In the wake of the recent 2013 ruling of the Supreme Court of the United States on gene patents, there have been new challenges to stem cell patents.
In the United States Court of Appeals for the Federal Circuit, the Consumer Watchdog has challenged the validity of a stem cell patent held by the Wisconsin Alumni Research Foundation (WARF).
The Consumer Watchdog is worried that ‘WARF’s broad and aggressive assertion’ of the patent has put ‘a severe burden on taxpayer-funded research in the State of California.’ The Consumer Watchdog is concerned that the patent gives ‘WARF the potential to completely pre-empt all uses of human embryonic stem cells, including particularly for scientific and medical research.’
The Consumer Watchdog’s lawyers are the Public Patent Foundation – who were also involved in the Myriad Genetics dispute.
The Consumer Watchdog has asked whether an in vitro culture of human embryonic stem cells is eligible for patent protection. The Supreme Court of the United States has long recognised that subject matter such as laws of nature, natural phenomena, and abstract ideas are not patentable.
The lawyers contend that ‘the claimed human embryonic stem cell culture falls within the “product of nature” exception to statutory subject matter’. The Consumer Watchdog stressed that ‘It is within the Court’s discretion to address this issue despite the fact that the Board failed to address it below, and is especially appropriate in light of the recent Supreme Court ruling on Section 101 in Association for Molecular Pathology v. Myriad Genetics, Inc.. 2013 U.S. LEXIS 4540 (June 13, 2013).’
The Consumer Watchdog also asked whether claims to an in vitro culture of human embryonic stem cells are anticipated or rendered obvious by prior art that discloses methods for deriving and maintaining mammalian embryonic stem cells.
Source: Australian National University