).</li>
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Obviously, patenting public parts is impossible considering the first condition. However novel devices using public parts may be considered for protection through patents, depending on the degree of novelty carried by this device
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Obviously, patenting public parts is impossible considering the first condition. However novel devices using public parts may be considered for protection through patents, depending on the degree of novelty carried by the device.
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<i>Could private actors like companies belong to and participate to a “synthetic biology commons” ?</i><br><br>
<i>Could private actors like companies belong to and participate to a “synthetic biology commons” ?</i><br><br>
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Fact : companies can take part in a commons. Many companies (Small and Medium Enterprises as well as big companies) currently do make profit in the open source software industry. This opportunity is not confined to the software industry: the idea of an “open source biology” has also emerged. This movement, also referred to as “open access biology”, has appeared in bio-industries such as the pharmaceutical sector, in most cases to prevent other companies to patent their research. The SNP Consortium, founded in 1999, gathers 10 pharmaceutical companies which decided to release some of their data concerning the human genome in the public domain. A few other more recent examples, including Pfizer (2006), Novartis (2007) and Syngenta (2002), tend to show that sharing knowledge has become part of the economic strategies in biology (Henkel & Maurer, 2007).<br>
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Fact : companies can take part in a commons. Many companies (Small and Medium Enterprises as well as big companies) currently do make profits in the open source software industry. This opportunity is not confined to the software industry : the idea of an “open source biology” has also emerged. This movement, also referred to as “open access biology”, has appeared in bio-industries such as the pharmaceutical sector, in most cases to prevent other companies to patent their research. The SNP Consortium, founded in 1999, gathers 10 pharmaceutical companies which decided to release some of their data concerning the human genome in the public domain. A few other more recent examples, including Pfizer (2006), Novartis (2007) and Syngenta (2002), tend to show that sharing knowledge has become part of the economic strategies in biology (Henkel & Maurer, 2007).<br>
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Besides, such a sharing knowledge strategy allows companies to make good use of free resources, the validity of which has already been controlled by a (potentially) large community. Moreover, many business models may be designed (and have already been implemented to some extent), which are based on indirect profits, such as selling services for example.<br>
Besides, such a sharing knowledge strategy allows companies to make good use of free resources, the validity of which has already been controlled by a (potentially) large community. Moreover, many business models may be designed (and have already been implemented to some extent), which are based on indirect profits, such as selling services for example.<br>
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Nothing opposes the possibility that different modes of coordination co-exist within the same sector. A given firm may share knowledge in a commons perspective, while simultaneously developing market relations. For instance, some software vendors sell proprietary software (“proprietary bricks”) that complement a main open source program (which one is free to use) like an option.<br>
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Nothing opposes the possibility that different modes of coordination co-exist within the same sector. A given firm may share knowledge in a commons perspective, while simultaneously developing market relations. For instance, some software vendors sell proprietary software (“proprietary bricks”) that complement a main open source program (which is free to use) like an option.<br>
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Existing economic associations such as the BiOS (“Biological innovation for an Open Society”) Initiative of Cambia, suggest that such a combination would be possible in the field of synthetic biology. The BiOS license allows the licensees to use Cambia enabling technology (a few key plant gene transfer patented technologies) royalty-free, on condition that the improvements made to the technology are also made freely available (i.e. they can be used royalty-free by other licensees). Furthermore, the BiOS founders, who claim that they have adapted the “open source” approach to biology (the source code being here the enabling technology), also argue that their licensing device does not lessen the usual incentives to innovate, including the possibility of patenting some products developed from the application of the enabling technology. <br>
Existing economic associations such as the BiOS (“Biological innovation for an Open Society”) Initiative of Cambia, suggest that such a combination would be possible in the field of synthetic biology. The BiOS license allows the licensees to use Cambia enabling technology (a few key plant gene transfer patented technologies) royalty-free, on condition that the improvements made to the technology are also made freely available (i.e. they can be used royalty-free by other licensees). Furthermore, the BiOS founders, who claim that they have adapted the “open source” approach to biology (the source code being here the enabling technology), also argue that their licensing device does not lessen the usual incentives to innovate, including the possibility of patenting some products developed from the application of the enabling technology. <br>
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Ostrom put forward a set of generic principles for a commons to be economically viable. One of them is that every single commons has its own rules that are defined by both its actors and the resources that are dealt with.
Ostrom put forward a set of generic principles for a commons to be economically viable. One of them is that every single commons has its own rules that are defined by both its actors and the resources that are dealt with.
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Not only are the actors of the open source software movement different from the synthetic biology community but also the code source is a resource different from the biological parts.These reasons make it hardly possible that the same rules could be applied to both commons, especially on the legal point of view. Indeed, the open source software movement is based on the spreading of open source licenses, which derive from copyright (“copyleft”). Such a solution is generally considered by legal experts as unadapted to biological parts (Henkel & Maurer, 2007). These experts also suggest that an economic model combining patents with legal devices ensuring free knowledge sharing and use would be the best way to the economic development of synthetic biology and to the spreading of innovations.
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Not only are the actors of the open source software movement different from the synthetic biology community but source code is also a resource different from the biological parts. These reasons make it hardly possible that the same rules could be applied to both commons, especially on the legal point of view. Indeed, the open source software movement is based on the spreading of open source licenses, which derive from copyright (“copyleft”). Such a solution is generally considered by legal experts as unadapted to biological parts (Henkel & Maurer, 2007). These experts also suggest that an economic model combining patents with legal devices ensuring free knowledge sharing and use would be the best way to the economic development of synthetic biology and to the spreading of innovations.
<br>
<br>
<br>
<br>
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<i>Should not we consider that the bases of a synthetic biology commons have already been defined, by several organisms, including the iGEM Foundation itself ?</i>
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<i>Should we not consider that the bases of a synthetic biology commons have already been defined, by several organisms, including the iGEM Foundation itself ?</i>
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The objectives of our initiative are threefold :
The objectives of our initiative are threefold :
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<ul>
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<li>first, leading every member of the iGEM community to be aware of participating to a commons;</li><br>
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<li>First, leading every member of the iGEM community to be aware of participating to a commons;</li>
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<li>second, provoking a debate within the iGEM community to precise its founding rules. The community should collectively deliberate on the definition of a set of rules regarding the rights to access BioBricks, to use them, to control their application, to impose sanctions if necessary, etc.;</li><br>
+
<li>Second, provoking a debate within the iGEM community to precise its founding rules. The community should collectively deliberate on the definition of a set of rules regarding the rights to access BioBricks, to use them, to control their application, to impose sanctions if necessary, etc.;</li>
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<li>third, leading the iGEM community to discuss its place and the role it may play in the development of an overall synthetic biology commons, involving different kinds of actors : other associations such as the BiOS Initiative, public research units and higher education organizations, companies, and so on. Though building an overall synthetic biology commons is far from being an easy task, it seems to be a growing concern for many actors, including public authorities. For instance, the current Minister of Higher Education and Research in France, Geneviève Fioraso, recently wrote a comprehensive Parliamentary Report on the scientific, technological and economic stakes of synthetic biology, which was published a few months before becoming a Minister (Fioraso Report, 2012). This report notably highlights the crucial role of iGEM in the development of synthetic biology.</li><br>
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<li>Third, leading the iGEM community to discuss its place and the role it may play in the development of an overall synthetic biology commons, involving different kinds of actors : other associations such as the BiOS Initiative, public research units and higher education organizations, companies, and so on. Though building an overall synthetic biology commons is far from being an easy task, it seems to be a growing concern for many actors, including public authorities. For instance, the current Minister of Higher Education and Research in France, Geneviève Fioraso, recently wrote a comprehensive Parliamentary Report on the scientific, technological and economic stakes of synthetic biology, which was published a few months before becoming a Minister (Fioraso Report, 2012). This report notably highlights the crucial role of iGEM in the development of synthetic biology.</li>
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The <a href="http://2012.igem.org/Team:British_Columbia">University of British Colombia team</a> was also interested in intellectual property issues. They sent to each team a survey to understand what kind of IP issues are encountered by iGEM teams? Do IP issues hinder iGEM project? What level of IP knowledge have iGEMers?  We were glad to see we were not alone on IP planet, so we contacted them to share our works. UBC has accepted to give us their survey results and in exchange we commented their poll and their FAQ, we also answered their survey.281 iGEMers had answered the survey when we treated it .
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The <a href="http://2012.igem.org/Team:British_Columbia">University of British Colombia team</a> was also interested in intellectual property issues. They sent to each team a survey to understand what kind of IP issues are encountered by iGEM teams? Do IP issues hinder iGEM project? What level of IP knowledge have iGEMers?  We were glad to see we were not alone on IP planet, so we contacted them to share our works. UBC has accepted to give us their survey results and in exchange we commented their poll and their FAQ, we also answered their survey. 281 iGEMers had answered the survey when we treated it.
<br>
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This collaboration allowed us to broaden our reflexion to iGEM teams' issues.
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This collaboration enabled us to broaden our reflexion to iGEM teams' issues.
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<div class="petitSsTitre">Teams and IP experience</div>
<div class="petitSsTitre">Teams and IP experience</div>
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Firstly we studied past iGEMers experience with IP . In a graphic we summarize the answer to two questions:
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Firstly, we studied former iGEMers' experience with IP . In a graphic we summarize the answer to two questions:
<ul>
<ul>
<li>Do you have a past experience regarding the IP ?</li>
<li>Do you have a past experience regarding the IP ?</li>
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Only a few iGEM participants experienced dealing with IP issues. However, it would have been interesting to know their age in order to know if both data were bounded.
Only a few iGEM participants experienced dealing with IP issues. However, it would have been interesting to know their age in order to know if both data were bounded.
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Besides, a patent experience seems to be often linked to a different project than the iGEM one, the reason probably being the special functioning of the iGEM contest in which most of the tools needed (such as the plasmid vectors) are provided without any intellectual property rights. Outside of iGEM, of course, such tools are obviously not freely supplied, which may results in a patent experience if the materials used are under a proprietary license.  
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Besides, a patent experience seems to be often linked to a different project than the iGEM one, the reason probably being the special functioning of the iGEM contest in which most of the tools needed (such as the plasmid vectors) are provided without any intellectual property rights. Outside of iGEM, of course, such tools are obviously not freely supplied, which may result in a patent experience if the materials used are under a proprietary license.  
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Nonetheless, these answers do not reveal what these past experiences are. To test our hypothesis (iGEMers acquire IP experience outside of iGEM because patented materials are not used) we got interested in the nature of iGEMers IP experiences.
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Nonetheless, these answers do not reveal what these past experiences are. To test our hypothesis (iGEMers acquire IP experience outside of iGEM because patented materials are not used) we got interested in the nature of iGEMers' IP experiences.
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<div class="petitSsTitre">Nature of the IP experience</div>
<div class="petitSsTitre">Nature of the IP experience</div>
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In this study, those who had an IP experience had to explain what was its nature. The results are that most of them (46 %) had already used patented materials before. However, 15% renounced to actually use them, which shows how patent can impede research and innovation: getting a license may be dissuasive, especially in France where the Research budget is limited.
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In this study, those who had an IP experience had to explain what its nature was. The results are that most of them (46%) had already used patented materials before. However, 15% gave up actually using them, which shows how patents can impede research and innovation : getting a license may be dissuasive, especially in France where the Research budget is limited.
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<center><img src="http://2012.igem.org/wiki/images/0/0b/Naturepastexperience.png" width="70%"/></center>
<center><img src="http://2012.igem.org/wiki/images/0/0b/Naturepastexperience.png" width="70%"/></center>
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The next answers are related to the current iGEM projects. The poll shows clearly that patents have been a problem for 10 % of the participants, which is not that much. But still : they do have been a concern in some cases. The relatively low number could be explained by the aforementioned reasons about the providing of non-patented tools by the iGEM organization.
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The next answers are related to the current iGEM projects. The poll shows clearly that patents have been a problem for 10% of the participants, which is not that much. But still : they do have been a concern in some cases. The relatively low number could be explained by the aforementioned reasons about the providing of non-patented tools by the iGEM organization.
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It could also be explained by the redundant solutions offered by the living matter in general and the synthetic biology in particular. For instance, our team specifically picked a Dispersin gene that was not patented, though others were available (whose commercial use was protected).
It could also be explained by the redundant solutions offered by the living matter in general and the synthetic biology in particular. For instance, our team specifically picked a Dispersin gene that was not patented, though others were available (whose commercial use was protected).
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<center><img src="http://2012.igem.org/wiki/images/b/b6/Copyright.png" width="70%"/></center>
<center><img src="http://2012.igem.org/wiki/images/b/b6/Copyright.png" width="70%"/></center>
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Our sole conclusion on this matter is that the IPR often does affect iGEM projects, even if in general the patents are not the limiting IP tool for them.
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Our sole conclusion on this matter is that the IPR (Intellectual Property Rights) often do affect iGEM projects, even if in general patents are not the limiting IP tool for them.
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<div class="petitSsTitre">May a project be built on patented materials?</div>
<div class="petitSsTitre">May a project be built on patented materials?</div>
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<div class="petitSsTitre">Different ways to get to know the IP protection procedures</div>
<div class="petitSsTitre">Different ways to get to know the IP protection procedures</div>
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The iGEM competitors who planned to get their work protected used different ways to approach applying for IP protections. Three tendencies come forth : they did so by talking inside their team (to the graduate student advisor, to another team member or / and to a faculty advisor), but also outside of it (to an industry expert, to a member of the university’s commercialization office or to a legal professional). The last tendency was to search on the Internet.
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The iGEM competitors who planned to get their work protected used different ways to approach applying for IP protections. Three tendencies come forth : they did so by talking inside their team (to the graduate student advisor, to another team member and / or to a faculty instructor), but also outside of it (to an industry expert, to a member of the university’s commercialization office or to a legal professional). The last tendency was to search on the Internet.
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These inclinations are more or less equally represented in this poll, so that it does not reveal many things. The only really interesting point which has to be put forward is that most iGEM competitors who want to apply for IP protections do make some research on it, which emphasizes the complexity of such procedures and the lack of knowledge they probably had.
These inclinations are more or less equally represented in this poll, so that it does not reveal many things. The only really interesting point which has to be put forward is that most iGEM competitors who want to apply for IP protections do make some research on it, which emphasizes the complexity of such procedures and the lack of knowledge they probably had.
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Our work with the University of British Colombia made us realize how often the intellectual property rights interfered with the different iGEM teams’ project. Nonetheless, we were disconcerted when we found out the patents were not the main problem. Indeed, their source was copyrights and trademarks .
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Our work with the University of British Colombia made us realize how often the Intellectual Property Rights interfered with the different iGEM teams’ project. Nonetheless, we were disconcerted when we found out the patents were not the main problem. Indeed, their source was copyrights and trademarks.
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Besides, this survey deepened our main reflexion (q.v. part I) as it emphasized the problems due to the superimposition of the commons and the patent models. It also highlighted the global lack of knowledge of the iGEMers upon the intellectual property rights, which shows the necessity of informing about this particular topic. We sincerely hope we have helped to do so.
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Besides, this survey deepened our main reflexion (see Part I) as it emphasized the problems due to the superimposition of the commons and the patent models. It also highlighted the global lack of knowledge of the iGEMers upon the Intellectual Property Rights, which shows the necessity of informing about this particular topic. We sincerely hope we have helped to do so.
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<em>Thanks to UBC team for the sharing of their survey results ans for this friendly collaboration</em>
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<em>Thanks to UBC team for sharing their survey results and for their friendly collaboration</em>
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We chose to interview a specific population : scientific students who are from 18 to 24 years old .
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We chose to interview a specific population : scientific students from 18 to 24 years old.
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Moreover, their studies, knowledge or interests in biology are different. The survey allows us to precise a tendency, the use of bacteria in food and cosmetic industries is more accepted by the young population, the future consumers. Furthermore, it gives us an idea of the commercial potential of our solution because it is linked to users acceptance.
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Moreover, their studies, knowledge or interests in biology are different. The survey enabled us to precise a tendency : the use of bacteria in food and cosmetic industries is more accepted by the young population, the future consumers. Furthermore, it gives us an idea about the commercial potential of our solution because it is linked to users' acceptance.
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First, we are interested in the attention the public gives to the composition of the every day life products.
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First, we were interested in the attention the public gives to the composition of every day life products.
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In general, ¾ of the population is interested and concerned about what kind of substances is used in production processes. So, it seems relevant to ask them what products they are ready to accept .
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In general, ¾ of the population is interested and concerned about what kind of substances is used in production processes. So, it seems relevant to ask them what products they are ready to accept.
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Food and cosmetics are the products the most people are likely to be in contact with. So its really important to know the opinion of the larger public on this matter :
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Food and cosmetics are the products people are most likely to be in contact with. So it is really important to know the opinion of the larger public on this matter :
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<img src="http://2012.igem.org/wiki/images/c/c5/Comparrsoncosm.png" width="90%"/>
<img src="http://2012.igem.org/wiki/images/c/c5/Comparrsoncosm.png" width="90%"/>
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<div style="opacity:0.4">remark : the bacteria are indicated as eliminated after cleaning and never in direct contact with the products.</div>
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<div style="opacity:0.4">r\Remark : the bacteria are indicated as eliminated after cleaning and never in direct contact with the products.</div>
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<img src="http://2012.igem.org/wiki/images/f/f5/Agecomparison.png" width="90%"/>
<img src="http://2012.igem.org/wiki/images/f/f5/Agecomparison.png" width="90%"/>
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<div style="opacity:0.4">remark : the bacteria are indicated as eliminated after cleaning and never in direct contact with the products.</div>
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<div style="opacity:0.4">Remark : the bacteria are indicated as eliminated after cleaning and never in direct contact with the products.</div>
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As we could expect, the biological substances are the ones that people are more willing to accept, both in food and cosmetic industries.
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As we could expect, the biological substances are the ones that people are more willing to accept, both in food and cosmetic industries.
Moreover, there are not real concerns for the use of living bacteria in these two fields.
Moreover, there are not real concerns for the use of living bacteria in these two fields.
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The questions of the chemicals and the GMO’s is quiet different : they are more accepted in cosmetics than in food (in general people seem to be more careful on what they eat...).
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The questions of the chemicals and the GMO’s is quite different : they are more accepted in cosmetics than in food (in general, people seem to be more careful on what they eat...).
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The most remarkable is that the interviewed people have almost the same “reluctance” for the use of chemicals and GMOs. This can be interpreted as the students'sensitization of the negative effects of chemicals.
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The most remarkable is that the interviewed people have almost the same “reluctance” for the use of chemicals and GMOs. This can be interpreted as the students' sensitization of the negative effects of chemicals.
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We find interesting to gather the surveyed ones by age groups :  
We find interesting to gather the surveyed ones by age groups :  
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Some of the surveyed people belong to the 0-17 years old age group, and few to the more than 35 years old. The analysis of their answers leads us to note that the group above 35 years old has a tendency to refuse GMOs and to accept more easily living bacteria and chemicals in their products.  
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Some of the surveyed people belong to the 0-17 years old age group, and few to the more than 35 years old. The analysis of their answers lead us to notice that the group above 35 years old has a tendency to refuse GMOs and to accept more easily living bacteria and chemicals in their products.  
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On the contrary, the youngest are more reluctant about chemicals in their foods, and least cautious on what is put in their cosmetics.
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On the contrary, the youngest ones are more reluctant about chemicals in their foods, and less cautious on what is put in their cosmetics.
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Through this survey, we notice the public is ready to accept the use of bacteria in cleaning processes but they seem to be a little bit afraid of GMO's. We have to consider the actual french controversy in GMO's which badly influence public opinion. Our meetings with the public show us that when you take time to really explain how bacterial GMO's are conceived and how they are used, people often change their mind on it. Thanks to these results, we even feel an inducement in our search to limit the use of chemicals and a public approbation of our Biofilm Killer solution.
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Through this survey, we notice the public is ready to accept the use of bacteria in cleaning processes but they seem to be a little bit afraid of GMO's. We have to consider the current French controversy on GMO's which badly influences public opinion. Our meetings with the public showed us that when you take time to really explain how bacterial GMO's are conceived and how they are used, people often change their mind about it. Thanks to these results, we even feel an inducement in our search to limit the use of chemicals and a public approbation of our Biofilm Killer solution.
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Revision as of 03:46, 27 October 2012

Our human practice project includes two themes raising many very different questions. The first one is about various intellectual property issues. The second theme deals with the relation between scientists and public stake holders.

We have chosen to divide the theme "intellectual property" into three parts because it represents the main part of our reflexion and required a longer development. As a summary : the first part deals with the intellectual property rights inference towards the iGEM contest and was made by a reflexion on the economic challenges the synthetic biology industry faces. Then we give some answers through a FAQ to the questions you could have after reading our main intellectual property essay. In the third part, we sum up our collaborative work on the intellectual property with the University of British Columbia iGEM team which consists in a survey about IP issues in iGEM. In the two last parts, we develop our actions towards the public.



Part I: Intellectual property issues

Introduction

Free knowledge sharing is part of the foundational principles of the iGEM contest. Consequently, protecting the possible commercial uses of the iGEM team members’ projects seems difficultly feasible by common ways (especially patents and copyrights). However, the intellectual property rights in general and patents in particular are commonly known to be the only way to promote innovation in a profit-making logic: if companies cannot secure the economic outcome of their investments in R&D, they will not invest in it. A simple conclusion could then easily be drawn from these very statements : iGEM projects would be unlikely to be industrially and commercially developed, to the extent that it would be difficult for companies to capture the economic returns of their investments.

Nonetheless, the decision of opening an iGEM entrepreneurship division, whose objectives are clearly to optimize the economic opportunities given by the performing iGEM innovation system, vigorously shook that very last conclusion.

The aim of this human practice project is to show that patents are not the only way, not even always the best mean to promote innovation. Viable alternative models do exist, such as the "Commons' system", which will be discussed further on. We will assume that iGEM members form a commons similar to the Open Source community of the IT sector to strike up a reflexion on the development of alternate economic solutions to patents.

We will most notably refer to both Joseph Stiglitz’s (Nobel Prize in Economics in 2001) and Elinor Ostrom’s (Nobel Prize in Economics in 2009) theoretical work in the economics of innovation and intellectual property to back up our study.


The patent system: an efficient economic model ?

What is a patent, how is it awarded?
A patent grants its owner a monopoly in a country on an invention he was the first to describe and claim. At a firm's scale, this also means being able to shield the potential commercial exploitation of the R&D work which has led to the invention, against the company's competitors. It rewards this work by granting the patent’s owner an economic advantage that will probably make the financial cost of the R&D be worth it. The perspective of this heavy economic asset is the major reason why patents are said to be a driving force that encourage innovation.

Nonetheless, such a profit-making privilege has a cost for both the claimer (patent offices fees, attorney fees, translation expenses if necessary, and so on) and the society, namely the "monopoly rent" it generates (see below). Indeed, targeted inventions have to meet tough conditions for a patent to be granted. Consequently, knowing the granting conditions is very important to fully understand the patent system.

A patent is granted:
  • for a new invention never publicly revealed, which can lead to industrial applications ;
  • on a precise territory ;
  • for a maximum of twenty years ;
  • to the one who revealed the invention and described it with enough precision.

NB : A patent has to be paid annually for its delivery and maintaining.

The 1930 plant patent act marked the beginning of a new economic era for biology as emerged with it the patentability of the living world. Nowadays, even genetically modified bacteria may be patentable (the latter have been patentable in the USA and then in Europe since the beginning of the 1980s even if the precise conditions to be met to make "living things" patentable remain quite fuzzy).

The goal of this brief study though, is not to discuss this matter.

Why patents have been created?
In France, patents have been created after the 1789 French Revolution. They were then considered as a human right : their aim was to recognize the inventors’ rights on their ingenuity. And so was born the first legal mean to claim authorship of an invention: a new era for intellectual property began.


Yet, the justification for patents became quickly socio-economic. Patents are now conceived as an incentive for production and knowledge spreading. When a patent is awarded, the description of the invention goes public, in exchange for a maximum twenty-years commercial monopoly to the owner.


Patents are actually supposed to promote innovation and the disclosure of technological knowledge, which means allowing the latest inventions to be known by anyone, though their commercial use is forbidden without a license from the patent owner until the patent ends. On the one hand, the benefits that patents are expected to offer to society are very clear as their design is specifically supposed to improve the global technological level. Indeed, huge technological steps have been made since the patents’ creation (although it is not the only factor). On the other hand, stimulating the competition FOR the market (i.e. for “new” markets) by granting some kind of monopoly rents generates economic costs for society, which derive from a weakening in the competition IN the market (i.e. in the “same” market).
As a result, the patent system rests on a socio-economic balance, in which society is supposed to be beneficiary. Nevertheless, as we will further see, this balance is fragile and depends on the answers to the following questions :
  • What is the patentability scope ? What can be patented ? ;
  • How patents are granted ? (i.e. the toughness of the conditions required) ;
  • What are the rights of the patent owner ? ;
  • How long do these rights last ?

Economic limits of the patent model
Several factors (change in laws and in the practices of patent offices, technological and industrial evolution, etc.) may lead this balance between social costs and advantages to be broken. In some cases, the patent system may lead to hamper the innovation dynamics.

For instance, narrow patents are sometimes granted to different companies on very specific elements, the gathering of which may be necessary to develop an innovation (a new product for example). Nowadays, major worldwide companies use patents as defensive or offensive tools to block competition by preventing (potential) rivals to use specific useful components. When powerful enough, these rivals strike back by doing the exact same thing on other components so that they are mutually blocked. This case is known as the "patent thicket" problem. As an example Google has recently bought Motorola Mobile and its 17,000 patents for 12 billion dollars, which means they spent a lot of money to get these patents probably as offensive / defensive ends instead of spending it into pure R&D. Consequently patents sometimes paradoxically discourage innovation.

Contrary to the previous case, some patents may protect wide discoveries (also known as foundational patents). For instance, the patent granted to Myriad Genetics covered the whole gene functions of BRCA1 and BRCA2 and all applications that could follow on possible ways to diagnose and cure breast cancer. This kind of patent stood against innovation, preventing any creative use of those genes by any other actor than Myriad Genetics, or leading to any other use linked to this DNA sequence (possibly there would have been many, considering the complexity of biological regulations).

As a consequence, the patent system may allow the formation of major entry barriers on some industrial domains. It is notably the case in some markets of the pharmaceutical industry in which new companies cannot easily enter anymore because they would need to buy the licenses of many expensive patents from the incumbent firms.


Last but not least, the philosophical questions raised in the last two centuries concerning patents are to be considered. As this is not a philosophical essay, we will content ourselves with a brief summary. According to the American economist Thorstein Veblen (1908), a patent is illegitimate as it privatizes a collective work any invention crucially depends on the previous ones : how would a trolley have been invented if the wheel had not been invented before ? Veblen emphasizes this idea when he argues that:


The initiative and technological enterprise of individuals, such as shown in inventions and discoveries of more and better ways and means for instance, proceeds on and enlarges the accumulated wisdom of the past. Individual initiative has no chance except on the ground afforded by the common stock, and the achievements of such initiative are of no effect except as accretions to the common stock. And the invention or discovery so achieved always embodies so much of what is already given that the creative contribution of the inventor or discoverer is trivial by comparison. (1908)

This thinking still applies nowadays on different themes. So the question remains : why should a sole actor gather all the economic benefits from this collective process?

Consequently, in some cases, having an economic alternative to the patent system may actually be a good thing. In this perspective the leading economists Claude Henry and Joseph Stiglitz assert that :

The patent system is only one part of a society's innovation system, through which the production of knowledge is financed, incentivized and organized. Too much attention has been focused on IPR (intellectual property rights), and too little on alternatives, e.g. open source systems, publicly financed innovation and prizes. (2010)


In a recent paper, Claude Henry and Joseph Stiglitz (2010) argue that the open source system, which has been widely used in the IT sector, can be an alternate solution to the patent framework to promote innovation. The aim of our approach is not to precisely characterize the way the "open source approach" could be adapted to the synthetic biology. It is to urge the iGEM community to get involved in a collective reflexion on its contribution to the development of a "synthetic biology commons”.

The Commons: an alternative model



Open source softwares' users have been in even greater numbers for the last few years. According to a study made by Markess International in France in 2009, on 160 French companies, 92% had used open source softwares during that year. The viability of its mere founding principle explains its success : the involved software can be used freely with a license (“open source license”) authorizing it and even allowing its source code to be modified and enhanced by the licensed one. At first glance, such a model would seem to be inefficient as the software should not generate any profit : their license makes them indeed free to use. However, companies have opted for a business model involving services and proprietary software (“proprietary bricks”) that complement the open source product.
Besides, the mere nature of this emerging sector makes it very innovative : a whole community back it up by enhancing the software's source codes. This system also allows companies to make profit on a patent-free position. That is why such a successful example could serve as an inspiration for our reflexion.
From the open source software to the commons approach
The open source system functions thanks to a wide community literally owning the diverse software under license. This community defines the rights and duties attached to the use and development of this software. As a consequence, the open source can be considered as a case of commons, i.e. a resource jointly owned by a group. This vague and ancient term has covered various kinds of resources, namely natural resources (e.g. fisheries, pastures and forests) as well as the immaterial ones such as knowledge.

The commons' management has been belittled for a long time. Indeed, since the biologist Garett Hardin published his famous article entitled “The tragedy of the commons” in Science in 1968, the negative arguments he gave against the commons have tarnished it. Hardin postulates that one pursues its own interest and as a consequence if a resource (e.g. a pasture) were to be exploited freely by anyone, it would rapidly be destroyed as everybody would try to take the best slice out of it. Hardin concludes : “Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.”

However, Elinor Ostrom's (1933-2012) work, which led her to win the Nobel Prize in Economics in 2009, broadened the economists' mind on this particular topic.
The new commons
Ostrom emphasizes the fact that Hardin “was actually discussing open access rather than managed commons” (Hess & Ostrom, 2006). Using this argument among others, she pointed out the weaknesses of Hardin's thinking : contrary to his theory, a lot of resources have been responsibly managed as communal goods over many centuries in Europe, before being privatized through the “enclosure” movement from the 15th to the 18th centuries.

Her study made her precise the commons' concept. Throughout many examples, she ended up characterizing it as a “jointly owned legal set of rights”. Besides, in contrast to Hardin who offered only two solutions (privatization or nationalization) to the supposed “tragedy of the commons”, she distinguished this form of property and management of resources from both traditional private (market, companies) and public (planning, State) economic approaches : each community managing a commons fixes its own rules by defining a governance framework and some “bundles of rights”. The latter which specifies the access, withdrawal, management, exclusion and alienation rights are distributed to the different actors exploiting the resource in order to manage it jointly, and efficiently according to a defined hierarchy.

Ostrom insisted on the uniqueness of every case of commons she (or her students) studied. Nevertheless she succeeded in identifying a set of founding principles each sustainable commons fits :
  • “clearly defined boundaries should be in place
  • rules in use are well matched to local needs and conditions
  • individuals affected by these rules can usually participate in modifying the rules
  • the right of community members to devise their own rules is respected by external authorities
  • a system for self-monitoring members’ behavior has been established
  • a graduated system of sanctions is available
  • community members have access to low-cost conflict-resolution mechanisms"


Conclusion


The huge energetic and environmental challenges every country will have to face in the following years call for institutional and organisational innovations capable of promoting the development of relevant technological innovations. The success of the open source movement in the software industry tends to support the idea that patents are not the sole way to support knowledge spreading and technological innovations in an economic sector. Building commons can be considered, to some extent, as a fruitful alternative to the patent inflation and its pernicious effects.
The iGEM community, as a group sharing knowledge on synthetic biology, can be regarded as a case of commons. But, as Elinor Ostrom's work highlights, it is the responsibility of every commons to define its own founding principles, namely a governance framework and an appropriate distribution of “bundles of rights” associated with different roles in the organization of the commons. Even if some milestones have been set, much remains to be done in this respect.
Consequently, we propose the iGEM community to develop a genuine reflexion on this important matter in order to form a strong “synthetic biology commons” whose technological and economic success could be compared to the open source movement.
The results of the UBC team’s survey, to the analysis of which we have collaborated, confirm that most of the iGEM community members oppose the patentability of the BioBricks designed in the frame of iGEM. Promoting the intellectual as well as economic values of iGEM outcomes, without resorting to the traditional intellectual property regime, should thus interest most actors in the iGEM commons.

Bibliography



  • Thorstein VEBLEN (1908). "On the Nature of Capital. I. The Productivity of Capital Goods", The Quarterly Journal of Economics, Vol. 22, No 4, pp. 517-542

  • Garrett HARDIN (1968). "The Tragedy of the Commons", Science, New Series, Vol. 162, No. 3859, pp. 1243-1248

  • Charlotte HESS and Elinor OSTROM (2006). "Introduction: An Overview of the Knowledge Commons", pp. 3-26. In Charlotte HESS and Elinor OSTROM (eds). Understanding Knowledge as a Commons, Cambridge (MA), The MIT Press

  • Claude HENRY and Joseph E. STIGLITZ (2010). "Intellectual Property, Dissemination of Innovation and Sustainable Development", Global Policy, Vol 1, No. 3, pp. 237-251.

  • Learn more about Joseph E. Stiglitz and Elinor Ostrom's Nobel prizes : click here or here

Part II: FAQ


Our adventure in Amsterdam made us realize how abstract our reflexion was. We decided then to deepen it in a more concrete way through this FAQ which was inspired by the very questions we were asked in The Netherlands.

Is it entirely impossible to patent an invention based on a public Part ?

First of all, we shall remind the patent granting requirements :
  • the novelty condition (i.e. the invention must be partially or totally new);
  • the non-obviousness condition (U.S. patent law) or the inventiveness condition (in European patent law);
  • the usefulness condition (U.S. patent law) or the industrial applicability condition (in European patent law).

Obviously, patenting public parts is impossible considering the first condition. However novel devices using public parts may be considered for protection through patents, depending on the degree of novelty carried by the device.

Could private actors like companies belong to and participate to a “synthetic biology commons” ?

Fact : companies can take part in a commons. Many companies (Small and Medium Enterprises as well as big companies) currently do make profits in the open source software industry. This opportunity is not confined to the software industry : the idea of an “open source biology” has also emerged. This movement, also referred to as “open access biology”, has appeared in bio-industries such as the pharmaceutical sector, in most cases to prevent other companies to patent their research. The SNP Consortium, founded in 1999, gathers 10 pharmaceutical companies which decided to release some of their data concerning the human genome in the public domain. A few other more recent examples, including Pfizer (2006), Novartis (2007) and Syngenta (2002), tend to show that sharing knowledge has become part of the economic strategies in biology (Henkel & Maurer, 2007).

Besides, such a sharing knowledge strategy allows companies to make good use of free resources, the validity of which has already been controlled by a (potentially) large community. Moreover, many business models may be designed (and have already been implemented to some extent), which are based on indirect profits, such as selling services for example.

More generally, the ability of a commons to create value mainly derives from its capacity to link together different kinds of actors (companies, scholars, hackers, etc.) pursuing different objectives : making profits, publishing, or more original motivations, such as "the fun of programming", "the sense of belonging to a common culture, where participants share a common ideology, often characterized by reciprocity" (Henry and Stiglitz, 2010).

Can a commons coexist with other forms of the organization of economic activities (such as the market or the state involvement) inside the same sector ?

Nothing opposes the possibility that different modes of coordination co-exist within the same sector. A given firm may share knowledge in a commons perspective, while simultaneously developing market relations. For instance, some software vendors sell proprietary software (“proprietary bricks”) that complement a main open source program (which is free to use) like an option.

Existing economic associations such as the BiOS (“Biological innovation for an Open Society”) Initiative of Cambia, suggest that such a combination would be possible in the field of synthetic biology. The BiOS license allows the licensees to use Cambia enabling technology (a few key plant gene transfer patented technologies) royalty-free, on condition that the improvements made to the technology are also made freely available (i.e. they can be used royalty-free by other licensees). Furthermore, the BiOS founders, who claim that they have adapted the “open source” approach to biology (the source code being here the enabling technology), also argue that their licensing device does not lessen the usual incentives to innovate, including the possibility of patenting some products developed from the application of the enabling technology.

Why try to find our own rules for the iGEM commons ? The open source seems to work great, so shouldn’t we use theirs ?

Ostrom put forward a set of generic principles for a commons to be economically viable. One of them is that every single commons has its own rules that are defined by both its actors and the resources that are dealt with. Not only are the actors of the open source software movement different from the synthetic biology community but source code is also a resource different from the biological parts. These reasons make it hardly possible that the same rules could be applied to both commons, especially on the legal point of view. Indeed, the open source software movement is based on the spreading of open source licenses, which derive from copyright (“copyleft”). Such a solution is generally considered by legal experts as unadapted to biological parts (Henkel & Maurer, 2007). These experts also suggest that an economic model combining patents with legal devices ensuring free knowledge sharing and use would be the best way to the economic development of synthetic biology and to the spreading of innovations.

Should we not consider that the bases of a synthetic biology commons have already been defined, by several organisms, including the iGEM Foundation itself ?

The iGEM community has already some attributes of a commons. However, we consider that this commons could be better structured and could play a far bigger role in orienting the development of synthetic biology. The objectives of our initiative are threefold :
  • First, leading every member of the iGEM community to be aware of participating to a commons;
  • Second, provoking a debate within the iGEM community to precise its founding rules. The community should collectively deliberate on the definition of a set of rules regarding the rights to access BioBricks, to use them, to control their application, to impose sanctions if necessary, etc.;
  • Third, leading the iGEM community to discuss its place and the role it may play in the development of an overall synthetic biology commons, involving different kinds of actors : other associations such as the BiOS Initiative, public research units and higher education organizations, companies, and so on. Though building an overall synthetic biology commons is far from being an easy task, it seems to be a growing concern for many actors, including public authorities. For instance, the current Minister of Higher Education and Research in France, Geneviève Fioraso, recently wrote a comprehensive Parliamentary Report on the scientific, technological and economic stakes of synthetic biology, which was published a few months before becoming a Minister (Fioraso Report, 2012). This report notably highlights the crucial role of iGEM in the development of synthetic biology.


Special thanks to our faculty advisor O. Brette for his advice and his help on our intellectual property reflexion.

Bibliography


We used all the previous references (q.v. part I), though we added :
  • Rai A, Boyle J (2007) Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons. PLoS Biol 5(3): e58. doi:10.1371/journal.pbio.0050058

  • Bios website : Bios website

  • Henkel J, Maurer S (2007) The economics of synthetic biology. Mol Syst Biol 3: 117.

  • Fioraso G (2012) Les enjeux de la biologie de synthèse. Report for the "Office parlementaire d'évaluation des choix scientifiques et technologiques".


Part III: Collaboration with UBC : IP issues encountered by iGEM teams

Introduction



The University of British Colombia team was also interested in intellectual property issues. They sent to each team a survey to understand what kind of IP issues are encountered by iGEM teams? Do IP issues hinder iGEM project? What level of IP knowledge have iGEMers? We were glad to see we were not alone on IP planet, so we contacted them to share our works. UBC has accepted to give us their survey results and in exchange we commented their poll and their FAQ, we also answered their survey. 281 iGEMers had answered the survey when we treated it.
This collaboration enabled us to broaden our reflexion to iGEM teams' issues.
Teams and IP experience
Firstly, we studied former iGEMers' experience with IP . In a graphic we summarize the answer to two questions:
  • Do you have a past experience regarding the IP ?
  • Was your past experience in the context of a past iGEM project or outside of it ?



Only a few iGEM participants experienced dealing with IP issues. However, it would have been interesting to know their age in order to know if both data were bounded.
Besides, a patent experience seems to be often linked to a different project than the iGEM one, the reason probably being the special functioning of the iGEM contest in which most of the tools needed (such as the plasmid vectors) are provided without any intellectual property rights. Outside of iGEM, of course, such tools are obviously not freely supplied, which may result in a patent experience if the materials used are under a proprietary license.
Nonetheless, these answers do not reveal what these past experiences are. To test our hypothesis (iGEMers acquire IP experience outside of iGEM because patented materials are not used) we got interested in the nature of iGEMers' IP experiences.
Nature of the IP experience
In this study, those who had an IP experience had to explain what its nature was. The results are that most of them (46%) had already used patented materials before. However, 15% gave up actually using them, which shows how patents can impede research and innovation : getting a license may be dissuasive, especially in France where the Research budget is limited.


The next answers are related to the current iGEM projects. The poll shows clearly that patents have been a problem for 10% of the participants, which is not that much. But still : they do have been a concern in some cases. The relatively low number could be explained by the aforementioned reasons about the providing of non-patented tools by the iGEM organization.
It could also be explained by the redundant solutions offered by the living matter in general and the synthetic biology in particular. For instance, our team specifically picked a Dispersin gene that was not patented, though others were available (whose commercial use was protected).


Nevertheless to the question : “have other IP concerns (copyright, trademark) have negatively affected your current iGEM project ?” about 67% of the participants answered yes, which is considerably more, but as we have not even been concerned by such a problem, we find it hard to explain why this number is so high.


Our sole conclusion on this matter is that the IPR (Intellectual Property Rights) often do affect iGEM projects, even if in general patents are not the limiting IP tool for them.
May a project be built on patented materials?
19% of the survey participants said that their team’s project used patented materials. This means that privatized knowledge and the iGEM contest are compatible in some way or another. However, the potential industrialization of these teams’ work will probably be restricted because the commercial use of something built on patented material is forbidden. This is a shame as one of the iGEM objectives is to generate projects that may have economically viable applications.
It is also surprising to note that 48% of the participants do not know whether their work is based on patented information or not, which shows a lack of information on their project material. Besides, it could stab them in the back if they were wishing to industrialize their ideas. Several questions were asked on the use of patented material. As it was discussed before, it is the most important IP issue in iGEM. Nonetheless, only 20% of the survey participants said that their team’s project used patented material.


Furthermore, two thirds of the iGEM team members believe that using patented work would not stand in the way of patenting their own one. This is quite surprising because obviously one’s research cannot be patented if based on protected materials. This statistic is very interesting as it shows how much most of the iGEM community’s actors do not know their legal rights concerning the IP.


Opinions on the patentability of BioBricks
Two questions were asked to the participants :
  • Do you think BioBricks CAN be patented in your country ?
  • And do you think they SHOULD be patentable ?



To the first question both opinions were equally represented. Nevertheless, it would have been interesting to know the country for each answer, even if the IP legislation is quite similar in most of the represented countries.
However, to the question “Should BioBricks be patentable ?”, more than a half (56%) answered “no”. This is probably linked to the fact that most iGEM competitors already use them without paying a license, so that they completely oppose such an idea. It also points out that most iGEM team members support the iGEM knowledge policy, which makes us believe that they would be inclined to acknowledge iGEM as a commons and would favorably respond to the changes resulting from the common reflexion we proposed at the end of the first part of this human practice study.


Different ways to get to know the IP protection procedures
The iGEM competitors who planned to get their work protected used different ways to approach applying for IP protections. Three tendencies come forth : they did so by talking inside their team (to the graduate student advisor, to another team member and / or to a faculty instructor), but also outside of it (to an industry expert, to a member of the university’s commercialization office or to a legal professional). The last tendency was to search on the Internet.
These inclinations are more or less equally represented in this poll, so that it does not reveal many things. The only really interesting point which has to be put forward is that most iGEM competitors who want to apply for IP protections do make some research on it, which emphasizes the complexity of such procedures and the lack of knowledge they probably had.



Conclusion


Our work with the University of British Colombia made us realize how often the Intellectual Property Rights interfered with the different iGEM teams’ project. Nonetheless, we were disconcerted when we found out the patents were not the main problem. Indeed, their source was copyrights and trademarks.
Besides, this survey deepened our main reflexion (see Part I) as it emphasized the problems due to the superimposition of the commons and the patent models. It also highlighted the global lack of knowledge of the iGEMers upon the Intellectual Property Rights, which shows the necessity of informing about this particular topic. We sincerely hope we have helped to do so.

Thanks to UBC team for sharing their survey results and for their friendly collaboration

Part IV: Popularization of Science

Introduction



Stereotypes and various pieces of information about science are spread in such a way that people sometimes find it hard to decipher the truth about everything that is said. The public, but also non-biologist scientists, may sometimes have to look for a reliable source to make their own opinion.
We are convinced that we have a role to play and have decided to involve ourselves in several actions.

First, we organized three conferences with cutting-edge experts:

  • “Bacterial swimmers can penetrate biofilms, making them vulnerable to destruction.” by Romain Briandet, expert in Surface Hygiene/Bioadhesion in May 2012. This meeting enabled the Lyon-INSA iGEM team to discover the amazing properties of Bacillus subtilis swimmers and their potential as a tool for biofilm control.
  • “Synthetic Biology : Biotechnologies revival?” by François Képès, national and international SynBio expert in September 2012. François Képès initiated a debate on the paradox that synthetic biology raises. Paradoxically, synthetic biology aims at improving the industrialization of its products with normalization, but also intends to be more creative by setting free from existing constraints.
  • Olivier Brette in September 2012. The stakes of intellectual property, science and innovation were presented and discussed with the assembly of students and staff from various scientific fields (mechanics, informatics, economic intelligence, ethics…).


Then, we organized meetings with non-biologist scientists and the public:

  • From May to September 2012 : Open debates on the stakes of SynBio with staff and students from Mechanics, Informatics and Telecoms INSA departments but also staff from INSAVALOR (Research and Development, Research Valuation of INSA-affiliated company) through the “Filière Ingénieur-Entreprendre” (Entrepreneurship formation). Participation to the iGEM Entrepreneurship Division was first considered, but the rules were not clear enough to motivate these non biologists to participate to the iGEM competition.
  • September 2012 : The Researchers' Night. Since 7 years, this event has been taking place on a single September night in about 300 cities all over Europe. The main goal of this night is to put researchers in touch with the public. Thus, they can explain what they are doing, how and what can be the applications in the day-to-day life.


More about the Researchers' Night

This year, the theme was "Imagine the future": what future will emerge from research laboratories? How do scientists imagine the future? Archeology, Physics, Philosophy, Biosciences or Linguistic: researchers shared their lab experiences and thoughts on the future. Therefore, in order to defend a controversial discipline, Synthetic Biology (a.k.a. SynBio), the Lyon-INSA team members participated in the Researchers’ Night, which was held on September 28th, 2012, at the CCO of Villeurbanne.

Indeed, an article published by a French team: “Séralini et al., Long term toxicity of a Roundup herbicide and a Roundup-tolerant genetically modified maize, Food and Chemical Toxicology, Volume 50, Issue 11, November 2012, Pages 4221–4231” and also in the paper “Le Monde” on September 25th, 2012, on deleterious effect of transgenic maize on rats, had a dramatic effect on the public opinion in Europe. Thus, to illustrate that SynBio can be used to improve the environment, health and life of people, we decided to explain the potential of SynBio and to exchange with the public through a scientific speed-dating and around a table containing diagrams and Petri dishes.

“What is it?” asked a little boy. “What are you doing?” asked a woman. We could introduce them to our friends: bacteria! Then, one of the iGEM team members answered: “Bacteria are little organisms which grow, eat and die like every living being. These bacteria are not always pathogenic and scientists can improve their qualities with the introduction of DNA fragments containing genes.”

So the objective is reached: we aroused the surprise, the questioning and the amazement of people. In this respect, we pointed out the usefulness of SynBio. We decided to focus on medical application of BABS (Bacteria Improved by SynBio) such as insulin, growth hormones, and artemisinin production, and also on the food industry application with food coloring or artificial flavor production that already work.

Of course, we have also presented our project as an innovative solution to kill and disperse biofilm in all pipelines or tanks and to prevent any colonization of bacteria.

Part V: Public opinion

Introduction



We wondered how the consumers would have reacted if our solution had been used in cleaning processes in food and cosmetic industries. To have an idea of their opinion, we have sent a survey to our school members. We have received about 930 answers in less than a week, proving the interest raised by our subject.

Studied population



We chose to interview a specific population : scientific students from 18 to 24 years old.



Moreover, their studies, knowledge or interests in biology are different. The survey enabled us to precise a tendency : the use of bacteria in food and cosmetic industries is more accepted by the young population, the future consumers. Furthermore, it gives us an idea about the commercial potential of our solution because it is linked to users' acceptance.



What is the public opinion about the use of bacteria in cleaning processes?



First, we were interested in the attention the public gives to the composition of every day life products.



In general, ¾ of the population is interested and concerned about what kind of substances is used in production processes. So, it seems relevant to ask them what products they are ready to accept. Food and cosmetics are the products people are most likely to be in contact with. So it is really important to know the opinion of the larger public on this matter :

About cosmetics :

r\Remark : the bacteria are indicated as eliminated after cleaning and never in direct contact with the products.


About food :

Remark : the bacteria are indicated as eliminated after cleaning and never in direct contact with the products.


As we could expect, the biological substances are the ones that people are more willing to accept, both in food and cosmetic industries. Moreover, there are not real concerns for the use of living bacteria in these two fields.

The questions of the chemicals and the GMO’s is quite different : they are more accepted in cosmetics than in food (in general, people seem to be more careful on what they eat...). The most remarkable is that the interviewed people have almost the same “reluctance” for the use of chemicals and GMOs. This can be interpreted as the students' sensitization of the negative effects of chemicals.

We find interesting to gather the surveyed ones by age groups :
Some of the surveyed people belong to the 0-17 years old age group, and few to the more than 35 years old. The analysis of their answers lead us to notice that the group above 35 years old has a tendency to refuse GMOs and to accept more easily living bacteria and chemicals in their products. On the contrary, the youngest ones are more reluctant about chemicals in their foods, and less cautious on what is put in their cosmetics.

Through this survey, we notice the public is ready to accept the use of bacteria in cleaning processes but they seem to be a little bit afraid of GMO's. We have to consider the current French controversy on GMO's which badly influences public opinion. Our meetings with the public showed us that when you take time to really explain how bacterial GMO's are conceived and how they are used, people often change their mind about it. Thanks to these results, we even feel an inducement in our search to limit the use of chemicals and a public approbation of our Biofilm Killer solution.


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