O'Reilly BioHacker Issue 4: Open Source Biotech Consumables
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Aizan Fahri
Nov 29, 2014, 9:07:19 AM11/29/14
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Hi there, Aizan's here from Rochester NY. Couple things I want to say here, and let me hear your thoughts.
1. I've been keeping eyes and ears on few Kickstarter projects like the extremely successful Open QPRC that got 100% funded less than 5 days. Couple more cool projects like Open Trons and MiniPCR, and I like these projects because they are trying to keep the cost to do science as low as possible, which is what exactly we need to move this field forward.
2. Based on the point number 1, and from the article Open Source Biotech Consumables, the only thing we are quite lagging behind is the patent this! culture through bureaucratic processes and mutual trust agreements. Schloendorn proposes in the article by saying that the reagents (proteins, RNA, DNA), some of the important ones, should be open source assets instead of being patented assets. It makes the field of bio and biotechnology more accessible and cheaper, and faster to move forward as in the advancement in the world of technology. For example the widespread adoption of Android mobile operating system is really a huge success, thanks to the fact that Android itself is open source.
3. So the question is, can we really open source the reagents? Or we still need to patent them because "scientists need money, too"?
Thanks!
Cathal (Phone)
Nov 29, 2014, 1:34:26 PM11/29/14
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I think screw patents, always, ever. At *worst* I'd agree to patents with a strict 2-year term, or prpvo-patents that are never fulfilled into "full" patents.
However, there's little (compared to equipment) money or excitement in open source platforms. I know: I tried! I shared my thoughts here: http://www.indiebiotech.com/?p=245
Tldr: Always be open. But don't think enough people will support you just because you're open. There's a great core community (here!) who create and support openness, but outside that core are people who just want features and don't care if it's theirs to hack or not.
However, there's little (compared to equipment) money or excitement in open source platforms. I know: I tried! I shared my thoughts here: http://www.indiebiotech.com/?p=245
Tldr: Always be open. But don't think enough people will support you just because you're open. There's a great core community (here!) who create and support openness, but outside that core are people who just want features and don't care if it's theirs to hack or not.
--
Sent from my Android device with K-9 Mail. Please excuse my brevity.
Sent from my Android device with K-9 Mail. Please excuse my brevity.
Bryan Bishop
Nov 29, 2014, 1:51:12 PM11/29/14
to diybio, Bryan Bishop
On Sat, Nov 29, 2014 at 8:07 AM, Aizan Fahri <vilaf...@gmail.com> wrote:
3. So the question is, can we really open source the reagents? Or we still need to patent them because "scientists need money, too"?
Unfortunately the situation is much more nuanced than that. Believe it or not, open-source is actually the money-making arm of the user-copyright-right-granting-centric free-as-in-libre-free software movement. Well, not really an arm, more like a cluster of ideas that often get mentioned all at the same time. So I would suggest to you that open-source licensing schemes are not opposed to revenue-generating activity, especially because commercial-use is one of the core features of open-source in many of the "industry consensus definitions" of open-source. Admittedly, business strategies that use open-source licensing schemes can quickly become nuanced and non-obvious, which is unfortunate and is what I suspect leads most people to think "open-source means you can't make money". And yet.... many do.
And as for patents..... the way that the intellectual property system is configured in the United States, and normalized throughout the rest of the world through various WIPO-related treaties, is that patent law "trumps" copyright law. Patent law is much stronger and covers real, physical objects whereas copyright often cannot. Open-source licensing schemes are based on copyright law. This has created a great deal of problems for engineers interested in building and releasing open-source hardware, because while they can use copyright licenses to make their hardware open-source, they are still vulnerable to patents and can't guarantee the same sorts of rights that patents can. You can apply open-source copyright licenses to reagent design and specifications, and you can try to attach it to the physical reagents themselves, but honestly you might have better luck using contract law to guarantee user and business rights in some sharable remixable way. Unfortunately this is still subject to patent law, independent of how you make money from open-source reagents.
Now that I have fully complicated the topic for you, I will take my leave :-).
Nathan McCorkle
Nov 29, 2014, 3:24:25 PM11/29/14
to diybio
On Sat, Nov 29, 2014 at 6:07 AM, Aizan Fahri <vilaf...@gmail.com> wrote:
> Hi there, Aizan's here from Rochester NY. Couple things I want to say here,
> and let me hear your thoughts.
>
I see you're at RIT (and studying biotech)! Glad to have another RIT
> Hi there, Aizan's here from Rochester NY. Couple things I want to say here,
> and let me hear your thoughts.
>
alum posting here on DIYbio (the open qPCR guy Josh is also an
Alum!!!).
Patents seem to work better for things that take longer to change, and
with the rapid pace of biotech these days it seems they are not best
suited for the task. If there was more collaboration, more money and
more progress would be being made.
Josh Perfetto
Nov 29, 2014, 10:28:02 PM11/29/14
to DIYBio Mailing List
I'm the guy behind Open qPCR, and while I don't believe all patents are evil, I do believe it's in society's best interests for certain fundamental technologies to be open and available to all. We on this mailing list can't change the patent system, but we can work to open up these key technologies and reagents.
There's a lot of confusion amongst researchers as to what is patented and it takes extra work to release an open project -- first researching and understanding the IP landscape to see what is truly protected, and then design around the remaining true obstacles. We're trying to do this again right now with our Chai Green reagent, an IP-free intercalating dye suitable for Real-Time PCR or basic gel staining.
As Cathal said the number of people that truly appreciate the openness is small compared with the number of people who just want cheap products. If we want open source science to succeed we need to find ways to grow the number of people who specifically support open projects, as well as grow the number of people open sourcing new technologies.
-Josh
On Sat, Nov 29, 2014 at 6:07 AM, Aizan Fahri <vilaf...@gmail.com> wrote:
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John Griessen
Nov 30, 2014, 11:32:29 AM11/30/14
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On 11/29/2014 12:33 PM, Cathal (Phone) wrote:
> However, there's little (compared to equipment) money or excitement
> in open source platforms. I know: I tried!
> However, there's little (compared to equipment) money or excitement
> in open source platforms. I know: I tried!
> There's a great core community
> (here!) who create and support openness, but outside that core are
> people who just want features and don't care if it's theirs to hack or not.
Not caring if it's open is the mainstream of scientists -- they operate on
> (here!) who create and support openness, but outside that core are
> people who just want features and don't care if it's theirs to hack or not.
as high an abstraction level as they can, because that's what their jobs
demand, so yes, "scientists need money, too".
Mainstream in this context is the 99% of them with jobs. The rest of the planet
is the bigger mainstream, for which science is a niche market. So, there
are high prices for equipment and supplies. I'm working on developing
some gear that is up to the minute enough, and convenient enough
to be a tool for maybe a third of those 99% job holding scientists and
still is open source/open-hardware. I'm OK with copycats taking away
the initial idea in about 3 years, since I come up with new all the time
and the 3 year sales flow will pay for development if you're careful.
Patent danger does not go away for 20 years, so I may have to drop some
design chunks and redevelop them to be non-patent-infringing -- or drop that product...
The life cycles of open-hardware products is not well known yet, but there are some
that last a while. They have to be more than a break out board to last.
I'm going to find out if a complex system that can have features added
still sells in version 2, 3, 4 after the initial hard-to-copy-cat phase.
The evil mad science eggbot is selling still, and demonstrates this
kind of product life cycle is possible. The wiki page for using it
has been accessed 208,455 times.
The core to all my open equipment design thinking is to keep the IP
chunks really close to old patent-expired tech and the innovation
is in using chips and combinations, which will trigger less
patent problems than new science. To really open-hardware some
reagents may require using the patent system to own it, then
contractually releasing it as the owner.
Like Bryan said. And like Josh said about designing around patent research.
Josh: Are you giving patent research lessons these days?
Pieter
Nov 30, 2014, 4:03:22 PM11/30/14
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The subject has been on the agenda of a few of the latest biomedia meetings I've been, such as biocommons Helsinki and biofiction in Vienna. Anyone is more than welcome to join the conversation on bioco...@bioartsociety.fi or contribute to the github of http://www.bio-commons.org/
The challenge is huge. WTO, WIPO, Rio de Janeiro, etc etc conventions. Mutual benefit agreements, material transfer agreements, contracts rights. Copyright, patents and other rights. You have to be careful what you wish for when talking about new license or right models. Remember that copyright was invented to protect individual artists from the influence of large reproduction companies to begin with.
CC made it easy to share pictures on the web. I still have no proper way to share strains from our collection under a simple attribution condition except for setting up contracts with every peer, which is practically speaking impossible.
The challenge is huge. WTO, WIPO, Rio de Janeiro, etc etc conventions. Mutual benefit agreements, material transfer agreements, contracts rights. Copyright, patents and other rights. You have to be careful what you wish for when talking about new license or right models. Remember that copyright was invented to protect individual artists from the influence of large reproduction companies to begin with.
CC made it easy to share pictures on the web. I still have no proper way to share strains from our collection under a simple attribution condition except for setting up contracts with every peer, which is practically speaking impossible.
Bryan Bishop
Nov 30, 2014, 4:05:18 PM11/30/14
to diybio, Bryan Bishop
On Sun, Nov 30, 2014 at 3:03 PM, Pieter <pieterva...@gmail.com> wrote:
CC made it easy to share pictures on the web. I still have no proper way to share strains from our collection under a simple attribution condition except for setting up contracts with every peer, which is practically speaking impossible.
What problems are you encountering or what problems would you expect to encounter with the contracting scheme?
Josh Perfetto
Dec 2, 2014, 4:51:43 AM12/2/14
to DIYBio Mailing List
On Sun, Nov 30, 2014 at 8:32 AM, John Griessen <jo...@industromatic.com> wrote:
Josh: Are you giving patent research lessons these days?
Hi John,
I would say two things:
1. Read up as much as you can/attend online classes on patent law in general. Polk Wagner had a great podcast lecture series, and there's tons of great books on Amazon.
2. Find a lawyer who already understand the IP landscape of your chosen application. There is no way you can understand this yourself in a reasonable amount of time (especially if you are innovating on the technology yourself), nor can you pay a lawyer to adequately research it unless you already have a large fortune you want to convert to a small fortune. The main purpose of #1 is so you don't waste #2's time.
-Josh
Patrik D'haeseleer
Dec 3, 2014, 3:42:37 AM12/3/14
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On Tuesday, December 2, 2014 1:51:43 AM UTC-8, Josh W Perfetto wrote:
Find a lawyer who already understand the IP landscape of your chosen application. There is no way you can understand this yourself in a reasonable amount of time (especially if you are innovating on the technology yourself)
I would have to disagree with that to some extent. If you know how to do a decent literature search on a new field, you know how to do a decent patent search. www.google.com/patents is a useful tool - start out with some keyword searches, identify some related patents, check out the other patents listed under References Cited / Referenced By. Repeat. If you know some relevant scientific articles, you may be able to search for the first or last author under inventor name. Google scholar also allows you to search for related articles - including patents!
Reading patents doe stake a bit of practice. The actual Claims section is super important and is typically written in legalese. But there is often a large background section that reads much more like (and is often copied directly from) a scientific paper.
Cathal Garvey
Dec 3, 2014, 4:26:46 AM12/3/14
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Bonus: Google Patents implemented a "find prior art" button some time
ago, which can help you to build a case to undermine stupid patents that
are still valid by pointing at older, expired (or cheaper to license)
patents that cover your use-cases.
On 03/12/14 08:42, Patrik D'haeseleer wrote:
> On Tuesday, December 2, 2014 1:51:43 AM UTC-8, Josh W Perfetto wrote:
>
> Find a lawyer who already understand the IP landscape of your chosen
> application.There is no way you can understand this yourself in a
> <https://groups.google.com/d/msgid/diybio/fb786ee4-5d6f-4836-9d4d-b8ed483fbb54%40googlegroups.com?utm_medium=email&utm_source=footer>.
ago, which can help you to build a case to undermine stupid patents that
are still valid by pointing at older, expired (or cheaper to license)
patents that cover your use-cases.
On 03/12/14 08:42, Patrik D'haeseleer wrote:
> On Tuesday, December 2, 2014 1:51:43 AM UTC-8, Josh W Perfetto wrote:
>
> Find a lawyer who already understand the IP landscape of your chosen
> reasonable amount of time (especially if you are innovating on the
> technology yourself)
>
>
> I would have to disagree with that to some extent. If you know how to do
> a decent literature search on a new field, you know how to do a decent
> patent search. www.google.com/patents is a useful tool - start out with
> some keyword searches, identify some related patents, check out the
> other patents listed under References Cited / Referenced By. Repeat. If
> you know some relevant scientific articles, you may be able to search
> for the first or last author under inventor name. Google scholar
> <http://scholar.google.com/> also allows you to search for related
> technology yourself)
>
>
> I would have to disagree with that to some extent. If you know how to do
> a decent literature search on a new field, you know how to do a decent
> patent search. www.google.com/patents is a useful tool - start out with
> some keyword searches, identify some related patents, check out the
> other patents listed under References Cited / Referenced By. Repeat. If
> you know some relevant scientific articles, you may be able to search
> for the first or last author under inventor name. Google scholar
> articles - including patents!
>
> Reading patents doe stake a bit of practice. The actual Claims section
> is super important and is typically written in legalese. But there is
> often a large background section that reads much more like (and is often
> copied directly from) a scientific paper.
>
>
> Reading patents doe stake a bit of practice. The actual Claims section
> is super important and is typically written in legalese. But there is
> often a large background section that reads much more like (and is often
> copied directly from) a scientific paper.
>
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Josh Perfetto
Dec 3, 2014, 5:06:10 AM12/3/14
to DIYBio Mailing List
If you just do that, you're missing more than half the picture. How will you know which claims are strong, weak, or basically unenforceable? You need to know litigation history, and industry history. Who is licensing what and who is not licensing what? Many invalid patents are issued and there are multiple procedures to challenge them. Patent holders know this and think about this. If you did an exhaustive google patent search and accepted everything verbatim you will not be able to rotate your iPhone without causing an infringement. There's many real-world issues here other than understanding legalese.
-Josh
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Cathal Garvey
Dec 3, 2014, 7:02:26 AM12/3/14
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Sure, but on the other hand, you can't rotate a phone without causing an
infringement. If you make a cool thing, you *will* someday face patent
trolling if you are successful at reaching a significant market, whether
from incumbents or from professional trolls.
There are patents to cover *everything and anything*, and depending on
where you're based, it's possible that they can reasonably expect you to
settle out of court even for trash or easily revokable patents, because
the cost of combatting the trolls is greater than the money saved by
just paying the demanded money.
So, the challenge as I see it is identifying whether there are any
patents that explicitly cover what you are doing, and whether those
patents are held by people who will quickly become aware of what you are
doing, rather than whether patents exist per-se. If a patent exists that
can be used to harm your work (it does) but it's held by an institution
somewhere far away without a long history of litigation and which will
not be immediately aware of what you're doing, then you'll have time to
succeed before they try and destroy you. If the patent is held by a
direct competitor who's litigious, you've got a problem.
Also consider some advice that I got from another, which you can't
legally follow but is good to know. Consider these scenarios:
A) You do what the law requires. You do an exhaustive patent search,
identify patents that you need to license, and ask all the various
patent holders for licenses to the technologies you'll need. In the
entirely fictional scenario where this many licenses doesn't immediately
bankrupt your business before you even get started, imagine one of them
refuses to license the technology. As you are still at ideation stage,
you have no legal recourse, and that's game over. The patent holder said no.
B) You make a great thing, you sell products, and you employ a few
people. A patent holder comes to try and shut you down. You ask the
patent holder if you can license the offending patent and get on with
your business as a fair competitor. Now, if the competitor refuses to
license, or offers terms that are unreasonable, they are vulnerable to
antitrust counter-litigation because they are abusing their dominant
market position to prevent competition.
So, when it comes to patents, the advice from this person (who is more
experienced and knowledgeable in the practicalities of navigating this
bullshit) is: It's easier to ask forgiveness than permission.
On 03/12/14 10:06, Josh Perfetto wrote:
> If you just do that, you're missing more than half the picture. How will
> you know which claims are strong, weak, or basically unenforceable? You
> need to know litigation history, and industry history. Who is licensing
> what and who is not licensing what? Many invalid patents are issued and
> there are multiple procedures to challenge them. Patent holders know
> this and think about this. If you did an exhaustive google patent search
> and accepted everything verbatim you will not be able to rotate your
> iPhone without causing an infringement. There's many real-world issues
> here other than understanding legalese.
>
> -Josh
>
> On Wed, Dec 3, 2014 at 12:42 AM, Patrik D'haeseleer <pat...@gmail.com
> <mailto:pat...@gmail.com>> wrote:
>
> On Tuesday, December 2, 2014 1:51:43 AM UTC-8, Josh W Perfetto wrote:
>
> Find a lawyer who already understand the IP landscape of your
> chosen application.There is no way you can understand this
> <mailto:diybio%2Bunsu...@googlegroups.com>. For more options,
> <https://groups.google.com/d/msgid/diybio/CA%2BL%3DET1XMGtB5cNhvpBe6vh7k7UW9iCGdt3kTsOeNN36%3DE5P1w%40mail.gmail.com?utm_medium=email&utm_source=footer>.
infringement. If you make a cool thing, you *will* someday face patent
trolling if you are successful at reaching a significant market, whether
from incumbents or from professional trolls.
There are patents to cover *everything and anything*, and depending on
where you're based, it's possible that they can reasonably expect you to
settle out of court even for trash or easily revokable patents, because
the cost of combatting the trolls is greater than the money saved by
just paying the demanded money.
So, the challenge as I see it is identifying whether there are any
patents that explicitly cover what you are doing, and whether those
patents are held by people who will quickly become aware of what you are
doing, rather than whether patents exist per-se. If a patent exists that
can be used to harm your work (it does) but it's held by an institution
somewhere far away without a long history of litigation and which will
not be immediately aware of what you're doing, then you'll have time to
succeed before they try and destroy you. If the patent is held by a
direct competitor who's litigious, you've got a problem.
Also consider some advice that I got from another, which you can't
legally follow but is good to know. Consider these scenarios:
A) You do what the law requires. You do an exhaustive patent search,
identify patents that you need to license, and ask all the various
patent holders for licenses to the technologies you'll need. In the
entirely fictional scenario where this many licenses doesn't immediately
bankrupt your business before you even get started, imagine one of them
refuses to license the technology. As you are still at ideation stage,
you have no legal recourse, and that's game over. The patent holder said no.
B) You make a great thing, you sell products, and you employ a few
people. A patent holder comes to try and shut you down. You ask the
patent holder if you can license the offending patent and get on with
your business as a fair competitor. Now, if the competitor refuses to
license, or offers terms that are unreasonable, they are vulnerable to
antitrust counter-litigation because they are abusing their dominant
market position to prevent competition.
So, when it comes to patents, the advice from this person (who is more
experienced and knowledgeable in the practicalities of navigating this
bullshit) is: It's easier to ask forgiveness than permission.
On 03/12/14 10:06, Josh Perfetto wrote:
> If you just do that, you're missing more than half the picture. How will
> you know which claims are strong, weak, or basically unenforceable? You
> need to know litigation history, and industry history. Who is licensing
> what and who is not licensing what? Many invalid patents are issued and
> there are multiple procedures to challenge them. Patent holders know
> this and think about this. If you did an exhaustive google patent search
> and accepted everything verbatim you will not be able to rotate your
> iPhone without causing an infringement. There's many real-world issues
> here other than understanding legalese.
>
> -Josh
>
> On Wed, Dec 3, 2014 at 12:42 AM, Patrik D'haeseleer <pat...@gmail.com
> <mailto:pat...@gmail.com>> wrote:
>
> On Tuesday, December 2, 2014 1:51:43 AM UTC-8, Josh W Perfetto wrote:
>
> Find a lawyer who already understand the IP landscape of your
> yourself in a reasonable amount of time (especially if you are
> innovating on the technology yourself)
>
>
> I would have to disagree with that to some extent. If you know how
> to do a decent literature search on a new field, you know how to do
> a decent patent search. www.google.com/patents
> <http://www.google.com/patents> is a useful tool - start out with
> innovating on the technology yourself)
>
>
> I would have to disagree with that to some extent. If you know how
> to do a decent literature search on a new field, you know how to do
> a decent patent search. www.google.com/patents
> some keyword searches, identify some related patents, check out the
> other patents listed under References Cited / Referenced By. Repeat.
> If you know some relevant scientific articles, you may be able to
> search for the first or last author under inventor name. Google
> scholar <http://scholar.google.com/> also allows you to search for
> other patents listed under References Cited / Referenced By. Repeat.
> If you know some relevant scientific articles, you may be able to
> search for the first or last author under inventor name. Google
> related articles - including patents!
>
> Reading patents doe stake a bit of practice. The actual Claims
> section is super important and is typically written in legalese. But
> there is often a large background section that reads much more like
> (and is often copied directly from) a scientific paper.
>
> --
> -- You received this message because you are subscribed to the
> Google Groups DIYbio group. To post to this group, send email to
> diy...@googlegroups.com <mailto:diy...@googlegroups.com>. To
>
> Reading patents doe stake a bit of practice. The actual Claims
> section is super important and is typically written in legalese. But
> there is often a large background section that reads much more like
> (and is often copied directly from) a scientific paper.
>
> --
> -- You received this message because you are subscribed to the
> Google Groups DIYbio group. To post to this group, send email to
> <mailto:diybio%2Bunsu...@googlegroups.com>. For more options,
> visit this group at https://groups.google.com/d/forum/diybio?hl=en
> Learn more at www.diybio.org <http://www.diybio.org>
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Josh Perfetto
Dec 3, 2014, 7:12:06 AM12/3/14
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I think you get my point, the world is not black and white but shades of grey. You can stay on shore paralyzed by fear or raise your sails and dip and soar into the breeze. You know where I stand on this but do it wisely :)
-Josh
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John Griessen
Dec 3, 2014, 12:14:03 PM12/3/14
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On 12/03/2014 06:12 AM, Josh Perfetto wrote:
> I think you get my point, the world is not black and white but shades of grey. You can stay on shore paralyzed by fear or raise
> your sails and dip and soar into the breeze. You know where I stand on this but do it wisely :)
Yes, I think I'll hire some lab and field gear expert patent lawyer time
> I think you get my point, the world is not black and white but shades of grey. You can stay on shore paralyzed by fear or raise
> your sails and dip and soar into the breeze. You know where I stand on this but do it wisely :)
with 5% of my earnings. So, after a year of bootstrapping up,
I'll get maybe 2 hours. Hope I ask the right questions...
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