Sunday, March 26, 2006

More on Michael Crichton and the New York Times; stem cells

Included herewith is a letter I sent to the New York Times about Crichton's article last week; the Times did not print it.

Michael Crichton's article ("This Essay Breaks the Law," March 19) conjures up frightening issues, which like dinosaurs and trolls, may be presently more imaginary than real. The patent at issue, US 4,940,658, derived from university workers operating under a federal grant, and thus comes to us through the Bayh-Dole Act. These people are represented by a professor from the Stanford Law School generally considered an advocate of patent reform. In a different area, one recalls that the Eolas patent, at issue in the Microsoft case, came from a professor at UC/Berkeley and was ably defended in re-examination by professors from Princeton and Michigan. The claim at issue in the Metabolite case is (schematically) a method of measuring a deficiency of X in warm-blooded animals by assaying a body fluid for an elevated level of Y and correlating an elevated level of Y with a deficiency in X. X can be cobalmin or folate and Y is homocysteine. This claim cannot be infringed merely by thinking about the correlation or writing about the correlation. In the current dispute, between two companies, Metabolite and LabCorp, the argument by defendant is that the correlating step is so vague that the claim amounts to patent protection over a basic scientific fact (the observed correlation) and thus is invalid. People can disagree over the patentability of methods employing correlations which were discovered as the result of research, and the Supreme Court may shed some light on this issue. What Crichton ignored is that patents of this type, which are more of a tool to accomplish an end than an end product, have been fostered by the Bayh-Dole Act, and are the logical consequence of basic researchers, such as government-supported academics, entering the patent arena. The COX-2 patent of the University of Rochester is an even more extreme example of the phenomenon. Although there can be legitimate concerns about what is being patented these days, an inquiry into the source of the problem is also helpful.

[sent by email March 19, 2006]

At the time I emailed the leter to the New York Times, I had not learned about the March 14 meeting on stem cell patent issues, reported by the California Stem Cell Report , which included the text: And that means WARF wants a payment from California.

I doubt that taxpayers of California thought they might be paying state agencies of Wisconsin for patent rights. I doubt that taxpayers of New Jersey understand that they might be paying California or Wisconsin for the privilege of having New Jersey scientists work in the stem cell area. Unlike commenter "Kenny", I think it matters a lot where patent claims came from, who paid for them, and who is enforcing them. What may lie on the horizon would probably come as a shock to the people paying for the research (various groups of taxpayers).

Further, while I think the substance of the patent claim in Metabolite (which came from Colorado University and Columbia University) might be debated, one also recalls that the Supreme Court already approved claiming a method taking an advantage of knowledge from the Arrhenius equation. In that case, the patent inventors were not coextensive with the knowledge inventor (Arrhenius), unlike the Metabolite case.


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