Stem cell patents: Rejected!

The Patent and Trademark Office shakes up the biotech intellectual property status quo.

Published April 3, 2007 6:15PM (EDT)

Score another victory for the patent law freedom fighters. The Public Patent Foundation is proudly reporting the news that the U.S. Patent and Trademark Office has rejected three crucial stem cell patents originally filed by the Wisconsin Alumni Research Foundation (WARF).

The patents date back to 1998, when Wisconsin researcher James Thomson became the first scientist to isolate human stem cells. But the patents almost immediately became a point of controversy, in part because Geron, a California biotech company, had helped finance Thomson's work, and concluded a deal with WARF giving it wide-ranging commercial rights. WARF and Geron ended up litigating against each other before reaching a settlement that still gave Geron considerable commercial control.

But now the PTO has, for the time being, accepted the argument put forth by PubPat and the Foundation for Taxpayer and Consumer Rights that Thomson's breakthrough "was obvious in the light of previous scientific research, making his work unpatentable." Neither WARF nor Geron is pleased by the news. Geron quickly put out a press release asserting that "It is routine for the USPTO to grant patent re-examination requests. Furthermore, it is common for the USPTO to issue preliminary rulings that reject patent claims, only for the USPTO to terminate re-examinations and uphold patent claims in later stages of the review and appeals process."

The appeals process could take years. But the preliminary ruling is still significant.

The New York Times reports:

"It's not the final nail in the coffin, but it's a heavy body blow," said Daniel B. Ravicher, a patent lawyer and executive director of the Public Patent Foundation, a New York nonprofit organization that tries to overturn what it views as patents not in the public interest. "This rejection is substantial, and it will cause a significant deterioration in the impact the patent will have in the marketplace."

Daniel Ravicher has appeared in the pages of How the World Works before. Our attention was previously drawn to him for his work attempting to overturn critical biotech patents held by Monsanto. You won't find a more compelling critic of how the patent system in the United States currently works. He spelled out in detail how the system is broken in a statement to the House Subcommittee on Courts, the Internet and Intellectual Property on Feb. 15.

Two sentences from the 19-page statement deserve some highlighting.

The patent system's ultimate purpose is to advance technology, not line the pockets of patent holders ... Our patent system is an economic tool to coordinate technological development that is designed to ensure inventive effort is adequately rewarded and quickly adopted to benefit the American people.

The italics are mine, because I think Ravicher's use of the word "adequate" cuts straight to the heart of why the laws treating intellectual property in the United States are such a mess. Ravicher's formulation is radically at odds with how the private sector views patent law. The corporate point of view on intellectual property is not to seek "adequate" reward, but to maximize reward.

The word "adequate" is not in Monsanto's vocabulary, nor Big Pharma's, nor any biotech start-up pouring capital into academia. One might even go so far as to suggest that the word "adequate" isn't even in the American vocabulary. But think of how much better we might all be if adequacy was a guiding principle for government officials, corporate executives and ordinary citizens.

It hardly seems a rallying cry for revolutionaries. But it should be.

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

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