Synthetic Biology and Patents

What Can Save Us From Doom?

Climate scientists spent several decades warning of the consequences of climate change. Some efforts were belatedly enacted to curb carbon emissions and to combat the warming climate; however, climate activists spent too much time trying to convince humans that a change of behavior was imperative. Humans are naturally occurring organisms, which means we are carbon-based, defective dopes incapable of collective action to save our planet. Thankfully, synthetic biology is here to aid where organic biology failed.

What is Synthetic Biology?

Synthetic biology combines the fields of biology, engineering and computer science to study areas such as molecular and genetic engineering, and evolutionary and molecular biology. Within the field, synthetic biologists manipulate DNA and other molecular processes to find alternate applications and use. Scientists can also write DNA from scratch. These scientists select genetic information to assemble in novel ways to build new life forms and manufacture materials that would otherwise be difficult to acquire, such as medicine. Once they determine how genetic sequences perform, they are re-patched– like a computer code– to modify cellular behavior.^[1] 

Cool, How is Patent Law Involved?

In May 2010, J. Craig Venter, co-founder of Synthetic Genomics, announced that he and his team successfully created synthetic life, which they named Synthia. “My company… is already trying to develop cassettes- modules of genes- to turn an organism into a bio factory that could make clean hydrogen fuel from sunlight and water or soak up more carbon dioxide.” To protect his intellectual property, Venter sought widespread patents, which was condemned by Nobel Prize winning biologist John Sulston. Sulston argued there is no evidence that strong intellectual property protections are necessary to promote innovation. He believed that if Venter’s applications were granted, Venter would control the entire field.^[2] These men represent competing ideologies: an open source approach versus a belief that strong intellectual property rights are necessary to protect investments required to bring products to market.^[3]  

Presumably all good actors in the synthetic biology field want their work to positively impact lives: to make medical advancements, combat climate change, or to make grapes taste like cotton candy! How should competing ideologies be balanced to ensure innovation?

ONE Solution!

One of my professors advocated training lawyers in technology literacy. He taught us computer programming (Java), and how to create MITM proxy servers to observe website communication. His position is that lawmakers often do not understand how the Internet (and other technologies) work, yet they are tasked with writing legislation for its regulation. His goal was to train future attorneys in technology fundamentals. The same dilemma currently plagues patent offices. The individuals who make decisions about patents are not usually trained in synthetic biology. To balance the needs of those who wish to protect their ideas with patents against open source advocates, patent offices should hire experts in synthetic biology to examine patent applications. A panel of synthetic biologist could vote on each application and have an appeals process. The panel may also review opinions regarding a specific application by other synthetic biologists, similar to an amicus curiae.

Many of you are likely thinking, “that solution seems pretty simple. This is a complicated area, surely there is more that needs to be done.” You are absolutely correct! I am confident there are a dozen additional solutions necessary to balance these competing interests; but I am a lawyer, not a synthetic biologist. What do I know about technology?

BS Closing Thoughts

We want to have our cotton candy grapes and to eat them too– preferably not in a house that is on fire or sinking in the ocean. Current patent issuing practices could inhibit necessary innovation and must be modified to ensure that mankind’s doom is not the result of intellectual property law, but generations of planetary abuse!

BS

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^[1] Jacob Brogan, What Exactly Is Synthetic Biology? Slate, April 3, 2017, http://www.slate.com/articles/technology/
future_tense/2017/04/what_exactly_is_
synthetic_biology.html

^[2] Robert Hart, Should You Be Able to Patent an Organism? Slate, April 7, 2017, http://www.slate.com/articles/technology/
future_tense/2017/04
/the_synthetic_biology_community_is_
divided_on_intellectual_property.html

^[3] Id.