Biotechnology and open source licensing
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model open source biotechnology licences is therefore beyond the scope of this thesis. Instead, my aim in the remainder of this chapter is to give the reader a sense both of the issues that would need to be resolved in creating workable open source licences in biotechnology, and of the process by which this might be achieved. The chapter begins with a brief overview of conventional biotechnology licensing, necessary to place subsequent discussion in context. Next, I offer some ideas about the respective roles of technology developers, academic and practising lawyers and technology transfer professionals and corporate, government or philanthropic sponsors in developing functional open source biotechnology licences. The conclusion to this section suggests that the necessary process of iterative learning with respect to practical implementation of such licences could be accelerated by drawing on the experience of the open source software community, embodied in the principles of the Open Source Definition (OSD). The final section reports selected results of a comparison of these principles with conventional biotechnology licensing practice, conducted in order to determine whether open source biotechnology licensing would be broadly feasible and, if so, which areas would require most technical and community input. While these results are not claimed to be definitive, they may prove useful: so far as I am aware, this is the first time such a comparison has been systematically undertaken.
5.2
Conventional biotechnology licensing
By definition, licensing depends on the existence of proprietary rights. Three main types of proprietary or quasi-proprietary rights are relevant to biotechnology licensing: statutory rights (patents and plant variety rights), trade secrets, and personal property. Patents are the most important form of protection for biotechnology-related innovations. General classes of patent claims that are relevant to biotechnology inventions include ordinary process and product claims as well as new uses of known products – a type of process claim – and compositions or formulations of biological materials – a type of product claim. Specific classes of patentable biotechnology inventions include classical microbial technologies, ”new” biotechnologies based on recombinant DNA (genetic engineering) or hybridoma (cell fusion) technology, and therapeutic molecules used as drugs.1 Despite increasing use of such patentable biotechnologies in plant breeding, classical methods continue to be relevant. This means a variety developed using patentable methods may be protected under both patent law and plant variety protection laws; thus, in the plant biotechnology context, licences typically deal with both types of property rights.2 In contrast with plant variety protection, trade secret protection cannot overlap with patent protection because trade secrecy and patent laws impose oppo1 2
World Intellectual Property Organization (1992), pp.27-29. Ibid., p.31.