Team:BostonU/HP/Blog
Our Blog: Introduction
If you’re here on this blog, you are either 1) very lost or 2) looking for some information on intellectual property in synthetic biology. If you are here for the second reason, then welcome! You have come to the right place! Now begins a pseudo-entertaining journey into the realm of synthetic biology property rights. We here at the BU iGEM team have come to realize that many people working in synthetic biology lack the proper resources to understand how intellectual property rights affect their work. And so, we decided to make this blog as a source of that information. Hover over the buttons below to see a description of each post, and click on the button to see the full post.”
Post One: Definitions
Before we begin diving into the more interesting discussions on patent law in the context of synthetic biology (which is way more interesting than it sounds, we promise) we need to establish a strong foundation in some definitions. If you’re a whiz kid and you’re looking at this thinking “I already have my J.D. in Intellectual Property Law with a concentration in Biological Science, why am I reading this?” you can skip to the next post in our blog and ignore this introduction. If you’re reading this and are completely lost in what synthetic biology is and are wondering how you got here when you were googling a YouTube video of cats, please watch “Synthetic Biology Explained” (the link is here) and read the ‘About’ page on this blog. If you don’t currently know a lot about intellectual property and want to learn about it in a pseudo-entertaining way, read on to the next section! To read the full post, click on the Post One button below.
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Definitions
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Definitions
The Definition of Intellectual Property (and Copyright and Trademark and Patent) Before we jump into intellectual property, we should define the idea of property rights. Property rights grant a property owner exclusive authority to determine how a resource is used, essentially giving total power over the resource (within governmental regulations) to the owner. Property rights as a concept blankets everything from real property (land) to intangible property (ideas). One key subset of property and property rights is intellectual property, which is what we will concern ourselves with for the remainder of this post. Now with a clear understanding of property rights, here is the Google definition of intellectual property: in·tel·lec·tu·al prop·er·ty noun LAW a work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc. Gee willikers, what an irritatingly long and overly-complicated definition; let’s break it down. In the case of synthetic biology, intellectual property is any work done by a researcher that qualifies as property and for which they can apply a patent or copyright. (You might be asking right now, “wait, why isn’t trademark in your definition when it was a part of the formal definition?” Our response would be, “you actually read the whole definition?!” A trademark is a word or string of words that is legally registered to represent a legal entity. Most scientists don’t trademark their names or the names of their products so this was excluded from the definition of intellectual property applied to synthetic biology.) Unfortunately, the definition of intellectual property directly references two other terms that are important to understand for the purpose of our discussion (copyright and patent), so here are their definitions followed by our analysis: cop·y·right noun the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. "he issued a writ for breach of copyright" pat·ent noun a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention. "he took out a patent for an improved steam hammer" Right now you’re probably thinking, “holy smoke, that was a lot of definitions taken straight from Google! Why am I reading this then?” You’re right, we definitely copied those definitions from the internet, but this post hopefully adds value to your internet-definition-reading-experience by providing a more in depth explanation of how all this stuff pertains to synthetic biology. Essentially, a copyright proclaims a written or recorded piece of work (e.g. a scientific paper describing a researcher’s work) as the exclusive property of whoever wrote it. In essence, you sign your name on the line next to “Author” and BAM, no one can take credit for or use your work in any way you don’t want them to. But here’s the catch: copyright only applies to expressive (creative), nonfunctional (has no functional purpose) work. This generates problems when researchers wish to copyright DNA sequences or tools they have discovered as opposed to a scientific article. Furthermore, the U.S. Copyright Statute does not discuss the products of synthetic biology as copyrightable material, meaning that a district court can only copyright synthetic biology products by comparing them to material mentioned in the statute, such as software. In essence, products of synthetic biology are extremely difficult to copyright because they are not explicitly mentioned in existing copyright legislation. If copyrighting products of synthetic biology wasn’t difficult enough, protecting copyrighted work presents its own problems. To legally have the power to say “don’t use that” to a person infringing on your work, you must file your copyright with the U.S. Copyright Office as proof of your ownership of that work. Otherwise, if someone was using your copyrighted work, you could not sue for infringement. Fortunately, if you decide your synthetic biology product (in this case a scholarly article would work best) is suitable for copyright, registering your work with the U.S. Copyright Office is quite easy; there’s even a three-step WikiHow. Clearly, copyright works best for the written products of synthetic biology, but not DNA parts. For protection of genetic parts, cloning processes and other tools, synthetic biology relies on the second of our two definitions, the patent. In essence, a patent works in a similar way to a copyright, but patents protect functional innovations rather than expressive written, visual or auditory works and are always licensed by the government. To apply for a utility patent, an innovator must prove that his/her innovation is functional and novel, as well as provide a detailed description of all aspects of the invention, instructions for how to make it, an informal drawing, an oath that they are the original inventor, and processing fees. Right now, you may be wondering “why is the word ‘novel’ bolded?” to which the answer is 1) the writers like bolding words and 2) being novel is arguably the most important part of applying for a patent and is directly responsible for the ambiguity surrounding patents in synthetic biology. To be “novel,” and invention must be “nonobvious” to other researchers in the same field; however, this definition has only been loosely applied in the fields of biotechnology and synthetic biology. For example, molecular cloning techniques have been widely used for decades to create plasmids and therefore products of such clonings should not be novel. Nevertheless, gene products of molecular clonings are still considered novel and therefore patentable by the Federal Circuit courts. Furthermore, new devices and systems in synthetic biology are often created from a wide variety of independently patented genetic parts, causing issue when the inventor of a new device or system using patented parts attempts to patent. Undoubtedly, there are a lot of issues in patenting/copyrighting synthetic biology products, as almost all parts are based on an expressive DNA code (which indicates the use of copyright) and yet most devices created are functional (which indicates the use of a patent). This ambiguity in patenting and copyrighting products of synthetic biology is surprisingly similar to the issues faced in past decades by software developers. By looking at how software developers have handled the copyright/patent problem, we will define several more important terms (yay, more definitions!) and will open a dialogue on how to address intellectual property in synthetic biology. Notes from the Writers Over the past 5 minutes of reading time, you hopefully learned the definitions of property rights, intellectual property, copyright and patent, as well as how these definitions apply to synthetic biology. We also introduced issues of patent law in synthetic biology, a topic that will be revisited in Part 2 of this post. For ease of future reading, we are providing a “cheatsheet” of definitions as our third blog post that includes definitions from both this post and Part 2. When reading future posts, we hope that this cheat sheet will help redefine words you may have forgotten. If you enjoyed this post and learned something from it, please comment below. If you loved all of it except that one part please comment below; we love feedback. If there is an issue you would like us to cover at a later date, again please comment below. Thank you again for reading this post. We enjoyed making it as much as you enjoyed reading It!! Till next time. Yours, Castor and Pollux Castor and Pollux Representing Neptune (BU Hardware) and Gemini (BU Wetlab) References United States Copyright Office (2016). Copyright in General. Retrieved from http://www.copyright.gov/help/faq/faq-general.html#register. Oye, K. A., Wellhausen, R. (2008). The Intellectual Commons and Property in Synthetic Biology. In M. Schmidt Editor, A. Kelle Editor, A. Ganguli-Mitra Editor & H. Vriend Editor (Eds.), Synthetic Biology (122-139). Web. United States Patent and Trademark Office (2014). General Information Concerning Patents. Retrieved from http://www.uspto.gov/patents-getting-started/general-information-concerning-patents. Alchian, A. A. (2008). Property Rights. The Concise Encyclopedia of Economics. Retrieved from http://www.econlib.org/library/Enc/PropertyRights.html. Nolo (2016). Getting a Patent on Your Own. Retrieved from https://www.nolo.com/legal-encyclopedia/getting-patent-yourself-29493.html. Rai, A., Boyle, J. (2007). Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons. PLoS Biology. 5(3) http://dx.doi.org/10.1371/journal.pbio.0050058 A General Overview of Intellectual Property in Synthetic Biology: Part 2 The Basis of Patent Law in Synthetic Biology: Software Synthetic biology research is pushing the bounds of what we once thought was possible in biology. Because of this, synthetic biology is also pushing the limits of how we as a society have defined ownership and property. While sixty years ago the question was inconceivable, today it is completely reasonable to ask, “can I patent a genome?” or, “can I own the property rights to a living creature?” These are big, important questions! Interestingly, the best answers the U.S. courts have to solving these questions comes from, of all places, the world of software. Prior to the development of computers, intellectual property could be protected by trademarks, copyright laws, and patents. These classifications proved robust and effective up until the emergence of software applications. Software, unlike anything seen before, is a written programing language that results in a function or utility. Thus, it makes sense that one could copyright the contents of their code, and patent the functionality of their software tool. As some examples, Mario is a copyrighted character in Nintendo games, and the functionality of the Excel spreadsheet is patented under Microsoft. People studying intellectual property rights in synthetic biology quickly realized that the closest example from which to draw a conclusion would be software. Software is similar to synthetic biology for multiple reasons; namely, developers (or researchers) create programs (or biological parts) that code for high level functions (such as transcriptional regulation). Therefore, today many of the intellectual property rights that define synthetic biology are drawn from software laws. As we compare intellectual property in synthetic biology to that in software, it is important to be aware of the differences between the two, the most important being that you can patent both DNA and software code for its function, but you cannot copyright DNA code, as you could for a piece of software. The patent system that has served to protect software for decades was adopted to protect intellectual properties in synthetic biology. This worked in protecting ideas like the genetic toggle switch, or the kill gene in Gateway Assembly, both of which were patented. Unfortunately, the patent system in synthetic biology and software does not work in all cases. Namely, the system fails when 1) a patent is so broad that other researchers can’t approach the patented technology with a ten-foot-pole without fear of infringement or 2) there is a cluster of narrower patents in a certain aspect of synthetic biology (e.g. digital genetic logic circuits) that prevents researchers from working on downstream applications due to possibility of infringement on one of the narrower patents. These issues of ambiguity in patent law in software, and now in synthetic biology, are described as the anti-commons problem. Anti-commons is a state in which new research or development is deterred because of ambiguity or overuse of patents in property rights. It is here that software developers and synthetic biologists encounter the same problem: how can the integrity of intellectual property be protected while still facilitating a dispersion of information to the greater scientific community? How can software developers protect and profit from their ideas, while still allowing the rest of the community to use those tools to build their own software? This translates to synthetic biology as: how can synthetic biologists working in foundational research develop biological parts that are protected, but are still available to the greater scientific community for further development into real-life applications? The answer to all of our problems is always 47! It’s the answer to the Universe! Just kidding. The answer came in the form of the Open Source Initiative, which was launched in 1998 as an “general education and advocacy organization… focused specifically on explaining and protecting the ‘open source’ label”. This idea of open source software fostered a community in which software developers share their creations in the public domain, and in return they can use the source code of all other people in the community. Now for our second to last definition (we promise!), the definition of open source; for a work to be considered open source, a developer must allow: Open access to source code Meaning, when the software is released, users must be able to obtain the code that the software was written with. In the context of synthetic biology, that means that the genetic code and biological parts that went into making a new system must be released to the synthetic biology community. Free redistribution Meaning, you cannot restrict any person or party from selling or giving away the software as a component of a larger aggregate software distribution. In the context of synthetic biology, this means that if you make a new system or genetic circuit, you cannot prohibit other researchers from using this system in their projects. The ability to derive works without penalty Meaning, a person or party must be allowed to modify and derive new software from the original software In the context of synthetic biology, this would mean that if you develop a genetic circuit, other researchers would be able to modify and rederive new circuits or applications from your work. There are other, less significant criteria that go into making something open source and could drag this blog post out forever (and we’re trying to get to the cat videos when we’re done), but the big take away point is that, for an invention to be open source, the components that went into making the invention should be released to the public, be modifiable by the public, and the invention itself must be free for other people to incorporate into their own projects. Again, open source need not refer to just software, although today the most prominent open source movement is in the realm of software. This same idea applies to open source hardware, dubbed Open Hardware, and synthetic biology is also beginning to adopt this idea in the form of a synthetic biology commons. In a synthetic biology commons, patented genes and genetic parts (a.k.a. “source code”) are licensed such that they can be used exclusively in the public domain, and are usable and modifiable by the greater scientific community. One great example of a synthetic biology commons can be found in the BioBrick Foundation, which aims to create a standardized registry of well documented biological parts. This is the equivalent of having a registry of software tools and their source code, free for other developers to use. In the software world developers aimed to have a open source commons where all new code is shared, modified and redistributed; in the biology world some researchers are aiming to have a commons where all new genetic parts or systems are shared, and these creations can be used by other researchers worldwide to facilitate new research and innovation. However, we still have a long way to go. Notes from the Writers In this post you have (hopefully) learned a thing or two about the struggles faced by researchers and lawyers in intellectual property regarding synthetic biology and software. We’ve debuted multiple definitions, all of which will make more appearances in our posts in the near future. Also, to help you all out, we have created a concise list of these words and their definitions, if you’re ever confused about a definition (if we didn’t scare you away), all you need to do is come back here and take a look at post 3. With that, we hope you learned something, and till next time. Yours, Castor and Pollux Castor and Pollux Representing Neptune (BU Hardware) and Gemini (BU Wetlab) References Mossoff, Adam. (2013). A Brief History of Software Patents (And Why They’re Still Valid). Center for Protection of Intellectual Property. Oye, K. A., Wellhausen, R. (2008). The Intellectual Commons and Property in Synthetic Biology. In M. Schmidt Editor, A. Kelle Editor, A. Ganguli-Mitra Editor & H. Vriend Editor (Eds.), Synthetic Biology (122-139). Web. Rai, A., Boyle, J. (2007). Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons. PLoS Biology. 5(3) http://dx.doi.org/10.1371/journal.pbio.0050058 Karjala, S. Dennis. (1998). The Relative Roles of Patent and Copyright in the Protection of Computer Programs, 17 J. Marshall J. Computer & Info. L. 41 http://repository.jmls.edu/cgi/viewcontent.cgi?article=1211&context=jitpl The Debian Free Software Guidelines (1998). Debian Social Contract. Retrieved from https://www.debian.org/social_contract#guidelines Open Source Initiative (1998). History of the OSI. Retrieved from https://opensource.org/osd Fin References Author, A. A., & Author, B. B. (Date of publication). Title of document. Retrieved from http://Web address Author, A. A., Author, B. B., & Author, C. C. (Year). Title of article. Title of Periodical, volume number(issue number), pages. http://dx.doi.org/xx.xxx/yyyyy Author, A. A., & Author, B. B. (Year of publication). Title of chapter. In A. A. Editor & B. B. Editor (Eds.), Title of book(pages of chapter). Location: Publisher. http://www.copyright.gov/help/faq/faq-general.html#register United States Copyright Office (2016). Copyright in General. Retrieved from http://www.copyright.gov/help/faq/faq-general.html#register. Kenneth Oye’s paper Oye, K. A., Wellhausen, R. (2008). The Intellectual Commons and Property in Synthetic Biology. In M. Schmidt Editor, A. Kelle Editor, A. Ganguli-Mitra Editor & H. Vriend Editor (Eds.), Synthetic Biology (122-139). Web. Google definitions The Oncomouse that Roared http://www.uspto.gov/patents-getting-started/general-information-concerning-patents United States Patent and Trademark Office (2014). General Information Concerning Patents. Retrieved from http://www.uspto.gov/patents-getting-started/general-information-concerning-patents. http://www.wikihow.com/Apply-for-a-Copyright http://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.0050058 http://www.econlib.org/library/Enc/PropertyRights.html Alchian, A. A. (2008). Property Rights. The Concise Encyclopedia of Economics. Retrieved from http://www.econlib.org/library/Enc/PropertyRights.html. https://www.nolo.com/legal-encyclopedia/getting-patent-yourself-29493.html Nolo (2016). Getting a Patent on Your Own. Retrieved from https://www.nolo.com/legal-encyclopedia/getting-patent-yourself-29493.html.
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