WARF's stem cell patents: the more things change, the more they stay the same
On October 16, 2006, IPBiz had a post Will Thomson's stem cell claims survive an obviousness challenge?, which included the text:
In the "stem cell recipe" argument made by FTCR, PubPat and Loring, one has a different situation. There was plenty of "motivation" to go FROM a recipe for mouse stem cells TO a recipe that worked for human stem cells. The trouble with this argument is at least #1. years and years elapsed between isolation of mouse and human stem cells and #2. things that worked for mouse cells didn't work for human cells (absence of similarity).
In a recent post, fireofgenius resurrected an old Supreme Court case which included the text:
The fact that the invention seems simple after it is made does not determine the question; if this were the rule, many of the most beneficial patents would be stricken down. It may be safely said that if those skilled in the mechanical arts are working in a given field, and have failed, after repeated efforts, to discover a certain new and useful improvement, that he who first makes the discovery has done more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.
Expanded Metal Co. v. Bradford, 214 U.S. 366, 381 (1909)
Just as Loring is filling the role of Glenn Curtiss to Thomson as "Wright Brothers," so also is the answer to Loring's obviousness assertion to be found in hundred year old case law. [as a minor point, 35 USC 103 did not exist in 1909.]
In the "stem cell recipe" argument made by FTCR, PubPat and Loring, one has a different situation. There was plenty of "motivation" to go FROM a recipe for mouse stem cells TO a recipe that worked for human stem cells. The trouble with this argument is at least #1. years and years elapsed between isolation of mouse and human stem cells and #2. things that worked for mouse cells didn't work for human cells (absence of similarity).
In a recent post, fireofgenius resurrected an old Supreme Court case which included the text:
The fact that the invention seems simple after it is made does not determine the question; if this were the rule, many of the most beneficial patents would be stricken down. It may be safely said that if those skilled in the mechanical arts are working in a given field, and have failed, after repeated efforts, to discover a certain new and useful improvement, that he who first makes the discovery has done more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.
Expanded Metal Co. v. Bradford, 214 U.S. 366, 381 (1909)
Just as Loring is filling the role of Glenn Curtiss to Thomson as "Wright Brothers," so also is the answer to Loring's obviousness assertion to be found in hundred year old case law. [as a minor point, 35 USC 103 did not exist in 1909.]
posted by Lawrence B. Ebert at 6:46 AM
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