Saturday, August 11, 2007

Words in AP article suggest that credibility of FTCR's Simpson is sinking

Returning to a theme visited by DAVID WAHLBERG in a piece in the Wisconsin State Journal, RYAN J. FOLEY has an article titled Patent fight could tarnish reputation of a stem cell pioneer which includes text:

But nearly a decade after his discovery, some scientists are turning on Thomson amid a battle over the patent rights to his work. Dismissing his research as obvious, they claim any scientist with Thomson’s funding and access to human embryos could have done the same thing.

Their claims have escalated a fight that could tarnish Thomson’s reputation, deprive his school of millions of dollars in future revenue and loosen restrictions under which U.S. stem cell researchers have to work. With the stakes high, the fight is turning increasingly bitter and personal, with each side accusing the other of greed.

The Foley article gets into the IDS filed by WARF, which does attack the credibility of the scientists making declarations on behalf of FTCR in the ONE inter partes re-examination:

WARF responded with an attack on those scientists’ credibility, telling the patent office that two had applied for patents for human embryonic stem cell research after Thomson. How can they now claim such work is obvious? WARF asked.

“I think each of these people should be embarrassed,” said Carl Gulbrandsen, WARF’s managing director. “They should really be saying that he has opened the door for us to really understand who we are as human beings and how to take care of some diseases that right now can’t be treated. What he has done is a gift to us all.”

John Simpson, stem cell project director for the Foundation for Taxpayer and Consumer Rights, said it didn’t matter that the scientists backing his group’s challenge had applied for patents themselves. Thomson’s work was commendable but not worthy of a patent, he said.

“A bunch of folks at WARF have dollar signs in their eyes,” Simpson said.

The Simpson statement in the AP article by Foley about "it didn't matter" does not address the credibility problem that Simpson, and the declarants, have. The point isn't just that the declarants "applied for patents themselves." Loring, for example, had a patent application (curiously filed just BEFORE the first Thomson patent issued) that had a claim BROADER in scope than Thomson's claims. In signing the declaration for that application, Loring is saying that she is the inventor and that this is the invention. If she signed a declaration in 1998 relating to a claim BROADER in scope than Thomson's claims, she totally lacks credibility in 2007 saying that Thomson's claims, narrower in scope than hers, are OBVIOUS. Simpson and Loring can't have it both ways. The broader claim in 1998 can't be novel and non-obvious AND the narrower claim be obvious in 2007 (measured against the understanding of one of ordinary skill at the time Thomson filed). Further, Loring's claim undercuts the separate assertion that no one was interested in human embryonic stem cells at the time of Thomson's work. Loring was interested enough to file a patent application with a claim covering them.

Simpson should "come clean" and explain how Loring's actions in 1998 are consistent with the FTCR position in 2007. Abraham Lincoln, quoting the New Testament, noted that a house divided against itself cannot stand. Simpson is giving us double-talk and should offer an explanation for his inconsistent position.

In passing, as the debates about the obviousness of Thomson's invention develop, one is reminded more and more about the Curtiss attack on the Wright Brothers patent. Further, one is reminded of the criticism by Octave Chanute, based on an earlier patent (to an inventor financially supported by Chanute), that ultimately proved meritless. It is much easier to believe the work of the one who succeeded than the work of those who tried and failed, whether in 1909 or 2007.

As a followup to the earlier IPBiz post on "Loring as Chanute," note that Wilbur Wright discussed the irrelevance of the Mouillard/Chanute patent to the Wrights' invention shortly before Wilbur's death. The full discussion is available on the internet. Pertinent text is the following:

The Mouillard patent was cited by the defendants in the case of The Wright Company- vs. Louis Paulhan, and Judge Hand in his decision refers specifically to it and says, "In no one of the nineteen claims is there anything which in any way even foreshadows the patent [of the Wright brothers] in suit." Mr. Chanute's book and the patent clearly show that he made every effort to spread the fame and improve the finances of Mouillard.

The editor of the webpage included text from the Mouillard patent, U.S. Patent No. 582,757 (1897). [IPBiz note: In 1910, the New York World misreported the year of the Mouillard patent and did not correct the mistake. Juding from all the mistakes of newspapers reporting on embryonic stem cells, one sees little has changed in the last 100 years.] The text from the '757 patent:

"In order to provide for the horizontal steering of the apparatus-that is, the guiding it to the right or left--I substitute for the ordinary rudder a novel and more effective arrangement. A portion (J) of the fabric at the rear of each wing is free from the frame at its outer edge and at the sides. It is stiffened with suitable blades or slats (N), of flexible material, and normally rests up against the netting. Cords (O) are attached to the rear edge of the portion (J') and pass forward to rings (P), where they unite and run to the handles (Q) near the inner ends of the wings. A pull upon one of these handles causes the portion (J') to curve downward (as shown in fig. 10), and thus catch the air, increasing the resistance upon that side of the apparatus and causing it to turn in that direction. Any other equivalent device for creating at will an additional resistance to the air on either side of the apparatus may be employed, and I do not limit myself to the one shown and described....

"The horizontal steering is effected by the downwardly movable rear portion (J') of the fabric in the manner already described. When both sides are pulled down together, they serve as an effective brake to check the speed."

IPBiz notes that the bolded portion shows Mouillard/Chanute "got it wrong" and, separately, did not recognize what the Wrights did.


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