Sunday, June 03, 2007

Bad timing for Loring's op-ed in San Diego Union-Tribune

In an op-ed in the San Diego Union-Tribune on 1 June 2007 (titled "Challenging the ownership of stem cells" and available at, Jeanne Loring stated, of the Thomson / WARF patents: "As a scientist, I was outraged when I learned of the stem cell patents."

One might note the possibility that Loring might have been outraged because Thomson got patents, and Loring, who filed patent application 09/199,703 on November 24, 1998, did not get patents. Loring's basic claim in 1998 was broader than those of Thomson which appeared in Thomson's '780 patent. [Refer to the 25 April 2007 post on IPBiz.] Of course, Loring did NOT mention HER patent application in the San Diego Union-Tribune op-ed on June 1, 2007. Neither did Terri Somers in her article --Embryonic stem cell pioneer chose to publish, not patent.-- Neither did FTCR; neither did PubPat, even though the existence of the '703 application would seem to inconsistent with the position they took before the USPTO as to the Thomson patent re-exam.

Similarly, neither Loring nor Terri Somers mentioned that Thomson explicitly distinguished, in Thomson's '780 patent, Thomson's work from that of Ariff Bongso. LBE wrote to both Somers and the Union Tribune about why that wasn't discussed, but neither responded. [See IPBiz post of April 23, 2007].

Loring's op-ed of June 1, 2007 appeared two days AFTER WARF filed its responses in the re-exams of the three WARF patents. [See IPBiz post of June 2, 2007.] Thus, her request to WARF on June 1 of "why don't you drop your claims" is "a day late and a dollar short."

In passing, one notes that WARF's response devastated what Loring said in her declaration [which, as the USPTO noted, was procedurally improper and NOT considered in the re-examinations.] Even if Loring's declaration had been considered, it was completely undercut by a publication of Bongso himself in Nature Biotechnology. [See IPBiz post of June 2, 2007.]

Separately, quotes John Simpson indicating the WARF arguments being "mostly a rehash of what was already before the USPTO." Sorry, John, when the patentee amends claims and adds new claims, no one with any familiarity with patent law describes it as a rehash of what was already before the USPTO. And what about that text by Bongso in Nature Biotechnology which you didn't mention? And, of course, how come you didn't mention Loring's patent application in 1998 with claims broader than Thomson's?

More of Loring's text in the San Diego Union-Tribune:

As a scientist, I was outraged when I learned of the stem cell patents. The patents give WARF the right to collect money every time human embryonic stem cells are used in the United States, whether for basic research or cell transplantation, no matter who made the cell lines or where they were made. A human embryonic stem cell line made in Singapore, for example, would become the property of WARF as soon as it was brought into the United States.

When I read the patents, I realized that the procedures claimed in the patent were the same as those I had used myself for making mouse embryonic stem cells in the early 1990s, following a recipe published in the early 1980s. I thought: What is new and non-obvious about that?

I knew that the patents were flawed, but I didn't know how to legally challenge them until I met lawyer Dan Ravicher in 2005. Last summer, Ravicher, Simpson and I filed a request for the Patent Office to re-examine the patent, giving the office the chance to rethink and reconsider whether the broad patents on embryonic stem cells should have been issued to WARF.

The Loring op-ed ended:

What happens now? WARF will try to keep its control over human embryonic stem cells, which it believes will be a huge moneymaker for the foundation. We'll continue to work to have the patents rejected.

But I'd like to propose a solution to WARF: Why don't you drop your claims to human embryonic stem cells and allow the judgment of the Patent Office to stand? Let scientists use all the resources we can muster to advance human embryonic stem cell research in our laboratories. After all, we're all on the same side; we all want these cells to be used to improve human health and treat diseases that have no cures. By claiming ownership of all such cells, you are interfering with scientific progress, and that's why I challenged your patents.

IPBiz notes, as to the re-exam of Thomson's '780 patent, the role of PubPat and FTCR is over. Loring didn't have an explicit role to begin with, because her declaration was procedurally improper, and, as such, explicitly ignored by the USPTO.

IPBiz notes that Loring offers no explanation for the patent application filed by Loring in 1998, which attempted to claim ownership in embryonic stem cells.

See also

History repeating? Bongso as Langley?, making analogies between the attack on the Thomson patents and the previous attack on the patent of the Wright Brothers.

Some details of the response in the re-exam by WARF as to the '780 patent are found in WARF responds in the re-examination of the Thomson patents

Details of Loring's patent application can be found in Loring's 1998 patent application shows interest in non-mouse embryonic stem cells. Published application US 20020188963 may be found on the USPTO website.


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