I don't think we've ever gone explicitly over the idea of the debian/ubuntu social contracts, and how those concepts might be useful in pursuing our shared interests as diybio grows. From what I saw at BioBarCamp 2008, where many of us found each other in person, there's a lot of positive effort and energy being channeled in these directions, so the very least I can do is document a little bit of it from all over the web. This is a draft at best, so go easy on me :-).
This email is more like a safari tour through some relevant portions of the internet that are of interest to diybio and maybe developing 'contracts', so if somebody else wants to write something more coherent, go ahead- this is more like bibliography material, but also interesting for those who don't know about these developments. With some annotation and running commentary :-). I hope others comment on some of these excerpts.
((At the bottom and very end is the debian and ubuntu social contracts or codes of conduct for an example, but it's best taken in context with everything else in this email)). (((This is also re: IP law and some other recent topics on the list.)))
http://p2pfoundation.net/Open_Source_Biotechnology http://rsss.anu.edu.au/~janeth/ http://rsss.anu.edu.au/~janeth/OpenSourceBiotechnology27July2005.pdf (thesis) """ "Open Source licensing is a style of intellectual property management that has evolved in the past half-decade out of the Free Software movement, initiated in the early 1980s in response to restrictive copyright licensing practices adopted by commercial software developers. The Open Source approach seeks to preserve ongoing community access to proprietary software tools without precluding or discouraging commercial involvement in their development.
"Open Source Biotechnology" refers to the possibility of extending the principles of commerce-friendly, commons-based peer production exemplified by Open Source software development to the development of research tools in biomedical and agricultural biotechnology." (http://rsss.anu.edu.au/~janeth/) """
Janet Hope: "Since the 1980's, the life sciences have undergone a process of rapid commercialization. The legal mechanism for this process of commercialization has been the expansion of intellectual property (IP) protection to inventions that were previously regarded as unpatentable. The result has been a literally exponential increase in applications for biotechnology patents.
These patents not only protect inventions that are valuable as end products; they also protect early stage inventions and research tools. Advances in biotechnology require the use of many of the latter, for which researchers must obtain licenses from patent owners. A good example is "golden rice", which utilized more than 70 different patented procedures and processes. To get permission to use all of these tools, scientists enter into multiple negotiations for each piece of IP. These mounting transaction costs can retard, and in some cases completely undermine, their scientific projects. Even if they are not prevented from pursuing research itself, institutions may find that the rights of other IP holders prevent them from commercializing the fruits of their labor.
In biomedicine, there are considerable social costs associated with working within this expensive proprietary system. These stem from the fact that such costs are beyond the resources of the smallest participants, or would-be participants, in the industry. Market forces will naturally tend to direct efforts by big private sector players to where there is the most substantial return on investment. This means research goals are inevitably being narrowed to those that will be most profitable, though not necessarily most useful. Thus, it is often not commercially worthwhile for the biomedical industry to devote significant resources to addressing medical or social needs, such as drugs for very common diseases like tuberculosis or malaria.
Similarly, in agriculture, breeding strategies will be oriented towards major crops in developed country markets, not towards finding genetic traits with characteristics that are useful to poor farmers. The last few years have also seen a series of mergers and acquisitions that have dramatically consolidated the industry, with a huge portion of fundamental research tools ending up in the hands of a tiny number of big multinationals. This level of industry concentration has inevitably led to the overpricing of technologies and the exclusion of innovative start-ups and public sector institutions. This, in turn, means that smaller firms can't get a foot in the door.
This situation has been described as a "tragedy of the anticommons." In contrast to the tragedy of the commons, when a public resource is overused because there is no one owner to regulate it, a tragedy of the anticommons occurs when a resource is underused because it has been divided up by a number of owners who may not be willing to agree or cooperate with one another."
Can Open Source Licensing Work With Biotechnology? (still with Janet Hope) """ "When I spoke to Bruce Perens, who helped define the basis for open source development in his aptly titled document, The Open Source Definition, he took the view that the open source biotechnology movement does not aim to create a particular legal framework. Instead, it is a form of social engineering. There is no question that one could produce a legally binding open source license in biotechnology if one wanted to—the real question is whether anyone will use it.
The different proprietary regimes that prevail in the software and biotechnology contexts are important to consider in answering this question. Both software code and biotechnology innovations are protected under a mixture of licensing systems , but the primary one in software is copyright, whereas in biotechnology it is patents. The cost of patent protection can be substantial, whereas copyright protection arises automatically and without cost to the owner. Also, patent fees are usually at least partly recovered from licensees under the remuneration clauses in a proprietary license.
Second, standardized licenses appear to be important for keeping transaction costs low in open source software, but this approach may be less applicable outside a digital context. Biotechnology innovations are far more diverse in terms of composition than software, which is essentially non-physical and instantly reproducible. Defining rights in living biological materials, given their capacity for self-replication and mutation, is difficult. Determining what constitutes an improvement to a licensed biological technology is also challenging. This aspect would be especially critical in open source applications. As stated earlier, open source licenses generally require that improvements to the technology be made available to the other users. Naturally, this is far more difficult when the medium is biological matter, as opposed to digital information.
To explore how open source might translate into the biotechnology context, it is necessary to characterize it in terms of generalized principles, as distinct from software-specific features. Although it is becoming a popular subject of study for people in many disciplines, no unifying principle has yet emerged as the dominant approach. I have chosen to view open source development through the lens of a relatively new theory from the field of innovation management, known as User Innovation Theory """
For those of you who don't know Bruce: http://en.wikipedia.org/wiki/Bruce_Perens (do I have to remind anyone that Wikipedia, itself, is licensed under the GFDL?) """ Bruce Perens is a computer programmer and advocate in the open source community. He created the Open Source Definition and published the first formal announcement and manifesto of open source.[1] He co-founded the Open Source Initiative with Eric S. Raymond.[2] In 2005, Perens represented Open Source at the United Nations World Summit on the Information Society, at the invitation of the United Nations Development Program.[3] He has appeared before national legislatures and is often quoted in the press, advocating for open source and the reform of national and international technology policy. """
http://p2pfoundation.net/Open_Science_Licenses http://www.firstmonday.org/issues/issue12_6/burk/index.html """ Copyleft–style licensing has also been applied to physical materials, such as the biological materials made available via the Biological Innovation for Open Society project or "BIOS" (Boettiger and Burk, 2004). The BIOS project is intended to make publicly available certain biological research tools and techniques, and to attract contributions of further research tools. While the project organizers are not adverse to users of these tools filing patents on discoveries made by use of the tools, the intention is to preserve public access to the tools themselves. The danger to such access comes from patenting of improvements or modifications that users might make to the basic tools, encumbering the basic tools with proprietary claims. Internet–based electronic resources offer information about the tools and their use, and facilitate contact for physical transfer of the tools, but physical access is conditioned on agreement not to patent any improvements or modifications to the tools, and to make any such modifications or improvements available on the same terms. No such restrictions are placed upon products or discoveries generated by use of the tools; such
...
Thanks for the Safari tour. Interesting ideas.
Do you believe that the patent system should be abolished?
Interesting to note that the patent system is established directly
under Article 1, Section 8 of the Constitution giving "authors and
inventors the exclusive right to their respective writings and
discoveries." Thomas Jefferson was one of the leaders of the patent
office when it was first established, but I was surprised to learn
that he had misgivings about the system.
http://www.earlyamerica.com/review/winter2000/jefferson.html
Most of the great technologies developed in the United States have
been associated with patents - including Morse's telegraph - who tried
to patent every mode of transmitting an EM signal over distance
(see http://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I
supposed that would have covered the Internet, had it been granted.
But, you can see, that patent "abuse" is not something hat has
recently been "invented" but has been around for as long as there have
been patents in the US. Bell's telephone, Edison's electric light,
and many other pioneering inventions have been patented.
Is open source based on altruistism or mistrust.
You quoted Drew Endy as saying "I don't trust you not to make any
mistakes the next time you
program a piece of DNA. You shouldn't trust me."
If it's in part motivated by altruism - then why shouldn't the patent
community embrace the same standard. It doesn't have to be all or
nothing. But, rather patent wisely, without over-reaching, share the
royalties, and let academic non-profit researchers use it for true
academic purposes. This idea is not new. I believe that Stanford now
includes a clause in their licenses which reserves rights in the
patented technology for academic purposes.
I wonder, though, if some of the allegations about the adverse effects
of patents are not over-stated. It's very easy to hypothesize that
stacking patent rights will escalate the cost of doing research and
making new discoveries - but where's the evidence? As I recall, there
are not many real examples, just a lot of talk. This is one of the
reason why I established the Mercantile Gene (http://mercantile- gene.wikidot.com/)
One way in which the courts are policing patents is by re-evaluating
the standards under which inventions can be patented. There are two
recent Federal Circuit cases and a Supreme court case (KSR) that have
raised the patentability bar and limited the type of subject matter
that can be patented. In In re Bilski, the Federal Circuit put a
brake on so-called business method patents.
From Patently-O (http://www.patentlyo.com/patent/2008/10/in-re- bilski.html)
"The Federal Circuit has affirmed the PTO's Board of Patent Appeals
(BPAI) finding that Bilski's claimed invention (a method of hedging
risks in commodities trading) does not satisfy the patentable subject
matter requirements of 35 U.S.C. § 101. In doing so, the nine-member
majority opinion (penned by Chief Judge Michel) spelled out the
"machine-or-transformation" test as the sole test of subject matter
eligibility for a claimed process."
On Dec 29 2008, 9:06 pm, "Bryan Bishop" <kanz...@gmail.com> wrote:
> I don't think we've ever gone explicitly over the idea of the
> debian/ubuntu social contracts, and how those concepts might be useful
> in pursuing our shared interests as diybio grows. From what I saw at
> BioBarCamp 2008, where many of us found each other in person, there's
> a lot of positive effort and energy being channeled in these
> directions, so the very least I can do is document a little bit of it
> from all over the web. This is a draft at best, so go easy on me :-).
> This email is more like a safari tour through some relevant portions
> of the internet that are of interest to diybio and maybe developing
> 'contracts', so if somebody else wants to write something more
> coherent, go ahead- this is more like bibliography material, but also
> interesting for those who don't know about these developments. With
> some annotation and running commentary :-). I hope others comment on
> some of these excerpts.
> ((At the bottom and very end is the debian and ubuntu social contracts
> or codes of conduct for an example, but it's best taken in context
> with everything else in this email)). (((This is also re: IP law and
> some other recent topics on the list.)))
> http://p2pfoundation.net/Open_Source_Biotechnologyhttp://rsss.anu.edu...)
> """
> "OpenSource licensing is a style of intellectual property management
> that has evolved in the past half-decade out of the Free Software
> movement, initiated in the early 1980s in response to restrictive
> copyright licensing practices adopted by commercial software
> developers. TheOpenSource approach seeks to preserve ongoing
> community access to proprietary software tools without precluding or
> discouraging commercial involvement in their development.
> "OpenSource Biotechnology" refers to the possibility of extending the
> principles of commerce-friendly, commons-based peer production
> exemplified byOpenSource software development to the development of
> research tools in biomedical and agricultural biotechnology."
> (http://rsss.anu.edu.au/~janeth/)
> """
> Janet Hope:
> "Since the 1980's, the life sciences have undergone a process of rapid
> commercialization. The legal mechanism for this process of
> commercialization has been the expansion of intellectual property (IP)
> protection to inventions that were previously regarded as
> unpatentable. The result has been a literally exponential increase in
> applications for biotechnology patents.
> These patents not only protect inventions that are valuable as end
> products; they also protect early stage inventions and research tools.
> Advances in biotechnology require the use of many of the latter, for
> which researchers must obtain licenses from patent owners. A good
> example is "golden rice", which utilized more than 70 different
> patented procedures and processes. To get permission to use all of
> these tools, scientists enter into multiple negotiations for each
> piece of IP. These mounting transaction costs can retard, and in some
> cases completely undermine, their scientific projects. Even if they
> are not prevented from pursuing research itself, institutions may find
> that the rights of other IP holders prevent them from commercializing
> the fruits of their labor.
> In biomedicine, there are considerable social costs associated with
> working within this expensive proprietary system. These stem from the
> fact that such costs are beyond the resources of the smallest
> participants, or would-be participants, in the industry. Market forces
> will naturally tend to direct efforts by big private sector players to
> where there is the most substantial return on investment. This means
> research goals are inevitably being narrowed to those that will be
> most profitable, though not necessarily most useful. Thus, it is often
> not commercially worthwhile for the biomedical industry to devote
> significant resources to addressing medical or social needs, such as
> drugs for very common diseases like tuberculosis or malaria.
> Similarly, in agriculture, breeding strategies will be oriented
> towards major crops in developed country markets, not towards finding
> genetic traits with characteristics that are useful to poor farmers.
> The last few years have also seen a series of mergers and acquisitions
> that have dramatically consolidated the industry, with a huge portion
> of fundamental research tools ending up in the hands of a tiny number
> of big multinationals. This level of industry concentration has
> inevitably led to the overpricing of technologies and the exclusion of
> innovative start-ups and public sector institutions. This, in turn,
> means that smaller firms can't get a foot in the door.
> This situation has been described as a "tragedy of the anticommons."
> In contrast to the tragedy of the commons, when a public resource is
> overused because there is no one owner to regulate it, a tragedy of
> the anticommons occurs when a resource is underused because it has
> been divided up by a number of owners who may not be willing to agree
> or cooperate with one another."
> CanOpenSource Licensing Work With Biotechnology? (still with Janet Hope)
> """
> "When I spoke to Bruce Perens, who helped define the basis foropen
> source development in his aptly titled document, TheOpenSource
> Definition, he took the view that theopensource biotechnology
> movement does not aim to create a particular legal framework. Instead,
> it is a form of social engineering. There is no question that one
> could produce a legally bindingopensource license in biotechnology
> if one wanted to—the real question is whether anyone will use it.
> The different proprietary regimes that prevail in the software and
> biotechnology contexts are important to consider in answering this
> question. Both software code and biotechnology innovations are
> protected under a mixture of licensing systems , but the primary one
> in software is copyright, whereas in biotechnology it is patents. The
> cost of patent protection can be substantial, whereas copyright
> protection arises automatically and without cost to the owner. Also,
> patent fees are usually at least partly recovered from licensees under
> the remuneration clauses in a proprietary license.
> Second, standardized licenses appear to be important for keeping
> transaction costs low inopensource software, but this approach may
> be less applicable outside a digital context. Biotechnology
> innovations are far more diverse in terms of composition
Thanks for the write up. You are correct: tossing the patent system
out in entirety probably wouldn't be a good idea.
Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
into law in only 1980, it gives it gave US universities, small
businesses and non-profits intellectual property control of their
inventions and other intellectual property that resulted from
government funded research. This is taking its toll in terms of human
suffering and stifling scientific research and translational
development.
I believe the intent of the Constitutional protection is to limit the
ability of government to "steal" from inventors. Since taxpayers
provide the NIH budget, I do not believe "inventors" paid with my tax
money should "own" these inventions. Neither should the government.
The people own these inventions.
There is nothing in the Constitution about establishment of the NIH,
so the Founding Fathers could not have envisioned the power government
plays in providing cutting edge research and the amount of our GDP
going into research today. Give back to us what we have already paid
for and make this Open for others to use, commercialze, develop and
improve for the benefit of mankind.
O Jan 2, 5:38 pm, "bioju...@gmail.com" <bioju...@gmail.com> wrote:
> Thanks for the Safari tour. Interesting ideas.
> Do you believe that the patent system should be abolished?
> Interesting to note that the patent system is established directly
> under Article 1, Section 8 of the Constitution giving "authors and
> inventors the exclusive right to their respective writings and
> discoveries." Thomas Jefferson was one of the leaders of the patent
> office when it was first established, but I was surprised to learn
> that he had misgivings about the system.http://www.earlyamerica.com/review/winter2000/jefferson.html
> Most of the great technologies developed in the United States have
> been associated with patents - including Morse's telegraph - who tried
> to patent every mode of transmitting an EM signal over distance
> (seehttp://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I
> supposed that would have covered the Internet, had it been granted.
> But, you can see, that patent "abuse" is not something hat has
> recently been "invented" but has been around for as long as there have
> been patents in the US. Bell's telephone, Edison's electric light,
> and many other pioneering inventions have been patented.
> Is open source based on altruistism or mistrust.
> You quoted Drew Endy as saying "I don't trust you not to make any
> mistakes the next time you
> program a piece of DNA. You shouldn't trust me."
> If it's in part motivated by altruism - then why shouldn't the patent
> community embrace the same standard. It doesn't have to be all or
> nothing. But, rather patent wisely, without over-reaching, share the
> royalties, and let academic non-profit researchers use it for true
> academic purposes. This idea is not new. I believe that Stanford now
> includes a clause in their licenses which reserves rights in the
> patented technology for academic purposes.
> I wonder, though, if some of the allegations about the adverse effects
> of patents are not over-stated. It's very easy to hypothesize that
> stacking patent rights will escalate the cost of doing research and
> making new discoveries - but where's the evidence? As I recall, there
> are not many real examples, just a lot of talk. This is one of the
> reason why I established the Mercantile Gene (http://mercantile- > gene.wikidot.com/)
> One way in which the courts are policing patents is by re-evaluating
> the standards under which inventions can be patented. There are two
> recent Federal Circuit cases and a Supreme court case (KSR) that have
> raised the patentability bar and limited the type of subject matter
> that can be patented. In In re Bilski, the Federal Circuit put a
> brake on so-called business method patents.
> From Patently-O (http://www.patentlyo.com/patent/2008/10/in-re- > bilski.html)
> "The Federal Circuit has affirmed the PTO's Board of Patent Appeals
> (BPAI) finding that Bilski's claimed invention (a method of hedging
> risks in commodities trading) does not satisfy the patentable subject
> matter requirements of 35 U.S.C. § 101. In doing so, the nine-member
> majority opinion (penned by Chief Judge Michel) spelled out the
> "machine-or-transformation" test as the sole test of subject matter
> eligibility for a claimed process."
> On Dec 29 2008, 9:06 pm, "Bryan Bishop" <kanz...@gmail.com> wrote:
> > Hi all,
> > I don't think we've ever gone explicitly over the idea of the
> > debian/ubuntu social contracts, and how those concepts might be useful
> > in pursuing our shared interests as diybio grows. From what I saw at
> > BioBarCamp 2008, where many of us found each other in person, there's
> > a lot of positive effort and energy being channeled in these
> > directions, so the very least I can do is document a little bit of it
> > from all over the web. This is a draft at best, so go easy on me :-).
> > This email is more like a safari tour through some relevant portions
> > of the internet that are of interest to diybio and maybe developing
> > 'contracts', so if somebody else wants to write something more
> > coherent, go ahead- this is more like bibliography material, but also
> > interesting for those who don't know about these developments. With
> > some annotation and running commentary :-). I hope others comment on
> > some of these excerpts.
> > ((At the bottom and very end is the debian and ubuntu social contracts
> > or codes of conduct for an example, but it's best taken in context
> > with everything else in this email)). (((This is also re: IP law and
> > some other recent topics on the list.)))
> >http://p2pfoundation.net/Open_Source_Biotechnologyhttp://rsss.anu.edu...)
> > """
> > "OpenSource licensing is a style of intellectual property management
> > that has evolved in the past half-decade out of the Free Software
> > movement, initiated in the early 1980s in response to restrictive
> > copyright licensing practices adopted by commercial software
> > developers. TheOpenSource approach seeks to preserve ongoing
> > community access to proprietary software tools without precluding or
> > discouraging commercial involvement in their development.
> > "OpenSource Biotechnology" refers to the possibility of extending the
> > principles of commerce-friendly, commons-based peer production
> > exemplified byOpenSource software development to the development of
> > research tools in biomedical and agricultural biotechnology."
> > (http://rsss.anu.edu.au/~janeth/)
> > """
> > Janet Hope:
> > "Since the 1980's, the life sciences have undergone a process of rapid
> > commercialization. The legal mechanism for this process of
> > commercialization has been the expansion of intellectual property (IP)
> > protection to inventions that were previously regarded as
> > unpatentable. The result has been a literally exponential increase in
> > applications for biotechnology patents.
> > These patents not only protect inventions that are valuable as end
> > products; they also protect early stage inventions and research tools.
> > Advances in biotechnology require the use of many of the latter, for
> > which researchers must obtain licenses from patent owners. A good
> > example is "golden rice", which utilized more than 70 different
> > patented procedures and processes. To get permission to use all of
> > these tools, scientists enter into multiple negotiations for each
> > piece of IP. These mounting transaction costs can retard, and in some
> > cases completely undermine, their scientific projects. Even if they
> > are not prevented from pursuing research itself, institutions may find
> > that the rights of other IP holders prevent them from commercializing
> > the fruits of their labor.
> > In biomedicine, there are considerable social costs associated with
> > working within this expensive proprietary system. These stem from the
> > fact that such costs are beyond the resources of the smallest
> > participants, or would-be participants, in the industry. Market forces
> > will naturally tend to direct efforts by big private sector players to
> > where there is the most substantial return on investment. This means
> > research goals are inevitably being narrowed to those that will be
> > most profitable, though not necessarily most useful. Thus, it is often
> > not commercially worthwhile for the biomedical industry to devote
> > significant resources to addressing medical or social needs, such as
> > drugs for very common diseases like tuberculosis or malaria.
> > Similarly, in agriculture, breeding strategies will be oriented
> > towards major crops in developed country markets, not towards finding
> > genetic traits with characteristics that are useful to poor farmers.
> > The last few years have also seen a series of mergers and acquisitions
> > that have dramatically consolidated the industry, with a huge portion
> > of fundamental research tools ending up in the hands of a tiny number
> > of big multinationals. This level of industry concentration has
> > inevitably led to the overpricing of technologies and the exclusion of
> > innovative start-ups and public sector institutions. This, in turn,
> > means that smaller firms can't get a foot in the door.
> > This situation has been described as a "tragedy of the anticommons."
> > In contrast to the tragedy of the commons, when a public resource is
> > overused because there is no one owner to regulate it, a tragedy of
> > the anticommons occurs when a resource is underused because it has
> > been divided up by a number of owners who
For what it's worth, for the last 8 years I've been on a mailing list which has been frenetically debating this issue with regards music and film...
... and it has gotten precisely nowhere. The same arguments have revolved etc... shifted slightly, but not much.
You can't control digital replication. You especially can't control it using law - which is basically trying to legislate against an environmental condition, and you especially can't control it using American law in a world thoroughly offended by the tone-deaf arrogance of the last 8 years.
People (and by that I mean corporations) will try of course, and trying will do more damage than not - just as they have done with music/film.
Personally I think bio patents should be treated with the same contempt that software patents are. Unenforceable, immoral, and utterly detrimental to progress.
It's attempting to create a fake scarcity in an arena that is inherently abundant.
> Thanks for the write up. You are correct: tossing the patent system > out in entirety probably wouldn't be a good idea.
> Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed > into law in only 1980, it gives it gave US universities, small > businesses and non-profits intellectual property control of their > inventions and other intellectual property that resulted from > government funded research. This is taking its toll in terms of human > suffering and stifling scientific research and translational > development.
Besides, if the risk of a tragedy of the anticommons is overstated,
how do you explain the Golden Rice case, biojuris? Intellectual
property needs to be reshaped and inventions should be open to
modification and use instead of do nothing in boxes in universities.
On Fri, Jan 2, 2009 at 8:17 PM, Nick Taylor <nick1...@googlemail.com> wrote:
> For what it's worth, for the last 8 years I've been on a mailing list which
> has been frenetically debating this issue with regards music and film...
> ... and it has gotten precisely nowhere. The same arguments have revolved
> etc... shifted slightly, but not much.
> You can't control digital replication. You especially can't control it using
> law - which is basically trying to legislate against an environmental
> condition, and you especially can't control it using American law in a world
> thoroughly offended by the tone-deaf arrogance of the last 8 years.
> People (and by that I mean corporations) will try of course, and trying will
> do more damage than not - just as they have done with music/film.
> Personally I think bio patents should be treated with the same contempt that
> software patents are. Unenforceable, immoral, and utterly detrimental to
> progress.
> It's attempting to create a fake scarcity in an arena that is inherently
> abundant.
> Scrap em.
> So um... there's my 2c.
>> Thanks for the write up. You are correct: tossing the patent system
>> out in entirety probably wouldn't be a good idea.
>> Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
>> into law in only 1980, it gives it gave US universities, small
>> businesses and non-profits intellectual property control of their
>> inventions and other intellectual property that resulted from
>> government funded research. This is taking its toll in terms of human
>> suffering and stifling scientific research and translational
>> development.
Jim H:
You raise interesting points about the Bayh-Dole Act.
Why should tax funded research be transformed into private property?
I'd like to see an economic analysis of this, which I'm sure has been
done.
Look at the Stanford example. Some of the basic gene cloning
technologies were invented and patented at Stanford - creating a
stream of revenue for Stanford to .... well, what did they do with the
royalties collected from the cloning vector patents? I know they
spent money on getting more patents, but what else??
You say: "Give back to us what we have already paid for and make this
Open for others to use, commercialze, develop and improve for the
benefit of mankind."
As you well know, the argument for patents is that they provide the
incentive to "commercialize" and "develop" by providing limited
periods of exclusivity to the patent owner. The benefits to humankind
accrue as the result of the commercialization and development.
Without the patent incentive, would companies have been willing to pay
HGS, Incyte, etc., big dollars to peek inside their databases? The
dollars paid to HGS are pumped into the human economy because:
The dollar is like a blood cell flowing through the human economy ...
tax dollars into companies ... company dollars into research, into
salaries, into bonuses and stock options ... salary and bonus dollars
into
consumer goods, like cars, computers ... consumer spending dollars
into ... China .... China dollars into US bonds .... US bond dollars
bailing out companies ....
You're right: the founding fathers did not envision a federal
government amassing so much power. That's the reason why the Bill of
Rights was not included in the original constitution. Many believed
it was unneccessary because the feds were not intended to wield so
much power over people's lives. That was supposed to be reserved for
state governments.
On Jan 2, 7:56 pm, Jim H <gah...@gmail.com> wrote:
> Thanks for the write up. You are correct: tossing the patent system
> out in entirety probably wouldn't be a good idea.
> Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
> into law in only 1980, it gives it gave US universities, small
> businesses and non-profits intellectual property control of their
> inventions and other intellectual property that resulted from
> government funded research. This is taking its toll in terms of human
> suffering and stifling scientific research and translational
> development.
> I believe the intent of the Constitutional protection is to limit the
> ability of government to "steal" from inventors. Since taxpayers
> provide the NIH budget, I do not believe "inventors" paid with my tax
> money should "own" these inventions. Neither should the government.
> The people own these inventions.
> There is nothing in the Constitution about establishment of the NIH,
> so the Founding Fathers could not have envisioned the power government
> plays in providing cutting edge research and the amount of our GDP
> going into research today. Give back to us what we have already paid
> for and make this Open for others to use, commercialze, develop and
> improve for the benefit of mankind.
> O Jan 2, 5:38 pm, "bioju...@gmail.com" <bioju...@gmail.com> wrote:
> > Thanks for the Safari tour. Interesting ideas.
> > Do you believe that the patent system should be abolished?
> > Interesting to note that the patent system is established directly
> > under Article 1, Section 8 of the Constitution giving "authors and
> > inventors the exclusive right to their respective writings and
> > discoveries." Thomas Jefferson was one of the leaders of the patent
> > office when it was first established, but I was surprised to learn
> > that he had misgivings about the system.http://www.earlyamerica.com/review/winter2000/jefferson.html
> > Most of the great technologies developed in the United States have
> > been associated with patents - including Morse's telegraph - who tried
> > to patent every mode of transmitting an EM signal over distance
> > (seehttp://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I
> > supposed that would have covered the Internet, had it been granted.
> > But, you can see, that patent "abuse" is not something hat has
> > recently been "invented" but has been around for as long as there have
> > been patents in the US. Bell's telephone, Edison's electric light,
> > and many other pioneering inventions have been patented.
> > Is open source based on altruistism or mistrust.
> > You quoted Drew Endy as saying "I don't trust you not to make any
> > mistakes the next time you
> > program a piece of DNA. You shouldn't trust me."
> > If it's in part motivated by altruism - then why shouldn't the patent
> > community embrace the same standard. It doesn't have to be all or
> > nothing. But, rather patent wisely, without over-reaching, share the
> > royalties, and let academic non-profit researchers use it for true
> > academic purposes. This idea is not new. I believe that Stanford now
> > includes a clause in their licenses which reserves rights in the
> > patented technology for academic purposes.
> > I wonder, though, if some of the allegations about the adverse effects
> > of patents are not over-stated. It's very easy to hypothesize that
> > stacking patent rights will escalate the cost of doing research and
> > making new discoveries - but where's the evidence? As I recall, there
> > are not many real examples, just a lot of talk. This is one of the
> > reason why I established the Mercantile Gene (http://mercantile- > > gene.wikidot.com/)
> > One way in which the courts are policing patents is by re-evaluating
> > the standards under which inventions can be patented. There are two
> > recent Federal Circuit cases and a Supreme court case (KSR) that have
> > raised the patentability bar and limited the type of subject matter
> > that can be patented. In In re Bilski, the Federal Circuit put a
> > brake on so-called business method patents.
> > From Patently-O (http://www.patentlyo.com/patent/2008/10/in-re- > > bilski.html)
> > "The Federal Circuit has affirmed the PTO's Board of Patent Appeals
> > (BPAI) finding that Bilski's claimed invention (a method of hedging
> > risks in commodities trading) does not satisfy the patentable subject
> > matter requirements of 35 U.S.C. § 101. In doing so, the nine-member
> > majority opinion (penned by Chief Judge Michel) spelled out the
> > "machine-or-transformation" test as the sole test of subject matter
> > eligibility for a claimed process."
> > On Dec 29 2008, 9:06 pm, "Bryan Bishop" <kanz...@gmail.com> wrote:
> > > Hi all,
> > > I don't think we've ever gone explicitly over the idea of the
> > > debian/ubuntu social contracts, and how those concepts might be useful
> > > in pursuing our shared interests as diybio grows. From what I saw at
> > > BioBarCamp 2008, where many of us found each other in person, there's
> > > a lot of positive effort and energy being channeled in these
> > > directions, so the very least I can do is document a little bit of it
> > > from all over the web. This is a draft at best, so go easy on me :-).
> > > This email is more like a safari tour through some relevant portions
> > > of the internet that are of interest to diybio and maybe developing
> > > 'contracts', so if somebody else wants to write something more
> > > coherent, go ahead- this is more like bibliography material, but also
> > > interesting for those who don't know about these developments. With
> > > some annotation and running commentary :-). I hope others comment on
> > > some of these excerpts.
> > > ((At the bottom and very end is the debian and ubuntu social contracts
> > > or codes of conduct for an example, but it's best taken in context
> > > with everything else in this email)). (((This is also re: IP law and
> > > some other recent topics on the list.)))
> > >http://p2pfoundation.net/Open_Source_Biotechnologyhttp://rsss.anu.edu...)
> > > """
> > > "OpenSource licensing is a style of intellectual property management
> > > that has evolved in the past half-decade out of the Free Software
> > > movement, initiated in the early 1980s in response to restrictive
> > > copyright licensing practices adopted by commercial software
> > > developers. TheOpenSource approach seeks to preserve ongoing
> > > community access to proprietary software tools without precluding or
> > > discouraging commercial involvement in their development.
> > > "OpenSource Biotechnology" refers to the possibility of extending the
> > > principles of commerce-friendly, commons-based peer production
> > > exemplified byOpenSource software development to the development of
> > > research tools in biomedical and agricultural biotechnology."
> > > (http://rsss.anu.edu.au/~janeth/)
> > > """
> > > Janet Hope:
> > > "Since the 1980's, the life sciences have undergone a process of rapid
> > > commercialization. The legal mechanism for this process of
> > > commercialization has been the expansion of intellectual property (IP)
> > > protection to inventions that were previously regarded as
> > > unpatentable. The result has been a literally exponential increase in
> > > applications for biotechnology patents.
> > > These patents not only protect inventions that are valuable as end
> > > products; they also protect early stage inventions and research tools.
> > > Advances in biotechnology require the use of many of the latter, for
> > > which researchers must obtain licenses from patent owners. A good
> > > example is "golden rice", which utilized more than 70 different
> > > patented procedures and processes. To get permission to use all of
> > > these tools, scientists
What about the Golden rice case?
According to a recent Science report, Golden rice is still just a
promise because "Well organized opposition and a thicket of
regulations on transgenic crops have prevented the plant from
appearing on Asian farms ..."
Also, in that same article, it reports that important contributions
were made by Syngenta when it got involved in Golden rice, replacing
one of the pathway genes with another gene that permitted the GM rice
to produce 23 times more beta carotene in its seeds, than the
originally developed strain.
"Dubock [at Syngenta] helped work out a deal in which Syngenta could
develop golden rice commercially, but farmers in developing countries
who make less than $10,000 a year could get it for free."
See:
Tough Lessons From Golden Rice
Enserink
Science 25 April 2008: 468-471
DOI: 10.1126/science.320.5875.468
Another point: the way the electronic industry has addressed stacking
patents is by patent pools. A pool of patents necessary to utilize a
technology are pooled - and licensed as a pool in one-shot ...
reducing transaction costs and making it easier to play in the game.
See http://en.wikipedia.org/wiki/Patent_pool
<noalaignoran...@gmail.com> wrote:
> Besides, if the risk of a tragedy of the anticommons is overstated,
> how do you explain the Golden Rice case, biojuris? Intellectual
> property needs to be reshaped and inventions should be open to
> modification and use instead of do nothing in boxes in universities.
> On Fri, Jan 2, 2009 at 8:17 PM, Nick Taylor <nick1...@googlemail.com> wrote:
> > For what it's worth, for the last 8 years I've been on a mailing list which
> > has been frenetically debating this issue with regards music and film...
> > ... and it has gotten precisely nowhere. The same arguments have revolved
> > etc... shifted slightly, but not much.
> > You can't control digital replication. You especially can't control it using
> > law - which is basically trying to legislate against an environmental
> > condition, and you especially can't control it using American law in a world
> > thoroughly offended by the tone-deaf arrogance of the last 8 years.
> > People (and by that I mean corporations) will try of course, and trying will
> > do more damage than not - just as they have done with music/film.
> > Personally I think bio patents should be treated with the same contempt that
> > software patents are. Unenforceable, immoral, and utterly detrimental to
> > progress.
> > It's attempting to create a fake scarcity in an arena that is inherently
> > abundant.
> > Scrap em.
> > So um... there's my 2c.
> >> Thanks for the write up. You are correct: tossing the patent system
> >> out in entirety probably wouldn't be a good idea.
> >> Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
> >> into law in only 1980, it gives it gave US universities, small
> >> businesses and non-profits intellectual property control of their
> >> inventions and other intellectual property that resulted from
> >> government funded research. This is taking its toll in terms of human
> >> suffering and stifling scientific research and translational
> >> development.- Hide quoted text -
I didn't quite finish it and never tracked down links to all the
papers as some are not easy to find and I'd be violating copyright
(which I am happy to do but just took to long to find "pirated"
versions and upload).
Bryan, I have gotten quite behind during the holiday period but I will
catch up and send you my list of people/organizaitons relevant to Open
Science. We should compile a master list and get some type of
database. An open science mailing list was launched in November but
it doesn't capture the info the way I'd like to see it--eg a
compilation with everybody tagged by interest and capabilities (syn
bio/diy bio/open data/stem cells/patent law, and every combination
thereof). Right now people are on many mailing lists and FriendFeed;
I'll do my best to scrape this. Also happy birthday tomorrow.
Bayh-Dole is truly an insidious piece of legislation and a form of
high-way robbery. Last year I attended an interesting seminar at
Berkley with CIRM and the Harvard Stem Cell Institute. The meeting
was convened to consider the proposal below--to create an
institutional clearinghouse/patent pool among the major players in
stem cell research. Skim the paper if you want--perhaps 15 minutes.
Basically, this group would use an attenuated form of Open Source
licensing among members of the group. They are copying PIPRA, a non-
profit IP clearinghouse which was set up in 2002 to facilitate IP
sharing between the major land grant universities facing problems in
bioagriculture.
To really make things move, we'd need the consortium to bundle the IP
and license it conveniently and cheaply to entrepreneurs. It wasn't
clear that CIRM and Harvard were going to act quickly to enact such a
plan (typical).
Nick, I largely share your sentiments, but we can't complacently
assume that it is possible to ignore these patents in the way that we
can willfully infringe copyright. This is precisely my complaint
against Free Culture/Creative Commons--this battle seems essentially
won at this point--the technology of file sharing is not going away
and it is a matter of time before the rest of the system finally
adjusts to reality. On the other hand, the science/patent issues are
a matter of life and death, literally, and yet we have no popular
movement demanding that citizens/consumers receive the benefits they
have already paid for.
Every time that Thailand or Brazil threatens to issue a compulsory
license or actually does so--the PHRMA lobby successfully paints this
as "stealing" their patent; this is manifestly false, as a patent is a
right granted by a government at its discretion. When a company fails
to practice the invention in a way that benefits the public (in these
cases refusing to price HIV drugs affordably) the government has every
right, under international trade law, to take action to see that the
invention is used.
The problem today is that until the technological balance of power
shifts, corporations and other entities indeed can control and stifle
scientific knowledge/knowhow, and technology. A big part of DIY bio
is to accelerate the capability of individuals and small groups to do
more for themselves. Open Source legal tools can also be a part of
supporting this--especially in pre-empting existing powers from
establishing a chokehold. The problem is that it is costly to obtain
a patent and who is going to pay for this purely as a defensive tool?
Yet defensive publishing is not enough on its own--stuff gets through
all the time despite "prior art" PIPRA and the Stem Cell consortium
mentioned above already have resources and are using their IP as a
bargaining chip in a global game.
If we had a group of pro bono attorneys and a community to create and
defend essential "Free Biotechnologies" (Free not as in price but in
the ability to use them) things could start to change. The BIOS
initiative sort of tried this with backing from Rockefeller
Foundation. I spent 10 months there and witnessed problems
firsthand. Still, this sort of approach could be viable, given a
critical mass of participants and the right technology platforms.
Jim, the purpose of the Bayh-Dole Act was to reverse the situation
common at the time; namely, that federally-funded inventions made at
universities were not being patented and the vast majority,
particularly in the biomedical areas, were therefore not being
developed and brought to market. Essentially, in biotech what is not
patented is dedicated to the public. That does not work for getting
new advances the significant capital invenstments needed to get them
through clinical trials and otehrwise to market. For research tools,
there is great debate. Some companies, for example Affymetrix, are
founded on a base of hundreds of research tool patents, in that case
related to Genechips and their manufacture. Those patents, and the
high fees to license them when licenses are even available, have
blocked many other companies from offering products, such as medical
diagnostics, that utilize that technology. The shareholders of
Affymetrix have seen the value of their company skyrocket. It is
possible to putchase some Genechip technology for reseearch use from
licensed third party providers, with the license cost built into the
cost of the product. However, the use of these tools is definitely
stifled by the Affymetrix death-grip on the patents that cover the
basic technology, some of which based on inventions made at federally-
funded universities (pretty much all are) and thus covered under Bayh-
Dole.
.
On Jan 2, 7:56 pm, Jim H <gah...@gmail.com> wrote:
> Thanks for the write up. You are correct: tossing the patent system
> out in entirety probably wouldn't be a good idea.
> Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
> into law in only 1980, it gives it gave US universities, small
> businesses and non-profits intellectual property control of their
> inventions and other intellectual property that resulted from
> government funded research. This is taking its toll in terms of human
> suffering and stifling scientific research and translational
> development.
> I believe the intent of the Constitutional protection is to limit the
> ability of government to "steal" from inventors. Since taxpayers
> provide the NIH budget, I do not believe "inventors" paid with my tax
> money should "own" these inventions. Neither should the government.
> The people own these inventions.
> There is nothing in the Constitution about establishment of the NIH,
> so the Founding Fathers could not have envisioned the power government
> plays in providing cutting edge research and the amount of our GDP
> going into research today. Give back to us what we have already paid
> for and make this Open for others to use, commercialze, develop and
> improve for the benefit of mankind.
> O Jan 2, 5:38 pm, "bioju...@gmail.com" <bioju...@gmail.com> wrote:
> > Thanks for the Safari tour. Interesting ideas.
> > Do you believe that the patent system should be abolished?
> > Interesting to note that the patent system is established directly
> > under Article 1, Section 8 of the Constitution giving "authors and
> > inventors the exclusive right to their respective writings and
> > discoveries." Thomas Jefferson was one of the leaders of the patent
> > office when it was first established, but I was surprised to learn
> > that he had misgivings about the system.http://www.earlyamerica.com/review/winter2000/jefferson.html
> > Most of the great technologies developed in the United States have
> > been associated with patents - including Morse's telegraph - who tried
> > to patent every mode of transmitting an EM signal over distance
> > (seehttp://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I
> > supposed that would have covered the Internet, had it been granted.
> > But, you can see, that patent "abuse" is not something hat has
> > recently been "invented" but has been around for as long as there have
> > been patents in the US. Bell's telephone, Edison's electric light,
> > and many other pioneering inventions have been patented.
> > Is open source based on altruistism or mistrust.
> > You quoted Drew Endy as saying "I don't trust you not to make any
> > mistakes the next time you
> > program a piece of DNA. You shouldn't trust me."
> > If it's in part motivated by altruism - then why shouldn't the patent
> > community embrace the same standard. It doesn't have to be all or
> > nothing. But, rather patent wisely, without over-reaching, share the
> > royalties, and let academic non-profit researchers use it for true
> > academic purposes. This idea is not new. I believe that Stanford now
> > includes a clause in their licenses which reserves rights in the
> > patented technology for academic purposes.
> > I wonder, though, if some of the allegations about the adverse effects
> > of patents are not over-stated. It's very easy to hypothesize that
> > stacking patent rights will escalate the cost of doing research and
> > making new discoveries - but where's the evidence? As I recall, there
> > are not many real examples, just a lot of talk. This is one of the
> > reason why I established the Mercantile Gene (http://mercantile- > > gene.wikidot.com/)
> > One way in which the courts are policing patents is by re-evaluating
> > the standards under which inventions can be patented. There are two
> > recent Federal Circuit cases and a Supreme court case (KSR) that have
> > raised the patentability bar and limited the type of subject matter
> > that can be patented. In In re Bilski, the Federal Circuit put a
> > brake on so-called business method patents.
> > From Patently-O (http://www.patentlyo.com/patent/2008/10/in-re- > > bilski.html)
> > "The Federal Circuit has affirmed the PTO's Board of Patent Appeals
> > (BPAI) finding that Bilski's claimed invention (a method of hedging
> > risks in commodities trading) does not satisfy the patentable subject
> > matter requirements of 35 U.S.C. § 101. In doing so, the nine-member
> > majority opinion (penned by Chief Judge Michel) spelled out the
> > "machine-or-transformation" test as the sole test of subject matter
> > eligibility for a claimed process."
> > On Dec 29 2008, 9:06 pm, "Bryan Bishop" <kanz...@gmail.com> wrote:
> > > Hi all,
> > > I don't think we've ever gone explicitly over the idea of the
> > > debian/ubuntu social contracts, and how those concepts might be useful
> > > in pursuing our shared interests as diybio grows. From what I saw at
> > > BioBarCamp 2008, where many of us found each other in person, there's
> > > a lot of positive effort and energy being channeled in these
> > > directions, so the very least I can do is document a little bit of it
> > > from all over the web. This is a draft at best, so go easy on me :-).
> > > This email is more like a safari tour through some relevant portions
> > > of the internet that are of interest to diybio and maybe developing
> > > 'contracts', so if somebody else wants to write something more
> > > coherent, go ahead- this is more like bibliography material, but also
> > > interesting for those who don't know about these developments. With
> > > some annotation and running commentary :-). I hope others comment on
> > > some of these excerpts.
> > > ((At the bottom and very end is the debian and ubuntu social contracts
> > > or codes of conduct for an example, but it's best taken in context
> > > with everything else in this email)). (((This is also re: IP law and
> > > some other recent topics on the list.)))
> > >http://p2pfoundation.net/Open_Source_Biotechnologyhttp://rsss.anu.edu...)
> > > """
> > > "OpenSource licensing is a style of intellectual property management
> > > that has evolved in the past half-decade out of the Free Software
> > > movement, initiated in the early 1980s in response to restrictive
> > > copyright licensing practices adopted by commercial software
> > > developers. TheOpenSource approach seeks to preserve ongoing
> > > community access to proprietary software tools without precluding or
> > > discouraging commercial involvement in their development.
> > > "OpenSource Biotechnology" refers to the possibility of extending the
> > > principles of commerce-friendly, commons-based peer production
> > > exemplified byOpenSource software development to the development of
> > > research tools in biomedical and agricultural biotechnology."
> > > (http://rsss.anu.edu.au/~janeth/)
> > > """
> > > Janet Hope:
> > > "Since the 1980's, the life sciences have undergone a process of rapid
> > > commercialization. The legal mechanism for this process of
> > > commercialization has been the expansion of intellectual property (IP)
> > > protection to inventions that were previously regarded as
> > > unpatentable. The result has been a literally exponential increase in
> > > applications for biotechnology patents.
> > > These patents not only protect inventions that are valuable as end
> > > products; they also protect early stage inventions and research tools.
> > > Advances in biotechnology require the use of many of the latter, for
> > > which researchers must obtain licenses from patent owners. A good
> > > example is "golden rice", which utilized more than 70 different
> > > patented procedures and processes. To get permission to use all of
> > > these tools, scientists enter into multiple negotiations for each
> > > piece of IP. These mounting transaction costs can retard, and in some
> > > cases completely undermine, their scientific projects. Even if they
> > > are not prevented from pursuing research itself, institutions may find
> > > that the rights of other IP holders prevent them from commercializing
> > > the fruits of their labor.
> > > In biomedicine, there are considerable social costs associated with
On Fri, Jan 2, 2009 at 4:38 PM, bioju...@gmail.com wrote: > Do you believe that the patent system should be abolished?
Maybe. I do think that "something has to give" way to something new and better. I also think it is important to revise what it means to 'patent' some new technology. At this point, there is so much confusion between individual players in the system that we have to have middlemen and things are confusing.
> Interesting to note that the patent system is established directly > under Article 1, Section 8 of the Constitution giving "authors and > inventors the exclusive right to their respective writings and > discoveries." Thomas Jefferson was one of the leaders of the patent
Isn't that ambiguous though? "Exclusive right" hardly begins to address the multititude of possibilities that we know now are possible- for instance, the ability to copy information greatly changes the nature of "Exclusive Right" since you don't really 'steal' the information in the first place.
> Most of the great technologies developed in the United States have > been associated with patents - including Morse's telegraph - who tried > to patent every mode of transmitting an EM signal over distance > (see http://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I > supposed that would have covered the Internet, had it been granted.
That's maybe only because that's what people have been told to do, not knowing that other options exist.
> But, you can see, that patent "abuse" is not something hat has > recently been "invented" but has been around for as long as there have > been patents in the US. Bell's telephone, Edison's electric light, > and many other pioneering inventions have been patented.
I am not even sure if the natural state of affairs of patents is sufficient here. I do agree that there is abuse at the moment, yes.
> Is open source based on altruistism or mistrust. > You quoted Drew Endy as saying "I don't trust you not to make any > mistakes the next time you > program a piece of DNA. You shouldn't trust me."
The mistrust-arguments are kind of like icing on the argument cake. Open source originated as a way to point out that free software can still be made to work within businesses (okay, and it happens to work for nonprofit people, amateurs, etc. as well). There's a certain sense of "mistrust" of authorities, but this is more of the healthy kind. It's the same feeling you get when you realize that all of your proprietary software, your life-force of your company or even your home computer network, is completely unalterable by you :-(.
> If it's in part motivated by altruism - then why shouldn't the patent > community embrace the same standard. It doesn't have to be all or
No idea, it's very hard to convince so many people of doing anything in particular, and that's why I don't presently have recommendations about reforming the entire patent system or whatever.
> nothing. But, rather patent wisely, without over-reaching, share the > royalties, and let academic non-profit researchers use it for true > academic purposes. This idea is not new. I believe that Stanford now
Yes, but even within those restrictions I wonder if the system can still be gamed and used detrimentally.
> I wonder, though, if some of the allegations about the adverse effects > of patents are not over-stated. It's very easy to hypothesize that > stacking patent rights will escalate the cost of doing research and > making new discoveries - but where's the evidence? As I recall, there > are not many real examples, just a lot of talk. This is one of the > reason why I established the Mercantile Gene (http://mercantile- > gene.wikidot.com/)
Most of the evidence is locked away up in the offices of corporate lawyers. I've heard many examples on this mailing list and as well from engineers; the semiconductor industry is bloodthirsty for patents, any new circuit you design- you betcha that it's going to be patented.
> Most of the evidence [of stacking patents and adverse effects of patents, etc] is locked away up in the offices of corporate
> lawyers.
I agree. Patent licenses terms are closely guarded. However, there
is a way to determine whether a patent is licensed. Under the US
patent statute, a product must be "marked" with the patent number for
certain patent infringement remedies to take effect.
This means when biotech patents are sold, like enzymes, drugs, seeds,
etc., - prudent companies mark the product - such as the package
insert, operating manuals, etc. - with the patent number. Mining
package inserts is a way to learn more about the gene/biotech
licensome.
On Jan 3, 12:18 pm, "Bryan Bishop" <kanz...@gmail.com> wrote:
> On Fri, Jan 2, 2009 at 4:38 PM, bioju...@gmail.com wrote:
> > Do you believe that the patent system should be abolished?
> Maybe. I do think that "something has to give" way to something new
> and better. I also think it is important to revise what it means to
> 'patent' some new technology. At this point, there is so much
> confusion between individual players in the system that we have to
> have middlemen and things are confusing.
> > Interesting to note that the patent system is established directly
> > under Article 1, Section 8 of the Constitution giving "authors and
> > inventors the exclusive right to their respective writings and
> > discoveries." Thomas Jefferson was one of the leaders of the patent
> Isn't that ambiguous though? "Exclusive right" hardly begins to
> address the multititude of possibilities that we know now are
> possible- for instance, the ability to copy information greatly
> changes the nature of "Exclusive Right" since you don't really 'steal'
> the information in the first place.
> > Most of the great technologies developed in the United States have
> > been associated with patents - including Morse's telegraph - who tried
> > to patent every mode of transmitting an EM signal over distance
> > (seehttp://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I
> > supposed that would have covered the Internet, had it been granted.
> That's maybe only because that's what people have been told to do, not
> knowing that other options exist.
> > But, you can see, that patent "abuse" is not something hat has
> > recently been "invented" but has been around for as long as there have
> > been patents in the US. Bell's telephone, Edison's electric light,
> > and many other pioneering inventions have been patented.
> I am not even sure if the natural state of affairs of patents is
> sufficient here. I do agree that there is abuse at the moment, yes.
> > Is open source based on altruistism or mistrust.
> > You quoted Drew Endy as saying "I don't trust you not to make any
> > mistakes the next time you
> > program a piece of DNA. You shouldn't trust me."
> The mistrust-arguments are kind of like icing on the argument cake.
> Open source originated as a way to point out that free software can
> still be made to work within businesses (okay, and it happens to work
> for nonprofit people, amateurs, etc. as well). There's a certain sense
> of "mistrust" of authorities, but this is more of the healthy kind.
> It's the same feeling you get when you realize that all of your
> proprietary software, your life-force of your company or even your
> home computer network, is completely unalterable by you :-(.
> > If it's in part motivated by altruism - then why shouldn't the patent
> > community embrace the same standard. It doesn't have to be all or
> No idea, it's very hard to convince so many people of doing anything
> in particular, and that's why I don't presently have recommendations
> about reforming the entire patent system or whatever.
> > nothing. But, rather patent wisely, without over-reaching, share the
> > royalties, and let academic non-profit researchers use it for true
> > academic purposes. This idea is not new. I believe that Stanford now
> Yes, but even within those restrictions I wonder if the system can
> still be gamed and used detrimentally.
> > I wonder, though, if some of the allegations about the adverse effects
> > of patents are not over-stated. It's very easy to hypothesize that
> > stacking patent rights will escalate the cost of doing research and
> > making new discoveries - but where's the evidence? As I recall, there
> > are not many real examples, just a lot of talk. This is one of the
> > reason why I established the Mercantile Gene (http://mercantile- > > gene.wikidot.com/)
> Most of the evidence is locked away up in the offices of corporate
> lawyers. I've heard many examples on this mailing list and as well
> from engineers; the semiconductor industry is bloodthirsty for
> patents, any new circuit you design- you betcha that it's going to be
> patented.
With respect to the statement "Give back to us what we have already
paid for and make this Open for others to use, commercialze, develop
and improve for the
benefit of mankind." you have given a nice reply explaining how the
system benefits. But I feel this explanation misses an interesting
point. What happens during this process of commercial and development
is that wealth gets concentrated in selected sectors of the commuity,
while what is actually intended is a more spread-out flow of benefit
to the participants in the system. For example, we belong to a
organization, that has all kinds of staff - housekeeping, support,
innovative, creative etc. If one of the staff members comes up with an
invention that gets commercialized then should the benefit not be
shared in proportionate amount to other staff also? My own impression
is affirmative in that they should also benefit proportionately
because any invention these days do not happen in isolation. It
happens as part of system. So, the improvement of mankind would mean
we should be conscious and work out a system that would benefit one
and all connected with that invention and commerce and not just a
selected set of people. Mankind or better Humankind in my
understanding is accrual of benefit in a more spread out fashion.
With Kind Regards
Ramachandran
Scientist IGIB
On Jan 3, 10:02 pm, "bioju...@gmail.com" <bioju...@gmail.com> wrote:
> Jim H:
> You raise interesting points about the Bayh-Dole Act.
> Why should tax funded research be transformed into private property?
> I'd like to see an economic analysis of this, which I'm sure has been
> done.
> Look at the Stanford example. Some of the basic gene cloning
> technologies were invented and patented at Stanford - creating a
> stream of revenue for Stanford to .... well, what did they do with the
> royalties collected from the cloning vector patents? I know they
> spent money on getting more patents, but what else??
> You say: "Give back to us what we have already paid for and make this
> Open for others to use, commercialze, develop and improve for the
> benefit of mankind."
> As you well know, the argument for patents is that they provide the
> incentive to "commercialize" and "develop" by providing limited
> periods of exclusivity to the patent owner. The benefits to humankind
> accrue as the result of the commercialization and development.
> Without the patent incentive, would companies have been willing to pay
> HGS, Incyte, etc., big dollars to peek inside their databases? The
> dollars paid to HGS are pumped into the human economy because:
> The dollar is like a blood cell flowing through the human economy ...
> tax dollars into companies ... company dollars into research, into
> salaries, into bonuses and stock options ... salary and bonus dollars
> into
> consumer goods, like cars, computers ... consumer spending dollars
> into ... China .... China dollars into US bonds .... US bond dollars
> bailing out companies ....
> You're right: the founding fathers did not envision a federal
> government amassing so much power. That's the reason why the Bill of
> Rights was not included in the original constitution. Many believed
> it was unneccessary because the feds were not intended to wield so
> much power over people's lives. That was supposed to be reserved for
> state governments.
> On Jan 2, 7:56 pm, Jim H <gah...@gmail.com> wrote:
> > Bioj,
> > Thanks for the write up. You are correct: tossing the patent system
> > out in entirety probably wouldn't be a good idea.
> > Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
> > into law in only 1980, it gives it gave US universities, small
> > businesses and non-profits intellectual property control of their
> > inventions and other intellectual property that resulted from
> > government funded research. This is taking its toll in terms of human
> > suffering and stifling scientific research and translational
> > development.
> > I believe the intent of the Constitutional protection is to limit the
> > ability of government to "steal" from inventors. Since taxpayers
> > provide the NIH budget, I do not believe "inventors" paid with my tax
> > money should "own" these inventions. Neither should the government.
> > The people own these inventions.
> > There is nothing in the Constitution about establishment of the NIH,
> > so the Founding Fathers could not have envisioned the power government
> > plays in providing cutting edge research and the amount of our GDP
> > going into research today. Give back to us what we have already paid
> > for and make this Open for others to use, commercialze, develop and
> > improve for the benefit of mankind.
> > O Jan 2, 5:38 pm, "bioju...@gmail.com" <bioju...@gmail.com> wrote:
> > > Thanks for the Safari tour. Interesting ideas.
> > > Do you believe that the patent system should be abolished?
> > > Interesting to note that the patent system is established directly
> > > under Article 1, Section 8 of the Constitution giving "authors and
> > > inventors the exclusive right to their respective writings and
> > > discoveries." Thomas Jefferson was one of the leaders of the patent
> > > office when it was first established, but I was surprised to learn
> > > that he had misgivings about the system.http://www.earlyamerica.com/review/winter2000/jefferson.html
> > > Most of the great technologies developed in the United States have
> > > been associated with patents - including Morse's telegraph - who tried
> > > to patent every mode of transmitting an EM signal over distance
> > > (seehttp://www6.miami.edu/ethics/jpsl/archives/all/gene.pdf). I
> > > supposed that would have covered the Internet, had it been granted.
> > > But, you can see, that patent "abuse" is not something hat has
> > > recently been "invented" but has been around for as long as there have
> > > been patents in the US. Bell's telephone, Edison's electric light,
> > > and many other pioneering inventions have been patented.
> > > Is open source based on altruistism or mistrust.
> > > You quoted Drew Endy as saying "I don't trust you not to make any
> > > mistakes the next time you
> > > program a piece of DNA. You shouldn't trust me."
> > > If it's in part motivated by altruism - then why shouldn't the patent
> > > community embrace the same standard. It doesn't have to be all or
> > > nothing. But, rather patent wisely, without over-reaching, share the
> > > royalties, and let academic non-profit researchers use it for true
> > > academic purposes. This idea is not new. I believe that Stanford now
> > > includes a clause in their licenses which reserves rights in the
> > > patented technology for academic purposes.
> > > I wonder, though, if some of the allegations about the adverse effects
> > > of patents are not over-stated. It's very easy to hypothesize that
> > > stacking patent rights will escalate the cost of doing research and
> > > making new discoveries - but where's the evidence? As I recall, there
> > > are not many real examples, just a lot of talk. This is one of the
> > > reason why I established the Mercantile Gene (http://mercantile- > > > gene.wikidot.com/)
> > > One way in which the courts are policing patents is by re-evaluating
> > > the standards under which inventions can be patented. There are two
> > > recent Federal Circuit cases and a Supreme court case (KSR) that have
> > > raised the patentability bar and limited the type of subject matter
> > > that can be patented. In In re Bilski, the Federal Circuit put a
> > > brake on so-called business method patents.
> > > From Patently-O (http://www.patentlyo.com/patent/2008/10/in-re- > > > bilski.html)
> > > "The Federal Circuit has affirmed the PTO's Board of Patent Appeals
> > > (BPAI) finding that Bilski's claimed invention (a method of hedging
> > > risks in commodities trading) does not satisfy the patentable subject
> > > matter requirements of 35 U.S.C. § 101. In doing so, the nine-member
> > > majority opinion (penned by Chief Judge Michel) spelled out the
> > > "machine-or-transformation" test as the sole test of subject matter
> > > eligibility for a claimed process."
> > > On Dec 29 2008, 9:06 pm, "Bryan Bishop" <kanz...@gmail.com> wrote:
> > > > Hi all,
> > > > I don't think we've ever gone explicitly over the idea of the
> > > > debian/ubuntu social contracts, and how those concepts might be useful
> > > > in pursuing our shared interests as diybio grows. From what I saw at
> > > > BioBarCamp 2008, where many of us found each other in person, there's
> > > > a lot of positive effort and energy being channeled in these
> > > > directions, so the very least I can do is document a little bit of it
> > > > from all over the web. This is a draft at best, so go easy on me :-).
> > > > This email is more like a safari tour through some relevant portions
> > > > of the internet that are of interest to diybio and maybe developing
> > > > 'contracts', so if somebody else wants to write something more
> > > > coherent, go ahead- this is more like bibliography material, but also
> > > > interesting for those who don't know about these developments. With
> > > > some annotation and running commentary :-). I hope others comment on
> > > > some of these excerpts.
> > > > ((At the bottom and very end is the debian and ubuntu social contracts
> > > > or codes of conduct for an example, but it's best taken in context
> > > > with everything else in this email)). (((This is also re: IP law and
> > > > some other recent topics on the list.)))
Well, I appreciate your careful observation and I fully respect. But I
am not agreeing with your conclusion. You seem to suggest to abondon
the patent concept altogether because they are not enforceable. This
is like saying "if at all you place a fence, then do it well so no one
will be able to penetrate". We may like to be reminded that creativity
in negative way is done with as much force as creativity in positive
way and therefore there will be no end to chasing on enforcement as
there will be no end on breakers. In my view it is OK to have these
instruments, but taking your suggestion in a bit toned down way, we
may not place too much emphasis on these instruments. I heard that
some companies do this duplication within their own house under a
different name and release this duplicate in the market after some
time gap from the original release. This means that they go along with
the tide and try get benefit from that also. Similar and other re-use
strategies may eventually discourage duplication malpractise because
their value will go down. Careful pricing and accessibility in the
market can also help. Or one can say, "you pay price X then you get
warranty for 2 years but if you pay price Y then you get warranty for
1 year, where X>Y" and so on. The consumers will still buy from
original company because they are giving certified warranty and they
will buy that product, which can be affordable by them.
With Kind Regards
Ramachandran
Scientist, IGIB
On Jan 3, 7:17 am, "Nick Taylor" <nick1...@googlemail.com> wrote:
> For what it's worth, for the last 8 years I've been on a mailing list which
> has been frenetically debating this issue with regards music and film...
> ... and it has gotten precisely nowhere. The same arguments have revolved
> etc... shifted slightly, but not much.
> You can't control digital replication. You especially can't control it using
> law - which is basically trying to legislate against an environmental
> condition, and you especially can't control it using American law in a world
> thoroughly offended by the tone-deaf arrogance of the last 8 years.
> People (and by that I mean corporations) will try of course, and trying will
> do more damage than not - just as they have done with music/film.
> Personally I think bio patents should be treated with the same contempt that
> software patents are. Unenforceable, immoral, and utterly detrimental to
> progress.
> It's attempting to create a fake scarcity in an arena that is inherently
> abundant.
> Scrap em.
> So um... there's my 2c.
> > Thanks for the write up. You are correct: tossing the patent system
> > out in entirety probably wouldn't be a good idea.
> > Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
> > into law in only 1980, it gives it gave US universities, small
> > businesses and non-profits intellectual property control of their
> > inventions and other intellectual property that resulted from
> > government funded research. This is taking its toll in terms of human
> > suffering and stifling scientific research and translational
> > development.- Hide quoted text -
Hello, happy New Year from Sunny New Zealand, where it is (needless to say), raining cats and dogs.
Ok.. I also said that bio-patents were immoral and utterly detrimental to progress, and that they are attempting to create a fake scarcity in an arena that is inherently abundant.
If you're not familiar with the arguments against software patents, cast your eye over these:
These are just the first few that turned up on google etc.
Bio-patents like software-patents are little more than a gold-rush to "own" what is essentially the alphabet of a new language. It is in my most humble of opinions, absolutely disgusting.
Any argument that attempts to frame this around the notion that the benefactors/participants are "consumers" is fundamentally flawed. We aren't consumers, we're people, and at this point about a billion of us are living out of cardboard boxes.
We already have wealth concentrated in so few hands that it is literally killing us. We absolutely do not need an artificially created situation where ownership of knowledge is corporatised as well.
You've heard perhaps,that one of the first laws created during the American occupation of Iraq was one that forbade Iraqi farmers from saving seed from their own crops to replant next season (thousands of years of human tradition going out the window with a single flourish of someone else's pen)?
> Well, I appreciate your careful observation and I fully respect. But I > am not agreeing with your conclusion. You seem to suggest to abondon > the patent concept altogether because they are not enforceable. This > is like saying "if at all you place a fence, then do it well so no one > will be able to penetrate". We may like to be reminded that creativity > in negative way is done with as much force as creativity in positive > way and therefore there will be no end to chasing on enforcement as > there will be no end on breakers. In my view it is OK to have these > instruments, but taking your suggestion in a bit toned down way, we > may not place too much emphasis on these instruments. I heard that > some companies do this duplication within their own house under a > different name and release this duplicate in the market after some > time gap from the original release. This means that they go along with > the tide and try get benefit from that also. Similar and other re-use > strategies may eventually discourage duplication malpractise because > their value will go down. Careful pricing and accessibility in the > market can also help. Or one can say, "you pay price X then you get > warranty for 2 years but if you pay price Y then you get warranty for > 1 year, where X>Y" and so on. The consumers will still buy from > original company because they are giving certified warranty and they > will buy that product, which can be affordable by them.
> With Kind Regards
> Ramachandran > Scientist, IGIB
> On Jan 3, 7:17 am, "Nick Taylor" <nick1...@googlemail.com> wrote: >> For what it's worth, for the last 8 years I've been on a mailing list which >> has been frenetically debating this issue with regards music and film...
>> ... and it has gotten precisely nowhere. The same arguments have revolved >> etc... shifted slightly, but not much.
>> You can't control digital replication. You especially can't control it using >> law - which is basically trying to legislate against an environmental >> condition, and you especially can't control it using American law in a world >> thoroughly offended by the tone-deaf arrogance of the last 8 years.
>> People (and by that I mean corporations) will try of course, and trying will >> do more damage than not - just as they have done with music/film.
>> Personally I think bio patents should be treated with the same contempt that >> software patents are. Unenforceable, immoral, and utterly detrimental to >> progress.
>> It's attempting to create a fake scarcity in an arena that is inherently >> abundant.
Nick I concur with your moral arguments about the effects of bio and
software patents but you don't have to even use this strategy to show
the failure of patents in this area--from an economic standpoint--the
system fails in the terms that its own proponents use to defend it--
the economic effects are intolerable and unnecessary. This is why I
invoked a consumer/patient perspective--Ralph Nader has famously
championed the rights of the consumer for decades in other
industries. One of his disciples, economist Jamie Love, has spent 20
years working on these issues in BIO/PHARMA and has tried to get a
medical innovation prize fund created to replace exclusive phrma
licensing as the standard mechanism for financing drug R&D.
On Bayh-Dole, the best evidence now indicates this act has been a
total joke. After close to 30 years, only a few universities have
ever broken even, much less earned income for their licensing. It has
been a typical lottery distribution with tons of universities spawning
money losing offices of tech transfer, while Stanford, MIT, U CAL
bring in 60% of the revenues. The most successful example of
university licensing, the Cohen-Boyer patents on recombinant DNA,
which launched the biotech industry, are the COMPLETE OPPOSITE of the
logic underlying Bayh-Dole. As Lita Nelson, former head of MIT tech
transfer explains--
“This case has three key elements. First, the technology was
inexpensive and easy to use; from a purely technical standpoint, there
were only minimal impediments to widespread dissemination. Second,
there were no alternative technologies. Third, the technology was
critical and of broad importance to research in molecular biology.
The technology was developed in universities through publicly funded
research. The strategy used to protect the value of the intellectual
property was to make licenses inexpensive and attach minimal riders.
The tremendous volume of sales made the patents very lucrative.”
“The Cohen-Boyer patent is considered by many to be the classic model
of technology transfer envisaged by supporters of the Bayh-Dole Act,
which was intended to stimulate transfer of university-developed
technology into the commercial sector. Ironically, it presents a
different model of technology than that presumed by advocates of the
Bayh-Dole act (for discussion, see chapter 3). Lita Nelsen, director
of the Technology Licensing Office at the Massachusetts Institute of
Technology (MIT), noted that the premise of the Bayh-Dole Act is that
exclusivity is used to induce development and that universities should
protect their intellectual property because without that protection,
if everybody owns it, nobody invests in it. ''The most-successful
patent in university licensing, in the entire history of university
licensing, is the Cohen-Boyer pattern which is just the reverse.” It
is a nonexclusive license. It provides no incentive, just a small tax
in the form of royalties on the exploitation of the technology.
“The decision to negotiate nonexclusive, rather than exclusive,
licenses was critical to the industry. If the technology had been
licensed exclusively to one company and the entire recombinant DNA
industry had been controlled by one company, the industry might never
have developed. Alternatively, major pharmaceutical firms might have
been motivated to commit their resources to challenging the validity
of the patent.”
"For example, the patented technologies underlying recombinant DNA
were important innovations for biotechnology and generated large
licensing revenues for
Stanford, University of California, Columbia University, and City of
Hope Medical Center,
but patenting was not necessary for commercialization of these
research technologies.23 The
technologies were rapidly adopted by industry even though each was
licensed nonexclusively
to multiple companies, meaning that the exclusivity incentive and
accompanying
monopoly pricing were not necessary to encourage development of these
research tools.24
These rare successes in licensing brought in hundreds of millions for
the institutions who
executed them, yet because the licenses were not necessary to promote
commercialization,
they constituted an unnecessary expense for downstream researchers. As
the manager of
recombinant DNA licensing at Stanford put it, ““[W]hether we licensed
it or not, commercialization of recombinant DNA was going forward…a
nonexclusive licensing program, at its heart, is really a tax…But it's
always nice to say ‘technology transfer.’” 25
Such a “tax” acts as a deterrent to innovation. Aggressive profit-
seeking by public
institutions can exacerbate the problem, as has been the case with the
excessive licensing
fees that University of Wisconsin charges for patents on embryonic
stem cell lines. These
basic research platforms and others like them would be widely used in
the absence of cost prohibitive
intellectual property protection
WORSE still, other countries have copied this flawed model. Look what
India is doing, following our folly. http://www.uaem.org/ "Despite appeals from Universities Allied for Essential Medicines
(UAEM), and other public interest groups, the Indian government has
refused to modify a secretly drafted legislation that would govern the
patenting of the results of publicly funded-research including
publicly-funded medical research. As it currently stands, the Bill
will harm access to medicines and impede the ability of scientists to
conduct innovative research due to a lack of measures to protect the
public interest.
The Indian government made only cosmetic changes to the legislation:
the Bill still removes publicly-funded innovations from the public
sphere and permits monopoly pricing on publicly-funded products
without any effective safeguards to protect the public interest. The
legislation is modeled on the US Bayh-Dole Act which has led to a
proliferation of patenting activity and the creation of patent
thickets. These create barriers to new innovative research and fail to
protect the interests of American taxpayers who end up subsidizing the
discovery of medicines they are often then unable to afford."
Let's clear up something about the Constitution--it also counted
slaves as 3/5ths of a person. Our entire country was founded on a
bogus system of property that ultimately helped lead to its near
implosion from 1860--1865. Not only was this morally disgusting, but
as a property system it FAILED. Freely chosen labor, which we still
don't have today under our essentially wage-slave economic system, but
which we approximate better than in the 19th century, is more
productive and requires less monitoring costs than slavery. Given,
time, the patent system will arguably go the same route. Congress
"may" allow an exclusive right--the patent office is a bureaucratic
creature, dependent on congressional budgeting for its power. All the
incentives for the office are perversely aligned, as it is one of the
only ones that "earns" money for the government, and it does so by
having its examiners process as many patents as they can, inevitably
leading to approval of poor quality applications.
Since the 1980's, exponential increasing of patenting in software and
biotech has occurred because of a few cases of JUDGE MADE LAW that
expanded patenting into new subject matter; nothing that the founders
anticipated or congress deliberated. If we were to abolish our patent
system (a political impossibility until the avian flu pandemic
probably decimates world population) it would not require anything so
drastic as a constitutional amendment. I hear this all the time from
people who don't seem to understand how the govt works--the oft
invoked clause of the constitution ALLOWS but does not REQUIRE govt to
grant exclusive rights. Certainly nothing in the constitution
anticipated the dysfunctional system of "intellectual property" we
have today, epitomized by Bayh-Dole and the Sonny-Bono copyright
extension act (perpetual copyright).
Everyone on this list who wants to really understand the history and
horrific economic harm of patents (and copyright) must read the
groundbreaking book by economists Boldrine and Levine, Against
Intellectual Monopoly. http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm
In fact, I would urge everyone to read this book at least 3 times
because you will have spent so many years hearing myths about "IP" it
can take that much to overcome the brainwashing and start to think
clearly.
Thanks for the link to Boldrin and Levine. Look like very interesting
reading.
What is the economic model for Open Source in the software industry?
Excuse my ignorance, but having been nothing but an IP attorney for
the past 20 years, I could use some re-education! In biology terms:
if licensing fees serve as a food/energy source, then what replaces it
in the food chain when all becomes Open? Where do the animals get
their food?
On Jan 4, 11:59 am, Joseph Jackson <joseph.jack...@gmail.com> wrote:
> Nick I concur with your moral arguments about the effects of bio and
> software patents but you don't have to even use this strategy to show
> the failure of patents in this area--from an economic standpoint--the
> system fails in the terms that its own proponents use to defend it--
> the economic effects are intolerable and unnecessary. This is why I
> invoked a consumer/patient perspective--Ralph Nader has famously
> championed the rights of the consumer for decades in other
> industries. One of his disciples, economist Jamie Love, has spent 20
> years working on these issues in BIO/PHARMA and has tried to get a
> medical innovation prize fund created to replace exclusive phrma
> licensing as the standard mechanism for financing drug R&D.
> On Bayh-Dole, the best evidence now indicates this act has been a
> total joke. After close to 30 years, only a few universities have
> ever broken even, much less earned income for their licensing. It has
> been a typical lottery distribution with tons of universities spawning
> money losing offices of tech transfer, while Stanford, MIT, U CAL
> bring in 60% of the revenues. The most successful example of
> university licensing, the Cohen-Boyer patents on recombinant DNA,
> which launched the biotech industry, are the COMPLETE OPPOSITE of the
> logic underlying Bayh-Dole. As Lita Nelson, former head of MIT tech
> transfer explains--
> “This case has three key elements. First, the technology was
> inexpensive and easy to use; from a purely technical standpoint, there
> were only minimal impediments to widespread dissemination. Second,
> there were no alternative technologies. Third, the technology was
> critical and of broad importance to research in molecular biology.
> The technology was developed in universities through publicly funded
> research. The strategy used to protect the value of the intellectual
> property was to make licenses inexpensive and attach minimal riders.
> The tremendous volume of sales made the patents very lucrative.”
> “The Cohen-Boyer patent is considered by many to be the classic model
> of technology transfer envisaged by supporters of the Bayh-Dole Act,
> which was intended to stimulate transfer of university-developed
> technology into the commercial sector. Ironically, it presents a
> different model of technology than that presumed by advocates of the
> Bayh-Dole act (for discussion, see chapter 3). Lita Nelsen, director
> of the Technology Licensing Office at the Massachusetts Institute of
> Technology (MIT), noted that the premise of the Bayh-Dole Act is that
> exclusivity is used to induce development and that universities should
> protect their intellectual property because without that protection,
> if everybody owns it, nobody invests in it. ''The most-successful
> patent in university licensing, in the entire history of university
> licensing, is the Cohen-Boyer pattern which is just the reverse.” It
> is a nonexclusive license. It provides no incentive, just a small tax
> in the form of royalties on the exploitation of the technology.
> “The decision to negotiate nonexclusive, rather than exclusive,
> licenses was critical to the industry. If the technology had been
> licensed exclusively to one company and the entire recombinant DNA
> industry had been controlled by one company, the industry might never
> have developed. Alternatively, major pharmaceutical firms might have
> been motivated to commit their resources to challenging the validity
> of the patent.”
> "For example, the patented technologies underlying recombinant DNA
> were important innovations for biotechnology and generated large
> licensing revenues for
> Stanford, University of California, Columbia University, and City of
> Hope Medical Center,
> but patenting was not necessary for commercialization of these
> research technologies.23 The
> technologies were rapidly adopted by industry even though each was
> licensed nonexclusively
> to multiple companies, meaning that the exclusivity incentive and
> accompanying
> monopoly pricing were not necessary to encourage development of these
> research tools.24
> These rare successes in licensing brought in hundreds of millions for
> the institutions who
> executed them, yet because the licenses were not necessary to promote
> commercialization,
> they constituted an unnecessary expense for downstream researchers. As
> the manager of
> recombinant DNA licensing at Stanford put it, ““[W]hether we licensed
> it or not, commercialization of recombinant DNA was going forward…a
> nonexclusive licensing program, at its heart, is really a tax…But it's
> always nice to say ‘technology transfer.’” 25
> Such a “tax” acts as a deterrent to innovation. Aggressive profit-
> seeking by public
> institutions can exacerbate the problem, as has been the case with the
> excessive licensing
> fees that University of Wisconsin charges for patents on embryonic
> stem cell lines. These
> basic research platforms and others like them would be widely used in
> the absence of cost prohibitive
> intellectual property protection
> WORSE still, other countries have copied this flawed model. Look what
> India is doing, following our folly. http://www.uaem.org/ > "Despite appeals from Universities Allied for Essential Medicines
> (UAEM), and other public interest groups, the Indian government has
> refused to modify a secretly drafted legislation that would govern the
> patenting of the results of publicly funded-research including
> publicly-funded medical research. As it currently stands, the Bill
> will harm access to medicines and impede the ability of scientists to
> conduct innovative research due to a lack of measures to protect the
> public interest.
> The Indian government made only cosmetic changes to the legislation:
> the Bill still removes publicly-funded innovations from the public
> sphere and permits monopoly pricing on publicly-funded products
> without any effective safeguards to protect the public interest. The
> legislation is modeled on the US Bayh-Dole Act which has led to a
> proliferation of patenting activity and the creation of patent
> thickets. These create barriers to new innovative research and fail to
> protect the interests of American taxpayers who end up subsidizing the
> discovery of medicines they are often then unable to afford."
> Let's clear up something about the Constitution--it also counted
> slaves as 3/5ths of a person. Our entire country was founded on a
> bogus system of property that ultimately helped lead to its near
> implosion from 1860--1865. Not only was this morally disgusting, but
> as a property system it FAILED. Freely chosen labor, which we still
> don't have today under our essentially wage-slave economic system, but
> which we approximate better than in the 19th century, is more
> productive and requires less monitoring costs than slavery. Given,
> time, the patent system will arguably go the same route. Congress
> "may" allow an exclusive right--the patent office is a bureaucratic
> creature, dependent on congressional budgeting for its power. All the
> incentives for the office are perversely aligned, as it is one of the
> only ones that "earns" money for the government, and it does so by
> having its examiners process as many patents as they can, inevitably
> leading to approval of poor quality applications.
> Since the 1980's, exponential increasing of patenting in software and
> biotech has occurred because of a few cases of JUDGE MADE LAW that
> expanded patenting into new subject matter; nothing that the founders
> anticipated or congress deliberated. If we were to abolish our patent
> system (a political impossibility until the avian flu pandemic
> probably decimates world population) it would not require anything so
> drastic as a constitutional amendment. I hear this all the time from
> people who don't seem to understand how the govt works--the oft
> invoked clause of the constitution ALLOWS but does not REQUIRE govt to
> grant exclusive rights. Certainly nothing in the constitution
> anticipated the dysfunctional system of "intellectual property" we
> have today, epitomized by Bayh-Dole and the Sonny-Bono copyright
> extension act (perpetual copyright).
> Everyone on this list who wants to really understand the history and
> horrific economic harm of patents (and copyright) must read the
> groundbreaking book by economists Boldrine and Levine, Against
> Intellectual Monopoly. http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm
> In fact, I would urge everyone to read this book at least 3 times
> because you will have spent so many years hearing myths about "IP" it
> can take that much to overcome the brainwashing and start to think
> clearly.
On Sun, Jan 4, 2009 at 8:05 PM, bioju...@gmail.com wrote: > What is the economic model for Open Source in the software industry? > Excuse my ignorance, but having been nothing but an IP attorney for > the past 20 years, I could use some re-education! In biology terms: > if licensing fees serve as a food/energy source, then what replaces it > in the food chain when all becomes Open? Where do the animals get > their food?
The most popular economic model in the software industry is the 'service model'. Inhouse programmers contribute to some open source project, and then wealth is built via providing services like configuration, customization, technical support, contracted work (i.e., "hey, this isn't a part of the system yet, can you guys go do this?), etc.
1 Open Source Business Models: why they make sense 1.1 Source 1.2 Problems with the older model of IP rents 1.3 Advantages of the new model of engaging outsiders 2 Characteristics of the new Open Source Business Models 2.1 Maximising use value 2.2 Building a user community 2.3 Creating Common Platforms 3 Typology of Business Models 3.1 1. support seller 3.2 2. Loss leader/market positioner 3.3 3. Widget frosting 3.4 4. Accessorising 3.5 5. Service enabler 3.6 6. sell it, free it 3.7 7. Brand licensing 3.8 8. Research tool franchising 4 Typology of Licensing Strategies for Businesses 4.1 The Optimization Strategy 4.2 The Dual License Strategy 4.2.1 Free Core, Added-Value on Top 4.3 The Consulting Strategy 4.4 The Subscription Strategy 4.5 The Patronage Strategy 4.6 The Hosted Strategy 4.7 The Embedded Strategy 5 Competitive Strategies 5.1 Freedom in Pricing 5.2 Support as Marketing 5.3 New Products 5.4 Capacity 5.5 Service 5.6 Signaling 5.7 Conclusion 6 Sustainability Criteria 7 More Information
The fact that yes, ecozealots have prevented the releasing of Golden
Right does not change the other fact that a lot of IP have made more
difficult its development.
According to Wikipedia:
"Beyer and Potrykus made use of 70 Intellectual Property rights
belonging to 32 different companies and universities in the making of
golden rice. They needed to establish free licences for all of these
so that Syngenta and humanitarian partners in the project could use
golden rice in breeding programs and to develop new crops.[14]"
Do we really need this kind of red tape in projects that could improve
billions of lives? It would be awful if I had to apply for a license
every time I solve a differential equation for my thesis or use a
"For" loop, and it would be time consuming and tiresome. Somebody
would benefit from it, but we all lose.
And I really think that your analogy of food=licenses is deeply wrong.
Food=ingenuity. To me, considering the fact that Pharma companies
spend more on marketing than on R&D, the fact that they tell us that
if we do not pay what they ask (like with HIV drugs as Ritonavir, when
Abbot raised its cost _SEVEN TIMES_ in 2003) is nothing but a modern
mob threat. We protect you as long as you pay to us.
Yes, R&D is really expensive. Yes, people must be allowed to profit
from their work. But, how much is "fair"? Are Pharma Companies a new
Humpty Dumpty and therefore fair is what they say is fair? How many
more have to die? How much more money must be spent by free market
loving America that is not allowed to choose cheaper equivalent drugs
from abroad?
On Sat, Jan 3, 2009 at 11:06 AM, bioju...@gmail.com <bioju...@gmail.com> wrote:
> What about the Golden rice case?
> According to a recent Science report, Golden rice is still just a
> promise because "Well organized opposition and a thicket of
> regulations on transgenic crops have prevented the plant from
> appearing on Asian farms ..."
> Also, in that same article, it reports that important contributions
> were made by Syngenta when it got involved in Golden rice, replacing
> one of the pathway genes with another gene that permitted the GM rice
> to produce 23 times more beta carotene in its seeds, than the
> originally developed strain.
> "Dubock [at Syngenta] helped work out a deal in which Syngenta could
> develop golden rice commercially, but farmers in developing countries
> who make less than $10,000 a year could get it for free."
> See:
> Tough Lessons From Golden Rice
> Enserink
> Science 25 April 2008: 468-471
> DOI: 10.1126/science.320.5875.468
> Another point: the way the electronic industry has addressed stacking
> patents is by patent pools. A pool of patents necessary to utilize a
> technology are pooled - and licensed as a pool in one-shot ...
> reducing transaction costs and making it easier to play in the game.
> See http://en.wikipedia.org/wiki/Patent_pool
> On Jan 2, 10:04 pm, "Guido D. Núñez-Mujica"
> <noalaignoran...@gmail.com> wrote:
>> Besides, if the risk of a tragedy of the anticommons is overstated,
>> how do you explain the Golden Rice case, biojuris? Intellectual
>> property needs to be reshaped and inventions should be open to
>> modification and use instead of do nothing in boxes in universities.
>> On Fri, Jan 2, 2009 at 8:17 PM, Nick Taylor <nick1...@googlemail.com> wrote:
>> > For what it's worth, for the last 8 years I've been on a mailing list which
>> > has been frenetically debating this issue with regards music and film...
>> > ... and it has gotten precisely nowhere. The same arguments have revolved
>> > etc... shifted slightly, but not much.
>> > You can't control digital replication. You especially can't control it using
>> > law - which is basically trying to legislate against an environmental
>> > condition, and you especially can't control it using American law in a world
>> > thoroughly offended by the tone-deaf arrogance of the last 8 years.
>> > People (and by that I mean corporations) will try of course, and trying will
>> > do more damage than not - just as they have done with music/film.
>> > Personally I think bio patents should be treated with the same contempt that
>> > software patents are. Unenforceable, immoral, and utterly detrimental to
>> > progress.
>> > It's attempting to create a fake scarcity in an arena that is inherently
>> > abundant.
>> > Scrap em.
>> > So um... there's my 2c.
>> >> Thanks for the write up. You are correct: tossing the patent system
>> >> out in entirety probably wouldn't be a good idea.
>> >> Particularly relevant to bioscience IP is the Bayh-Dole Act. Passed
>> >> into law in only 1980, it gives it gave US universities, small
>> >> businesses and non-profits intellectual property control of their
>> >> inventions and other intellectual property that resulted from
>> >> government funded research. This is taking its toll in terms of human
>> >> suffering and stifling scientific research and translational
>> >> development.- Hide quoted text -
Biojuris, right now we don't know exactly what the business model will
look like for Open Source Biotech, indeed there will not be any one
model. Andrew Hessel, also on this list, is launching the first ever
Open Source Cancer therapeutic company--more details will emerge when
he gets going.
It is critical to understand that the "biotech industry" did not
really ever come up with a sustainable business model. In 30 years,
approximately 6 companies ever became profitable--with revenues
concentrated among Genentech and Amgen. The other 1400 or so
companies burned cash and if lucky, were bought out by big PHRAMA. We
are approaching an era of radical change in biological technologies--
genomics and synthetic biology, along with stem cells, bring a new
paradigm of personalized cures and regenerative medicine, not
blockbuster "treatments" (drugs that huge numbers of the population
have to take on a chronic, longterm basis).
PHRMA's pipeline has run dry, and everyone realizes we are at the end
of an era. We needs lots of thinking about how to replace the old
innovation system. Prize funds, direct government investment in R&D
(since the taxpayer already funds such a huge amount, this is really
more about the NIH and Universities actually using non-exclusive and
socially responsible licensing), even microfinance for science, are
possible.
New models need to think specifically about the challenges of
different sectors--Vaccines vs Stem Cells vs Gene Therapy. Within
each area, all technologies are not created equal. A "suite" of open
source enabling technologies can accelerate progress. Open Source
immunological adjuvants, for example, would be a great boon to vaccine
design and production world wide; yet today, the strategy is slap as
many patents around them (see avian flu case) as possible--this just
drags the whole field down.
On Mon, Jan 5, 2009 at 9:47 AM, Joseph Jackson wrote: > Biojuris, right now we don't know exactly what the business model will > look like for Open Source Biotech, indeed there will not be any one > model. Andrew Hessel, also on this list, is launching the first ever > Open Source Cancer therapeutic company--more details will emerge when > he gets going.
On Sun, Jan 4, 2009 at 1:49 PM, Nick Taylor <nick1...@googlemail.com> wrote:
> Hello, happy New Year from Sunny New Zealand, where it is (needless to
> say), raining cats and dogs.
> Ok.. I also said that bio-patents were immoral and utterly detrimental to
> progress, and that they are attempting to create a fake scarcity in an arena
> that is inherently abundant.
> If you're not familiar with the arguments against software patents, cast
> your eye over these:
> These are just the first few that turned up on google etc.
> Bio-patents like software-patents are little more than a gold-rush to "own"
> what is essentially the alphabet of a new language. It is in my most humble
> of opinions, absolutely disgusting.
> Any argument that attempts to frame this around the notion that the
> benefactors/participants are "consumers" is fundamentally flawed. We aren't
> consumers, we're people, and at this point about a billion of us are living
> out of cardboard boxes.
> We already have wealth concentrated in so few hands that it is literally
> killing us. We absolutely do not need an artificially created situation
> where ownership of knowledge is corporatised as well.
> You've heard perhaps,that one of the first laws created during the American
> occupation of Iraq was one that forbade Iraqi farmers from saving seed from
> their own crops to replant next season (thousands of years of human
> tradition going out the window with a single flourish of someone else's
> pen)?
> You really want a world where Monsanto owns the food chain?
> A large part of the promise of DIY bio is to break this would-be
> oligarchy.
> All the best
> Nick
> > Hi,
> > Well, I appreciate your careful observation and I fully respect. But I
> > am not agreeing with your conclusion. You seem to suggest to abondon
> > the patent concept altogether because they are not enforceable. This
> > is like saying "if at all you place a fence, then do it well so no one
> > will be able to penetrate". We may like to be reminded that creativity
> > in negative way is done with as much force as creativity in positive
> > way and therefore there will be no end to chasing on enforcement as
> > there will be no end on breakers. In my view it is OK to have these
> > instruments, but taking your suggestion in a bit toned down way, we
> > may not place too much emphasis on these instruments. I heard that
> > some companies do this duplication within their own house under a
> > different name and release this duplicate in the market after some
> > time gap from the original release. This means that they go along with
> > the tide and try get benefit from that also. Similar and other re-use
> > strategies may eventually discourage duplication malpractise because
> > their value will go down. Careful pricing and accessibility in the
> > market can also help. Or one can say, "you pay price X then you get
> > warranty for 2 years but if you pay price Y then you get warranty for
> > 1 year, where X>Y" and so on. The consumers will still buy from
> > original company because they are giving certified warranty and they
> > will buy that product, which can be affordable by them.
> > With Kind Regards
> > Ramachandran
> > Scientist, IGIB
> > On Jan 3, 7:17 am, "Nick Taylor" <nick1...@googlemail.com> wrote:
> >> For what it's worth, for the last 8 years I've been on a mailing list
> which
> >> has been frenetically debating this issue with regards music and film...
> >> ... and it has gotten precisely nowhere. The same arguments have
> revolved
> >> etc... shifted slightly, but not much.
> >> You can't control digital replication. You especially can't control it
> using
> >> law - which is basically trying to legislate against an environmental
> >> condition, and you especially can't control it using American law in a
> world
> >> thoroughly offended by the tone-deaf arrogance of the last 8 years.
> >> People (and by that I mean corporations) will try of course, and trying
> will
> >> do more damage than not - just as they have done with music/film.
> >> Personally I think bio patents should be treated with the same contempt
> that
> >> software patents are. Unenforceable, immoral, and utterly detrimental to
> >> progress.
> >> It's attempting to create a fake scarcity in an arena that is inherently
> >> abundant.
> >> Scrap em.
> >> So um... there's my 2c.
-- Dr. S. Ramachandran
Scientist EI
Institute of Genomics and Integrative Biology, Mall Road, Near Jubilee Hall
Delhi 110 007, India
Tel: 2766-6156
Fax:2766-7471
> Thanks for your detailed reply and suggestions. I agree with you in that
> I don't want Monsanto owning food chain.
> Can you kindly clarify or point me to any writeups on why you consider
> bio-patents are immoral and utterly detrimental to progress.
> Many Thanks
> Ramachandran
> On Sun, Jan 4, 2009 at 1:49 PM, Nick Taylor <nick1...@googlemail.com
> <mailto:nick1...@googlemail.com>> wrote:
> Hello, happy New Year from Sunny New Zealand, where it is (needless
> to say), raining cats and dogs.
> Ok.. I also said that bio-patents were immoral and utterly
> detrimental to progress, and that they are attempting to create a
> fake scarcity in an arena that is inherently abundant.
> If you're not familiar with the arguments against software patents,
> cast your eye over these:
> These are just the first few that turned up on google etc.
> Bio-patents like software-patents are little more than a gold-rush
> to "own" what is essentially the alphabet of a new language. It is
> in my most humble of opinions, absolutely disgusting.
> Any argument that attempts to frame this around the notion that the
> benefactors/participants are "consumers" is fundamentally flawed. We
> aren't consumers, we're people, and at this point about a billion of
> us are living out of cardboard boxes.
> We already have wealth concentrated in so few hands that it is
> literally killing us. We absolutely do not need an artificially
> created situation where ownership of knowledge is corporatised as well.
> You've heard perhaps,that one of the first laws created during the
> American occupation of Iraq was one that forbade Iraqi farmers from
> saving seed from their own crops to replant next season (thousands
> of years of human tradition going out the window with a single
> flourish of someone else's pen)?
> You really want a world where Monsanto owns the food chain?
> A large part of the promise of DIY bio is to break this would-be
> oligarchy.
> All the best
> Nick
> > Hi,
> > Well, I appreciate your careful observation and I fully respect.
> But I
> > am not agreeing with your conclusion. You seem to suggest to abondon
> > the patent concept altogether because they are not enforceable. This
> > is like saying "if at all you place a fence, then do it well so
> no one
> > will be able to penetrate". We may like to be reminded that
> creativity
> > in negative way is done with as much force as creativity in positive
> > way and therefore there will be no end to chasing on enforcement as
> > there will be no end on breakers. In my view it is OK to have these
> > instruments, but taking your suggestion in a bit toned down way, we
> > may not place too much emphasis on these instruments. I heard that
> > some companies do this duplication within their own house under a
> > different name and release this duplicate in the market after some
> > time gap from the original release. This means that they go along
> with
> > the tide and try get benefit from that also. Similar and other re-use
> > strategies may eventually discourage duplication malpractise because
> > their value will go down. Careful pricing and accessibility in the
> > market can also help. Or one can say, "you pay price X then you get
> > warranty for 2 years but if you pay price Y then you get warranty for
> > 1 year, where X>Y" and so on. The consumers will still buy from
> > original company because they are giving certified warranty and they
> > will buy that product, which can be affordable by them.
> > With Kind Regards
> > Ramachandran
> > Scientist, IGIB
> > On Jan 3, 7:17 am, "Nick Taylor" <nick1...@googlemail.com
> <mailto:nick1...@googlemail.com>> wrote:
> >> For what it's worth, for the last 8 years I've been on a mailing
> list which
> >> has been frenetically debating this issue with regards music and
> film...
> >> ... and it has gotten precisely nowhere. The same arguments have
> revolved
> >> etc... shifted slightly, but not much.
> >> You can't control digital replication. You especially can't
> control it using
> >> law - which is basically trying to legislate against an
> environmental
> >> condition, and you especially can't control it using American
> law in a world
> >> thoroughly offended by the tone-deaf arrogance of the last 8 years.
> >> People (and by that I mean corporations) will try of course, and
> trying will
> >> do more damage than not - just as they have done with music/film.
> >> Personally I think bio patents should be treated with the same
> contempt that
> >> software patents are. Unenforceable, immoral, and utterly
> detrimental to
> >> progress.
> >> It's attempting to create a fake scarcity in an arena that is
> inherently
> >> abundant.
> >> Scrap em.
> >> So um... there's my 2c.
> Delhi 110 007, India
> Tel: 2766-6156
> Fax:2766-7471
> No virus found in this incoming message.
> Checked by AVG - http://www.avg.com > Version: 8.0.138 / Virus Database: 270.10.3/1879 - Release Date: 1/6/2009
5:16 PM
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