Team:Lyon-INSA/HumanPractice

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 hardly feasible by common ways (i.e. copyrights, trademarks and patents). 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 merely will not invest in it. A simple conclusion could then easily be drawn from these very statements: promoting the commercial & industrial use of the iGEM projects should be impossible.

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 this last conclusion.

The aim of this human practice project is to show that patents are not always the best mean to promote innovation and to ensure viable alternative models do exist. More precisely, the commons’ system will be discussed. 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.

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 one to describe. At a firm's scale, this also means being able to shield the potential commercial operation based on the research work of a company against its competitors. Besides, 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 price. Indeed, targeted invention have to meet tough conditions for a patent to be granted. Consequently, knowing the delivery 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.

In the field of synthetic biology, 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 are patentable (the latter have been patentable in the USA and then in Europe since the beginning of the 80s).

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

Why patents have been created?

Subsequently, patents are actually supposed to promote innovation and the disclosure of technological knowledge, which means allowing the latest innovations to be available to anyone, though their commercial use is forbidden without a license from the patent owner until the patent’s end. 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 derives 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., the results being innovation led to be inhibited.

For instance, narrow patents are sometimes granted to different companies on very specific elements, whose gathering may be necessary to bring on innovations. Nowadays, major worldwide companies use patents as defensive or offensive tools to block rivals on some components of diverse products. These rivals strike back by doing the exact same thing on other components so that they are mutually blocked (“patent thickets”). 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.

Furthermore, 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).




This thinking still applies nowadays on different themes. For instance in the pharmaceutical industry drugs are often the outcome of multiple actors : public research, companies’ R&D, hospitals and patients that accept to be guinea-pigs... 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. The leading economists Claude Henry and Joseph Stiglitz write :



Henry & Stiglitz directly propose the open sources systems, which usually are linked to the IT sector, to be an alternate solution to the patents' issues. Nonetheless, the open source community is not discussed here : they are actually referring to it as a global socio-economic concept : the commons.

The Commons: an alternative model

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 their source codes to be modified and enhanced by the licensed one (provided the innovations go public). At first glance, such a model would seem to be inefficient as the software should not generate any profit : their license make 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 a basis for our reflexion.

From the open source software to the commons

The open source system functions thanks to a wide community literally owning the diverse software under license, that is to say they have exactly the same rights (using and modifying) that an independent selling vendor has on its proprietary software (except of course the right to sell them). As a consequence, the open source can be considered as a commons, i.e. a resource shared by a group. This vague and ancient term covers 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 recent work, which made her win a Nobel prize in economics in 2009, broadened the economists' mind on this particular topic.

The new commons

Ostrom writes 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.

Her study made her redefine 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 separated this set of rights from both private and public sectors: each community managing a commons fixes its own rules by defining a governing model and some “bundles of rights”. The latter (access, use, management, exclusion, ownership rights) are distributed to the actors exploiting the resource in order to manage it jointly, and graduate according to a defined hierarchy.

Nevertheless, even if she insisted on the uniqueness of all the examples she relied on, Ostrom succeeded in identifying the founding principles each sustainable commons gathers :

• “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

Because of its mere nature, the iGEM competition will never shield the commercial use of the scientific research it is covering. Nonetheless, considering the intellectual property rights' potential flaws, being on a free knowledge sharing basis might be an asset.
Furthermore, the iGEM community, as a group sharing knowledge on synthetic biology, could be regarded as a commons. However, Elinor Ostrom's work highlights the necessity for a commons to define its founding principles (i.e. a government model and the distribution of the “bundles of rights”), which has not been done so far.
Consequently, we propose the iGEM community to begin a reflexion on this important matter in order to form a strong “synthetic biology commons” whose rise could be compared to the open source and which would efficiently promote its actors' economic value.

Introduction

IGEM teams often deal with IP issues. Indeed, some teams have to work with patented materials whereas IGEM is based on an open source model. This is why they have to find a compromise. Some teams maybe consider the option to patent their work but the question remains : are they allowed to do so ?
Our work in collaboration with UBC (University of British Columbia) was to try to understand how teams deal with this problems. UBC sent to each iGEM team a survey regarding their IP knowledge level to understand what kind of IP issues they had.

Teams and IP experience

The survey started with 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 ?

We have summed up answers to his questions in one graphic.


It can be concluded that few IGEMers have some experience in dealing with patents issues. However it would have been interesting to ask the age of IGEM participants in order to know whether or not it is related to patent experience.
We can also see that patent experience is often linked to a different project than the IGEM one.

Nature of IP experience

In this study, those who had an IP experience had to explain what was the nature of their IP experience.


As a result, we can see that a majority of them (46 %) has a past experience related to patented material. Only 7% of them have renounced to use patented material.
Here we underline how patent can impede research and innovation by using of dissuasive patent.
Here we could think that some IGEM projects have been stop by a patent issue. But only 10% of the surveyed IGEMers said they had been negatively affected by a patent concern.


Nevertheless concerning the question : “have other IP concerns (copyright, trademark) have negatively affected your current IGEM project ?” about 67% of the participants answered yes.


Our conclusion on this matter is that IP rights often affect IGEM projects. However, IP issues in IGEM are not mostly due to patents.

May a project be built on patented material ?

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.
It is surprising to note that 48% do not know whether their work is based on patented information or not, which shows a lack of information on their project material.


When a team or a scientist wants to patent his work knowing if he has been using previously patented information or devices is really important.
A third of iGEMers think that the fact of using potentially patented information would get in the way of patenting their work.

IGEMers opinion 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 opinion were equally represented. Nevertheless, it would have been interesting to know the country for each answer, even if the 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”. Only a few participants (19%) are convinced by their patentability. This is probably linked to the fact that most iGEM competitors already use them without paying a license, so that they are not inclined to do so.

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 can approach it by talking inside the team (to the graduate student advisor, to another team member or / and to a faculty advisor), but also outside the team (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 have.

Part II :Intellectual property in IGEM, collaboration with UBC