Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons

Abstract

Synthetic biologists aim to make biology a true engineering discipline. In the same way that electrical engineers rely on standard capacitors and resistors, or computer programmers rely on modular blocks of code, synthetic biologists wish to create an array of modular biological parts that can be readily synthesized and mixed together in different combinations. Synthetic biology has already produced important results, including more accurate AIDS tests and the possibility of unlimited supplies of previously scarce drugs for malaria. Proponents hope to use synthetic organisms to produce not only medically relevant chemicals but also a large variety of industrial materials, including ecologically friendly biofuels such as hydrogen and ethanol. The relationship of synthetic biology to intellectual property law has, however, been largely unexplored. Two key issues deserve further attention. First, synthetic biology, which operates at the confluence of biotechnology and computation, presents a particularly revealing example of a difficulty that the law has frequently faced over the last 30 years - the assimilation of a new technology into the conceptual limits around existing intellectual property rights, with possible damage to both in the process. There is reason to fear that tendencies in the way that the law has handled software on the one hand and biotechnology on the other could come together in a "perfect storm" that will impede the potential of the technology. Second, synthetic biology raises with remarkable clarity an issue that has seemed of only theoretical interest until now. It points out a tension between different methods of creating "openness". On the one hand, we have intellectual property law's insistence that certain types of material remain in the public domain, outside the world of property. On the other, we have the attempt by individuals to use intellectual property rights to create a "commons," just as developers of free and open source software use the leverage of software copyrights to impose requirements of openness on future programmers, requirements greater than those attaching to a public domain work.