Thursday, May 25, 2006

More WARF/CIRM smoke over stem cell patents

Californiastemcellreport identifies the latest installment of the WARF/CIRM patent controversy, reported by Joe Vanden Plas in Wisconsin Technology Network. Of a statement by FTCR of the relevance of eBay v. MercExchange to the brewing WARF/CIRM patent impasse:

Andrew Cohn, government and public relations manager for WARF, said the ruling clearly does not apply to universities and characterized the foundation's [FTCR's] claims are "much ado about nothing."

"If they actually read the decision, they would see the specific mention of how this doesn't apply to universities because they clearly aren't going to be the ones who are going to commercialize the invention," Cohn said. "This decision will have absolutely no impact on our patent whatsoever."

IPBiz would not go as far as saying "no" impact. The Thomas opinion did not say "doesn't apply to universities." The Thomas opinion did say:

But traditional equitable principles do not permit such broad
classifications. For example, some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their
works to market themselves. Such patent holders may be able to satisfy the
traditional four-factor test, and we see no basis for categorically denying them
the opportunity to do so.

In theory, WARF might be able to enjoin CIRM. Hard to predict the balance of factors when one public entity is suing another public entity, related to research efforts each funded by taxpayers wherein the infringer is going to have to meet FDA requirements. IPBiz still says "Merck v. Integra" and "Florida Prepaid Postsecondary". If Merck v. Integra rules WARF v. CIRM, then infringement is excused and the issue of injunction is never reached. If Florida Prepaid Postsecondary rules WARF v. CIRM, IPBiz doesn't like WARF's odds in a California state court.

Other text in the vanden plas article:

WARF has consistently rejected claims that its patents limit research, and recently noted that it has distributed stem cells to 350 academic researchers, and has entered into license agreements with 12 private research labs. Cohn reiterated that position in the wake of the FTCR's statement on the eBay ruling. "These folks are absolutely going off the deep end," Cohn said. "If it wasn't for WiCell and for the University of Wisconsin, they wouldn't have anything to spend the $3 billion on in the first place."

Don't you just love it?


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