patented technologies from multiple owners was facilitated by its broad membership and
their shared commitment to make these technologies widely available. This strategy is
likely to create commercial licensing opportunities as well to support humanitarian projects.
Another initiative has been spawned in an Australian organization, CAMBIA, to create a
new approach to technology access in agricultural biotechnology modeled after the “open
source” approach that is well developed in the IT software sector. The proprietary name for
this initiative is Biological Innovation for Open Society or BiOS and this approach is built
on a broad philosophical foundation to “to democratize problem solving to enable diverse
solutions to problems through decentralized innovation” (http://www.bios.net/daisy/bios/
home.html). At the heart of BiOS is licensing language designed to preserve a pool of
patented technologies from private appropriation. The idea is to create a “protected
commons” of enabling agricultural biotechnologies that are made freely available and
whose use cannot be restricted by third-party patent rights. Even when a patent is
granted on a new technology and broadly licensed, accessibility and utility can be
reduced as subsequent patents stake proprietary claims for specific uses of the technology,
or combinations of the technology with other technologies (these are often called “improve-
ment patents”). By signing the BiOS license, a researcher or an institution agrees to contrib-
ute back to the pool, for free distribution, data on the use of the technology and the patent
rights to any improvements made to the technology. Over time, with the improvements
invented and contributed back to the pool by a set of researchers, the pool grows.
Access to the original technologies that were donated by CAMBIA (Jefferson et al.
2002; Jefferson and Mayer 2003; Jefferson 2004, 2005) is preserved for a wide variety
of applications, and the technologies become more valuable as improvements are shared
and made accessible.
As one of several approaches designed to encourage broad-based participation in
research in biotechnology in the face of constraints imposed by intellectual property
rights (particularly those restricting the use of important enabling technologies), open
source (OS) in biology is a new and controversial legal innovation. The model itself is
often confused by evoking the principles of “openness” and “transparency,” neither of
which are simple goals to attain in the world of intellectual property rights. To agricultural
researchers, OS appears to promise a return to the scientific environment of the past, where
materials and ideas were exchanged with greater ease and collaboration was not circum-
scribed by a preoccupation with intellectual property.
In certain software applications, OS has provided a mechanism for achieving much
easier collaboration with copyrighted software production. But plant biotechnology consti-
tutes a field very different from that of software, primarily because IP protection relies on
patents rather than copyright. The shift from copyright to patent law, the long timelines of
research and development, and the expensive regulatory regime, provide great challenges
for open, distributed innovation and the establishment of a protected commons of easily
accessible technology in plant biotechnology. The development of a workable OS model
in biotechnology is difficult to design, but BiOS represents one of the early pioneers that
is seeking a practical implementation of a model in the life sciences.
14.7 Conclusions
Intellectual property as a tool to foster innovation has been important for over two centuries
but has become a much more prominent feature of research in the life sciences and in
338 INTELLECTUAL PROPERTY IN AGRICULTURAL BIOTECHNOLOGY