Protein Paintbox, the BPA-Licensed set, and Patents

[Cathal Garvey]

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Hello DNA2.0,

I, like many in the biotech community, was excited to see that DNA 2.0
had decided to place three fluorescent proteins under the somewhat
permissive "Biobrick Public License" (BPL), which provided an
irrevocable agreement never to assert intellectual property "rights"
over the three sequences in the license document:
https://biobricks.org/bpa/contributions/60/

However, on inspection of that document and the documentation of the
"Protein Paintbox" on DNA 2.0's site:
https://www.dna20.com/products/protein-paintbox
..as well as the attendant "Intellectual Property Statement":
https://www.dna20.com/wp-content/uploads/2013/04/Intellectual_Property_Statement.pdf
..I have some questions which are, to me, crucial to my decision on
whether or not to use and advance the usage of the BPL-licensed set.

I was hoping, then, that you might be able to offer some answers in
relation to these uncertainties, so that I can share these answers
with others in my cohort and community. To that end and to provoke
constructive discussion on the important and contentious matter of
Intellectual Property in biotechnology, I am CCing this mail to some
of these community mailing lists, and may publish it later on a Blog
or a similar medium.

1) Absence of the BPA licensed set in the "Protein Paintbox"
As the three BPA licensed proteins are, at least by name, not included
in the paintbox, they would seem not to inherit any warranties or
commercial guarantees applied to the paintbox; why are they not included?

2) Absence of warranty in the "Intellectual Property Statement"
As the three proteins in the BPA license document do not appear in the
Protein Paintbox documentation, they also do not appear in the
"Intellectual Property Statement", which asserts that DNA 2.0 is not
aware of any Patents covering certain proteins (though seemingly not
all) in the "Paintbox".

3) Ambiguity in the BPA license Text Regarding Third Party Patents
Further, the BPA license only seems to include a section asking about
"Intellectual Property" held by the contributor, in this case DNA 2.0,
but does not make a strong point of demanding disclosure of known
third-party monopolies held over the licensed sequences.

4) Anomalous Patent Number in BPA License Text
Finally, a patent number is included in that BPA license section, but
the number does not turn up any search results; either it is in error,
or it is a pending patent; in that case, was the patent application
made before BPA licensing was decided upon, or is there some other
reason why BPA licensed DNA should be patented?

Given that DNA 2.0 does not appear to sell or distribute the licensed
protein subset, it would appear that there is something amiss with the
three proteins chosen for BPA licensing; is this fear warranted, or
merely a misunderstanding?

Also, considering that the DNA 2.0 definition of "IP-Free" appears to
mean "Indemnification of customers from litigation", but not
"Irrevocable indemnification of any and all users from litigation"
(which would be the traditional interpretation), some additional
questions arise:

The BPA provides irrevocable indemnification for those who are in
strict adherence to the BPA, but would DNA 2.0 consider litigation
against a person who, through negligence OR deliberate action,
violated BPA license terms, such as the term requiring the BPA logo to
be attached to everything associated with the licensed sequences?

Does the BPA licensing of only a small subset of the Paintbox provide
some hints as to the intended treatment of the other Paintbox
proteins, IP-litigation wise?

Apologies for the extensive questioning; I would personally love to
make use of the BPA licensed set of proteins if I felt I were safe in
doing so from litigation from third parties, and that the freedoms I
expect from "Open Source Biotech" are in fact guaranteed. However, due
in part to the existence of patents in the biotechnology sector, and
to ambiguities in the BPA license itself, I feel it is necessary to
clarify prior to committing time and money to such a project.

Yours Sincerely,
Cathal Garvey
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[Sebastian Cocioba]

Thanks for asking that and in such professional tone! I'm curious to
see what they will say.

Sent from my Windows Phone From: Cathal Garvey
Sent: 7/16/2013 12:26 PM
To: in...@dna20.com
Subject: [DIYbio] Protein Paintbox, the BPA-Licensed set, and Patents

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[Nathan McCorkle]

This might be TLDR for the customer service.

Also you define BPL, but then start using the undefined BPA. Did you
mean to do that?

Questions 2 and 3 don't sound like questions when I read/re-read them.
Which sentence needs a question mark?

If you could hone down the actual questions themselves, to one or two
lines per 'question', I could give the company a call on the
phone for you.

[Nathaniel Chen]

I have been reading up on the BPA, and noticed that there are only 7 contributions under it. 

While looking for more information, I found this:

http://openwetware.org/wiki/The_BioBricks_Foundation:Legal

..suggesting to me that there was talk of allowing commercial use of any BioBrick. However this is obviously not a legal document..

Maybe it was part of conversations preceding the BPA? 

[Cathal Garvey (Phone)]

The Biobricks foundation doesn't have any authority over uses of, or ownership of, non-BPA licensed parts. AFAIK the BPA explicitly grants right to commercial use, but only with some daft early-BSD like clauses such as "all packaging must have the Biobrick Foundation logo on it". It wouldn't be even close to "open biotech", by analogy with "open source" if it didn't permit unfettered commercial reuse.

--
Sent from my Android device with K-9 Mail. Please excuse my brevity.

[Nathaniel Chen]

I am interested in using the DNA2.0 BPA-licensed sequences as well. I just called DNA2.0 and this is what I found out:

-The BPA-licensed set is different from and not included in the Protein Paintbox

-They did have some patent on them or a related technology, but put them under the BPA as a donation to the community and have NO interest in litigation

-The BPA-licensed set is NOT covered under their IP-Free policy. BPA only.

-There is nothing wrong with them. She was a little insulted that I asked D;

Hope this helps!

p.s. Since the BPA isn't actually a license, what would be a better way to phrase it...BPA-contracted? BPA-published?