Original Article

Novel constitutions? New regimes of

openness in synthetic biology
Stephen Hilgartner
Department of Science & Technology Studies, Cornell University, 306 Rockefeller Hall, Ithaca, NY 14853, USA.

Abstract Synthetic biology is typically described as an arena in which new kinds of biological
entities are being created via novel engineering-based means of tinkering with life and its
component parts. This research domain is also an arena of social experimentation, in that some
advocates of synthetic biology are actively promoting new property regimes aimed at establishing
various forms of open biology. This article considers how these emerging visions of open biology
are implicated in the construction of political subjects and the relations among them. The article
contrasts two policy discourses for understanding intellectual property: the traditional innovation
perspective and the less well-institutionalized but clearly emerging politics-of-technology
perspective. These discourses serve as heuristic devices that offer different perspectives from
which to view emerging property regimes in the synthetic biology arena. As a concrete example of
an open biology regime, the article then turns to the BioBricks initiative and examines the regime
being imagined and constituted in its vision of open synthetic biology. In this way, the article
explores the question of whether and in what ways the open source regimes currently being
proposed actually address increasingly pressing questions about how property rights in emerging
technology impinge on democratic decision making.
BioSocieties (2012) 7, 188207. doi:10.1057/biosoc.2012.5; published online 4 June 2012
Keywords: intellectual property; patent; open source; policy discourse; politics of technology;
synthetic biology

Introduction
The field of synthetic biology is founded on the self-consciously revolutionary vision of
dramatically increasing human capacity to manipulate biological entities, making biotechnology into a true engineering discipline. Several different and at times competing
technological visions about how to achieve this goal are in play. These include schemes based
on creating standardized biological parts analogous to electronic components; on using a
minimal genome as a chassis for constructing organisms; on engineering novel nucleic
acid chemistries of human design; and on developing so-called protocells. The most
articulate spokespersons for the field imagine transformative applications, such as creating
biological systems that would replace oil with fuels created by novel engineered organisms.
Some synthetic biology visionaries also picture the field as a site of important social
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innovations in scientific institutions and practice. Enthusiasts of the parts concept, such as
Thomas Knight and Drew Endy, imagine the standardization of biological parts as placing
biology in a position analogous to computing in the late 1970s, when the personal computer
emerged from the garages of hobbyists and amateurs who challenged the likes of IBM.
In such environments, they contend, innovation arises from the collective activities of
geographically and organizationally distributed creators a situation that makes free sharing
of tools and information extremely desirable. In this context, the field has stimulated
ongoing discussion about the best mixture of proprietary and open innovation regimes, and
synthetic biologists dedicated to openness have launched efforts to create new modes of
open source biology.
Synthetic biology is an excellent arena for posing questions about governance of
emerging technology, for it raises a complex mixture of issues about who should control
innovation and to what ends. Large corporations such as Exxon Mobil are investing in the
field, and a number of startup companies have been founded, including a company called
Synthetic Genomics, launched by J. Craig Venter.1 Poised on the boundary of the
informational and the material, synthetic biology looks to some analysts like a site where
the weaknesses of patent law and copyright law may produce a perfect storm (Rai and
Boyle, 2007; see also Pottage, 2006). Advocates of openness, such as legal scholar James
Boyle (2010), see an important place for patents in the field, but worry that patents
handed out on too fundamental a layer could actually hurt science, limit research, and
slow down technological innovation. Indeed, some recent patent applications appear to
cover very general aspects of the technology; an application by Venter and his colleagues
for a patent on a method of making a synthetic cell comprising introducing a genome or
partial genome into a cell or cell-like system may be a case in point. In early 2010, the
announcement that a team at the J. Craig Venter Institute had created an artificial cell
generated much commentary about the creation of artificial life. But Boyle (ibid.)
argues that the danger is not that Craig Venter has become God, it is that he might
become Bill Gates. We do not want a monopolist over the code of life. At the same time,
the vision of do-it-yourself genetic engineering has inspired concern that easy access to
synthetic biology technology could enable terrorists and others to produce biological
weapons, or might pose serious biosafety risks, with dangerous organisms emerging from
under-regulated research sites. Openness, in this view, could itself be a source of risk.
Questions about who should ensure biosecurity, biosafety and biopreparedness thus have
inspired ongoing debate about social issues, such as the nature and severity of the threats
and the kinds of controls needed (Reppy, 2003; Garfunkel et al, 2007; Lakoff and Collier,
2008; Calvert and Martin, 2009).
This article considers new regimes of openness in synthetic biology, building on recent
work in science and technology studies that examines the co-production of knowledge and
social order (Jasanoff, 2004). The analysis proceeds from a starting point that views
intellectual property (IP) regimes whether the traditional proprietary ones (such as patent
and copyright) or the novel open ones (such as copyleft licensing and free and open source
1 Venter seems to prefer the term synthetic genomics to that of synthetic biology.

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software) as constitutional systems that construct subjects, objects and the relationships
among them.2 These regimes are also underwritten by discourses that advance visions of the
purposes and proper operation of the regime, along with imaginaries of desirable
sociotechnical futures to which their advocates expect them to contribute (Jasanoff and
Kim, 2009). They are also underwritten by material technologies, which are woven into the
everyday operation of regimes.3 The constitutional metaphor is not unfamiliar to some of
the enthusiasts for openness in synthetic biology, who self-consciously see these regimes as
creating novel and promising ways of governing interactions among the participants in
research.4 By stressing the fundamental nature of the changes proposed, this metaphor
underlines the need for a detached and critical analysis. It also highlights the need to consider
the kinds of subjects that these regimes create. In his study of free and open source software,
Christopher Kelty (2008, p. 28) argues that what is distinctive about free software practices
is that they aim to construct what he calls recursive publics that is, publics constituted by
a shared concern for maintaining the means of association through which they come
together as a public. Analyzing new regimes of openness in biology entails considering such
public-making processes and exploring what sorts of publics these regimes seek to create.
What kinds of individuated and collective subjects does a regime constitute? How are rights,
duties and privileges allocated among them? Whom does it seek to empower and
disempower and in what ways? And what imaginaries of freedom, citizenship, progress
and democracy does it seek to support?
To develop a constitutional perspective on openness in synthetic biology, I outline two
discourses that offer different visions of what is at stake in emerging technology. The first
discourse focuses on innovation; it is thoroughly incorporated into the IP system and, in fact,
provides the traditional framework that justifies the system and frames its fundamental goals
and problems. The second policy discourse focuses on the politics of technology; it begins
outside the IP system in debates about societal choices pertaining to new and emerging
technology, and it offers a contrasting perspective about what is at stake in decisions about
IP. Using these two discourses as a heuristic device, the article turns to what is presently the
most visible effort to build openness into the field: the BioBricks Foundation (BBF).5
The scientists involved in the Foundation are among the most articulate spokespersons for
a parts-based vision of synthetic biology. In an effort to prevent overly broad patenting of
parts, they have attempted to constitute a regime for keeping parts freely available. The
article examines key documents that outline features of this regime and reads them as a draft
constitution that allocates rights, powers and privileges among various actors. Finally,
I look at this constitution from the perspective of each policy discourse to shed light on the
nature and novelty of the BioBricks regime: What normative values does it seek to promote?
2 Copyleft uses copyright to construct self-perpetuating licenses to lock in openness by permitting others to
modify and distribute copies of a work if and only if the same rights are preserved in the modified versions
(for example, the General Public License and some Creative Commons licenses).
3 See Hilgartner (2004) for an example from genome mapping.
4 Boyle, who has been writing about synthetic biology for several years, wrote a brilliant book analyzing
law and the constitution of the information society (Boyle, 1996). Torrance (2010), for example,
concludes a law review article with the assertion that the BioBrick Public Agreement (discussed later) can
be read not only as a licensing agreement but also as a constitution.
5 The BioBricks initiative is, of course, only one of many examples of efforts to build openness of one form
or another into the biological sciences.
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How does it frame the significance of emerging technology in society? What are the key
subjects that it produces? What forms of power does it seek to create, channel and check?
What is its vision of successful policy? And how does it define the boundaries of its own
concern and jurisdiction? Ultimately, I argue that, if successful, the BioBricks regime would
instantiate a form of openness that fits relatively snuggly within the innovation discourse
while largely failing to tackle politics-of-technology concerns.
Several points must be made about this analytic strategy. First, in reading the proposed
BioBricks regime this way, I am not assuming that its constitution as written will
deterministically dictate how it operates on the ground. The documents offer a simplified
account of how things are supposed to work, providing what we might call a constitutional
frame that schematically encodes the basic agents, things, processes and rules that at least
in official representations of a regime are said to govern its operation. In actual practice,
however, things are inevitably much more complex and may actually function quite
differently, as anyone with a passing familiarity with the politics of constitutional
democracies well knows. Nevertheless, a constitutional frame is an important element in
the action even if the process does not neatly follow the sanitized and simplified paths that
official frames schematically depict. Political decision making in actual democratic states
may involve all manner of backroom deals, but lobbyists tend to direct their efforts toward
constitutionally empowered authorities.
The limits of the data must also be noted. This article is based on the analysis of written
materials, especially quasi-legal documents, which advocate for and present the preliminary design of a particular vision of openness in synthetic biology. These texts represent
the perspective of the leadership of the BioBricks initiative; they have not been supplemented
here with the sometimes conflicting views of other actors. The process through which the
documents took shape, for example, while clearly a valuable topic for inquiry, is outside the
scope of this article. One might also question my choice of the BioBricks regime for a case
study; for example, on the grounds that some scientists doubt that this collection of parts
will remain important. But whatever the technological promise of these particular parts, the
BioBricks regime has become a reference point and symbol both in discussion about
synthetic biology and about open source biology. My hope is that this short article can
contribute to the debate about the politics of openness in biology.6

Policy Discourses and Emerging Technology

Elsewhere, I have contrasted two policy discourses that pertain to emerging technology,
examining how each views IP, particularly the patent system (Hilgartner, 2009).7 By a policy
discourse, I mean an assemblage of concepts, metaphors, narratives, frames and normative
constructs that together give structure to an arena of policymaking, constituting the fundamental orientation toward the arena.8 Policy discourses frame a policy domain, addressing
6 The constitutional approach used here can be used to analyze any of a variety of regimes of control, so
while the case study is specific to the BioBricks regime, it is relevant to other constitutional efforts in
biology and other areas of emerging technology.
7 The section on policy discourses and emerging technology summarizes Hilgartner (2009).
8 See, for example, Fischer (2003), Hajer (2005), Lakoff (2002); see also Goffman (1974).
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the whats, whos and whys of policymaking and defining basic policy goals and problems.
Policy discourses also express imaginaries that picture the world in specific ways,
envisioning actors of particular types, along with specific forms of social order and
governmentality.9 When successful, policy discourses become built into organizational
structures, legal doctrine, analytic techniques, informal norms, standard operating
procedures and ongoing practices. The two discourses discussed here which I am
labeling the innovation discourse and the politics-of-technology discourse are
institutionalized to very different degrees. The politics-of-technology discourse is only
partially institutionalized, and the directions it will take remain unclear. In contrast, the
innovation discourse that underlies the patent regime is institutionalized at multiple sites,
including government agencies, financial markets, business plans, and a massive corpus of
legal and scholarly literature. It is important to emphasize that these discourses are often
blended to some extent in policy debate and scholarly discussion; I have teased them apart
and sharpened the contrast as a heuristic device.10

The innovation perspective

In considering the innovation policy discourse about IP, I want to ignore the many
complexities of IP law and policy to focus on some of the most mundane aspects of the
discourse, especially with respect to the patent regime. The starting point for the traditional,
innovation-centered policy discourse about IP is a stylized story about an inventor (or author
in the copyright context), who creates novel entities and must be rewarded and protected
against free riders. Innovation is cast as a social good, the inventor as hero, the free rider as
villain and limited property rights as the solution to the basic policy problem (Rose, 1993;
Boyle, 1996). Society becomes the beneficiary of the limited rights bargain, which drives
technological progress and economic growth. This basic storyline is translated via the legal
system into a set of doctrinal questions: What constitutes a patentable invention? What
counts as infringement? How should novelty be codified? The same story, translated
into economic terms, can be refined into a number of theoretical viewpoints about how
patents stimulate innovation, including invention inducement theory, disclosure theory, and
development and commercialization theory (Mazzoleni and Nelson, 1998). All of these
viewpoints, however, share the same central policy goal: accelerating the development and
introduction of novel technologies. To be sure, analysts who have looked carefully at the
operation of the patent system disagree about the extent to which it meets this objective.
IP maximalists (who favor more and stronger rights) battle IP minimalists (who favor
fewer and weaker rights) about what kinds and level of patent protection will actually
maximize innovation (Boyle, 2003a). This argument is important, as much is at stake in
the question of whether current patent policy actually stimulates innovation effectively. But
for our purposes, what is most notable is the fact that both camps focus narrowly on
stimulating innovation as the goal of IP policy, as Boyle (2003a) points out. The goal of
policymaking, and the measure of its success, is in producing technological progress
and economic growth by sustaining high levels of innovation. Even at a time when a
9 On imaginaries, see Jasanoff and Kim (2009), Taylor (2004) and Marcus (1995).
10 Some of the most interesting writing in this domain, such as the work of Boyle (1996, 2003a), Lessig
(1999, 2004) and Gillespie (2007) blend these concerns (see Hilgartner, 2009).
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variety of institutional, political and technological conditions are converging to provoke

reconsideration of classical justifications of the patent law (Pottage, 2009), most debate
centers on instrumental questions surrounding the stimulation of innovation and/or the
proper boundaries of patentable subject matter.

The politics-of-technology perspective

One arrives at a very different view of what is at stake in IP by considering an increasingly
familiar but far from fully institutionalized policy discourse: the politics-of-technology
perspective. Rather than starting from a microeconomic just-so story about inventors and
free riders, this policy discourse begins with a macropolitical story about the profound role
of technological systems in the contemporary world. The narrative might begin with
the Manhattan Project, the thalidomide disaster or Silent Spring; or perhaps with the double
helix, the first organ transplant or the birth control pill; or alternatively with the Turing
machine, Project Whirlwind or the rise of the internet, but the central story in each case
would be that choices about how to wield the awesome power of modern technology
have become matters of great societal importance. In such areas as the life sciences,
information and computing technology, and so-called converging technologies, decisions
about the shape of emerging technological systems are nothing less than decisions about the
future shape of societies. Competing normative visions of what direction emerging
technologies should take and how they should be woven into the social world pose difficult
problems of governance for democratic states (Jasanoff, 2005). To respond to these
challenges, governments have experimented with a variety of new institutional mechanisms,
ranging from enhancing science advice, to building technology assessment and ethics
programs, to promoting public engagement in deliberations about technological decisions
(Jasanoff, 1990; Hilgartner, 2000; Barben et al, 2008). To be sure, the imaginaries
underlying these programs vary in the degree to which they endorse democratic as opposed
to technocratic approaches to decision making. Nevertheless, many of these innovations
included the introduction of democratizing mechanisms. Prominent among these are such
transparency-enhancing mechanisms as freedom of information laws, open advisory
committee meetings, public comment periods in regulatory proceedings and a wide range
of public engagement mechanisms. The extent to which such changes actually work in
terms of producing better decisions or enhancing democracy or achieving legitimation
remains a matter of debate, and the chorus of voices calling for better ways to engage
citizens in deliberations about technology is accompanied by commentary about the
obstacles to doing so and the paradoxes of representational techniques (for example, Irwin,
2006; Lezaun and Soneryd, 2007). But in a number of domains, citizens, social movements
and non-governmental organizations are demanding a greater voice in decisions about
emerging technologies.
In a context in which technology is regarded as having political dimensions, it is not
surprising that IP would become a site of tension; for decisions about IP bear not only on
innovation issues but also on how influence over the future direction of technological
change will be allocated. Thus, the politics-of-technology perspective raises questions
about the role of IP in democratic governance: How do patents affect the balance of
power in the social negotiations that shape technological systems? Do patents at times
limit the ability of citizens to exercise their voice and choice in these negotiations? More
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deeply, what forms of democratic representation and citizenship do various IP regimes

tend to support?
Questions about who will participate in shaping emerging technological systems do not
fit neatly into the innovation policy discourse, which frames societal decisions about
how to deploy novel technological possibilities as outside the IP domain, appropriate to
address at later stages of technological development through such mechanisms as markets,
regulation and criminal law. But the politics-of-technology perspective challenges this
institutional cartography: first, because it questions the empirical validity of a bright line
distinction between creating new technologies and making decisions about them; second,
because it sees the traditional boundaries as tending to constitute those who are not
inventors or their licensees as consumers rather than active citizens; and finally, because it
often expresses a normative commitment to strengthening the voice and choice of citizens
in decision making about emerging technology before irreversible commitments are made
(for example, Macnaghten et al, 2005).

Comparing the perspectives

The innovation and politics-of-technology discourses frame what is at stake in IP policies in
strikingly different ways. For the innovation discourse, technological change stems from a
series of inventive steps taken by identifiable inventors whom the patent system seeks to
identify and reward appropriately. This discourse tends to imagine technological change as a
source of societal benefits and economic growth that accrue to everyone, at least in the
aggregate and over the long run. To overstate the point, the innovation discourse tends to
approach technology almost as if it could be conceptualized as a one-dimensional variable
whose level and rate of progress are the key metrics for evaluating policy success.
Stimulating more and faster technological progress framed as a rising tide that lifts all
boats is the central normative goal of the patent system. The challenge of making choices
about the direction of technological development, like the challenge of addressing any
undesirable aspects of technological change, is not considered part of patent policy, but
is left to other institutions such as markets, regulatory agencies and criminal law.11
In contrast, the politics-of-technology discourse focuses on technology in social context.
The result is an ambivalent perspective that neither uncritically embraces nor categorically
rejects technological change. Drawing mainly on historical and social studies of technology
(rather than economics and law, the fields that dominate the innovation discourse), the
politics-of-technology view focuses on how technologies are embedded in the world and
intertwined with social relations. Most importantly, the politics-of-technology view denies
that technology progresses in a teleological way toward optimal solutions; instead, it takes
shape through dynamic processes of social negotiation that typically involve normative
struggles about what constitutes a good solution. What is more, technological designs often
cast users in particular roles, seeking to choreograph human action (think of the options that
are and are not made available to the visitors to a website). To be sure, scholars remain
divided about the extent to which designers can exert control or users can resist it
(Oudshoorn and Pinch, 2003). The main point, however, is that technological design is not
11 An exception found in some jurisdictions (for example, the European Patent Office) is doctrine that
disallows patents on subject matter deemed to threaten morality or order publique.
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an apolitical process but involves struggles among social groups, struggles with winners and
losers and important implications for the kinds of lives people lead. From this point of view,
the ability to shape emerging technologies appears as an especially important form of power
in the contemporary world.
The politics-of-technology view stands in sharp contrast with the vision of apolitical
progress found in the traditional IP discourse. Where the innovation discourse sees emerging
technology as a politically neutral source of growth, the politics-of-technology discourse sees
a contested domain in which emerging technologies open up ways to reorder sociotechnical
worlds. Where the innovation discourse perceives the issues as questions of research and
development (R&D) policy, the politics-of-technology discourse sees quasi-constitutional
questions about the future of society. Where the innovation discourse frames patents as
a source of market power, the politics-of-technology discourse focuses on the way that
patents allocate configuration power the ability to influence how technologies are
interwoven with social worlds; for patent holders enjoy broad managerial rights to make
decisions about the sociotechnical architecture of systems using their inventions.12 Whereas
the innovation discourse centers on technological progress and problems of economic
efficiency, the politics-of-technology discourse focuses on democratic choice and problems of
political representation. Whereas the innovation discourse centers its action around the
figure of the inventor, the politics-of-technology discourse is most concerned with the figure
of the citizen.13

The BioBricks Initiative

With the innovation and politics-of-technology discourses in mind, it is now time to turn to
efforts to create new regimes of openness in synthetic biology. The most visible effort of this
kind is that of the BBF and several related organizations. A board of directors consisting of
engineers and scientists from the Massachusetts Institute of Technology (MIT), Stanford
University and Harvard University runs the BBF. This group includes several of the most
well-known advocates of synthetic biology, including Drew Endy of Stanford and formerly
of MIT, Thomas Knight of MIT and Randy Rettberg of MIT. Endy serves as the president of
the BBF. Along with co-director Adam Arkin of the University of California at Berkeley,
Endy is also director of another organization promoting openness in synthetic biology,
BIOFAB. Rettberg directs the MIT Registry of Standard Biological Parts, which aims to
create and curate a collection of well-characterized standardized biological parts that can
be assembled into higher-ordered devices and systems. Taken together, these organizations
12 On configuration power, see Hilgartner (2009).
13 Innovation discourse concerns itself with several species of inventors, including past inventors (whose
rights the patent regime must protect), present inventors (who deserve to be rewarded with rights) and
future inventors (who need incentives to create and also require access to the ideas and inventions of others
in order to create). Minimalists imagine a world in which past inventors and their rights inhibit future
innovation by restricting access to their patented inventions (for example, Heller and Eisenberg, 1998),
whereas maximalists tend to imagine inventors as needing incentives and control over markets to stimulate
innovative activity. Even so, the maximalists and minimalists share the basic commitments of the
innovation discourse (Boyle, 2003a). In contrast, the politics-of-technology discourse offers a distinct
perspective on IP, casting inventors as but one interest group among many in a broader democratic polity.
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and people who I will gloss as the BioBricks group are presently the leading promoters, or
promise champions in van Lente and Rips (1998) terminology, of a future vision of open
synthetic biology based on freely available parts.

The need for openness

The BioBricks group envisions openness in synthetic biology as helping to reach the
overarching goal of making synthetic biology into a core technology of the twenty-first
century, much like computing has been in recent decades. The group imagines a
transformation of genetic engineering from the ad hoc approach that now dominates
the field to one rooted in basic engineering principles. For example, rather than starting with
one existing organism and splicing an existing gene from another to produce piecemeal
modifications, these synthetic biologists seek to build organisms and biological systems
from scratch that are specifically designed to perform particular functions. Drew Endy,
originally trained as a civil engineer, articulates this vision in an influential article in Nature
in which he argues that the application of three engineering principles standardization,
decoupling and abstraction are needed to transform biotechnology into a true engineering
discipline (Endy, 2005). The success of fields such as electronics, he argues, depends on these
principles. Standardization of parts enables engineers to characterize them fully, providing
detailed information on their performance and reliability and allowing construction of
models to predict how they will function in combination. The second principle, decoupling,
refers to the ability to break complex problems into simpler ones that can be addressed
separately, allowing for the reduction of complexity. Finally, abstraction refers to the ability
to build hierarchies of parts, devices (combinations of parts that perform a function), and
systems (combinations of devices that work together). These principles would together
enable synthetic biologists to produce increasingly powerful systems, themselves built of
subsystems, which depend not on whatever genes and organisms evolution happens to have
produced but on components specifically shaped to achieve human purposes.
To advance this vision, the BioBricks group is promoting the creation of standard
biological parts, with the idea that they will form the basis for ever more sophisticated
engineering of systems. The BioBricks group sees this technological vision as requiring
social changes in R&D cultures as well, including the widespread sharing of parts and
information on their characteristics and performance. The three central goals of the BBF
thus stress not only the creation of standardized parts but also the open sharing of
information, open technical standards and the free availability of parts. In particular, the
Foundation aims:
K

to develop and implement legal strategies to ensure that BioBrickt standard biological
parts remain freely available to the public;
to support the development of open technical standards that define BioBrickt standard
biological parts; and
to develop and provide educational and scientific materials to allow the public to use and
improve existing BioBrickt standard biological parts, and contribute new BioBrickt
standard biological parts.14

14 biobricks.org/Our_Goals.php.
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The BioBricks group imagines a world in which anyone can access a large collection
of biological parts and mix and match them to create novel systems, unconstrained by IP.
Using BioBrickt standard biological parts, a synthetic biologist or biological engineer can
already, to some extent, program living organisms in the same way a computer scientist
can program a computer.15 Openness applies both to availability (The DNA sequence
information and other characteristics of BioBrickt standard biological parts are made
available to the public free of charge currently via MITs Registry of Standard Biological
Parts16) and to contributions to the collection (Any individual or organization is welcome
to design, improve, and contribute BioBrickt standard biological parts to the Registry16).
The BioBricks group is trying to establish a community norm to support these forms of
openness:
The Registry is based on the principle of get some, give some. Registry users benefit
from using the parts and information available from the Registry in designing their
engineered biological systems. In exchange, the expectation is that Registry users will,
in turn, contribute back information and data on existing parts and new parts that
they make to grow and improve this community resource.17
Implementing this vision requires a legal strategy that will prevent BioBricks parts
from being captured by patents that would constrain access. To complicate matters, the
strategy of having the Foundation preemptively patent all parts and license them to any
and all at no charge is not feasible owing to the high financial costs of obtaining the
patents, estimated in the tens of millions of dollars. Accordingly, the BBF established
a Legal Working Group charged with developing a framework for maintaining openness
of BioBrick parts.
The BBF also set up a Technical Standards Working Group that seeks to create standards
for synthetic biology through an open standard-setting process. Standardization is imagined
here not as a form of repressive regimentation but as an enabling device, akin to the shared
grammar and vocabulary of a human language, that not only makes communication among
individuals possible but also provides individuals with the tools and flexibility to formulate
novel constructions. The declining cost of DNA sequencing and synthesis which synthetic
biologists see as analogous to Moores law in computing is also expected to contribute to
increasingly widespread availability of the tools to make new living things and biological
devices. The BioBricks group expects low costs and parts free of proprietary encumbrances
to widen participation in genetic engineering beyond the firms and universities now active in
the field, with students and garage entrepreneurs (who are sometimes compared to Steve
Jobs) playing a leading role. The BioBricks group is collaborating with a manufacturer of
biotechnology supplies, New England Biolabs, which is selling a basic kit of reagents for use
with BioBrick parts for US$235.
The BioBricks group is also engaged in community-building efforts. One concrete step in
this direction is its efforts to bring undergraduate students from around the world into

15 www.biobricks.org/.
16 ibid.
17 partsregistry.org/Main_Page.
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synthetic biology through the International Genetically Engineered Machine competition

(iGEM), which the Registry website describes as
the premiere undergraduate Synthetic Biology competition. Student teams are given a
kit of biological parts at the beginning of the summer from the Registry of Standard
Biological Parts. Working at their own schools over the summer, they use these parts
and new parts of their own design to build biological systems and operate them in
living cells.18
In 2009, the competition involved 112 teams and a total of 1700 participants.19 The ethos of
openness also applies to participation in BioBricks group activities. For example, the BBF
website notes that the BBF supports a Legal Working Group and invites readers to feel free
to join or contribute to the BBF Legal Working Group if you are interested.20 A similar
statement is made about the BioBricks Technical Standards Working Group.
The BioBricks group is generally optimistic that synthetic biology will produce significant benefits. However, it recognizes that there are risks associated with the development
of novel biological entities and notes the importance of biosafety and, in a world where
bioweapons and bioterrorism are salient political issues, biosecurity. Indeed, its basic goals
include encouraging the development and responsible use of technologies based on
BioBrick parts.

Constituting the BioBricks regime

The BioBricks group has worked to construct a legal framework for making its vision of
freely available biological parts into a functional system for assuring openness. Endy and
other BioBricks leaders have been involved in ongoing discussions of legal options, especially
through the BBF Legal Working Group. These discussions have taken place in a number
of settings including a Legal Standards Workshop and consultations with such stakeholders
as researchers in the field, technology licensing officers, venture capitalists, iGEM students,
NGOs and governmental actors (Creely and Pesenson, 2008). In January 2010, the Foundation
(BBF, 2010) published a draft version of a document called the BioBrickt Public Agreement,
DRAFT Version 1a (hereafter, the BPA), posting it on the internet for public distribution and
comment. Endy (2009) describes the BPA as a first generation solution to the problem of
establishing an appropriate IP system for synthetic biology. In addition, the goals and design
of the BPA are also discussed in several other BioBricks group documents, including the
archive of an internet discussion board, a web page on Why the BPA?, and some materials
prepared for the workshop on legal standards. The BPA, in conjunction with these other
documents, can be read as the constitutional framework for a regime intended to instantiate
a particular form of openness.
The BioBricks regime is guided by a schematic narrative that expresses its goals
and defines the problem it is designed to address. This narrative centers on the need for
open access to tools in order to unleash the creativity of individuals and the synthetic
biology community. The regime imagines these creative individuals to be numerous, widely
18 partsregistry.org/Main_Page.
19 Cambridge team wins Grand Prize for iGEM, 2009, www.admin.cam.ac.uk/news/dp/2009111001.
20 www.biobricks.org/.
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distributed geographically and organizationally, and nearly ready to launch a technological

revolution similar to that in computing. Significantly, the narrative portrays the emerging technology of synthetic biology not only as a source of significant economic and
technological benefits but also as a space for creative expression, as talented innovators
envision and build exciting applications. However, the BioBricks regime emphasizes that
innovators do not create from nothing; they need access to parts an essential component of
the means of creation. As a result, proprietary restrictions on the availability of parts
threaten to prevent synthetic biology from reaching its full potential. A public collection of
parts, available without restrictions on use, is needed. This collection can be constituted by
the collective action of a community of innovators who contribute and use parts.

Freedom to create
Beyond a deep commitment to technological progress, the BioBricks discourse brings to the
fore the normative ideal of the freedom to create. This value, a central theme for IP
minimalists, appears frequently in discussions of the realm of speech, especially in
connection to free speech and the copyright doctrine of fair use (Lessig, 2004). Freedom
of expression is also central to the free and open source software movement, which has
contended that code is speech, thereby invoking discourses of constitutional rights and
democratic citizenship (Coleman, 2009). Freedom to create is also important in the broader
discourse on the public domain (Boyle, 2003b), in which the notion that the space in
which emerging technologies take shape should be one that permits free, creative selfexpression is a central tenet. The BioBricks discourse highlights this idea with respect to
synthetic biology. The user of BioBricks parts thus is imagined as someone with a strong
desire and a legitimate right grounded in the fundamental principles of constitutional
democracies to experiment, or play with the possibilities of synthetic biology. The themes
of fun and excitement often appear in the BioBricks discourse especially in connection with
the iGEM vision of student teams creating novel apps, as well as the imaginary of garage
entrepreneurs, do-it-yourself genetic engineers and hobbyists playing a major role in
synthetic biology (for example, Mooallem, 2010). In addition, individual members of the
BioBricks leadership often voice the excitement that they and their students feel at the
creative possibilities of synthetic biology.
The regime treats an individualized creative user as the most important subject to
empower. Because the regime conceptualizes this individual (who may in fact be a team or a
legal person) as a user of past innovations who requires access to them to innovate further, I
will refer to this subject as the creative user-innovator. The regime also constitutes the
synthetic biology community as an important collective subject, aiming to enable and
support the development of a community of contributors and users of free-to-use [biological]
parts. The BioBricks discourse frames its openness policies as an R&D policy designed to
protect the community from an IP policy climate likely to prove inhospitable to the needs of
synthetic biology and its user-innovators. What is at stake in this policy domain is access to
the means of creation. The kind of power that IP can convey that this discourse emphasizes
most is what one might call creation-blocking power the ability of patents and copyrights
to restrict access to the means of creation for user-innovators. In one scenario, patent holders
might strategically deploy creation-blocking power; in another, the creation-blocking power
of many insignificant patents might collectively produce a dystopic anticommons. In either
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case, however, patents (at least if too numerous or too fundamental) are seen as threatening
to produce situations in which the freedom of the creative user-innovator is curtailed.
Given this emphasis on creation-blocking power, the main criterion the BioBricks discourse
advances for evaluating the effectiveness of an openness regime is whether it successfully
ensures that user-innovators get adequate access to parts and related information.

Users and contributors

The contributors and users who make up the community are imagined to often be the same
person playing each role at different times; for example, an innovator might begin as a user
of the communitys parts and later become a contributor who donates his or her newly
created parts to the collection. As a practical matter, the main subjects to which the
BPA gives legal structure are the Contributor and the User (although both are perhaps best
seen as what some have called prosumers individuals who engage simultaneously in the
production and consumption of value, like the masses of internet users who produce Web
2.0 content).21 The BPA consists of a pair of bilateral agreements between the Contributor
and User: a Contributor Agreement and a User Agreement. The Foundation, acting in effect
as a proxy for the community, presides over the regime as part of its effort to foster and
advance innovation, research, standardization and education in synthetic biology through
the open design, construction, distribution, understanding, and use of BioBrickt compatible
parts.
The BPA defines the roles of the Contributor and the User in ways intended to maximize
the Users freedom vis-a`-vis BioBrick parts. The basic role of the Contributor is to donate
parts and their uses to the common collection and to renounce any property rights pertaining
to those parts that might impinge on the Users freedom to operate. A person, company,
institution, or other entity becomes a Contributor by voluntarily entering into the Contributor Agreement and submitting a set of Materials to the BBF. Materials, the most
important object in the BPA, are defined broadly as consisting of the particular standardized
genetic material(s), their uses, and any associated sequence or function information. The
Contributor thus is defined as such in relation to a specific set of submitted Materials, and an
executed Contributor Agreement pertains to those Materials specified in the agreement and
no others (although additional materials can be contributed under additional agreements).
It is worth noting that the term Materials in this context may refer to DNA sequences
expressed in informational terms rather than as material DNA molecules, along with other
texts describing uses, compliance with standards and protocols, and reliability. Some (and
perhaps most) materials thus may be susceptible to transfer via the internet without mailing
around tubes of biomaterials or executing Materials Transfer Agreements.22
The User Agreement defines a corresponding User the person who may request and use
the Materials, or the company, institution, or other entity on whose behalf the User is
authorized to act. Like the Contributor Agreement, the User Agreement is specifically
limited to the Materials described in the particular Contributor Agreements that pertain to
the materials used. An entity becomes a User by entering into the User Agreement and by
21 See, for example, Ritzer and Jurgenson (2010). Examples of Web 2.0 content are YouTube videos,
Wikipedia and Facebook posts.
22 See Mirowski (2008) on MTA-related restrictions.
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acknowledging having read and understood the applicable BioBrickt Contributor

Agreement(s) relating to the Materials.
In this way, the BPA endows Contributors and Users with rather different rights, privileges
and duties. The asymmetry expresses the central normative goal of the regime: to give the
creative user-innovator wide freedom to operate with respect to BioBricks parts. The regime
is designed to allow Users to deploy parts at will, without constraints stemming from
availability, fees or proprietary restrictions. The Users rights to his or her creations even
extend to allowing exit from the restrictions of the regime. If a User invents something of
value built using BioBricks parts as components, the User may file for patent or otherwise
seek property rights in that invention. In contrast, if the Contributor holds any patents,
copyrights, data rights or other property rights in connection with the Materials contributed,
the Contributor must irrevocably agree
not to assert or threaten to assert such patents or property rights; not to initiate
International Trade Commission proceedings; not to threaten assertion of any rights
that may be granted through issuance of a patent application; not to invite to
license; and not to enforce such proprietary rights in the Materials as provided in
any manner against or otherwise adverse to the Foundation or Users (including
a Users manufacturers, distributors, customers, or anyone else acting under
Users authority or control), materials repositories, and/or materials libraries.
(BBF, 2010)

A leaky regime
Users face few restrictions on their freedom to operate with the materials. They are allowed
to use the Materials as they see fit to conduct synthetic biology research, build devices and
systems, or create new commercial products. The BPA permits Users to distribute or
redistribute unmodified BioBrick parts (for example, as kits for research by others). In
addition, Users may combine parts to create novel combinations, or may join BioBricks
parts with other components to create mixed systems, or otherwise construct new
inventions. Users give up no rights to patent or commercialize these combinations, mixed
systems or inventions, even if BioBricks parts are among their components. The regime
does not employ self-perpetuating copyleft licenses, as does the well-known General Public
License employed in some free and open source software regimes. To be sure, Users are
encouraged to contribute their creations to the BBF, but they are not formally required to
do so.
As this discussion suggests, the maximization of the Users freedom to operate makes the
BioBricks regime potentially leaky. In effect, when a User brings an openly available
BioBricks part into the enclosed space of his or her garage or laboratory, the part becomes
a tool for creating new proprietary novelties over which the User has full managerial
rights; decisions about the disposition of a new creation (for example, whether to patent it,
publish it or contribute it to the BioBricks collection) are fully under the Users control
(cf. Hilgartner, 2012). Lacking self-perpetuating copyleft restrictions on the disposition
of entities containing the parts, the regime cannot prevent next-generation creations
assembled using BioBrick parts from escaping its control. The result is a regime that tightly
controls existing parts in ways that enforce openness but exerts no similar control over
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next-generation parts, except to the extent that Users voluntarily decide to become
Contributors of their new parts. It is possible that such voluntary contributions will become
a community norm as the BioBricks group imagines. However, it is also quite possible that
new parts and systems deemed to have commercial value will not be donated to the
BioBricks collection but will be patented or otherwise commercialized.
The BPA also makes an effort to ensure that existing property rights that impinge on
contributed parts do not leak into the collection undetected. One concern expressed during
the discussions with stakeholders was the problem of existing rights held by Contributors
or third parties. To help ensure identification of all property rights that might restrict the
Users freedom to operate, the Contributor also must provide to the best of Contributors
knowledge a complete list of all property rights, if any, owned by the Contributor or
another party in connection with the Materials. Alternatively, the Contributor may check
a box indicating that
to the best of Contributors knowledge, there are no issued patents, currently
pending patent applications, copyrights, or data rights that protect the Materials, in
whole or in part, contributed under this Contributor Agreement, including a nucleic
acid sequence within the Materials, a composition containing the Materials, or their
use. (BBF, 2010)

Responsible use
The imaginary of any and all enjoying freedom to create stands in tension with concerns
about biosecurity and biosafety. The BioBricks regime addresses this tension by imposing
some minimal restrictions on the Users freedom to operate. The most direct restriction is a
prohibition of harmful uses of BioBricks materials. Despite its generally enthusiastic
expectation that synthetic biology will have significant economic, health and environmental
benefits, the BioBricks discourse does not imagine synthetic biology to always be an
unmitigated good and does not deny the existence of legitimate concerns about biosafety and
biosecurity.23 For example, one of the BBFs defining aims to promote the responsible use
of technologies based on BioBricks parts implicitly postulates the possibility of
irresponsible use.24 The BPA assimilates such concerns into a succinct prohibition:
User will refrain from using the Materials in connection with any intentionally
harmful, negligent, or unsafe uses. (BBF, 2010)
The BPA leaves unspecified the conceptualization of harm and the question of who might
be empowered to define it (other than the User or perhaps implicitly common sense). To
be sure, in some cases agreement about what constitutes a biosecurity or biosafety risk
may be readily achievable. But in many instances, agreement about the extent and the
23 Indeed, some BioBricks leaders such as Endy, who co-authored a report (Garfunkel et al, 2007) have been
active in biosecurity and biosafety issues. Efforts to develop technical means for addressing biosecurity and
biosafety are on the iGEM agenda, and recently one iGEM team developed a method for scanning
computer files to identify efforts to synthesize dangerous DNA sequences, such as the genomes of
pathogens.
24 Some analysts, notably Vogel (2008), contend that biosecurity threat assessment is systematically flawed in
that it focuses narrowly on technical issues and neglects social factors.
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acceptability of risks will likely remain elusive, as the ongoing controversy over genetically
modified organisms (to name but one apposite example) reminds us. Moreover, beyond
safety and security concerns, specific synthetic biology technologies may become entangled
in struggles among groups committed to different technological designs or incompatible
visions of the good life. In short, there is every reason to anticipate that the definition
of responsible use will be contested.
Rather than attempting to directly address decision making about risks, harms and values,
the BioBricks regime constitutes these matters as largely outside its zone of decision making.
The BPA formulates the problem of harmful uses mainly as a matter of individual
responsibility by requiring Users to agree not to undertake unsafe uses. But the BPA also
implicitly frames the problem as one for states to address, reminding the User and the
Contributor that they are obliged to comply with laws and regulations applicable to the
Materials, including laws and regulations governing export control and safety.25

Discussion
The BioBricks regime is still under construction; the BPA is officially a draft and it is unclear
that the design outlined above will match its final form. Moreover, even if the basic
constitutional framework remains the same, it is likely that the regime in practice will differ
to some extent from the regime as written. It also may change over time, at least in subtle
ways, as actual contributors and users interact with it. Nevertheless, it is not too early to
discern the basic features of this emerging regime, at least as presently constituted, and
to consider it in light of innovation and politics-of-technology concerns.
Table 1 provides a summary of the main features of the policy discourse underlying the
BioBricks regime. The BioBricks regime matches the outlook of the innovation discourse
much more closely than the politics-of-technology discourse. Like the innovation discourse,
the BioBricks regime takes its central normative goal to be technological progress,
augmented with the goal of supporting freedom to create. Normative questions about the
direction that technological progress should take and about how and by whom it should be
directed are relegated to other institutional spaces. The regime privileges the creative userinnovator, a species of future inventor. The figure of the citizen does not explicitly appear.
Ultimately, the BioBricks regime looks like a rather straightforward expression of the
imaginary underlying IP-minimalist versions of innovation discourse, with an emphasis
on future inventors and their need for access and the goal of curtailing creation-blocking
power.
As IP-minimalist strategies for building the various forms of openness loosely grouped
under the label open source go, the BioBricks regime looks relatively conservative. It does
not employ self-perpetuating copyleft licensing, for example, nor does it attempt to build
25 For reasons of space, I only briefly mention several additional aspects of the BPA. The User and the
Contributor agreements both contain no warranty and limitation of liability clauses. In addition, to
ensure the authenticity of BioBricks parts and to provide attribution and acknowledgment, the BPA
stipulates that the Foundation may insert BioBrick identification tags into Materials, and that Users who
distribute or commercialize BioBricks parts must prominently display the BioBricks logo. BioBrickst is a
registered trademark.
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Table 1: Schematic summary of the policy discourse underlying the BioBricks regime
Normative focus:
Central figure:
Emerging technology:
Stakes in IP policy emphasized:
Conception of policy domain:
Form of power emphasized:
Effect on transparency:
Vision of successful policy:

Technological progress; Freedom to create

The creative user-innovator
As a source of economic growth and other benefits;
As a space for creative expression and play
Access to the means of creation
R&D policy
Creation-blocking power
Visible parts and visible standards
Adequate access

other barriers to leakage into proprietary regimes. To be sure, this relatively conservative
approach in some ways maximizes the freedom of the user-innovator, who is not constrained by copyleft-style barriers. Moreover, in a context where the prospects of significant
profits loom large, getting users to agree to give up rights to commercialize their future
inventions may have been impossible. Certainly, a number of the stakeholders consulted
warned the BioBricks group to be very careful about imposing copyleft licensing.
Ultimately, asking about the effectiveness of the BioBricks regime in innovation discourse
terms generates a set of empirical questions questions most readily posed in the future
tense, such as: Will this regime work reasonably well in terms of constituting a valuable
open collection of parts? Will community norms of sharing develop and drive openness
significantly beyond what is legally required by the regime? Will synthetic biology become a
patent-driven research domain with a set of crucial, limiting parts only available through
restrictive licenses? Will an open collection provide the tools needed to work around
patents in ways that largely neutralize their creation-blocking power? The inability to
answer such questions definitively has created a space for performative promises and
forward-looking statements (Brown et al, 2000; Fortun, 2008; Nelson et al, 2008) about
the prospects for open-source biotechnology (for example, Henkel and Maurer, 2007;
Carlson, 2010).
The BioBricks regime does not directly address many of the main politics-of-technology
concerns. Indeed, the boundary of the regime is constructed such that most of those issues lie
outside its jurisdiction. The traditional institutional cartography that postulates a division
between developing technology and making societal decisions about it is re-inscribed in the
BioBricks regime. Nevertheless, the BioBricks regime has some virtues when viewed from a
politics-of-technology perspective. Although politics-of-technology and innovation analysts
often start from different premises and imagine the world in very different ways, this does
not imply that they will always pursue different policy goals. Owing to their concerns about
monopolies on configuration power, politics-of-technology analysts have good reasons for
supporting IP-minimalism, even if their reasons differ from those of an innovation analyst
who is most interested in eliminating creation-blocking power. For this reason, politics-oftechnology analysts might well hope that the BioBricks regime will become a significant
alternative to patenting in synthetic biology, with the ultimate effect of reducing the number,
scope, strength and strategic significance of patents and thus producing less concentration
of configuration power.
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Yet, at the same time, the BioBricks regime looks relatively unambitious from the politicsof-technology perspective. Not only does the regime offer no protection against the leakage
of next-generation inventions into the proprietary domain, but at least as presently constituted it does not take advantage of what from a politics-of-technology perspective looks
like the most interesting aspect of the various experiments grouped under such labels as open
source: the possibilities for constructing new collective subjects for shaping the direction of
innovation; for example, by attempting to build recursive publics (Kelty, 2008) in ways that
distribute configuration power in new and more inclusive ways. The BioBricks regime, at
least as currently designed, does not attempt innovations in this direction. In short, the
analysis above suggests that the BioBricks regime, while perhaps capable of creating a
community resource of available parts, looks like a relatively conventional IP-minimalist
regime. As such, it does not really address increasingly pressing questions about how
property rights in emerging technology impinge on democratic decision making. As presently
constituted, the BioBricks regime may provide biological parts for the future inventor, but
it will do little to empower the future citizen.

About the Author

Stephen Hilgartner is Associate Professor and Chair of the Department of Science &
Technology Studies at Cornell University. His research examines the social dimensions and
politics of contemporary and emerging science and technology, especially in the biosciences.

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