Patent ruling isn’t a blow to UW’s research leadership

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Milwaukee Journal Sentinel (Wisconsin)

The following Op-Ed commentary by John M. Simpson, Stem Cell Project Director for the Foundation for Taxpayer and Consumer Rights, was published in the Milwaukee Journal Sentinel on Thursday, April 12th.

Concern apparently has been voiced across the state that the recent U.S. Patent Office decisions rejecting three patents held by the patenting and licensing arm of the University of Wisconsin could be a devastating blow to the state’s acknowledged leadership in stem cell research.

As one of the parties who lodged the thus-far successful challenge against the overreaching patents on human embryonic stem cells held by the Wisconsin Alumni Research Foundation, let me reassure you that is simply not the case. And despite what WARF officials say, that’s not at all because appeals will be successful.

They may not be. The Patent’s Office’s rejection was particularly strong. Joined by the Public Patent Foundation and Jeanne Loring of the Burnham Institute for Medical Research, the Foundation for Taxpayer and Consumer Rights argued that there was “prior art” making work done by UW’s James Thomson obvious to people in the field. Prior art is work done earlier that is similar to that for which the patent is being sought.

The examiners agreed. More than that, however, they found additional examples of prior art that we did not cite. In most patent re-examinations, a single examiner signs the decision. Here, they conferred, and three examiners signed each patent rejection.

Carl Gulbrandsen, WARF‘s managing director, can cite Science Magazine’s reports heralding Thomson’s work. Gov. Jim Doyle can issue statements supporting the patents. All of that misses the point.

To win a patent, an invention must be new, useful and non-obvious. We argued — and the patent examiners agreed — that in the light of work done before, it was obvious.

But so what? Science Magazine is right. Thomson and his colleagues are brilliant researchers who have made substantial contributions to our understanding of stem cells. But that doesn’t mean what they have done is patentable.

The problem has been the arrogant and aggressive — some have said bullying — way that WARF has chosen to assert its patents and the negative impact that has had in the United States. Start-up biotech firms eager to do potentially life-saving research couldn’t get funding for license fees, academic researchers chafed at unreasonable restrictions and some stem cell research was driven overseas, where WARF patents are not recognized.

The potential power of the patents was demonstrated when, in a misguided attempt to promote the state’s economic development, WARF said it would waive licensing fees to any stem cell firm opting to do research in Wisconsin.

Scientists stand on the shoulders of other scientists. There needs to be a free exchange of ideas and information. Overly broad and underserved patents must not be issued that allow bureaucratic institutions, whose leaders’ vision is blurred by dollar signs, to further their own narrow agenda rather than the good of science.

Jonas E. Salk, the discoverer of the landmark vaccine that bears his name and that virtually eradicated one of this nation’s most devastating diseases was asked about patenting his discovery. He said, “Who owns my polio vaccine? The people! Could you patent the sun?”

Salk stood on the shoulders of scientists before him, just as Thomson stood on the shoulders of others, such as Ariff Bongso, a Singaporean stem cell scientist. Others are learning from Thomson, a deservedly honored leader in the stem cell research community, and will stand on his shoulders.

Wisconsin will remain a leader in the field because of Thomson and his colleagues’ work, and research firms will continue to locate near UW because of the proximity to its vibrant scientific community.

But officials from a self-serving foundation with its own narrow agenda cannot be allowed to elbow their way to the table by waving undeserved patents that are ultimately detrimental to researchers everywhere.
Madison native John M. Simpson is stem cell project director for the Foundation for Taxpayer and Consumer Rights, a non-partisan, non-profit consumer advocacy organization based in Santa Monica, CA.

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