Seeking Open Source Licence for new biotech method

[Brian Cady]

I'm patenting a genetic engineering method so that I can make it freely available through an open source licence. Does anyone know of good open source licences for intellectual property, so that this concept, and any others that use it, will remain in the commons, available to all?

Brian Cady, of BOSSLab.org

[Bryan Bishop]

From: Brian Cady <brianc...@yahoo.com>
Date: Mon, Sep 16, 2013 at 1:42 PM
Subject: [DIYbio] Seeking Open Source Licence for new biotech method
To: diy...@googlegroups.com
Cc: brianc...@yahoo.com

I'm patenting a genetic engineering method so that I can make it freely available through an open source licence. Does anyone know of good open source licences for intellectual property, so that this concept, and any others that use it, will remain in the commons, available to all?

Brian Cady, of BOSSLab.org

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[John Griessen]

No. The way to lock it open is to hire a good, yet oddball patent attorney to help you decide
how to make claims, patent them, then assign the rights to a trust-fund-like foundation to manage
in perpetuity for benefit of ______, and you fill in "__for_everyone___", and hand it over to them
forever. IP is still old fashioned -- like battling dinosaurs. Leaving something for everyone
to benefit from is so foreign, some attorneys have difficulty with the language and misunderstand it
until spelled out.

[brianc...@yahoo.com]

Thanks, John,

Folks, How does the patent-and-place-in-trust method compare with placing the concept in the public domain, so no-one can patent it, by publishing it publicly without any patenting attempts?

Brian

---

From: John Griessen <jo...@industromatic.com>
To: diy...@googlegroups.com
Cc: Brian Cady <brianc...@yahoo.com>
Sent: Monday, September 16, 2013 8:39 PM
Subject: Re: [DIYbio] Seeking Open Source Licence for new biotech method

[Matthew Harbowy]

In the long term, patent and place in trust is a losing strategy. At most, it allows you to prevent anybody from exploiting the idea for commercial gain for a period of about 20 years, during which time you will waste scads of money in a revenge fantasy against evil profit. After that point, it is public domain, no matter what. You might as well reinvest the capital that would be going to lawyers, and undercut competition by producing and selling at a loss, because that strategy keeps evil competition at bay and at least has the opportunity of profit as competition cedes the field. Tech that is off patent or unpatentable due to prior art has so little corporate mindshare that I view it as a massive untapped market. The best strategy in a zero sum game is not to play at all- we need to not play the patent game, and release all tech free for any use, full stop. License free everything.

How much of biotech day to day hardware is free of ip? Do you think that would commonly exist if it were bound up in ip? Gel boxes, illuminators, PCR? PCR went off patent in 2006: how much PCR equipment do you know of that's older than that? Taq polymerase lost its patent in 1999. Pfu lost it this year. Get cracking. The for profit companies tack on innovations to bleed out the life of protection, when we could be wiping the floor with them if we weren't trying so hard to imitate them. Beat them to publication is the only winner.

Matt

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[William Heath]

Hi Brian Cady,

I emailed Richard Stallman about the extreme need for a copyleft license for synthetic biology etc...  He was not able to assist to my great, great, great surprise.  As a result here is my humble opinion on what you should do:

1.  Anything actually biological/physical use the creative commons license (http://creativecommons.org/choose/)

2.  Anything source code use gpl v3 (http://www.gnu.org/licenses/gpl.html)

Examples of using creative commons are at http://www.thingiverse.com and arduino (http://arduino.cc/en/Main/FAQ).  Examples of gpl v3 are biopython.   

Yet another license that is interesting is the biobricks license which I don't really understand:

https://biobricks.org/bpa/

-Tim

P.S.

Be aware that you can dual license your offerings.  Coming from the software field I do know that gpl really works.  I have made the argument that dna/proteins are software and that the gpl can be applied to it.  So my humble advice would probably be to release your offering under all three of the above licenses.  That is the best you can do to my knowledge.  I spent both of my masters studying the opensource approach so I know a little bit about what I am talking about.  Let me know if you have questions.

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[Matthew Harbowy]

Software gets to double dip. There is the right to patent, and the right to copyright. Patents last up to 20 years from filing. Copyright lasts up to 120 years.

Biology at most can patent. Think about it: how many computers or operating systems or even enzymes are still kicking around in the same form and serving a living, ongoing process after 20 years? Sure sure, everyone's got an old VAX or stash of HeLa on ice from the eighties, but not in continuous use, and you're not likely trying to crank up Ubuntu on that old Wang or Vic20 unless you're doing so for the sake of doing so. No one says, jeez, if I only had a Vic 20 to power this code, I could totally solve my problem.

The situation with software and biology are different, unless people want to start copyrighting sequences as code. What we don't want is to continue going down the road that software took, so I'd rather keep the software "license experts" out of this, considering the mess they made of that.

Worse, if renewed every 10 years or so, you can maintain a trademark forever.  With so many potential security holes and bugs, how can any trademark holder like Linus or Bill "protect" users from harm? 

If one piece of living code such as DNA can mutate into any other via natural processes, how can any DNA be patented or copyrighted? For me, arguing about license is dancing on the head of a pin. Are we going to enforce trademark against mutagens?

Or are we seriously trying to protect branded "NEB TAQ" from malicious enzyme suppliers that sneak Ebola in there with it? Software is held to a very crappy standard of self verification relative to biology: no one is going to get peer reviewed if they can't prove that their declared sequence is actually the sequence of the plasmid used. And if you use any chemical off a shelf without verification of identity and purity and reproducibility before pub, you're a crap scientist. Trying to do molecular biology like a computer hacker is not the way to success: it's the way to bugs.

Matt

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[William Heath]

What about the biobricks license (https://biobricks.org/bpa/)?  Is that garbage too?

-Tim

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[matt harbowy]

From my perspective and in my opinion, IANAL, the BioBricks(TM) agreement says in 5 words or less

 

"You can't sue."

 

Actually, it says that if you grant the license and someone reciprocally agrees to it and uses the part, you agree not to sue. So basically, the contributor under that license is "asked to represent and WARRANT" (sec 2.a, emphasis mine) that the part they contribute is free and clear of IP claims. In my book, this is terrible, because if, through failure of care on my part, contribute a part that has someone's IP in it, and another uses it, and the owner of the IP goes after the user of my part, you're giving that guy a pass to warrant against liability, so the IP holder then comes after YOU, protected only by a thinly veiled "to the best of your knowledge". If they get a court to decide that you did not do due diligence before contributing, guess what?

 

Then, at the end, says the contributor "...MAKES {no} WARRANTY OR REPRESENTATION" (sec 7, emphasis document). But in fact, the document that the contributor is forced to sign when contributing (the BPA contributor agreement, version 1, January 2010) says "Contributor provides no ... warranty... except the promises of authority, ... non-assertion,... and intellectual property", saying they have the right to enter the agreement and assert that they hold title to the presumptive IP. 

 

So the contributor gives up all of their rights in exchage for the right... to be sued if they didn't know about prior IP on their IP. So if I use a restriction site covered by some other IP that's necessary for a plasmid I put out there, and someone uses the site, and then gets sued for using the site, have you warrented that you'll cover them that they "had the right to use that site because you warranted it free and clear"?

 

In short, yes, it's bull^h^h^h^hworse than garbage, through and through. Its claims are so flimsy and protection so weak that it will likely get blown away when it is first tested in court. And the harm will fall on the contributor. IMO, no one should contribute BioBricks(TM). The use of the license implies that it's a good thing, and most people click through the legalese. More people use it, the more it is enthroned, until the first time someone gets bit.

 

again, in my opinion, and i am not a lawyer (IANAL). Other people obviously think otherwise, so if you trust those other people, go ahead and use that license.

 

non serviam,

-matt

[John Griessen]

On 09/16/2013 08:39 PM, Matthew Harbowy wrote:
> The best strategy in a zero sum game is not to play at all- we need to not play the patent game, and release all tech free for any
> use, full stop. License free everything.

For that, I like TAPR license -- see tapr.org