Category: Health News
Created: 9/15/2008 2:00:00 AM
Last Editorial Review: 9/15/2008
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 exempt bonds, California voters were told that there would be income from patent royalties.
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."
Washburn wrote: "The foundation's [WARF's] patents are based on the work of James Thompson, a University of Wisconsin professor who was the first scientist to 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."
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 useful expenditutre of money.
Los Angeles Times Article Way Off Base on Stem Cell Issues
Lawrence B. Ebert is a registered patent attorney located in central New Jersey. He holds a Ph.D. from Stanford, a J.D. from the University of Chicago, maintains a blog at IPBiz.blogspot.com, and is the author of LESSONS TO BE LEARNED FROM THE HWANG MATTER: ANALYZING INNOVATION THE RIGHT WAY, published in the Journal of the Patent & Trademark Office Society [88 JPTOS 239 (March 2006)]. Ezine draft submitted April 12, 2006.
The previous ezine article stated: An important message to appreciate is that money from state-funding of stem cell research intended to create new horizons in medical treatment may be directed to paying off holders of already-created rights. It may well happen that there are valid patent rights in the stem cell area, and states working in the area must negotiate with the holders of those rights. Separately, the Hatch-Waxman Act created in 35 USC 271(e)(1) a safe harbor for research used to furnish information to federal agencies (such as the FDA). The Supreme Court gave this safe harbor great breadth in the case Merck v. Integra.
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