Community Property

Open-source proponents plant the seeds of a new patent landscape.

KENNETH NEIL CUKIER

In early 1999, as labs around the world raced to decode the human genome, Tim Hubbard, Ph.D., head of Human Genome Analysis Informatics at the Wellcome Trust Sanger Institute in Britain, was becoming increasingly interested in something further afield: open-source software. On the institute’s internal email list, he drew parallels between the open-source movement’s philosophy and what the six-nation project was trying to achieve by making the genome sequence publicly available. While surfing the Net in his office late one evening, he stumbled upon something called “open-content licenses.” It offered a way to apply open-source principles to information, not just to computer code. “I realized that there might be ways to adapt [open-content licenses] to something appropriate to the genome that had legal weight,” he recalls.

Dr. Hubbard knew he had to act fast. A flurry of emails ensued, and lawyers set in motion. The team even contacted the scraggly father of the free software movement, Richard Stallman. Soon draft license agreements and implementation plans were circulated, followed by a round of legal reviews. A special contract was drawn up so that if a party refined a sequence by mixing the Human Genome Project’s public information with extra sequence data, it would be obliged to release it. “Protecting the sequence from someone taking it, refining it, and then licensing it in a way that locked everyone out was the primary objective,” says Dr. Hubbard.

At the end of February, a little more than a month after the crash initiative began, the Sanger Institute dropped its strategy. Historically, genomic data had been placed in the public domain with unrestricted use. Imposing any sort of restriction on it, even in the form of an open-source license that ensured its nonproprietary nature, would run counter to that tradition, the group decided.¹

Yet far from a setback, the work of Dr. Hubbard and others represents a pioneering moment, perhaps even the future of life sciences. As the industry advances, there is a growing call among researchers to redraw the lines of intellectual property. Along with graduate degrees, they’re armed with moral arguments, evidence of economic efficiency, and a nascent spirit of solidarity that exceeds the traditional ethos of coöperation found in the sciences and academia. And the approach that is gaining momentum comes from the neighboring industry of information technology: open source. The underlying principles are the communal development of a technology; complete transparency in how it works; and the ability to use and improve it freely, as long as improvements are shared. Whereas customers of proprietary software are forbidden to modify (or usually even inspect) underlying code, open-source users are encouraged to further develop products. The parallel in life sciences are efforts that represent a “common good,” like the Human Genome Project, according to Sir John Sulston, 2002 Nobel Prize winner. “Progress is best in open source,” he says.

1  Sulston, J., G. Ferry (2002) The Common Thread: A Story of Science, Politics, Ethics and the Human Genome. Joseph Henry Press (National Academy Press)