Patent Law

Hypocrisy at FTCR?

By Lawrence B. Ebert, Esq.

For example, within the californiastemcellreport post titled WARF Scores in Patent Struggle, the body of the post has John Simpson of FTCR writing

Anonymous is wrong. So far the challenge has narrowed the patent claims,
but more importantly prompted a substantial change in WARF's behavior. In January 2007 facing the patent re-examinations and surrounding publicity WARF substantially eased licensing requirements and became much more cooperative with the stem research community.

with "anonymous" further commenting (among other things):

The claims were not ?narrowed? as stated by Mr. Simpson. There is not one ESC that was blocked by the original claim set, that is now unblocked. The claims are in fact stronger because they have undergone an extensive examination and an ?infringer? will have a harder time saying the claims are invalid. Any doubt that the claims are invalid has been eliminated by the re-examination.

IPBiz notes that Simpson has offered NO EVIDENCE that the re-examination requests CAUSED a change in WARF's behavior. Was any academic researcher ever sued by WARF over the Thomson patents? A discussion of WARF's clarification of policies makes no mention of Simpson or FTCR.

John Simpson spins mightily to make it appear that he accomplished something, but omits telling people that the USPTO rejected all of his silly arguments. The references he relied upon were found to be non-enabling. The declarations he relied upon were found to be irrelevant AND conclusionary (conclusory). Two of his declarants had applied for patents in the stem cell field, creating problems of hypocrisy (saying Thomson should NOT retain patents to things they themselves had tried to patent) AND conflict of interest.

When FTCR can't recount the true story of what happened in the re-examinations of the WARF patents, or of the history of their declarants, one begins to wonder about their credibility. In the absence of thorough discussion by FTCR, one views the incident as FTCR saying merely: "WARF's patents are bad, but CIRM's (future) patents will be good, and our declarant's previous patent applications would have been good as issued patents." Such simplistic analysis might play on Saturday morning cartoons, but it shouldn't pass as thinking in the real world.

See also

WARF smokes PubPat, FTCR in last two re-exams of stem cell patents

If any IPBiz reader finds commentary by Eli Kintisch on the last two re-exam results, please feel free to post it or email it. One recalls that Kintisch wrote [of the re-exams of the two earlier patents] after the first re-exam result (which was adverse to PubPat/FTCR), in an article titled Small Win for Wisconsin in Stem Cell Fight,

Decisions invalidating those patents could severely weaken the 2006 patent, despite its solid position today.

Aside from the substantive UNTRUTH of Kintisch's statement, the "decisions invalidating those patents" did not happen. The ability of Kintisch compactly to link untruth with bias is, nevertheless, impressive.

***
Separately, of Simpson's earlier remarks about iPS cells, note ?induced pluripotent stem (iPS) cells? are similar, but not identical, to embryonic stem cells:

A simple recipe ? including just four ingredients ? can transform adult human skin cells into cells that resemble embryonic stem cells, researchers report in an immediate early publication of the journal Cell, a publication of Cell Press. The converted cells have many of the physical, growth and genetic features typically found in embryonic stem cells and can differentiate to produce other tissue types, including neurons and heart tissue, according to the researchers. [from cell news blog]

Simpson's remarks about the impact of his re-exams on patent claims about embryonic stem cells upon rights on iPS cells are simply wrong. Further, Simpson omitted the fact that patent applications have been filed on iPS cells.

As a separate matter, it would be nice if the stem cell community corrected its erroneous post titled WARF Patent Challenges Upheld which was not correct on April 2, 2007 and isn't correct now.

Full post as published by IPBiz on March 14, 2008 (boomark / email).