The Penguin's Genome, or Coase and Open Source Biotechnology

80 Pages Posted: 10 Aug 2004  

David W. Opderbeck

Seton Hall University - School of Law


Open source offers an interesting alternative to government control or private bargaining over rights to a commons. Open source production, however, will not occur on any significant scale absent certain conditions. Certain types of software have been developed effectively through open source methods because the projects were divisible and granular and the roots of the necessary social structure existed in early "hacker" communities and copyright license models were adaptable to support open source norms.

Biotechnology, however, is different. The information commons rhetoric often applied to open source software and the Internet fails to withstand scrutiny when applied to biologically based technologies. "Information" can no longer be defined as an independent entity that can be possessed equally by infinite users. Instead, "information" is context-dependent. This is particularly true of biologically-encoded information, which affects direct change in an organism. Under a context-dependent definition, there are economic, social, and biological aspects of rivalry connected to an information resource. A truly open information commons therefore is an unobtainable myth.

Because information is in some sense rivalrous, there must be some method of allocation. Collective management by way of open source development is appealing, but biotechnology lacks the sort of community that would make it feasible. In particular, the classical and neo-classical story of science as a homogenous, cooperative enterprise that is being corrupted by private property rights does not correspond to reality. Science, and in particular biotechnology, was and will be rife with competition and gamesmanship.

Given these circumstances, a Coasian approach suggests that private property rights should lead to bargaining that will, over time, efficiently allocate the information resources. Many of the transaction costs that have been identified as barriers to such bargaining should not pose insurmountable problems, particularly as players repeatedly interact over the same or similar resources. The most difficult aspect of transaction costs is that of the search costs entailed in defining and clearing multiple rights held by diverse parties under differing intellectual property regimes.

If search costs are a primary barrier to bargaining, the primary aim of biotechnology innovation policy should be to reduce those costs. One way this could be accomplished is to establish a national technology database containing information about proprietary claims, license terms, and license prices. Although this solution would not be perfect, it represents a means of reducing barriers to biotechnology innovation consistent with existing norms.

Keywords: Biotechnology, patent, open source, commons, anticommons, semicommons, intellectual property

Suggested Citation

Opderbeck, David W., The Penguin's Genome, or Coase and Open Source Biotechnology. Available at SSRN: or

David W. Opderbeck (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8496 (Phone)

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