Wednesday, February 26, 2014

Steven Salzberg's concerns over Woo-Suk Hwang's US 8,647,872 not well-founded

In a post US Issues Patent For A Fraudulent Human Embryonic Stem Cell Method , Steven Salzberg writes

Hwang himself admitted the data were fake! As I’ve written previously, the USPTO simply can’t keep up with biotechnology, and the courts don’t do any better. In this case, it’s hard to imagine a more obvious example of a patent that should be denied: the papers were retracted, and the lead scientist lost his job after his own university concluded that the data was fabricated. And yet the patent office is standing by their decision.

As a first point, the patent community, including the USPTO, has been aware of the issues with the Hwang work for some time. An article titled Lessons to be Learned from the Hwang Matter: Analyzing Innovation the Right Way was published in March 2006 in 88 J. Pat. & Trademark Off. Soc'y 239. This paper is cited in the book by Russell Korobkin titled Stem Cell Century: Law and Policy for a Breakthrough Technology .

As a second point, the first claim of US 8,647,872, with second named inventor Woo-Suk Hwang, recites

An embryonic stem cell line derived from a nucleus-transferred oocyte prepared by transferring a nucleus of a human somatic cell into an enucleated human oocyte, which is a cell line deposited under the accession number KCLRF-BP-00092.

The claim requires that the embryonic cell line be derived from the cell line deposited under accession number KCLRF-BP-00092. A cell line not so derived does not fall within the literal scope of claim 1. If someone wants to claim stem cell lines derived from a fraudulent stem line, and pay for the prosecution, that's up to them.

Now that Hwang's US patent has issued, the cell line is available to the public for investigation.


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