Wednesday, April 12, 2006

More on Hwang's patent applications

My article on the Hwang matter is published at 88 JPTOS 239 (March 2006).

from The Seoul Times:

Despite the use of false data to support Hwang's PCT, his patent application will likely be approved in Europe, says Lawrence Smith-Higgins of the UK Patent Office in New Scientist:

"European patent examiners are not interested in whether something will work or not." Smith-Higgins says. "As long as an invention is not clearly contrary to scientific laws – like time travel – research has no bearing on the grant of a patent."

However, the exposure of Hwang's fraud stands to weaken and possibly cripple his potential U.S. patent rights. New Scientist reports:

"In the US an applicant has an obligation to give the US Patent and Trademark Office any material information," says biotech litigator David Wilson of international law firm Bird and Bird. "It is all right to leave out the theory of how the invention works, or even get the theory wrong, as long as you don't say 'I have built it' when you haven't. If you do this you may still obtain your patent, but if challenged your patent may not be enforceable."

Patent attorney Lawence Ebert points out that all applicants for a U.S. patent are required to certify that material submitted as part of an application is accurate and true. "An applicant can be criminally prosecuted for attesting that fraudulent evidence is valid," says Ebert. "However, an applicant can revise the application, removing questionable data."

Nevertheless, those accused of infringing U.S. patents often accuse inventors of "defrauding the Patent Office" or "inequitable conduct" through withholding or misrepresenting information.

If Hwang does not want his research funded "with foreign capital" and is awarded a U.S. patent, U.S cloning scientists could have public funds available for research, yet be legally blocked (by the patent) from using Hwang's technique. Initial plans for the World Stem Cells Hub were for three Korean technicians trained by Hwang to perform all nuclear transfer procedures. Resulting cells were to be sold to member scientists and institutes.

However, should Hwang be granted a U.S. cloning patent despite the frauds, their exposure may present a legal target for any who infringe the patent.


Post a Comment

<< Home