WARF Stem Cell Patent Under Fire

The Wisconsin Alumni Research Foundation financial claims on rival stem cell researchers took another hit earlier this week when some of the nation's leading stem cell scientists filed petitions supporting the Patent and Trademark Office's decision to rescind James Thomson's seminal patent on embryonic stem cells. The California-based Foundation for Taxpayer and Consumer Rights and Public Patent Foundation organized the scientists to file comments supporting the PTO's action.

For background on the scientific significance of breaking down the patent barriers in the emerging stem cell field, see my article in PLoS Medicine here.

The most interesting brief came from Douglas Melton of Harvard University, one of the nation's leading stem cell scientists. He wrote:

I very much believe that Dr. Thomson deserves the scientific and public recognition he has received. However, he deserves that recognition because he undertook the arduous and timely task of getting fresh and high quality human embryos to use as starting material in his work, and sufficient funding for such research, not because he did anything that was inventive. It was access to those resources, which were, and to this day still are, very difficult to obtain, that enabled Dr. Thomson to achieve his accomplishment. His perseverance and commitment deserve recognition and accolades. But I believe that had any other stem cell scientist been given the same starting material and financial support, they could have made the same accomplishment, because the science required to isolate and maintain human embryonic stem cells was obvious.

As every patent attorney knows, a new invention must meet the test of being "not obvious." Melton points out in his comment that anyone with adequate funding could have used readily available technologies to isolate embryonic stem cells. It was only Thomson's access to funding from Geron Corp. that allowed him to claim the mantle of being first. But being first isn't what defines an invention. That requires doing something no one else has ever thought of. The WARF patent, Melton said, fails that test.