Forget Patents: Why Open Source Licensing Concepts May Lead To Biotech Innovation

from the share-and-share-alike dept

One of the main forces driving the move to open access is the idea that if the public has already paid for research through taxation or philanthropy, then it's not reasonable to ask people to pay again in order to read the papers that are published as a result. The strength of this argument is probably why, in part, open access continues to gain wider acceptance around the world.

But the same logic could be applied to the commercialization of publicly-funded research. Why should people be asked to pay often elevated market prices demanded by companies for these products -- which naturally try to maximize profitability -- when it was the public that funded the initial work that made those products possible in the first place?

As with open access, the challenge here is to come up with an alternative approach that allows new medical treatments to be made available as widely as possible. A recent paper by John Frangioni in Nature Biotechnology, pointed out by @MaliciaRogue, offers a novel solution based on open-source development managed by a non-profit foundation:

In this open-source model, sublicensing to for-profit entities is encouraged but is nonexclusive. For-profit companies licensing the technology are encouraged to innovate on the platform, which will provide protectable IP for them, help lower the barriers to market entry and provide patients with even better versions of the technology. Open-source information exchange and evolution of the technology is encouraged rather than discouraged, with the premise that knowledge will empower for-profit companies that want to carve out IP-protected niches while empowering academic scientists with a firm grasp of the state of the art.
It's a detailed, fascinating piece that explores the current problems with the commercialization of research, including the following thoughts on why the Bayh-Dole Act of 1980 has failed to boost technology transfer from the academic world to industry as originally hoped:
In the wake of Bayh-Dole, the technology transfer policy of many AMCs [academic medical centers] has been to pursue the broadest patent rights for as many inventions as possible (all at great expense), sometimes without sufficient regard for whether there is enough validation of a discovery for assets to be licensed and/or commercialized; similarly, too often, startups are spun out of AMCs without sufficient due diligence, resulting in many enterprises that fail to receive sustainable funding from the investment community.
Frangioni's approach is quite different. Since the non-profit foundation is funded by the public, the focus is on maximizing patient benefit rather than financial return. On novel way of doing that is requiring reciprocity from those using the foundation's knowledge:
enablers [researchers, surgeons and technology licensees] can purchase technology but only after signing an agreement to deposit knowledge gained with the technology into the Knowledge Bank [a publicly accessible database], through what we call the knowledge feedback loop. Here again is the principle of giving something when getting something: the purchaser must create new knowledge for the public good to have access to the technology.
This is exactly how open source software works: anyone can take the code and build on it, but they must give back their additions to the community so that others can build upon them in exactly the same way. The results in the software field, where open source dominates the Internet, supercomputers and -- thanks to Android's underlying Linux foundation -- smartphones, speak for themselves. Whether Frangioni's experience of putting these ideas into practice with his FLARE Foundation can be generalized, remains to be seen. But it certainly seems an approach worth exploring.

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Filed Under: biotech, innovation, open, open access, patents

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  1. icon
    AJ (profile), 2 Nov 2012 @ 10:21am

    Read the OS Definition

    Glen wrote: This is exactly how open source software works: anyone can take the code and build on it, but they must give back their additions to the community so that others can build upon them in exactly the same way.

    Actually that's not what the Open Source Definition says. It only requires that you provide your source code if you give your version of the software to someone else. Even for code under the GNU GPL (one of the stronger OS licenses) you can make as many private changes as you like to the code without having to give back your source for those changes. The requirement to provide your source only kicks in when you distribute your code to someone else, and even then you only have to give your source to people who have copies of your version. In general you do not have to hand your changes back to "the community" that you got the code from, although you can't stop your customers from passing copies on. [IANAL, TINLA, read the specific license for the code]

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