This week, The Guardian‘s sister newspaper The Observer published an article on the issue of limited access to cell lines – one of the essential building blocks for the production of cell-cultured meat.
The article features comments from several alt-protein industry thought leaders, including Good Food Institute (GFI) senior scientist Elliot Swartz. The nonprofit has been at the forefront of calling for more production of, and access to, cell lines for scientists and entrepreneurs working on cell-cultured proteins.
Swartz and others interviewed — including New Harvest executive director Isha Datar and Breakthrough Institute food and ag analyst Saloni Shah — called for more public funding into R&D around cultivated proteins in order to achieve this.
While private investment into cell-cultured meat could hit $1 billion annually this year, public investment is barely 1% of that, according to the GFI – minuscule for a technology touted for its supposed potential to mitigate climate change.
However, The Observer also decided — mistakenly, in my view — to frame the problem as being the result of intellectual property (IP) protections. It précises its piece by saying that cellular meat production is “being held back by patents, a reluctance to share research, and a lack of government support.”
It also states that “private companies […] have shown resistance to sharing data and running certain experiments [with third parties];” while there are also “accusations that industry secrets [are] slowing down innovation in the field.”
While governments’ lackluster input is mentioned, what this framing does is shift blame back onto the shoulders of entrepreneurs and businesses, who depend on IP laws and strategies to create and maintain a competitive edge in the market and to raise funds from investors.
Moreover, the message the article sends is muddled; conflating patents, trade secrets, and data protection measures — which can actually enable, rather than stunt, an ‘open’ innovation environment — and ultimately detracting attention from what Swartz, Datar et al identify as the key problem: the distinct lack of public funding for cellular ag R&D.
Patent confusion
The Observer says that the multiple requests landing in GFI’s inbox each week from researchers seeking cell lines can only be met with one answer: “publicly available” cell lines “don’t really exist.”
“That doesn’t mean that they’re nowhere to be found,” the newspaper continues. “Upside Foods (previously Memphis Meats) has submitted several patents to protect cell lines it has developed, and companies such as Cell Farm Food Tech have built a business around selling cell lines for profit. Keeping discoveries behind closed doors is a pattern of behavior found in private companies across the industry, which many believe is slowing down innovation.”
Firstly, ‘private companies’ are not the exclusive gatekeepers of innovation in the cell-cultured meat industry. When Swartz took to Twitter yesterday to provide some added context around the Observer interview, he pointed out that it “would be great to see companies license […] formulations they develop, but formulations can and often are developed first in academia.”
“But not without funds,” he added.
The answer to cell-cultured meat’s biggest conundrum? Fruit flies, says Future Fields – read more here
Secondly, it’s inaccurate for The Observer to characterize patenting a discovery as keeping it “behind closed doors” or not making it “publicly available.”
In fact, an inventor must agree to publicize their invention in detail in order to obtain a patent on it (granted patents, and many pending applications, are searchable on free-to-access public databases such as Google Patents.)
What they get in return for this public disclosure is a right to exclude other parties from using their invention commercially — ‘practicing on’ the invention, in legal parlance — for a limited period.
This gives the patent holder a competitive advantage; with the right to exclude, they get to decide who can practice on their invention and who can not.
The advantage to society — so the argument goes — is that the technical ins and outs of that invention are now published for all to see, providing a foundation for further technological progress.
This is one reason why many businesses choose not to seek patent protection for their innovations, but rather to keep them as trade secrets. Unlike the patent’s time-limited right to exclude, which typically lasts for 20 years, trade secrets can be kept confidential in perpetuity; it’s up to the trade secret’s owner to ensure the cat isn’t let out of the bag.
Indeed, The Observer appears to go on to contradict its earlier suggestions that patents restrict cellular ag innovation. It quotes Swartz as saying that “companies tend not to patent these things, because by patenting a cell culture medium you have to include everything that’s in there, which is ‘open sourcing’ what the ingredients are.”
Another reason to opt for trade secrecy over patent protection is cost. Fees must be paid to file for a patent, and to maintain it over its 20-year lifespan. To maximize the chances of having a patent granted by the government, an application for one needs to be drafted by specialized legal professionals – typically at what many startups and academic teams would consider rather a high price.
Private industry investment ‘needs to be matched’ by public sector
In any case, whether protected as a patent or a trade secret, a company’s ‘intellectual assets’ — which might include its differentiating technologies, datasets, or customer lists, among other things — can always be shared with other parties if necessary, by means of licenses, assignments, non-disclosure agreements, and so on.
Whether a business does so or not is purely a business decision. And when they decide against sharing their intellectual assets with others, it should be clear to us why that’s the case.
These assets comprise the core value of many, if not most, businesses – and especially for early-stage tech startups; they are their competitive advantage, the stuff that allows them to gain customers, secure market share, and generate returns for themselves and their investors. Those returns can then be re-invested into further growth and R&D, pushing the company itself, and the wider industry, ever farther forward.
So, when IP does prove a barrier to collaboration, more often than not it’s because the IP holders have decided so. We shouldn’t focus energy on castigating private businesses for doing what’s natural to them: competing in the marketplace and protecting their competitive edge in any legal way they can.
Rather, we should be finding ways to encourage and incentivize them to share their knowhow in ways that offset or reduce those perceived competitive risks.
One way of doing that, as Swartz suggests, is by injecting more public funding into the space. In addition to boosting R&D itself, more public money would give academics and cash-strapped startups an enhanced ability to protect their intellectual assets as patents or other forms of IP. This would make it safer for them to share their ‘crown jewels’ with third parties – perhaps, as Swartz told The Observer, via “open source”-style arrangements that will be “really important for bringing new ideas on how to scale this technology or lower costs.”
That’s why the focus for criticism should squarely fall on the public purse’s pitiful contribution to cultivated meat research – “to date, only a little over $12 million,” according to Swartz.
“Private industry has pioneered cultivated meat and brought concept to reality in under six years. This has spurred [private] investments into industry, which may be worth over $1 billion total by year-end,” he said on Twitter.
“This is good. We don’t have time to waste in developing cultivated meat. We need [that] urgency and investment to be matched by the public sector […] Altruistic private companies could deposit cell lines for broader use, as they likely have extras that aren’t intended to be used in manufacturing. But generally, this isn’t expected of them. Simply creating and increasing access to cell lines is typically driven by public funds.”
He concluded: “We need strong private and public sector research for cultivated meat to thrive, but thus far the public component has been lacking. Private industry shouldn’t be expected to fully prop up this deficit.”
As The Observer — rightly — points out, more public capital in the mix would give government and other public sector players more say over how research into cell-cultured meat is conducted – and how the innovations that come out of that research are used, shared, and ultimately commercialized into world-changing products.
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