Intellectual property and the dematerialisation of biological science

ARC Australian Laureate Fellowship

Contemporary plant-related scientific research operates in a complex and rapidly changing legal environment. This creates a number of obstacles that, if not managed correctly, can hamper scientific innovation, deter private sector investment, and undermine research outputs. These obstacles arise at many points along the research pathway - from the delicate negotiation of biodiscovery agreements covering the collection of genetic resources, to the distribution of intellectual property rights arising out of scientific research, to the adoption and uptake of the research results, through to the successful commercialization and/or successful dissemination of findings.

These challenges are compounded by the fact that biological resources are governed by an array of different legal regimes, which span multiple jurisdictions ranging from the local and state through to national to international. Over time a number of different solutions, some more effective than others, have been developed to resolve these potential problems. However, in the last decade, a new challenge has emerged that not only threatens to undermine these legal solutions, but also throws up new challenges that may negatively impact on scientific research, the adoption of that research, and ultimately on food security. This new challenge has arisen as a result of the so-called dematerialisation of biological science, that is typified by computational modelling and synthetic biology.

These changes in the way science is being done create problems for the law because, in one way or another, plant-based intellectual property laws all presuppose that the objects being regulated have a physical form. Whether it is the standard material transfer agreements used in scientific collaborations, the way patent law construes subject matter eligibility, or the international legal treaties dealing with ‘plants’, there is an explicit presumption that the material subject to legal regulation necessarily has a physical form that the law sets out to manage. One of the consequences of the changing scientific practice, and the ensuing legal confusion, is that it calls into question the legal frameworks related to this topic. Building on historical work that looks at how intellectual property law dealt with earlier examples of dematerialisation, particularly in relation to organic chemistry, early computing, and plant innovations, this project will consider the impact that the dematerialisation of biological science is having on intellectual property law and what some of the possible responses might be.