Jennifer Washburn’s article on stem cells in the April 12, 2006 issue of the Los Angeles Times mentioned Jeanne Loring, an embryologist at the Burnham Institute in La Jolla: In 1999, Loring tried to start a company to work with stem cells, but the company quickly collapsed when it failed to raise the $ 100,000 in initial fees. [WARF] loaded.
The Washburn article did not mention an earlier article by Loring and co-author Cathryn Campbell, entitled “Intellectual Property Research and Human Embryonic Stem Cells,” which appeared in 311 Science 1716 on March 24, 2006. There, Loring and Campbell They mentioned the changing royalty fees charged by WARF in response to a “memorandum of understanding” (MOU) with the federal funding agency. Loring / Campbell mentioned the “SBIR paradox” in small business financing, which can be a problem, but not associated with patent law.
Both the Washburn and Loring / Campbell papers suggested that the WARF / Thomson patents would pose a long-term threat to stem cell science. Washburn highlighted the position of the Santa Monica-based Foundation for Taxpayer and Consumer Rights, which urges the California stem cell agency to challenge Wisconsin patents. In more detail, the Santa Monica group stated: Stem Cell Institute Faces Threat from Foundation Associated with University of Wisconsin [WARF], which claims that it owes license rights because it owns patents on all human embryonic stem cells in the United States. John M. Simpson stated: “This is an outrageous raid on the California treasury based on powerful patents. No other nation in the world recognizes them. They are blocking vital research in the United States. I call on the stem cell institute to challenge the validity of patents “.
Neither the Washburn nor the Loring / Campbell articles discuss the possible safe harbor of investigation created in the Hatch-Waxman Act and codified at 35 USC 271 (e) (1). The breadth of this safe harbor was recently affirmed in the Supreme Court decision Merck v. Integra. Neither the Washburn nor the Loring / Campbell articles dispute that patent infringement lawsuits against states and state bodies (such as the California CIRM) are likely to be heard in state court, not federal court, according to the decision of the Supreme Court in Florida Prepaid Postsecondary.
Although there may be a visceral backlash to lash out at patents that are perceived as too broad, the NTP v. RIM suggests that negotiation is sometimes the best path for infringement defendants. Additionally, Loring / Campbell mention the possibility of interference with Plurion, although this will most likely only change the identity of the owner of the patents they control. On the other hand, it is recalled that the Thomson patents try to create stem cells from blastocysts; it’s not about “cloning” [SCNT] technology. To date, traditional methods for separating stem cells from blastocysts have failed in cases where SCNT is involved. There may be a licensing issue regarding Thomson’s patents for SCNT-related cases, which is where the holy grail of patient-specific stem cell lines lies.
As a blanket proposition, state taxpayers backing efforts like Proposition 71 have an expectation that the money will be used for research, not to litigate the patent positions of previous researchers. Extrapolating further, state funding for patent positions could lead to a balkanization of research, in which entities from individual states (such as California, New Jersey, Maryland, Illinois, Connecticut) fight each other, rather than collaborate.
