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An article by Jennifer Washburn within the April 12, 2006 situation of the Los Angeles Instances entitled “The authorized lock on stem cells;
Two patents that cowl key analysis areas are setting again science,” discusses patent royalty points surrounding California’s Proposition 71/CIRM beforehand mentioned on this ezine (“Future Bumps In The Highway For State-Funding Of Stem Cell Analysis,” Nevertheless, not like the theme within the ezine, which prompt that patent royalty points have been bumps within the highway which might be labored out, the Washburn article prompt that stem cell patents have been themselves problematic.
Washburn wrote: “The inspiration’s [WARF’s] patents are primarily based on the work of James Thompson, a College of Wisconsin professor who was the primary scientist to isolate embryonic stem cells, in 1998. However the patents are so broad — unreasonably broad — that they cowl all human embryonic stem cell traces within the U.S., not simply the precise traces developed by Thompson.”
Obliquely, Washburn means that California’s CIRM ought to problem the validity of WARF’s patents: “The Basis
for Taxpayer and Shopper Rights, primarily based in Santa Monica, has urged California’s stem cell company to problem the Wisconsin patents.”
The fundamental WARF patent is US 5,843,780 (issued 1 Dec 1998 to James A. Thomson, primarily based on utility 591246 filed 18 Jan 1996; the applying was a continuation-in-part of U.S. utility Ser. No. 08/376,327 filed Jan. 20, 1995. This invention was made with United States authorities help awarded by NIH NCRR Grant No. RR00167. Thus, if California’s CIRM have been to problem the ‘780 patent, one would have state taxpayer cash of California used to problem a patent held by a Wisconsin company (WARF), primarily based on analysis paid by for by the federal Nationwide Institutes of health (NIH). It’s uncertain that state taxpayers in California or in Wisconsin, or federal taxpayers, would discover this a helpful expenditutre of cash.
The earlier ezine article acknowledged: An necessary message to understand is that cash from state-funding of stem cell analysis meant to create new horizons in medical remedy could also be directed to paying off holders of already-created rights. It could effectively occur that there are legitimate patent rights within the stem cell space, and states working within the space should negotiate with the holders of these rights. Individually, the Hatch-Waxman Act created in 35 USC 271(e)(1) a protected harbor for analysis used to furnish data to federal businesses (such because the FDA). The Supreme Court docket gave this protected harbor nice breadth within the case Merck v. Integra.
Individually, it’s ironic for Washburn to complain that WARF is asserting its patent rights whereas, on the identical time, CIRM will likely be searching for to acquire patent rights to implement in opposition to others. Though the patent royalty distribution underneath Proposition 71 is muddied by federal tax points related to the deliberate use of tax exempt bonds, California voters have been advised that there could be earnings from patent royalties.
As a minor apart to the Washburn article, the 2 patents mentioned therein, U.S. 5,843,780 and 6,200,806, have been respectively a continuation-in-part and a divisional; as a result of neither was a continuation, the comment about the applicant can file a “continuation” with one other till it will get accepted was inappropriate to those info. The USPTO is at the moment finding out adjustments to the “continuation” course of, however even the adjustments, as at the moment proposed, wouldn’t have impacted these two purposes. Discussions concerning the impact of repeated continuations on patent grant price have been mentioned in 4 CHI.-KENT J. INTELL. PROP. 186 (obtainable at http://jip.kentlaw.edu); sarcastically, misunderstanding of the patent grant price underlies a few of the arguments concerning the lack of patent high quality relied upon within the Washburn article.
