Resolving the Open Source Paradox in Biotechnology : A Proposal for a Revised Open Source Policy for Publicly Funded Genomic Databases

This article examines the intellectual property conflicts that arise when creators of large-scale, publicly funded genomic databases release that data to the public. One recent genomic project, the International HapMap Project, implemented a form of data release modeled on the open source approach that has achieved prominence in the computing industry. Rather than releasing the data freely into the public domain, as previous genomic projects had done, the HapMap Consortium required database users to assent to a licensing agreement designed to discourage them from engaging in parasitic patenting, which is the filing of patent applications that block other users' access to the data. This article contends that the open source data access policy adopted by the International HapMap Consortium fails to protect adequately against the dangers of parasitic patenting. The article analyzes the shortcomings of the HapMap Project's open source policy and proposes an enhanced model that preserves some features of the open source approach while providing additional protection against parasitic patenting. In order to lay the groundwork for this analysis, Part I provides a brief background of the aims and data access policy of the HapMap Project. Part II describes the significant shortcomings of the HapMap data access policy. Part III then proposes an alternative data access policy that preserves some features of the open source approach while also providing enhanced protection against parasitic patenting. The alternative data access policy proposed here will help to achieve the aims of the National Human Genome Research Institute of the National Institutes of Health, which has emphasized its commitment to implementing data access policies that reduce the incidence of parasitic patenting, with the ultimate goal of advancing public health by making human genomic databases available to researchers worldwide