[open-science] [DIYbio] Seeking Open Source Licence for new biotech method

[john wilbanks]

Remember that patent law, unlike copyright law, is exclusionary rather 
than enabling. This makes the construction of open systems via licensing 
much more difficult and complex.

So, in order to "open source license" the method, first you have to 
obtain a patent, which will be restricted to the countries where you 
have filed to obtain it. This will require 2-4 years and tens of 
thousands of dollars or relevant currency to obtain, depending on how 
many different jurisdictions you look to obtain protection. At that 
point you can use the CAMBIA BIOS license (which impose a form of 
patent-left in that signatories to the license who make improvements to 
the technology must recontribute those improvements for free to all 
other signatories of the license) or you can use something like the 
BioBricks patent toolkit 
(http://openwetware.org/wiki/The_BioBricks_Foundation:BPA). At that 
point you can plausibly say you've "open sourced" the method.

If you are denied the patent, then the method falls into the public 
domain, which is also clearly open source - indeed one might argue truly 
free - but you will not be able to impose *conditional behavior* a la 
GPL or copyleft, including the condition of attribution.

Even if you get the patent, all it allows you to do is bar others from 
practicing it. It does not create the necessary rights to enable others 
to practice it under an open license. Those rights may be controlled by 
third parties who have other patents that bear on your method, which you 
may or may not know about in advance. Thus it's possible to patent a 
method, license it openly, yet be unable to practice it at all due to 
thickets of patents held by third parties who do not wish to be part of 
an open source culture.

Richard Jefferson likes to use the example of a chair with three legs (a 
stool in english). Richard patents the three-legged chair and licenses 
it under CAMBIA. But someone else holds the patent on four-legged 
chairs, with broad claims to other kinds of chairs, and got that patent 
before Richard. That person can therefore plausibly claim Richard's 
patent infringes his patent - even if Richard's patent is granted - and 
then neither Richard nor his open licensees can make, sell, import, or 
otherwise do things with three-legged chairs.

Copyright will protect the expression of the method - the copying of the 
paper in which it is disclosed - but not the actual practice of the 
method. Thus it is plausible that someone could access a copy of the 
method in a browser, not make a downloaded copy of it, practice the 
method in the lab, and fail to attribute you in later publications, and 
you would have no recourse under copyright law. This would be an 
instance of a *professional violation* of the norms of citation rather 
than an infringement of copyright.

In general I prefer the public domain in non-copyright matters, because 
the power of license-constructed commonses is in many ways a creature of 
the worldwide standardized power of copyright - an immune response to 
the overreach of the system. Patents and methods (and data) are governed 
by different systems and are simply less vulnerable to the aikido that 
Stallman discovered in copyright.

jtw


>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Tue, 17 Sep 2013 21:47:04 +1000
> From: Matthew Todd <matthew.todd at sydney.edu.au>
> Subject: Re: [open-science] [DIYbio] Seeking Open Source Licence for
> 	new	biotech method
> To: open-science <open-science at lists.okfn.org>
> Message-ID:
> 	<CADOXZMy-8DXdVp6SL07p3uGdrUYiCT=Op8WfXhgW1OCFYE1m8w at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Hi Brian,
>
> If I understand you correctly, this was Richard Jefferson's main focus with
> Cambia. Relevant PDF is here:
>
> http://www.cambia.org/daisy/cambia/3123.html
>
> The WIPO delegate at my session on Thursday at OKCon will I think be
> talking about patent pools. We'll be posting recordings.
>
> https://okconopendrugs.eventbrite.com.au/
>
> Cheers,
>
> Mat
>
>

-- 
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