Los Angeles Times Article Way Off Base on Stem Cell Issues Still 22
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An article by Jennifer Washburn when you look at the April 12, 2006 problem of the l . a . Times entitled “The legal lock on stem cells;
Two patents which cover key research areas are setting back science,” discusses patent royalty issues surrounding California’s Proposition 71/CIRM previously discussed in this ezine (“Future Bumps into the Road For State-Funding Of Stem Cell Research,” http://ezinearticles.com/?id=171034.) However, unlike the theme when you look at the ezine, which suggested that patent royalty issues were bumps when you look at the road which may be worked out, the Washburn article suggested that stem cell patents were themselves problematic.
Washburn wrote: “the building blocks’s [WARF’s] patents derive from the job of James Thompson, a University of Wisconsin professor who had been the scientist that is first isolate embryonic stem cells, in 1998. But the patents are so broad — unreasonably broad — that they cover all human embryonic stem cell lines in the U.S., not just the specific lines developed by Thompson.”
Obliquely, Washburn suggests that California’s CIRM should challenge the validity of WARF’s patents: “The Foundation
for Taxpayer and Consumer Rights, based in Santa Monica, has urged California’s stem cell agency to challenge the Wisconsin patents.”
The basic WARF patent is US 5,843,780 (issued 1 Dec 1998 to James A. Thomson, based on application 591246 filed 18 Jan 1996; the application was a continuation-in-part of U.S. application Ser. No. 08/376,327 filed Jan. 20, 1995. This invention was made with United States government support awarded by NIH NCRR Grant No. RR00167. Thus, if California’s CIRM were to challenge the ‘780 patent, one would have state taxpayer money of California used to challenge a patent held by a Wisconsin agency (WARF), based on research paid by for by the federal National Institutes of Health (NIH). It is doubtful that state taxpayers in California or in Wisconsin, or federal taxpayers, would find this a expenditutre that is useful of.
The previous ezine article stated: An important message to understand is the fact that funds from state-funding of stem cell research meant to create new horizons in hospital treatment might be directed to paying down holders of already-created rights. This could happen there are valid patent rights when you look at the stem cell area, and states employed in the certain area must negotiate with the holders of those rights. Separately, the Hatch-Waxman Act created in 35 USC 271(e)(1) a harbor that is safe research familiar with furnish information to federal agencies (like the FDA). The Supreme Court gave this harbor that is safe breadth in the case Merck v. Integra.
Separately, it is ironic for Washburn to complain that WARF is asserting its patent rights while, at the same time, CIRM will be seeking to obtain patent rights to enforce against others. Although the patent royalty distribution under Proposition 71 is muddied by federal tax issues associated with the planned use of tax bonds that are exempt California voters were told that there is income from patent royalties.
As A aside that is minor the Washburn article, the two patents discussed therein, U.S. 5,843,780 and 6,200,806, were respectively a continuation-in-part and a divisional; because neither was a continuation, the remark about the applicant can file a “continuation” with another until it gets approved was inappropriate to these facts. The USPTO is changes that are currently studying the “continuation” process, but perhaps the changes, as currently proposed, wouldn’t normally have impacted both of these applications. Discussions concerning the effectation of repeated continuations on patent grant rate have already been discussed in 4 CHI.-KENT J. INTELL. PROP. 186 (available at http://jip.kentlaw.edu); ironically, misunderstanding associated with patent grant rate underlies a few of the arguments concerning the not enough patent quality relied upon when you look at the Washburn article.L . a . Times Article Way Off Base on Stem Cell Issues