Saturday, April 05, 2008

Law review articles on stem cells

Note A Two-Front Assault on the Stem Cell Patents (6 J. Marshall Rev. Intell. Prop. L. 501) which concluded:

Human embryonic stem cells are a true innovation full of promise for the scientific and therapeutic community. The myriad of possibilities inherent in these cells is yet to be determined. WARF has enabled the scientific community in this regard by providing HESCs at a minimal cost to basic science researchers. However, WARF levies a royalty on any entity utilizing WARF's patents in a commercial fashion in order to fund WARF's own future research. Now, with the benefit of hindsight, interest groups are challenging the validity of the WARF's patents. Furthermore, an outcry from these same interest groups has arisen over "stifling" royalties. These charges oppose the practice of the PTO and the rights of patent ownership. In the end, the innovation behind the WARF stem cell patents must be recognized, as it was at the time of discovery. The royalties charged by WARF are equally just and illustrate the use of the patent right to further stimulate innovative discovery. To find any different would weaken the patent system and restrain the progress of the sciences.

IPBiz notes that, in the end, the challenges of PubPat and FTCR (now Consumer WatchDog) were rejected by the USPTO.

in a different law review article, (John A. Robertson, : Embryo Culture and the "Culture of Life": Constitutional Issues in the Embryonic Stem Cell Debate, 2006 U Chi Legal F 1) one has the text:

The scandal surrounding Dr. Hwang Suk Woo's non-existent cloned cell lines may set back the Korean effort, but should not stop the field from going forward. Nicholas Wade and Choe Sang-Hun, Human Cloning Was All Faked, Korea Reports, NY Times A1 (Jan 10, 2006) (reporting the revelation that Dr. Hwang Suk Woo's claims were indeed fraudulent). His fraud involved successful performance of a mechanical technique, not a scientific insight on which other research depended.

IPBiz questions this characterization of the Hwang fraud. Hwang stated that he had prepared human stem cell lines from cells created through SCNT. That wasn't true. To date (April 2008), no one has done what Hwang claimed to do.

The conclusion of Trolling for Trolls: The Pitfalls of the Emerging Market Competition Requirement for Permanent Injunctions in Patent Cases Post-eBay (106 Mich. L. Rev. 305 )

Consistent application in the first twenty-five district court cases post-eBay strongly suggests that the market competition requirement is becoming an entrenched doctrine at the district court level. However, the divergent legal standards used by district courts turning on status as a market competitor are in tension with the Supreme Court's unanimous holding that courts should not apply eBay's four-factor test in a manner that makes the injunctive remedy unavailable based on broad classifications. Contrary to the Supreme Court's holding, the market competition requirement does create a broad class of plaintiffs for whom injunctions are not obtainable. Categorical denial of injunctions to patent-holders that do not market their invention is undesirable not only because it goes against the letter of the eBay opinion, but because it is bad policy as well. The market competition requirement addresses some of the problems resulting from holdup, but the collateral damage is high. The market competition requirement may decrease both competition and in-centives to innovate for individual "self-made" inventors, who form a substantial constituency that drives a large segment of patenting activity. The combined effect of the loss in competition when courts deny injunctions to would-be competitors and losses due to decreased incentives to innovate raises serious questions about the wisdom of continued application of the market competition requirement.


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