Synthesizing Law for Synthetic Biology

Earlier this year, I was commissioned by the National Academies to write a report on synthetic biology, standards setting, and intellectual property, which I co-authored with Linda Kahl, and presented at the National Academies in Washington, D.C., on October 4, 2012, as part of the Symposium on Management of Intellectual Property in Standard-Setting Processes.  Our report, entitled Synthetic Biology Standards and Intellectual Property, as well as my presentation, are both freely available here.  On October 31, 2012, the University of Kansas released this press release describing my involvement with the National Academies in preparing and presenting our report.  Among the findings in our report was the following:

Patent rights that encumber components and methods have long been a concern among those in synthetic biology, especially as a perceived threat to the field’s prominent ethos of open biological innovation. Currently, there is little evidence that patent rights adversely affect synthetic biological research...In fact, the patent-eligibility of DNA molecules has been put in doubt by several conflicting U.S. court decisions...What is certain is that the synthetic biology community is unusually attuned to debates surrounding intellectual property and standards setting, and views its engagement in these debates as vital to ensure the continued success of synthetic biology. 

Anyone interested in learning more about synthetic biology, biotechnology, and intellectual property law is welcome to download free copies of the following articles:  (1) Synthesizing Law for Synthetic Biology, (2) Gene Concepts, Gene Talk, and Gene Patents, (3) DNA Copyright, and (4) Planted Obsolescence:  Synagriculture and the Law.

For more biolaw, visit LEXVIVO.

Bioprospect theory

Jim Chen, Bioprospect Theory, available at http://ssrn.com/abstract=2164848 or http://bit.ly/BioprospectTheory. To be presented at the University of Akron School of Law's sixth annual Intellectual Property Scholars Forum.

Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute, on the apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation.

Both sides of this debate misunderstand the relationship between biodiversity and biotechnology. Both sides have overstated the significance of bioprospecting. It is misleading to frame the issue as whether intellectual property can coexist with the international legal framework for preserving biodiversity. Any lawyer can reconfigure intellectual property to embrace all of the intangible assets at stake, including raw genetic resources, advanced agricultural and pharmaceutical research, and ethnobiological knowledge.

The real challenge lies in directing biodiversity conservation and intellectual property toward appropriate preservation and exploitation of the biosphere. Commercial development aids biodiversity primarily by overcoming perverse economic incentives to consume scarce natural resources that may turn out to have greater global, long-term value. We continue to debate these issues not because we are rational, but precisely because we are not.

Indeed, legal approaches to biodiversity and to biotechnology are so twisted that they represent an extreme application of prospect theory. Losing supposedly hurts worse than winning feels good. The law of biodiversity and biotechnology appears to reverse this presumption. Biodiversity loss is staggering and undeniable. Humans are responsible for the sixth great extinction spasm of the Phanerozoic Eon. By contrast, gains from bioprospecting are highly speculative. Even if they are ever realized, they will be extremely concentrated. There is no defensible basis for treating ethnobiological knowledge as the foundation of a coherent approach to global economic development.

In spite of these realities, the global community continues to spend its extremely small and fragile storehouse of political capital on this contentious corner of international environmental law. Global economic diplomacy should be made of saner stuff. The fact that it is not invites us to treat the entire charade as a distinct branch of behavioral law and economics: bioprospect theory.

Walrus baby

Yes, walruses are charismatic megafauna, and biodiversity conservation means so much more than that. But it sure is fun to watch a 250-pound walrus baby, Mitik, frolic in his first days at the New York Aquarium. Hat tip to New York Times.