Sunday, April 30, 2006

Comment on LA Times editorial, Let the Science Begin (27 April 06)

To the Los Angeles Times:

The overall gist of the April 27 editorial, "Let the Science Begin," consistent with the title, is "we've had enough of this legal stuff; let's get going on the science." The problem with this is that the legal stuff is going to impact the science, whether or not the Los Angeles Times thinks that to be a reasonable result. The piece jumps from the Alameda County Superior Court decision upholding the constitutionality of Proposition 71 to then discuss and oppose Senate Bill 401 of Deborah Ortiz on the basis that CIRM should be given the chance to work out its rules and begin its important research before the Legislature starts micromanaging every aspect of its work. However, there are certain vexing issues, most particularly in the area of intellectual property, that are crying out for management of some kind.

Somewhere in the middle of the editorial is a statement that bears scrutiny:
It may have taken more protest and rancor than it should have to get the governing committee to make its dealings transparent, ensure that any future treatments are accessible to the state's poor and provide the public with a fair share of profits made from medical discoveries. But in recent months, the agency has addressed these concerns. It also has adopted top-notch standards for research ethics and the protection of potential egg donors.

One would think that the issue of patent royalties arising from patents generated through Proposition 71 was a done deal. It isn't. Furthermore, the issue of having to pay patent royalties to third parties, such as Wisconsin's WARF, in order to conduct stem cell research at all has not been addressed.

The basic objectives of Proposition 71 are not even clear. In the last month, Ed Penhoet chair of the IP Task Force of CIRM, has said

"What are we really attempting to do? Are we trying to drive therapies as rapidly as possible? Are we trying to stimulate business in California? Do we want to grow small companies? There (is) a whole set of potentially conflicting aims."

The Los Angeles Times recognizes that treatments are not around the corner: Even if research started tomorrow, any stem cell treatments are years away, which makes the legal delay that much more frustrating. A problem is that the Times has not connected the dots to appreciate how this delay impacts the concept of "a fair share of profits made from medical discoveries." The presence of profits may impact financing through tax-exempt bonds. Separately, there may not be any profits to collect, and the 3 billion may simply pave the way for others.

The Los Angeles Times has not recognized that California researchers, merely to get started in research, may have to infringe upon the patent rights of others. In the worst of all possible hypothetical worlds, wherein such activity is not excused by a research exemption, such patent holders might get an injunction against researchers in California. This is a real show-stopper. The potential impact of such a measure was seen in the RIM case concerning BlackBerries and is being investigated in the eBay case now before the U.S. Supreme Court.

To be helpful to Proposition 71, the Los Angeles Times needs to get a fuller grasp of "where" CIRM currently is and "what issues" it needs to resolve, especially in the intellectual property area.


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