BiOS Licenses & MTAs
What characterises a BiOS-compliant agreement?
Usually, licenses for patented technology impose strict conditions on the user, commonly involving fees or royalties for use of the materials or methods or both. Materials Transfer Agreements (MTAs) typically impose the condition that the technology may only be used for certain purposes, often not allowing the development of products.
Instead of royalties or other conditions that disfavor creation of products, under a BiOS-compliant agreement, in order to obtain the right to use the technology the user must agree to conditions that encourage cooperation and development of the technology.
These conditions are that licensees cannot appropriate the fundamental “kernel” of the technology and improvements exclusively for themselves. The base technology remains the property of whatever entity developed it, but improvements can be shared with others that support the development of a protected commons around the technology, and all those who agree to the same terms of sharing obtain access to improvements, and other information, such as regulatory and biosafety data, shared by others who have agreed.
To maintain legal access to the technology, in other words, you must agree not to prevent others who have agreed to the same terms from using the technology and any improvements in the development of different products.
“Biological Open Source” is not a new way to patent, but a new way to share the capability to use patented technology
In the license versions and MTAs available on this website, both products and improvements can still be patented, and products and services can be developed for profit or for public good – but licensees and those who have used the technology under MTAs may not assert rights to exclude from use of improvements, even patented improvements, against the licensor and other licensees within the protected commons.
The essence of the open source concept: what is provided with wide access is not necessarily the product solution, but the enabling technology that allows products to be developed by innovative people. All those who agree to the terms of sharing have protected access to the capacity to use the enabling technology, and can make and commercialise products, royalty-free, without the need to renegotiate a commercial license.
Collaboration to share improvements is further facilitated by licensee access to protected discussion spaces on the BioForge. The BioForge is a portal for protocol-sharing, comments on patents, and discussion tools in both public and secure environments. As it develops it will provide further resources for cooperative development of technologies and maintaining capabilities to use them.
Do open source agreements work?
Open source agreements working on principles similar to BiOS have been widely applicable to software development protected under copyright or patents. This is a model that has worked very well for the creation of robust operating systems and products contributed to by thousands of programmers, and by profitable businesses such as IBM, Intel, Nokia, Sun, Apple and countless small and medium-sized companies.
In open source software agreements, the source code for computer programs is available under the terms of the license to others who agree to these terms so that it can rapidly evolve with many users involved in debugging it and further modifying it to develop other products to suit people’s needs. The original developer of the technology benefits, and so does anyone that improves it, because improvements can be tested and implemented rapidly.
What BiOS-compatible agreements are available?
Versions of the first BiOS license, developed for plant molecular enabling technologies, has been executed by a range of companies and non-profits of all sizes, based in many countries in the developing and developed world.
There is considerable interest in the use of BiOS-compliant agreements for access and benefits sharing related to genetic resources and genetic information. We also developed a license for genetic resource indexing technologies, but CAMBIA has released the patents on these technologies, so a license from CAMBIA is no longer required.
We’ve recently developed a simpler version of the plant technology license, and a similar license for health-related technologies is also being drafted. We also have a version that can be offered by any technology provider for any technology. Additional agreements can be developed as more technology is made available for sharing under these terms.
All BiOS-compatible agreements have these characteristics:
- Ownership of technology stays with the owner
- A world-wide, non-exclusive, royalty-free non-assertion covenant to make and use the technology and improvements.
- Mechanisms for sharing information that is desirable to share, such as public safety information
- No differentiation between a research license and a commercial license. All BiOS-compatible agreements allow the development of products for profit or for public good.
How do BiOS Agreements encourage and ensure Access and Benefits-Sharing?
Principles for the fair and equitable sharing of the benefits arising from the use of genetic resources, notably those destined for commercial use, are now widely recognised. In response to the concern that some authorities are understandably reluctant to share information and strains if they feel uncertainty as to whether the most affected populations will have any access to the benefits derived from them, the 1992 Convention on Biological Diversity requires measures to provide more certainty around access to biological information and genetic resources worldwide.
This recognises a principle in international law that for “a common concern of humankind”, such as agriculture, public health, and conservation of natural resources, there is an common interest in an economic goal of securing sustainable use for all. While not all countries have ratified this particular Convention, the particular treaty or wording cited is not as important as our common understanding that that scientific progress will be most rapid and innovative if data are available readily to all investigators in the communities providing research, and delivery of tools, in a way that preserves access to and benefit from their professional investments, intellectual contributions, and capability to use technology for delivery of products, whether for commercial gain or for the public good.
Thus, parties to all BiOS agreements explicitly respect proprietary rights but voluntarily set them aside for others who have agreed to share in the same way. We view this equitable sharing as an important safeguard for food and natural resources security and global public health. This framework is compatible with the Convention on Biological Diversity, as recognised in a review in Nature Review Genetics, April 2006.
Where can I obtain more information on BiOS agreement?
We’ve set up a discussion forum where you can comment on any of the agreement or license versions, or you may write to us (firstname.lastname@example.org) with comments and questions.
The covenants of the agreements have been crafted and improved by multiple intellectual property and transactions professionals. Our aim has been to make the agreements as simple and standard as possible while maintaining worldwide legal enforceability, not always a straightforward task! But important, to keep the protected commons uniformly accessible to all who agree to share, so that it can grow with use and improvement.