Saturday, August 18, 2007

SCS's '041 patent: income stream or roadblock in stem cell research?

In the area of stem cells, Smith and Mountford obtained US 7,256,041 on 14 Aug. 2007, with first claim

A method of isolating mammalian stem cells from a population of mammalian cells, comprising: (a) culturing mammalian cells containing a nucleic acid construct including a selectable marker operably linked to a promoter that preferentially expresses the selectable marker in mammalian stem cells; and (b) isolating mammalian stem cells expressing the selectable marker.

In terms of the USPTO's proposed new rules on continuing applications (which originated because of perceived abuses of continuing applications), note the following history of the '041 patent:

This is a Continuation of application Ser. No. 09/537,562, filed Mar. 30, 2000, now Pat. No. 6,878,542, which is a continuation of application Ser. No. 08/535,141, filed Dec. 29, 1995, now Pat. No. 6,146,888, both of which are incorporated herein by reference.

Thus, the claims in the '041 patent claim priority to December 29, 1995, nearly 12 years before the issue of the '041 patent. The non-patent references within the '041 patent comprise nothing published AFTER 1995. The '041 patent does reference the '888 patent (to which it claims priority and which issued on November 14, 2000). The '888 patent states that it is a 371 of PCT/GB94/00848 filed Apr. 21, 1994 (the US application for this by-pass route continuation is 08/535,141. IPBiz notes in passing that utilization of the Quillen/Webster "patent grant rate math" to this family would yield an infinite grant rate, just one more reason why the Quillen and Webster approach should be categorically rejected.)

The first claim of the '888 patent states:

A method of enriching a population of mammalian cells for stem cells comprising:

a) providing in vitro a mixed population of mammalian cells whose genome comprises at least one nucleic acid construct encoding an antibiotic resistance gene operatively linked to a promoter which preferentially expresses said antibiotic gene in mammalian stem cells,

b) culturing said mixed population of mammalian cells in vitro under conditions conducive to cell survival wherein the preferential expression of said antibiotic resistance gene results in the preferential survival of mammalian stem cells in the presence of antibiotic.

The list of non-patent references within the '888 patent is much shorter than in the '041 patent.

The '041 patent contains no "summary of invention," although it does have a "summary" for certain examples. The earlier '888 patent does contain something called a "summary of invention," although it is not a "summary of invention" as would be understood by an average US patent attorney.

US 7,256,041, issued on August 14, 2007 but claiming priority at least to Dec. 29, 1995, offers a far more interesting set of circumstances than do the Thomson / WARF stem cell patents, which claim a later priority date and issued earlier.

The Scotsman said the following about the '041 patent:

Dr Peter Mountford, SCS's chief executive, said that stem cell purification was an essential step in preparing stem cells for use in almost all drug discovery and cell therapy applications, otherwise there was the risk of contamination of the non-stem cells in any sample, which could render the sample unusable.

He said: "With the ever increasing importance of stem cells in the US biopharmaceutical industry, the extension of SCS's patent position reinforces a key income stream and productivity advantage held by the company."

He said the patent enabled SCS to secure broad claims to what was a "fundamental and important technology".

[IPBiz notes that californiastemcellreport did not cover the '041 patent of SCS.]


With U.S. patents, everything is written down, and one can objectively analyze what was, and was not, included in an earlier priority document. In contrast, as noted before on IPBiz, what was written down about the Jan Hendrik Schon fraud has been vanishing.

Nanoscale.blogspot had written of this in January 2007, including the text:

At the moment the links on the Internet Wayback Machine still work, but there is no guarantee that these will last forever. I know that old links to, e.g., previous years' problem sets from my courses go away after some time.

The point about the disappearing Schon saga is sort of like what IPBiz discussed of the disappearing "Rutgers is Wrong" piece presented by Vai Sikahema in August 2006. Rutgers had a good season (one can't buy tickets for 2007 Rutgers football games) and one can't find "Rutgers is Wrong" anymore. The scary scenario of 1984 is here.

Nanoscale had some comments about how to be a science blogger:

Write an email to Peter Woit. If he gives your blog a link in his blog, you will start receiving lots of hits without any doubt. His blog is the most famous and most visited one in science for sure. Also, please use your real name in your blog. Bullshit like "female science professor" does not give much credibility so it will reduce your audience.. People want to know who the author is..

[IPBiz post 3000]


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