Synthetic biology has emerged at the interface between life sciences and engineering. This has a resulted in a cultural divide regarding the status of intellectual property. Engineers have been advocating an open source model that has been spectacularly successful in computer science. Life scientists and specifically biotechnology companies have been defending the patenting of DNA sequences.
The gene synthesis company DNA2.0 illustrates this tension. On the one hand they have been supporting the open source movement by engineering fluorescent proteins free of patent claims and releasing them open source (See
Bioengineers look beyond patents). Meanwhile, the same company sued Genome Compiler for infringing on a software patent.
It is likely that the value of intellectual property will evolve as a result of the maturation of synthetic biology (IP in a World without Scarcity). Back in the early days of genetic engineering when biotech products involved only a single gene, the patent was the product. Now that genetic designs can involve dozens of genes and their regulatory elements, the value of the intellectual property associated with each building block is reduced as they are only one component, often replaceable, or a product.
However, we are not there yet. I would love to use open source libraries of genetic components. I am not an IP lawyer but my understanding is that it is very difficult to establish that a particular DNA sequence is free of patent claims. It is already pretty difficult to find claims associated with a sequence but proving that a sequence is not covered by any claim is next to impossible because it is virtually impossible to establish that the patent search was exhaustive.
In order to develop an open source biology, it is necessary to streamline the search of patent databases for the presence of sequence data. For those of you who need to care of the IP status of the sequences you work with, could you tell us how you ensure that you have freedom to operate? What tools do you use? How much time do you spend ensuring you are not infringing on any patent?