NEW YORK (GenomeWeb News) – Public interest groups Consumer Watchdog and the Public Patent Foundation said Tuesday that they have asked a federal appeals court to invalidate a patent held by the Wisconsin Alumni Research Foundation covering human embryonic stem cells.
The groups filed a brief yesterday with the US Court of Appeals for the Federal Circuit, arguing that a rejection of the patent would be appropriate in light of the recent US Supreme Court decision striking down BRCA patents. They said that WARF's patent claims for US Patent No. 7,029,913 cover a product of nature, which according to the recent Supreme Court ruling, would not be patent eligible.
"The '913 patent's three claims cover in vitro cultures of human embryonic stem cells that are not markedly different from naturally occurring hES cells," the public interest groups argued in their brief this week.
WARF's patent was first challenged in 2006 through a patent re-examination. The US Patent and Trademark Office initially rejected the patent, but its Board of Patent Appeals and Interferences reversed its decision on appeal from WARF. The USPTO also had upheld WARF's other patents covering primate and human embryonic stem cells — US Nos. 5,843,780 and 6,200,806.
The public interest groups said they also believe the USPTO's decision to allow the '913 patent should be overturned because its claims are "invalid because they were obvious in light of the numerous prior art teachings of ways to derive and maintain ES cells of several mammalian species."
"WARF's broad patent on all human embryonic stem cells is invalid for a number of reasons and we are confident the Court of Appeals will agree, just like the Patent Office did at first during our reexamination, Dan Ravicher, executive director of the Public Patent Foundation, said in a statement.
WARF declined to comment on the challenge, saying that it needs to review the filing with its attorneys.
In addition to Consumer Watchdog and the Public Patent Foundation, Jeanne Loring, director of the Center for Regenerative Medicine at the Scripps Institute in La Jolla, Calif., has also been involved in the challenge of the WARF patent. Alan Trounson, previously of Australia's Monash University and now president of the California Institute for Regenerative Medicine, and Douglas Melton and Chad Cowan of Harvard University, also have filed affidavits supporting the challenge, according to the Consumer Watchdog and PPF statement.