The Intellectual Commons and Property in Synthetic Biology

  • Kenneth A. Oye
  • Rachel Wellhausen


Is the development of synthetic biology threatened by sharing and ownership issues? What measures are synthetic biologists taking to address intellectual property and commons issues that may threaten development of the field? Part I presents a conceptual framework for the analysis of ownership and sharing in emerging technologies, organized around two dimensions – a private ownership vs commons axis and a clarity vs ambiguity axis. It then uses the framework to assess the fit between conventions governing intellectual property and elements of synthetic biology. Part II describes internal positions on ownership and sharing within the community of synthetic biologists, highlighting areas of agreement on common ownership of registries of parts for basic research and education, standards for performance and interoperability, and design and testing methods; and agreement on private ownership of designs of devices ripe for commercialization. Part II also discusses the varied views of synthetic biologists on precisely where to draw the line on public vs private ownership of biological parts and design principles. The conclusions examine domestic and international forces that may shape the evolution of formal legal conventions and informal practices in synthetic biology.


Intellectual Property Synthetic Biology Private Ownership Compulsory License Biological Part 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.



The authors acknowledge with gratitude members of the MIT Program on Emerging Technologies working group on intellectual commons and property, including Hanna Breetz, Lawrence McCray, Scott Mohr, Matthew Silver Gautam Mukunda, Neelima Yeddanapudi and Larry McCray; Arti Rai and James Boyle of Duke University Law School; participants at SB2.0, SB3.0 and SB4.0 including Rick Johnson of Arnold and Porter LLP, Stephen Maurer and Paul Rabinow of the University of California, Anne Marie Mazza of the National Research Council, Clara Sattler of Yale University Law School and the Max-Planck-Institut für Geistiges Eigentum; and participants in the 2007 Atlanta Conference on Science, Technology and Innovation Policy. Finally, the auth ors owe a special debt to members of the Synthetic Biology Engineering Research Center (SynBERC) who are creating the objects of sharing and ownership that this paper examines, including Adam Arkin, George Church, Drew Endy, Jay Keasling, Jason Kelly, Natalie Kuldell, Tom Knight, Kristala Prather, Randy Rettberg, and Reshma Shetty. This work was supported by the NSF Integrated Graduate Education Research and Traineeship Program and NSF SynBERC. All errors and omissions are our own. This work has some rights reserved under the Creative Commons Attribution-Share Alike 3.0 United States License.


  1. Barton J (2007) Intellectual Property and Access to Clean Energy Technologies in Developing Countries: An Analysis of Solar Photovoltaic, Biofuel and Wind Technologies, ICTD, Geneva, 5 December 2008Google Scholar
  2. Dent C, Jensen P, Waller S, Webster B (2006) “Research Use of Patented Knowledge: A Review.” OECD Directorate for Science, Technology and Industry, STI Working Paper 2006/2, accessed October 2008
  3. Heller MA, Eisenberg RS (1998) “Can patents deter innovation? The anticommons in biomedical research.” Science 1 May, 1998Google Scholar
  4. iGEM (2008) Accessed 10 November, 2008
  5. Mowery DC, Nelson RR, Sampat BN, Ziedonis AA (2004) Ivory Tower and Industrial Innovation: University-Industry Technology Transfer Before and After the Bayh-Dole Act, Stanford University PressGoogle Scholar
  6. NRC (National Research Council) (2004) A Patent System for the 21st Century, National Academies Press, Washington, DCGoogle Scholar
  7. OECD (2004), Patents and Innovations: Trends and Policy Challenges, OECD, ParisGoogle Scholar
  8. Paradise J, Janson C (2006) “Decoding the research exemption.” Nature Reviews Genetics 7(2):148–154PubMedCrossRefGoogle Scholar
  9. Patent Lens (2008) accessed October 2008
  10. Public Patent Foundation (2008) October 2008
  11. Rai A, Boyle J (2007) Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons, PLoS Biol 5(3):e58 doi:10.1371/journal.pbio.0050058 accessed December 2008Google Scholar
  12. Robinson J (1956) The Accumulation of Capital, MacmillanGoogle Scholar
  13. USPTO (US Patent and Trademark Office) (1999) Directives to Examiners re 35 USC § 112, paragraph 1, Revised Utility Examination Guidelines and Revised Guidelines for Examination of ApplicationsGoogle Scholar
  14. Van Overwalle G, van Zimmeren E (2006) “Reshaping Belgian patent law: the revision of the research exemption and the introduction of a compulsory license for public health,” IIP Forum, 64:42–49Google Scholar
  15. WIPRO (World Intellectual Property Rights Organization) (2008) “Climate Change and the Intellectual Property System: What Challenges, What Options, What Solutions,” Informal Consultation Draft 5.0.Google Scholar

Copyright information

© Springer Science+Business Media B.V. 2009

Authors and Affiliations

  • Kenneth A. Oye
    • 1
  • Rachel Wellhausen
    • 2
  1. 1.Department of Political Science and Engineering Systems DivisionMassachusetts Institute of TechnologyCambridgeUSA
  2. 2.Department of Political ScienceMassachusetts Institute of TechnologyCambridgeUSA

Personalised recommendations