WASHINGTON, DC – Two public interest groups today asked a federal appeals court to invalidate a patent on human embryonic stem cells held by the Wisconsin Alumni Research Foundation (WARF) because the claimed “cell culture falls within the ‘product of nature’ exception” of what can be patented.
In a brief filed today with United States Court of Appeals for the Federal Circuit, Consumer Watchdog and the Public Patent Foundation argued a rejection would be “especially appropriate in light of the recent Supreme Court ruling” in the case of Myriad Genetics, which held that genes cannot be patented.
The Public Patent Foundation represented the successful challengers to gene patents in that landmark case.
In addition the two groups said the decision to re-allow the patent by the Patent and Trademark Office’s Board of Patent Appeals and Interferences should be overturned because “the ’913 patent’s claims are also invalid because they were obvious in light of the numerous prior art teachings of ways to derive and maintain ES cells of several mammalian species. Each of the four reasons cited by the Board to support non-obviousness conflict with the facts and law.”
“WARF’s broad patent on all human embryonic stem cells is invalid for a number of reasons and we are confident the Court of Appeals will agree, just like the Patent Office did at first during our reexamination,” said Dan Ravicher, executive director of the Public Patent Foundation.
The patent challenge was first filed by the groups in 2006 through a process called reexamination, in which third parties ask the Patent Office to revoke a patent that it previously issued. Initially, the patent was rejected by the PTO. The fight continued through the PTO process with an appeal from WARF that caused the PTO to reverse its conclusion. WARF also narrowed its claims and announced more favorable licensing terms for the patent during the challenge. Despite these victories, the consumer groups still believe the patent is invalid, and thus have asked the Court of Appeals to reinstate the Patent Office’s initial decision in the case to cancel the patent.
Joining the two consumer groups in the challenge from the beginning was Dr. Jeanne Loring, now director of the Center for Regenerative Medicine at the Scripps Institute in La Jolla, CA. Later in the case Dr. Alan Trounson, then of Australia’s Monash University and now president of the California Institute for Regenerative Medicine, Dr. Douglas Melton of Harvard and Dr. Chad Cowan of Harvard filed affidavits supporting the challenge.
“This is an important battle. Human embryonic stem cells hold great promise for advancing human health, and no one has the ethical right to own them,” said Dr. Loring.
“WARF executives continue to act like arrogant bullies blinded by dollar signs,” said John M. Simpson, Consumer Watchdog’s Stem Cell Project Director.
Both Consumer Watchdog and the Public Patent Foundation stressed that while University of Wisconsin researcher James Thomson deserved acclaim for isolating human embryonic stem cells, important scientific accomplishments are not necessarily patentable. They said one of the main reasons he was able to derive a human stem cell line was because he had access to human embryos and financial support that other researchers did not have.
“The best course if WARF truly cares about scientific advancement,” said Simpson, “would be to simply abandon these over-reaching patent claims.”