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

[Marcus D. Hanwell]

That is my understanding and one of the drivers behind efforts such as
defensive publications http://linuxdefenders.org/projects on the Linux
Defenders page. You need to publish in certain places to have higher
likelihood of turning up in the right searches for prior art though
(unless you want to pay to litigate later, which can be far more
expensive than obtaining patents). I thought this was a reasonable
strategy to defend against patents in open systems.

Marcus

On Wed, Sep 18, 2013 at 2:09 PM, Rafael Pezzi <rafael.pezzi at ufrgs.br> wrote:
> John,
>
> Wouldn't disclosing the methods openly constitute prior art and thus make it
> openly accessible? According to wikipedia: "If an invention has been
> described in the prior art, a patent on that invention is not valid."
>
> Rafael
>
>
> Em 18-09-2013 09:30, john wilbanks escreveu:
>
> 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
>
>
>
>
> --
> -------------------------------------
> Prof. Rafael P. Pezzi
> Instituto de Física - UFRGS
> Av. Bento Gonçalves, 9500 - Agronomia
> Caixa Postal 15051, CEP 91501-970
> Porto Alegre, RS, Brasil
> Fone: 51 3308 6444
> -------------------------------------
>
>
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