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Errors in Stem Cell Patent Decision

Discussion in 'Legislative Issues' started by Ellen, Sep 22, 2008.

  1. Ellen

    Ellen Senior Member

    Oct 22, 2005
    Examiner Made Two Legal Errors in Stem Cell Patent Decision, Consumer Advocates Say Appeal Brief Asks Wisconsin Alumni Research Foundation's Patent Claims Be Rejected

    SANTA MONICA, Calif., Sept. 19 /PRNewswire-USNewswire/ -- Legal papersjust filed with the U.S. Patent Office cite two legal errors made by apatent examiner in confirming a patent on human embryonic stem cells andask its claims be rejected, two consumer groups said today. In their brief to the U.S. Patent Office's Board of Appeals andInterferences, Consumer Watchdog and the Public Patent Foundation atBenjamin N. Cardozo School of Law said that the examiner made two mistakesof law leading him to make incorrect conclusions about the patentability ofthe stem cell research. He erroneously applied too high a standard forreasonable expectation of success and he applied too high a standard forobviousness. The two groups maintain -- and most scientists agree -- that thecreation of human embryonic stem cell lines was obvious in the light ofwork that had been done in other species. No other country in the worldrecognizes the disputed stem cell patent. Read the appeal brief here:http://www.consumerwatchdog.org/resources/913BPIABrief.pdf Consumer Watchdog and the Public Patent Foundation (PUBPAT) firstchallenged three stem cell patents -- the '780,'806 and '913 -- held by theWisconsin Alumni Research Foundation (WARF) in July 2006. Initially allclaims were rejected. This spring the PTO approved them with narrowedclaims. The '913 patent is being re-examined under rules that provide foran appeal to the PTO's Board of Appeals and Interferences. The two groups noted that the patent challenge has already improved thesituation for stem cell researchers; shortly after the PTO launched there-examination, WARF announced a substantial easing of its licensingrequirements. "Our challenge prompted WARF to adopt a more co-operative approachtoward the stem cell research community," said John M. Simpson, ConsumerWatchdog Stem Cell Project Director. "However, even in its narrowed formthis patent should never have been issued and we intend to demonstratethat." In their brief the groups wrote: "In this reexamination, the Examiner made two critical legal errorsthat led him to make incorrect conclusions regarding the patentability ofthe instant claims. First, the Examiner required the expectation of successto be an absolute certainty in order for it be considered 'reasonable.'This is too high a standard and conflicts with binding precedent. "Second, the Examiner concluded that since human embryonic stem cellcultures as claimed had not existed before, they were not obvious. Thiseffectively eviscerated the non-obviousnes requirement by collapsing itinto the Examiner's anticipation inquiry. This standard is too high andconflicts with binding precedent." The groups stressed that while James Thomson deserved credit for hisresearch, important scientific accomplishments are not necessarilypatentable. They said that he was able to derive a stem cell line becausehe had access to human embryos and financial support that other researchersdid not have. Joining the two consumer groups in the challenge from the beginning wasDr. Jeanne Loring, now director of the Center for Regenerative Medicine atthe Scripps Institute. Later in the case Dr. Alan Trounson, then ofAustralia's Monash University and now president of the California Institutefor Regenerative Medicine, Dr. Douglas Melton of Harvard and Dr. Chad Cowanof Harvard filed affidavits supporting the challenge. "It's not just scientists that are affected by the patents," said Dr.Loring. "Patients and their families know that WARF's iron-fisted controlof stem cells is slowing life-saving research." Consumer Watchdog, formerly known as The Foundation for Taxpayer andConsumer Rights, is a leading non-profit and non-partisan consumer advocacygroup. For more information visit http://www.consumerwatchdog.org The Public Patent Foundation at Benjamin N. Cardozo School of Law is anot-for-profit legal services organization that represents the public'sinterests against the harms caused by the patent system, particularly theharms caused by undeserved patents and unsound patent policy. For moreinformation, http://www.pubpat.org/SOURCE Consumer Watchdog

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