The Open Source Biotechnology Movement: Is it Patent Misuse?

Abstract

Fledgling efforts exist to establish open-source projects in biotechnology. Following copyleft, participants agree that advances in the technology must remain as openly available as the original technology. Such agreements implicate patent misuse, which is defined as an impermissible attempt to expand the scope of the patent. Given that advancements were not part of the teachings of the original patent, restrictions on those advancements may constitute misuse. The proper test for patent misuse is unclear. Therefore, the article applies two possible tests: inconsistency with patent policy and violation of the antitrust rule of reason. The overall effect of open source is consistent with patent policy. Accelerating the moment at which knowledge is widely available to the public is consistent with patent policy's design to bring inventions into the public domain for the public benefit. In addition, although open source biotechnology may decrease some downstream economic rewards, it increases downstream non-economic rewards and increases downstream innovation by exploiting untapped innovation resources that traditional patenting cannot reach. Finally, open source reduces harms of the current patent system by reducing patent thickets and avoiding the short-term restriction of supply anticipated under traditional patent licensing. Similarly, from an antitrust perspective, open source effects are better characterized as increasing rather than reducing supply. The open source group is not trying to restrict the supply of biotech tools but rather increase the supply of such tools by ensuring that the tools remain openly available. Anticompetitive effects also are outweighed by the pro-competitive benefits.

Keywords: Open source, biotechnology, patent misuse, patents

JEL Classification: O30, O31, O33, O34, L40, K21