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 (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 merely 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 this 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 "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.

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 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 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.

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 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.).

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

Why patents have been created?

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’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 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 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.

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).




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 :



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”.

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 its code source 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 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 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 century.

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.

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 milestomes 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 value of iGEM outcomes, without resorting to the traditional intellectual property regime, should thus interest most actors in the iGEM commons.

Introduction

As the University of British Colombia team was also interested in the IPR issues, we agreed to share our opinions on the topic and also took part in their survey. This allowed us to broaden our reflexion as this team was actually concerned about different IP problems from ours.
For instance, they thought about the potential use of patented materials during the iGEM contest, the problem being their compatibility with the iGEM knowledge management, that is to say free knowledge sharing. Hence, they might have to find compromises to deal with this.

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 this questions in the following graph.


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 IPR. 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.
Nonetheless, these answers do not reveal what these past experiences are.

Nature of the IP experience

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.


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 often doe affect iGEM projects, even if in general the 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 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.
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.

Since 7 years, a mega event is taking place on a single September night in about 300 cities all over Europe. During the Researcher's night, everyone can come and explore science in engaging ways. The main goal of this night is to put researchers in touch with public concern, and explain what researchers are doing, how, and why it is important for everybody’s daily life.
....
This year, the theme is "Imagine the future": What futur will emerge from research laboratories? How do the scientists imagine the future? Archeology, Physic, Phylososphy, Biosciences or Linguistic, researchers share their labs experiences and thoughts on the future.

For the first time, the Lyon-INSA iGEM team is taking part in this event. We will discuss how synthetic biology can help in the future, but also what the potential negative impacts of this new discipline are. We would like to convince people that GMO's are more than corn, and underline the controlled use of mofified bacteria to produce drugs (insulin, growth hormone, artemisine...). We imagine such a success of modified bacteria in cleaning and depollution process.
This event will take place on Friday night, 28 september 2012 at CCO Villeurbanne.