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Dr. Heidi Seibold

Patents vs Open Science ย ๐Ÿ“

Published about 1 year agoย โ€ขย 3 min read

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Can patents and Open Science go together or do they contradict each other?

Many research institutions are big on patenting the output of their researchers. I've always had my difficulties in understanding why. Also, how should I view patents as an Open Science advocate? So I finally did some research and here's what I've learned so far.

Disclaimer: I am just a person learning about this topic, so take all of this with a grain of salt, OK? ๐Ÿ˜ฌ Also, if you are an expert on this, please get in touch! Let me know if I got it right and what else I should consider (pleeeeassee ๐Ÿค“).

What are patents?

Patents give you control over your invention. You can decide who is allowed to do what with it. You can also prevent others from making your patented product (but you don't have to).


Example: A research team creates research software and their legal department at the institution advises them to patent the software and start a spin-off. But should they really? And couldn't they just use a license instead of a patent?


Patents vs licenses

Licenses such as the Creative Commons or Open Source licenses can also be used to gain control over your invention. With a license you decide who can use your invention in which way.


Example: Let's say the research team decides to use an open source license that allows others to do almost anything with the software except turning it into a closed source product. There are licenses for that, for example GNU GPLv3.

Is that better or worse than using a patent for the team? Let's say, it depends.

  • What is the business model they are interested in? If they want to sell support for the software, a license is enough.
  • Do they even want to start a business? If not, why would they hinder others in doing so?
  • Do they worry about others replicating the functionality of their software (instead of using the exact same code)? Licenses cannot help with that, patents can.
  • Are they allowed to patent the software with the funding they have for the research project? Some research funding bodies require open source, for example the Chan Zuckerberg Initiative.
  • If they were publicly funded: Do they feel it is right ethically to patent something that was paid by the tax payer but now the tax payer can't access the research output?
  • Is the software even patentable? This is not always the case.
  • Is there funding for patenting? Patents cost money, licenses don't (anyone can use them).

Patents and Open Science

Patent holders must disclose how their invention works. That's a basic principle of patents. So that is pretty much in line with Open Science, right?

Well...

To me the values of Open Science include sharing your knowledge with others in the pursuit of scientific progress and improvement of the world. Stopping others from working with and building upon your invention is not in the spirit of Open Science, but is โ€“ as far as I understand โ€“ THE central idea of patents.

โ€‹Dylan Roskams-Edris writes the following in his excellent article discussing this:

While it is possible to have patenting practices completely compatible with open science by, for example, obtaining a patent and dedicating it to the public domain, doing so is highly inefficient when a novelty killing public disclosure can accomplish the same thing at essentially no cost.
[...]
To state it baldly, the presence of most forms of IP coupled with enforcement activities aimed at preventing others from accessing and using knowledge hampers the most effective dissemination and use that knowledge.
[...]
When these basic knowledge outputs are subject to the restrictions imposed by patents because of potential (and in the vast majority of cases unrealized[17]โ€‹[18]โ€‹) commercial potential, they pose at worst a serious risk of hindering downstream research and future commercial development[19]โ€‹ and at best contribute little to downstream innovation[20]โ€‹ and the public good[21]โ€‹.

Example: In my opinion the researchers in our example should not file a patent if one of the following applies:

  • The research is funded through public money.
  • The team does not want to start a business that focuses on selling the software itself.
  • The software is of substantial public interest, e.g. with impacts on public health.

My sources

Here are the sources I found and used for this issue:

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I hope you enjoyed this issue. Please forward it to anyone who could benefit.

All the best,

Heidi

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P.S. If you're enjoying this newsletter, please consider supporting my work by leaving a tip.

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Heidi Seibold, MUCBOOK Clubhouse, Elsenheimerstr. 48, Munich, 81375
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Dr. Heidi Seibold

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All things open and reproducible data science.

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