Abstract
Open source methods offer a powerful and attractive model for organizing synthetic biology research. At the same time, the differences between biology and software are very deep. For this reason, attempts to design ‘open parts collaborations’ by naïve analogy to LINUX and other existing software institutions are likely to fail. Conversely, successful designs must be grounded in a careful understanding of (a) how current institutions manage the various social challenges of producing software, and (b) the extent to which synthetic biology research raises new and distinct challenges. I discuss these issues under four headings (appropriability, cartel effects, stability, and agency problems) and explain how existing open source institutions can be extended to accommodate synthetic biology research. I also identify particularly simple test cases where organizers can experiment with these ideas. These modest projects provide useful ‘stepping stones’ to demonstrating a full-scale parts collaboration.
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Notes
- 1.
For an arguable exception, see Biobricks Foundation, “Biobrick Contributor Agreement” (2010) available at http://biobricks.org/wp-content/themes/bbf/bpa-sample.php. A close reading shows that the document is primarily designed to clarify parts donations. Crucially, it imposes no reciprocal obligation on users to improve the parts they receive or contribute data of their own. See, “Biobrick User Agreement” (2010), available at http://biobricks.org/bpa/users/agreement/. This is fundamentally different from the usual open source scheme in which programmers contribute software in exchange for guarantees that they will be able to use any later improvements without charge.
- 2.
See Eclipse Foundation Home Page, available at http://www.eclipse.org/.
- 3.
For a full discussion of these arguments, see Henkel and Maurer (2009) and Henkel and Maurer (2007). It is possible, of course, that the parts agenda will turn out to be misguided. Indeed, many synthetic biologists believe that there is less benefit in using “standard” parts than was previously thought. If so, the case for open parts sharing will likely be weaker. Suffice to say, this scientific question has yet to be settled. In what follows, we will assume that the “standard biological parts” agenda is valid, particularly since it is not at all clear what would replace it.
- 4.
Amyris Corp., “About Amyris,” available at http://www.amyris.com/en/about-amyris.
- 5.
For a review of the literature on early open source collaborations, see S. Maurer & S. Scotchmer, “Open Source Software: The New Intellectual Property Paradigm,” in T. Hendershott (ed.), Handbook on Information Systems (Elsevier: 2006).
- 6.
Strikingly, Eclipse developers deposit most of their code during business hours instead of weekends. Severin Weingarten, Friedrich Schiller University, Jena (personal communication)
- 7.
For a formal economic exploration of this logic, see Maurer and Von Engelhardt (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542180.
- 8.
Though suggestive, the term “cartel effect” is not strictly accurate. The reason is that real cartels let members make side deals that restore part of the suppressed R&D investment. Strangely, open source suppresses R&D investment more than a formal cartel would (Maurer and Von Engelhardt 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542180.
- 9.
Id.
- 10.
The “General Public” or “GPL” license is almost certainly stronger than stability requires. Most commercial open source collaborations use significantly narrower licenses like Mozilla or even BSD. S. Maurer, “The Penguin and the Cartel,” Utah Law Review 269–318 (Summer 2012) available at http://epubs.utah.edu/index.php/ulr/article/view/689/529
- 11.
For example, Joachim Henkel has argued that the teams which write individual open source modules tend to be drawn from a single company (Henkel 2004).
- 12.
Threat evaluation is expensive. Most companies that make gene-length synthetic DNA currently pay human experts to check customer orders by (a) finding the closest Genbank analogs, and (b) examining the literature to find out what is known about the functions they code for. This process sometimes takes up to 2 hours – a significant cost in an industry where the average order sells for $10,000. Here, the good news is that the work only has to be done once – and screeners routinely report that they have seen roughly 3–5 % of all orders before. These savings are likely to grow several-fold if companies agree to pool their data in a shared facility. See, Maurer (2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2183306.
- 13.
Unlike the US, European law also offers formal protection for databases. This could provide a natural basis for protecting shared parts information. That said, it is hard to see how a transatlantic consortium would work without legal rights in the US market.
- 14.
Patents usually about $10,000 per application.
- 15.
Patent law only applies to “non-obvious,” inventions, i.e. those demonstrating a large inventive step over prior knowledge. Individual entries in synthetic biology databases rarely rise to this level.
- 16.
Unlike copyright, the law lets inventors obtain improvement patents whether or not they own the underlying invention. Viral terms are expressly designed to block this outcome. It is hard to see how private contracts can overrule the Congressional scheme.
- 17.
US trade secret law lets companies protect information “that (i) derives independent economic value, actual or potential, from not being generally known to … other persons who can obtain intellectual benefit from its disclosure or use, and (ii) is the subject of efforts to maintain its secrecy.” Uniform Trade Secrets Act §1 (1985). Similar protections are available in Europe and the developing world. See, e.g., Mark D. Powell, “Overview of European Trade Secret Law,” available at http://law.wustl.edu/Library/cdroms/IBL/License/Powell.htm; James P. Flynn, “Bumps Along the Silk Road,” available at http://tradesecretsblog.info/2009/01/bumps_along_the_silk_road_prot.html.
- 18.
The drawbacks of limited distribution are weaker for biosecurity than other kinds of data. Posting dangerous DNA sequences on the web would help terrorists make weapons.
- 19.
Indeed, company work-flow software would likely make the deposits automatically.
- 20.
We have argued that a shared threat database would generate substantial savings compared to the current system. It is reasonable to think that participating companies would reinvest at least some of these funds in better security. This could be done by providing financial support and/or encouraging employees to donate more time to the collaboration.
- 21.
Wikipedia, Bevatron http://en.wikipedia.org/wiki/Bevatron; Jeremy Hsu, “NASA Crowdsources Hi-Res Mapping as an On-Line Game for Kids,” PopSci.com. Available at http://www.popsci.com/technology/article/2009-11/nasa-crowd-sources-mars-mapping-online-game.
- 22.
The problem, if it exists, almost certainly involves appropriability. Synthetic biology competition will likely follow the pharmaceutical model in which the first company to patent and/or bring a product to market almost always secures the most benefits. The costs associated with giving a competitor data in this environment could be large.
- 23.
One natural solution is to let whoever contributes the data decide when and if it should be released to the public. Here, the main practical difficulty would involve deciding who controlled data in cases where multiple inventors had directly or indirectly helped to discover the information.
- 24.
Markus Fischer (Entelchon GmbH) (personal communication).
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Maurer, S.M. (2014). Stepping Stones: Extending the Open Source Idea to Synthetic Biology. In: de Miguel Beriain, I., Romeo Casabona, C. (eds) Synbio and Human Health. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9196-0_14
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