Techdirt readers hardly need to be reminded that, far from promoting innovation, patents can shut it down, either directly, through legal action, or indirectly through the chill they cast on work in related areas. But not all patents are created equal. Some are so slight as to be irrelevant, while others have such a wide reach that they effectively control an entire domain. Patents on anew biological technique based on a mechanism found in nature, discussed in a long and fascinating piece in the Boston Review, definitely fall into the second category. Here’s the article’s explanation of the underlying mechanism, known as CRISPR-Cas:

Bacteria use CRISPR-Cas to attack the DNA of invading viruses. The workings of this natural defense mechanism were elucidated through basic research carried out mostly within universities. By hijacking and recombining its bacterial parts — a flexible kind of engineering that is the hallmark of molecular biology — researchers have shown how CRISPR-Cas can be used to edit the human genome, or any genome, in principle.

CRISPR-Cas can be thought of as the first really powerful and general-purpose genome editor — a GNU Emacs for DNA. It is widely expected that it will have a massive impact on molecular biology, both for pure research and in industrial applications. Given those very high stakes, it will not come as a surprise to learn that there is already a fierce tussle over who owns a key patent in this field:

A patent battle is raging between the University of California, Berkeley and the Broad Institute of MIT and Harvard. MIT’s Technology Review has called the legal dispute a “winner-take-all match” with “billion-dollar implications,” as the contenders all have stakes in startup companies based on the technique. The Broad team was granted the first patent in 2014, but the Berkeley group filed paperwork contesting the decision.

As the Boston Review rightly points out, the Broad Institute patent is problematic for several reasons. It is very general, and lays claim to using CRISPR-Cas to edit all animal and plant DNA. The Broad Institute has granted an exclusive license for therapeutic applications, which means that the company concerned has a monopoly on what is expected to be one of the most important areas for CRISPR-Cas. Any other company wanting to use the technique, even for non-therapeutic work, must pay for a license. To top it all, it’s generally accepted that CRISPR-Cas is the result of a global, collaborative effort:

Academics around the globe, from Japan to Lithuania to Spain and the United States, have contributed to our understanding of CRISPR-Cas. No group can claim sole credit for discovering the system or the know-how for using it to edit genomes.

And yet the winner of the current patent battle, whether the Broad Institute, or the University of California, is likely to end up with immense power over the use of CRISPR-Cas. The article notes:

Monopolizing a core technology developed collectively using public funding ought to require an extraordinary argument. Even if we limit ourselves to looking through the economic lens, this would require making the case that a monopoly on CRISPR-Cas therapeutics would be so wildly effective — and wide enough in scope to tackle the huge range of diseases mentioned in the patent — that it would far outweigh competitive efforts with tens, or hundreds of other companies. In the current debate, no such argument has been given.

As well as giving many other details about this important case and its historical background, the Boston Review article goes on to suggest an alternative approach to one based on intellectual monopolies, one that builds on the fact that CRISPR-Cas is a tool for editing the biological software at the heart of all life:

We can take a leaf from the software world’s book and sketch a free biology (as in “free software”) that respects these responsibilities. This will require new mechanisms for describing research ownership and sharing that are in the public interest and that support the university’s research branch.

Although that may sound Utopian, for biology at least, it’s starting to happen:

Synthetic biology is already making steps in this direction, with projects such asBioBricks that provide a mechanism for scientists to contribute their work to a public registry and allow others to build on it.

Moreover, for those who think the idea of free biology will never really take off, it’s worth remembering people said the same about free software, which now powers most of the digital world.


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