§5.4 Biotechnology and software licensing compared
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under an open source approach. Nevertheless, such an approach would reduce a biotechnology licensor’s direct revenue stream to that which could be obtained by charging one-off fees in competition with its own licensees. The next question is whether this excludes the possibility of open source licensing in biotechnology. It might be argued that it does, on the basis that patent protection of biotechnology inventions is much more costly than copyright protection of software works. Copyright protection is free, whereas obtaining and maintaining patent protection, especially in more than one jurisdiction, entails payment of substantial upfront and ongoing fees. Obtaining patent protection takes time, whereas copyright arises immediately upon embodiment of a protectable work. Prosecuting a patent application requires substantial technical expertise, whereas copyright is automatic; even though registration of copyright ownership has some advantages, the procedural requirements are less onerous than for patents. Litigation to enforce patent rights is also notoriously expensive.68 Remuneration provisions in biotechnology licences are often set up in such a way that these costs are written off against ongoing licensing revenue;69 it may therefore be suggested that to deprive patent holders of this income stream would mean they could not afford to obtain the intellectual property rights that are as critical to an open source approach as to the conventional approach. Part of the answer to this objection is rooted in the fact that an open source strategy, like the conventional approach to biotechnology licensing, is ultimately based on economic self-interest. An open source approach will only be considered in preference to the conventional approach by a commercial player who calculates that the loss of licensing income or other benefits obtained through granting limited access to a patented technology would be outweighed by gains from faster, cheaper, or better technology development under the open source model. The cost of obtaining patent protection is the same in both cases and therefore does not tip the scales either way;70 if the overall return to innovative activity, taking into account all possible revenue streams, would be greater using an open source licence as against a conventional licence, it would not matter if a particular revenue stream is diminished or cut off entirely. This argument only applies, of course, if the trade-off is between the conventional and open source approaches to intellectual property management. If the trade-off is between an open source approach, which depends on intellectual property ownership, and simple publication of an invention, the higher cost of protecting biotechnology-related intellectual property relative to software could mean that open source biotechnology licensing is less likely to be practicable than open source software because fewer potential contributors would have the resources to participate. The issue of how big a pool of contributors is required for a successful open source development effort is discussed in detail in chapter 6 (section 6.6.2, p.189); however, information gathered during fieldwork in68
For example, see Ellis (2000). World Intellectual Property Organization (1992), pp.44-51. 70 In fact, it is arguable that enforcement costs would be lower under an open source regime: see next section. 69