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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. 

Second Blog Post: A History of Software Intellectual Property, and Why it Matters to Synthetic Biology 

Part 1: Classic Intellectual Property History 

As we begin to delve into case studies in synthetic biology, one thing should first be made clear: Intellectual property protections, in the form of trademarks, copyrights and patents, are an old system that has served to protect many types of ideas - books, poems, manufacturing processes, tools, machines, computer programs and architecture designs - and genetic parts are just the newest addition to this list. Indeed, it would not make sense to dive into intellectual property (IP) protections in synthetic biology without first painting a picture of the IP landscape and history in the United States. 

In this blog post, we will explore the history of IP protections in the United States, specifically putting emphasis on how and why these IP protection have changed and evolved over time. As you will hopefully come to see, synthetic biology IP protections are emerging as a natural next step in how IP protections adapt to meet new technologies, economies and societal changes. We can (and hopefully you will!) learn a great deal more about IP in synthetic biology simply by studying the history of IP in the United States. 

While our discussion on IP law will be framed in the context of the United States, it is important to consider the history of IP laws in other nations throughout history. As will be made clear, IP laws have grown, evolved and changed significantly since their first implementation. The earliest known patent law was instated in Venice in the year 1474. This law enabled the Provveditori di Comun (an executive branch of the Venetian Republic,) to grant 10 year patents to inventors. 


“Any person in this city who makes any new and ingenious contrivance, not made heretofore in our dominion, shall, as soon as it is perfected so that it can be used and exercised, give notice of the same to our office of Provveditori de Comun [State Judicial Office], it being forbidden up to 10 years for any other person in any territory and place of ours to make a contrivance in the form and resemblance thereof, without the consent and license of the author.”

Excerpt from The Venetian Act of 1474


To give this law some context, in the late 1400’s Venice was in the middle of the Renaissance: glassworking, art, and new methods of manufacturing were blossoming in the city. The Provveditori di Comun concluded that 1) A novel creation by an inventor is intellectual property, and, 2) protecting an inventor's intellectual property stimulates the economy and encourages new ideas to grow. These conclusions are reflected in most modern IP systems today, and the Venetian Act of 1474 went on to directly influence IP statutes that would be established in England, the United States, and much of the rest of the world centuries later. 

Significant inspiration was drawn from the Venetian Act when England first implemented its own major patent and copyright laws. The Statute of Monopolies (1624) and the Statute of Anne (1710) [United Kingdom], a patent law and copyright law respectively, were implemented as a response to the tendency of the English crown to grant monopolies to ‘favored individuals’. A great example of this abuse of power was Queen Elizabeth I, who would grant monopolies to  ‘favored individuals’ in return for a cash payout. In effect, the Queen sold trade monopolies to individuals in an effort to raise money (who knew - monarchs can run into financially tough times as well!) These two statutes acted to rebuke the power of the monarchy to grant trade monopolies; instead, individuals with original intellectual property could now apply for patents and copyrights to protect their ideas. The United States IP system was directly influenced by these English statutes. One thing to note from these two statutes is that IP laws have a place in preventing market dominance, protecting individuals unique ideas, and stimulating competition. 

The origin of IP protections in the United States came from the Patent Act of 1790 and the Copyright Act of 1790. Since we are interested in looking at the evolution of these IP protections over time, the first detail to note is the scope of these protections. In this original copyright act, applicants’ work was guaranteed protection for 14 years. Fast forward to today: copyright protections will protect an individual's work for the life of the individual, plus an extra fifty years. Furthermore, the Copyright Act of 1790 only protected an author’s work from explicit verbatim copying and no more than that. This led to an interesting situation where Harriet Beecher Stowe, the author of Uncle Tom’s Cabin, attempted to sue the German translator of her work when they secured a copyright for the German translation.  In 1853, the Pennsylvania Circuit Courts decided that the translation was not an infringement upon Stowe’s copyright, as it did not constitute verbatim copying. The Pennsylvania Circuit Court argued that “A translation may, in loose phraseology, be called a transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her book”  To give this example some context: imagine if Harry Potter (originally written in English) was translated to Spanish by another person, under the original copyright laws.  If that was the case, J.K. Rowling would not be able to protect the translated copy as her own work. Fast forward to today: copyright obviously protects the translation of an author's works, but the scope of copyright has grown to protect not just texts, but photos, songs, software, and even architecture. (A big extension to the copyright laws was made in the Copyright Act of 1831, which allowed “musical compositions in the list of protected materials, along with books, maps, charts, prints, cuts and engravings.”) Indeed, the U.S. courts eventually concluded that the essence of work protected by copyright is “in the substance, and not in the form alone.”

Much as the scope of copyright laws increased - in both duration of protection and content protected - patent law in the United States also grew to encompass greater varieties of functional inventions for lengthier periods of time. In 1842, Congress extended patent laws to cover industrial designs in an effort to stimulate the industrial revolution at home. Congress also passed the Plant Patent Act of 1930, which allowed patents on unique cultivations of plant species. Interestingly, patent laws also grew to encompass surgical procedures after World War 2, unfortunately leading to a host of ethical dilemmas concerning the monopolization of life-saving treatments. This issue was addressed in 1996 when Congress granted physicians freedom from liability for infringement of patented medical practices. 

Notes from the Writers
Hopefully we have revealed a simple trend: The scope of IP protections, both copyrights and patents, have grown in both the duration of the protection period, and the breadth of actual content that can be protected.. Now I pose a question to you the reader: why has the scope of these protections grown? What fueled this evolution of IP protections? If there is a trend or common theme that explains how and why IP protections have evolved over time, this theme would give us insight to how IP protections might change in response to new advances in synthetic biology. Please, join the conversation! Share your ideas! The best way to learn is to discuss :) Follow the link to the iGEM forums, where you can join the conversation by commenting or starting a new thread. 

Our two cents? We believe that IP protections have grown in scope in response to changes in technology, industry, and commerce. Remember that first form of IP protection from Renaissance era Venice? These protections emerged as a natural response to the growth and boom of new ideas: the governing body in Venice recognized the potential of unique ideas to bring revenue to the city, and in turn decided to protect individuals who develop new ideas. This in turn would stimulate more inventors to come to Venice, thus new inventions and ideas would emerge, and greater market competition would also be generated. All of this is good for growth, development and economy. Indeed, copyright protection in the United States grew in scope as a response to many, many different forces. To take one example, President Roosevelt heavily urged the implementation of the Copyright Act of 1909, saying,

"Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public."

In a time when new technologies, industries, and arts were emerging in America, Roosevelt echoed the frustrations of many individuals who felt the scope of the original 1790 Copyright Act to be inadequate. Musicians (in a time when music was booming in America), greatly benefited from this new copyright act, which allowed exclusive rights to artists to perform for-profit performances. Other new technologies, such as lithography or photoengraving, were also protected under this new act, further emphasizing how these laws adapted over time to meet new societal and technological changes.  

While significant, the industrial and technological advancements responsible for the adaptation of IP law listed above pale in comparison to the changes in law brought about by the development of computers.  Even so, synthetic biology will probably make even more substantial changes to society than computers ever did. For this reason, we will next study how computers and software impacted IP laws, from which we can hopefully make some conclusions on how IP laws will change to reflect new synthetic biology technologies.


Part 2: The Computer Revolution, the Synthetic Biology Revolution, and Changing Intellectual Property Paradigms 

Hands down, with no doubt at all, the most significant changes and revisions to be made to IP laws in the United States came as a response to computer technology. Before computers, IP laws protected tangible things and ideas, and overall the concept of these protections was well defined. Patents protected functional inventions: steam engines, the cotton gin, sonic toothbrushes. This clearly defined protection becomes ambiguous with software tools, which are neither “material” nor is the function always obvious. Copyrights protect texts, songs, architecture styles and so forth. Again, this can be ambiguous with software, which is composed of code. Indeed, this code can be copied directly and, but a piece of software can be written in different languages, using different syntax and different implementations. There is a lot of ambiguity with IP laws and computers. To pour oil on the fire, these IP ambiguities were made much worse given the huge stakes involved- the Internet of today is a huge system whose entire function rests on a few patents. Imagine if someone ‘owned’ the Internet! Major corporations like Apple, Microsoft and Google, in part owe their success to IP laws. 

As we go ahead and discuss how IP laws evolved for the computer revolution, I’d like to have you keep synthetic biology always at the back of your head. There are many parallels, yet also many more differences, between the software revolution and the emergence of synthetic biology. 

We will focus this part around two central ideas. The first idea I can introduce as a simple question: how would the modern computer ecosystem look if IP laws were not properly updated to reflect new computer technologies? How can we shape the future synthetic biology ecosystem with IP laws? A point I would personally argue is that modern computer technology is just as much influenced by the engineering and science of the technology itself, as it is by the IP protections that have shaped its implementation. The same could be said about synthetic biology: It is likely that the future of synthetic biology will be guided by IP laws, just as much as it will be guided by the engineering and research that goes into developing it. The second idea comes as an observation: as new technologies arise, it is tempting to frame IP protections for those technologies under old existing laws and paradigms. This can be messy and dangerous, and quickly stimulates the need for revisions to patents laws. As you will shortly see, when computer technologies emerged, lawmakers quickly tried to frame IP protections for those technologies under existing copyright and patent laws, (comparing computer programs to books and musical compositions). This caused many problems, to say the least. Today, as new synthetic biology technologies are developed, lawmakers are again trying to protect those technologies under existing paradigms (ironically, software IP laws are considered the most robust protections of DNA systems). Think about these ideas as you read ahead, hopefully learning the history of software IP will help you better understand synthetic biology IP in our future blogs posts. 

Let’s jump right in. 

Prior to the 1960’s, IP protections for software were rare, if at all existent. Back then, (how surprising is it that this was only a little over fifty years ago!) the “personal computer” did not exist, and most computing was done at academic institutions that could afford to implement massive computers the size of a room. Many people did not see viable commercial or every-day application of these massive computers. [To make an analogy to synthetic biology, think about how today, synthetic biology can only be done at academic institutions that can afford huge labs with big, specialized machinery. This may not always be a reality!] Most people though that software, which shares similarities to other written works, would be best protected under copyright law. And so in 1964 the U.S. Copyright Office began to accept computer programs for copyright protections. [It should be noted that there was a huge amount of contention and debate over whether software should even be protected under IP at all. I don’t want to dwell on these details, but up until at least the 1980’s this was not a trivial question. We do see similar debate in the synthetic biology community today.] 

Not surprisingly, it was the advent of personal computers that heavily stimulated the development of more robust and well defined IP laws for software. Because personal computers were more accessible to the average Joe, so too was the software on those computers. Because software became more accessible, people started to then develop software that had functionality in an individual's daily life. Also, as personal computers became more common, program development became more accessible to people as well: more and more people could become software developers. [I cannot help but note that this is a trend that we may very well see in synthetic biology before long]. The computer revolution was a situation ripe for technological and economic booming! Renaissance era Venice saw a blossoming of new ideas and technologies; they then decided to protect inventors responsible for new ideas, ultimately to stimulate commerce. Analogously, as soon as lawmakers saw the booming of computer programs which quickly began to outpace current IP protections, they moved to enact new laws to protect these ideas and technologies, thereby stimulating economic development in the computer world. 

It is kinda funny, although also a tad disheartening, to see how lawmakers went about trying to implement IP protections for software systems. For example, the 1964 decision by the Copyright Office to accept software was drawn from the conclusions reached in White-Smith Music Co. v. Apollo. In this ruling, the courts decided that a piano roll could not infringe on copyrighted music because the roll was a mechanical device, while music itself textual. So, the analogy was drawn to software, which is textual, yet requires a mechanical computer to run- thereby copyrightable? I’ll give the U.S. courts a 6/10 on that one. 

Patent laws became apparently necessary when the personal revolution came about. Right away, it was a shoot-show to see lawmakers place software into existing IP protections. In Gottschalk v. Benson’s unanimous 6-0 decision, the courts upheld that software is not patentable? 


�







































Paragraph 1) 
	General history of IP, and how and in response to what forces has it evolved 
Paragraph 2) 
	Diving into SW IP, and how it’s evolution 
grew as a response to Renaissance ideas, and in turn it served to protect and assert the growth of future ideas

 would serve as a template of future intellectual property systems in other countries: it 

To protect this flourishing of ideas, such a patent law was enacted. Indeed, this law served as a template for future patent systems in other countries. Where such rudimentary patents law helped protect Renaissance ideas and creations, it was in England that the first patent system that recognized intellectual property to stimulate creations of new ideas was developed. 

established the first official and documented IP protections. These statutes are a far cry from the modern IP protections we know today. For example, the Statute of Monopolies allowed monarchs to grant monopolies to individuals with unique methods, thereby allowing those individuals to dominate the market.  [ I will not add more here for now, in general the purpose of this paragraph is to provide some context of IP law before US history. Should I add more, make it shorter, ?? ] 

Post Note: 
For those readers interested in knowing more about how IP laws changed in US history, below I provide a summary of major revisions to the original Patent Act of 1790, and the Copyright Act of 1790: 

Patent Act Revisions: 
Patent Act of 1790
“An Act to promote the progress of useful Arts.” Patents could be granted for up to two terms of 14 years each. The inventor has to demonstrate the invention as “sufficiently useful,” and is then granted 
Copyright Act Revisions: 
Copyright Act of 1790
Copyright Revision of 1831
Copyright Revision of 1909
Copyright Revision of 1976
Digital Millennium Copyright Act

To pose a simple question: how would the modern computer ecosystem look, if IP laws were not properly updated to reflect new computer technologies? How can we shape the future synthetic biology ecosystem with IP laws? A point I would personally argue is that modern computer technology is just as much influenced by the engineering and science of the technology itself, as it is by the IP protections that have shaped its implementation. The same could be said about synthetic biology: It is likely that the future of synthetic biology will be guided by IP laws, just as much as it will be guided by the engineering and research that goes into developing it. 

Naturally, as new technologies arise, it becomes tempting to protect those technologies under old paradigms established for various other technologies. With new synthetic biology technologies, we see lawmakers trying to develop protections for these inventions using laws that were previously defined already. What else could one do? As I’d like to make clear, trying to protect new technologies using IP laws established for old technologies is messy business, and the best case study for this is to just look at how U.S. lawmakers tried to protect computer programs. 

As we begin to delve into case studies in synthetic biology, one thing should first be made clear: Intellectual property protections, in the form of trademarks, copyrights and patents, are an old system that has served to protect many types of ideas – books, poems, manufacturing processes, tools, machines, computer programs and architecture designs – and genetic parts are just the newest addition to this list. Indeed, it would not make sense to dive into intellectual property (IP) protections in synthetic biology without first painting a picture of the IP landscape and history in the United States.

In this blog post, we will explore the history of IP protections in the United States, specifically putting emphasis on how and why these IP protection have changed and evolved over time. As you will hopefully come to see, synthetic biology IP protections are emerging as a natural next step in how IP protections adapt to meet new technologies, economies and societal changes. We can (and hopefully you will!) learn a great deal more about IP in synthetic biology simply by studying the history of IP in the United States.

While our discussion on IP law will be framed in the context of the United States, it is important to consider the history of IP laws in other nations throughout history. As will be made clear, IP laws have grown, evolved and changed significantly since their first implementation. The earliest known patent law was instated in Venice in the year 1474. This law enabled the Provveditori di Comun (an executive branch of the Venetian Republic,) to grant 10 year patents to inventors.

“Any person in this city who makes any new and ingenious contrivance, not made heretofore in our dominion, shall, as soon as it is perfected so that it can be used and exercised, give notice of the same to our office of Provveditori de Comun [State Judicial Office], it being forbidden up to 10 years for any other person in any territory and place of ours to make a contrivance in the form and resemblance thereof, without the consent and license of the author.”
Excerpt from The Venetian Act of 1474 [1]
 Italy_1494_AD.png
[2]

 

To give this law some context, in the late 1400’s Venice was in the middle of the Renaissance: glassworking, art, and new methods of manufacturing were blossoming in the city. The Provveditori di Comun concluded that 1) A novel creation by an inventor is intellectual property, and, 2) protecting an inventor’s intellectual property stimulates the economy and encourages new ideas to grow. These conclusions are reflected in most modern IP systems today, and the Venetian Act of 1474 went on to directly influence IP statutes that would be established in England, the United States, and much of the rest of the world centuries later.

Significant inspiration was drawn from the Venetian Act when England first implemented its own major patent and copyright laws. The Statute of Monopolies (1624) and the Statute of Anne (1710) [United Kingdom], a patent law and copyright law respectively, were implemented as a response to the tendency of the English crown to grant monopolies to ‘favored individuals’. A great example of this abuse of power was Queen Elizabeth I, who would grant monopolies to  ‘favored individuals’ in return for a cash payout [3]. In effect, the Queen sold trade monopolies to individuals in an effort to raise money (who knew – monarchs can run into financially tough times as well!) These two statutes acted to rebuke the power of the monarchy to grant trade monopolies; instead, individuals with original intellectual property could now apply for patents and copyrights to protect their ideas [4]. The United States IP system was directly influenced by these English statutes. One thing to note from these two statutes is that IP laws have a place in preventing market dominance, protecting individuals unique ideas, and stimulating competition.

The origin of IP protections in the United States came from the Patent Act of 1790 and the Copyright Act of 1790. Since we are interested in looking at the evolution of these IP protections over time, the first detail to note is the scope of these protections. In this original copyright act, applicants’ work was guaranteed protection for 14 years. Fast forward to today: copyright protections will protect an individual’s work for the life of the individual, plus an extra fifty years [5]. Furthermore, the Copyright Act of 1790 only protected an author’s work from explicit verbatim copying and no more than that. This led to an interesting situation where Harriet Beecher Stowe, the author of Uncle Tom’s Cabin, attempted to sue the German translator of her work when they secured a copyright for the German translation.  In 1853, the Pennsylvania Circuit Courts decided that the translation was not an infringement upon Stowe’s copyright, as it did not constitute verbatim copying. The Pennsylvania Circuit Court argued that “A translation may, in loose phraseology, be called a transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her book” [6]. To give this example some context: imagine if Harry Potter (originally written in English) was translated to Spanish by another person, under the original copyright laws.  If that was the case, J.K. Rowling would not be able to protect the translated copy as her own work. Fast forward to today: copyright obviously protects the translation of an author’s works, but the scope of copyright has grown to protect not just texts, but photos, songs, software, and even architecture. (A big extension to the copyright laws was made in the Copyright Act of 1831, which allowed “musical compositions in the list of protected materials, along with books, maps, charts, prints, cuts and engravings.”[7]) Indeed, the U.S. courts eventually concluded that the essence of work protected by copyright is “in the substance, and not in the form alone.” [8]

Much as the scope of copyright laws increased – in both duration of protection and content protected – patent law in the United States also grew to encompass greater varieties of functional inventions for lengthier periods of time. In 1842, Congress extended patent laws to cover industrial designs in an effort to stimulate the industrial revolution at home. Congress also passed the Plant Patent Act of 1930, which allowed patents on unique cultivations of plant species. Interestingly, patent laws also grew to encompass surgical procedures after World War 2, unfortunately leading to a host of ethical dilemmas concerning the monopolization of life-saving treatments. This issue was addressed in 1996 when Congress granted physicians freedom from liability for infringement of patented medical practices. [9]

Notes from the Writers

Hopefully we have revealed a simple trend: The scope of IP protections, both copyrights and patents, have grown in both the duration of the protection period, and the breadth of actual content that can be protected.. Now I pose a question to you the reader: why has the scope of these protections grown? What fueled this evolution of IP protections? If there is a trend or common theme that explains how and why IP protections have evolved over time, this theme would give us insight to how IP protections might change in response to new advances in synthetic biology. Please, join the conversation! Share your ideas! The best way to learn is to discuss🙂 Follow the link to the iGEM forums, where you can join the conversation by commenting or starting a new thread.

Our two cents? We believe that IP protections have grown in scope in response to changes in technology, industry, and commerce. Remember that first form of IP protection from Renaissance era Venice? These protections emerged as a natural response to the growth and boom of new ideas: the governing body in Venice recognized the potential of unique ideas to bring revenue to the city, and in turn decided to protect individuals who develop new ideas. This in turn would stimulate more inventors to come to Venice, thus new inventions and ideas would emerge, and greater market competition would also be generated. All of this is good for growth, development and economy. Indeed, copyright protection in the United States grew in scope as a response to many, many different forces. To take one example, President Roosevelt heavily urged the implementation of the Copyright Act of 1909, saying,

“Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public.” [10]

In a time when new technologies, industries, and arts were emerging in America, Roosevelt echoed the frustrations of many individuals who felt the scope of the original 1790 Copyright Act to be inadequate. Musicians (in a time when music was booming in America), greatly benefited from this new copyright act, which allowed exclusive rights to artists to perform for-profit performances. Other new technologies, such as lithography or photoengraving, were also protected under this new act, further emphasizing how these laws adapted over time to meet new societal and technological changes. [11]

While significant, the industrial and technological advancements responsible for the adaptation of IP law listed above pale in comparison to the changes in law brought about by the development of computers.  Even so, synthetic biology will probably make even more substantial changes to society than computers ever did. For this reason, we will next study how computers and software impacted IP laws, from which we can hopefully make some conclusions on how IP laws will change to reflect new synthetic biology technologies.

Yours,

Castor and Pollux

Castor and Pollux

Representing Neptune (BU Hardware) and Gemini (BU Wetlab)

References

Circuit Court, E. D. Pennsylvania. (1853). Stowe v. Thomas: Copyright – Copyright Translation – Subsequent Translation. https://law.resource.org/pub/us/case/reporter/F.Cas/0023.f.cas/0023.f.cas.0201.2.pdf [6]

Theodore Roosevelt. (1905). Letter to Congress. http://copyright.ce.byu.edu/sites/copyright.ce.byu.edu/files/keynote_-_connected-u.s._copyright_office_and_the_creative_economy_charlesworth.pdf [10]

U.S. Congress. (1909). The House Report on the Copyright Act of 1909. 20. [11]

Matthew, Donald, (1983), Atlas of Medieval Europe, Checkmark Books, New York. [2]

Fisher, William. (1999). The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States. Harvard Cyber Law. 74,75. [5,8,9]

Mola, Lucas. (2000). The Silk Industry of Renaissance Venice. Baltimore and London: Johns Hopkins University Press. 187. [1]

Kwong, Matt. (2011). Six Significant Moments in Patents History. Reuters. http://www.reuters.com/article/us-moments-patent-idUSKBN0IN1Y120141104 [4]

Price, Larissa. (2012). Monopolies and the Constitution: A History of Crony Capitalism. Northwestern University School of Law Scholarly Commons. [3]

Music Library Association. Historically Significant U.S. Copyright Legislation. http://www.musiclibraryassoc.org/mpage/copyright_hsl [7]