However, if our patent application is granted covering the basic technology, these patents should dominate Monsanto’s applications. Many attorneys I”ve spoken with are suggesting that the ‘improvements’ described by Monsanto’s staff are very obvious in light of our disclosures, and so – given the improved standards in modern patent offices – would be unlikely to be granted.

However, if they are granted, and if ours is granted then the only way Monsanto can use these patents would likely be with a license for our technology. And of course that is a BiOS license in which they would be required to grant to all other licensees the ability to practice their improvements. Really win win of course for the sector.

And that’s the logic of the BiOS license. BUT there’s a potential catch. What if Monsanto doesn’t really wish to practice these inventions, but rather wish to use them to keep their competitors from using ‘our’ Transbacter technology in ‘their’ crops. This is a very real concern – the dog in the manger approach to patent licensing. Monsanto then couldn’t use the technology, but neither could anyone else. At first glance a pyrrhic victory indeed. Except that Monsanto already has freedom to operate with adequate technologies for gene transfer in these crops.

I met with Jerry Steiner, an Executive Vice President of Monsanto on April 4th of this year to ask him point blank whether that was their intention. Of course he assured me that ‘heavens no, we’d never use our patents that way’. Somehow, though I enjoyed our meeting, I didn’t come away profoundly reassured. In fact, the only proof of their intention will be for them to become BiOS licensees for this technology, which of course I strongly urged and still do urge.

Its a fundamental problem with using patent licensing to fix a seriously flawed system. We need something more profoundly inclusive and able to build a critical mass.

So I’ll blog on this at length, and should have a paper coming out soon in Nature about (if I write it!). Its called a Concordance, and its a legally binding mutual non-assertion contract that is open and based on privity. And it allows the members of the Concordance to be much more creative in working around and sharing work product.

Patent licenses are greatly constrained in what they can exact. There is a tension between anti-trust (competition) law and patent law. To fall on the wrong side of this is called patent misuse, often done by ‘tying’ or trying to demand terms in a patent license that exceed the contemplated scope of the patent grant. So we can only do so much with a patent license.

A contract that is not constrained by patent law and its tension with competition law is much more versatile. So we’re working towards these Concordances around areas of mutual non-assertion. These can also be very broad in terms of anticipating newly developed or acquired patents, and allowing very generous areas where patent holders can still assert their normal proprietary business models.

Much more later.. but in short, Monsanto filing ‘improvement’s is the normal course of business in the patent world. One could say its one of the main justifications for having a patent system. However, using very broad rights over those improvements in an exclusionary manner and using them to block progress was certainly not the intent of the patent system.

Sincerely
Atiye khosravi
Department of crop production and plant breeding
Collage of Agriculture
Shiraz University -Iran
Best wishes and good luck
Atiye

If on the other hand you mean the overall approach, I’m much more sanguine. Not least because in energy, environment, public health and medicine there are compelling challenges that are not being adequately met with current innovation paradigms; there is still a strong public good will and public sector; the industry is somewhat less monolithic in these sectors (to varying degrees).

As well, in these fields, there is a great publicly felt and articulated interest in new solutions that are science-enabled. Sadly in agriculture, it has been scorched earth. So our work on breaking monopolies there is in some ways too little, too late (though we won’t give up) because the public now equates science in agriculture with the behaviour of big multinationals.

Also, it depends very much on the creative spark of a few people. If we get a few core enabling technologies into a Technology Concordace (an evolved BiOS agreement that I’ll blog about soon), it can leverage great interest.

And finally, it will depend on public agencies imposing some discipline on their grantees to actually care about delivery. This is a great point of intervention. If a major funding body were to indicate that they would prefer a research proposal to focus on using OS platforms (even in molecular biology) the number and quality of such platforms would greatly increase.

best,
raj

Honestly, I came across your site becuase I have a blog feed for “open source software” and your post slipped in but I’ve now added you to me reader.