Some researchers will be more interested in making their data openly available to advance research than in commercialising patented products or processes derived from their research. These researchers will not be concerned that public disclosure of their research data could prevent them from obtaining a patent because the invention is no longer novel or is obvious. However, disclosure of data, in itself, will not always be enough to prevent patenting. The problem arising from the public release of data is that it leaves the way open for another party to make improvements to the disclosed data and then make those improvements proprietary.

Claire Driscoll of the NIH describes the dilemma as follows:

It would be theoretically possible for an unscrupulous company or entity to add on a trivial amount of information to the published…data and then attempt to secure ‘parasitic’ patent claims such that all others would be prohibited from using the original public data.¹⁵

Where information or data is used to develop a patentable invention, the subsequent patent rights may be broad enough to cover use of the actual data forming part of the invention. As Eisenberg and Rai explain:

Although raw genomic data would not undermine claims to specific genes of identified function, annotated data might do so. A major goal of annotation is to identity coding regions in the genome and add information about the function of the protein for which the region codes.¹⁶

Consequently, some research projects have relied on licensing methods, similar to the open content copyright licences described above, in an attempt to keep the data “open,” rather than simply releasing the data into the public domain.

One example is the HapMap Project, which required anyone seeking to use research data in the HapMap database to first register online and enter into a click-wrap licence for use of the data. The licence prohibited licensees from filing patent applications that contained claims to particular uses of data obtained from the HapMap databases, unless that claim did not restrict the ability of others to freely use the data.¹⁷

Another approach – currently being practised by the CAMBIA project - is to obtain a patent and then open licence the use of the patented invention on certain conditions. Some argue that, in specific areas, effective open access will only be achieved by allowing a certain level of use of the copyright and patented material.

CAMBIA is an international, independent, non-profit research institute led by well known scientist, Richard Jefferson. CAMBIA was designed to “foster innovation and a spirit of collaboration in the life sciences.”¹⁸ This goal is achieved through four interconnected work products:

• Patent Lens, which provides tools to make patents and patent landscapes more transparent;
• Biological Open Source Initiative (BiOS), which advocates for the sharing of life sciences technology and data through a series of licences;
• BioForge, a research portal (or repository) that makes data and technologies openly available for others to use in new innovations, whether for research, commercial use, or humanitarian use; and
• CAMBIA’s Materials, new technologies developed by CAMBIA, particularly in the field of genetics, which CAMBIA makes openly available under a BiOS licence.