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Abstract

Copyrights and patents grant property rights to creators and inventors in order to spur further innovation through the dual approach of increasing the amount of material in the public domain and rewarding inventors and creators for their efforts. However, in recent years, it has been postulated that extensive granting of copyrights and patents may in fact stifle additional creation and development. This led to a revolt in the computer programming industry and spawned the open source movement, which provides software with its source code and a license allowing for free creation and distribution of works. This movement attempts to spur innovation in an alternative manner, primarily by promoting contribution to the public domain. This open source concept has spread to other realms normally protected by copyright through systems like the Creative Commons. The Creative Commons is a non-profit organization devoted to expanding the breadth of creative works available in the public domain for others to legally build upon and share. The organization has released several copyright licenses (known as Creative Commons licenses) that authors can choose from and use to protect their works in lieu of traditional copyright. These licenses allow creators to communicate which rights they reserve, and which they waive for the benefit of recipients and/or other creators. Although it does not provide the same commercial gains to creators as traditional copyrights, the widespread use of the Creative Commons licenses in the digital creative world and subsequent increase of material in the public domain suggest that the open source movement may be useful to spur innovation in other areas. Biotechnology, such as genetic and molecular biology research that leads to the development of useful therapeutics, is one area where open source was postulated to be useful to counter the over-proliferation of patents hypothesized to suppress innovation. As such, the Boston-based Science Commons was developed in 2005 to bring the open source movement to biotechnology through various projects designed to increase the amount of scientific data available in the public domain. The implicit goal of the Science Commons project is to replace traditional intellectual property systems, such as patents, and to promote innovation by increasing access to knowledge conferred through open access approaches. This Comment provides the first substantive analysis of whether the Science Commons is succeeding in its attempts to promote innovation. Because there are challenges inherent in the practice of biotechnology, such as the large financial costs associated with research and development of pharmaceuticals and the absence of an appropriate community, this Comment suggests that open source biotechnology as envisioned and implemented by the Science Commons is not successful in promoting innovation because the Science Commons attempts to promote innovation only by increasing the amount of material in the public domain, ignoring the incentive effects of rewarding inventors with patent rights and the related commercial benefits. This Comment postulates a compromise where premarket or “upstream” knowledge such as unknown gene sequences is shared through open source systems like the Science Commons, but downstream developments such as pharmaceuticals that act on the gene to treat a particular disease are patentable according to intellectual property norms. However, this Comment also suggests modifying the traditional patent system to be stricter, thereby resulting in fewer patents. This proposed system maximizes shared knowledge by publicizing information that is generally not patentable to begin with, potentially making further development easier. This system will also likely encourage innovation at all levels, from individual users to large pharmaceutical companies.

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