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Biotech Medicine Patents The Almighty Buck Science

Stem Cell Patent Halts Hospital's Collection 223

eldavojohn writes "It's a classic case that comes up when dealing with patents. A hospital's research on the donated brains of deceased children has been in limbo for three years because of a challenge from a patent holder. The double-edged sword of patents that spurred investment into the field will also cause chilling effects on research like the case of the Children's Hospital of Orange County. They've now been forced to shift the money from the lab to lawyers in order to deal with this ongoing patent dispute over a technique that was developed to extract stem cells at the Salk Institute. Unfortunately the Salk Institute failed to patent the technology, so a company named StemCells happily had it approved. The real disheartening news is that CHOC's Dr. Philip H. Schwartz — the doctor collecting the cells — was one of the original researchers who helped developed this technique at the Salk Institute. Now he can't even use the technique he helped create. Schwartz has since been instructed not to publicly discuss the case further. Research interests are clashing with commercial interests in a classic case that causes one to wonder if patents surrounding medical techniques like this stretch too far. As for the people that donated their dead child's brain to research, those valuable stem cell cultures have been kept in storage instead of being disseminated to research labs (which desperately need them) across the country."
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Stem Cell Patent Halts Hospital's Collection

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  • by Anonymous Coward on Monday May 24, 2010 @01:29PM (#32325720)

    A group that didn't invent it shouldn't even be able to patent it. Fuck you, "StemCells", fuck you to the grave.

  • by Peach Rings ( 1782482 ) on Monday May 24, 2010 @01:32PM (#32325790) Homepage

    Nobody should be able to patent it. The original inventors could just as well be the patent trolls keeping stem cells out of hospitals.

  • Prior art? (Score:5, Insightful)

    by Kronon ( 1263422 ) on Monday May 24, 2010 @01:37PM (#32325858)
    How can StemCells be granted a patent for this technique? It would seem that Salk Institute can prove that it is prior art (i.e. that they utilized this technique prior to any patent claims by StemCells), invalidating the patent claim by StemCells.
  • Re:prior art? (Score:4, Insightful)

    by Virtucon ( 127420 ) on Monday May 24, 2010 @01:37PM (#32325878)

    dissolve as in eventually have a judge rule that the patent isn't valid? As the article points out, CHOC now has to go to court to get that handled. While the patent may
    be invalid because of prior art it still takes courts and lawyers and dockets and paper to make this situation "right." What I don't understand is that if there's no
    profit motive on the part of CHOC, they're doing research, why they're being prohibited from using the technique anyway? I guess it's like patenting a shovel, if anybody digs
    a hole can the patent holder prohibit you from having a swimming pool?

  • Re:prior art? (Score:5, Insightful)

    by Lunix Nutcase ( 1092239 ) on Monday May 24, 2010 @01:43PM (#32325960)

    Why do you assume there has to be a profit motive in order to run amok of patents?

  • ah, thank goodness (Score:3, Insightful)

    by nimbius ( 983462 ) on Monday May 24, 2010 @01:43PM (#32325966) Homepage
    So to date this life-giving science has been encumbered by christian fundamentalists and unsavory patent trolls. If my america pedals itself any faster into the dark ages, ill have to resort to public flagellation as a response to the upcoming hurricane season.
  • Re:Prior art? (Score:5, Insightful)

    by gorzek ( 647352 ) <> on Monday May 24, 2010 @01:46PM (#32326006) Homepage Journal

    They still have to go to court to get it invalidated, though.

  • by MojoRilla ( 591502 ) on Monday May 24, 2010 @01:51PM (#32326076)
    The solution to over-patenting isn't more patents. That would just be shoveling more money to lawyers and away from doing research or curing people. The solutions here seem to be to either allow nonprofits and universities to use patents for basic research, or to shorten patent lengths. A 20 year patent seems ridiculous when product lifecycles and discoveries are moving much more quickly.
  • by Enleth ( 947766 ) <> on Monday May 24, 2010 @01:51PM (#32326090) Homepage

    A guy with a Barret M107, a handful of .50 BMG bullets with "for this patent bullshit" engraved on them and an escape helicopter would help, too.

    Every time I read about scumbags like this, I'm more and more convinced that this is indeed the only way.

  • by MozeeToby ( 1163751 ) on Monday May 24, 2010 @01:58PM (#32326198)

    How nice that they're allowed to spend ten to twenty thousand dollars applying for a patent that they don't intend to use. All in an effort to prevent what is basically being blackmailed by a company that has not only stolen your ideas from you, but also from everyone else who would do work in the field. What a wonderful, effective system we have.

  • Re:Medical Patents (Score:5, Insightful)

    by Volante3192 ( 953645 ) on Monday May 24, 2010 @02:05PM (#32326286)

    Double edged sword. It can take decades of time and millions upon millions to spit out one thing useful. Patents give return on investment.

    I'd love research done for research's sake too, but pragmatism has this nasty habit of beating the snot out of idealism.

    Besides, if you didn't invent it, screw off.
    Damn right. StemCells needs to be staplegunned to the wall for this well as the Patent Office being held liable too, since someone didn't do their prior art research.

  • by Artagel ( 114272 ) on Monday May 24, 2010 @02:08PM (#32326348) Homepage
    When someone develops a technology, their choices are generally to patent it themselves, publish it to give it to the public, or keep the development a secret. If a company indeed developed the technology independently, and there was no making the knowledge public, then the secret-keeper can have a problem. The patent system encourages developments to be made public, but with benefits for doing so. One of the detriments is that if you keep a secret, you may find someone else decides to patent it. Then you are can be an infringer. This is a rarer instance. Most often in the not-for-profit world, people choose to publish. In fact, early publication is the biggest threat to universities getting patents on professors' developments.
  • by MrMr ( 219533 ) on Monday May 24, 2010 @02:22PM (#32326560)
    I wonder who the company claimed as inventors on their patent application.
    Knowingly leaving out the real inventors will get them more than just a slap on the wrist...
  • Re:Prior art? (Score:5, Insightful)

    by Kronon ( 1263422 ) on Monday May 24, 2010 @02:25PM (#32326620)
    I don't see any proof of that in the article. The article implies that it was lack of initiative by Salk Institute that allowed StemCells to secure a patent on the technique: "The dispute comes down to access to a technique that Schwartz helped develop at the Salk Institute but the institute failed to patent. StemCells did." Can you provide a citation that gives a detailed chronology? In any case, Weissman comes off as a huge hypocrite by freezing out a research group with no commercial interests --- i.e., on the one hand he'll advocate for freedom to carry out this research, while simultaneously stymieing basic, non-commercial research with the other. This is what really bothers me about patents: They can enable commercial interests to erect a fence and keep out any public research in a potentially large area of science. Commercial interests can often secure funds to pay for licensing the patents. This usually is not in the budget for publicly funded research groups. (My preview shows this appearing as a wall of text, even though I have included white space.)
  • by ircmaxell ( 1117387 ) on Monday May 24, 2010 @02:32PM (#32326722) Homepage

    Knowingly leaving out the real inventors will get them more than just a slap on the wrist...

    Yes, but only after years of legal battles. They'll need the first court to overturn the patent before they would be able to go back after them for damages. That's the problem here... Patents are being blindly issued, only looking to see if it was patented before. Then, it's up to the courts to determine the validity of the patent... That's horrible for the little guy, who chances are doesn't have the money to pay for the legal fees. So the only people the current patent system helps, are the big companies and the courts.

  • by Znork ( 31774 ) on Monday May 24, 2010 @02:38PM (#32326824)

    The solutions here

    The solution here is not to allow monopoly rights at all. If there is a desperate desire to divert money towards specific fields or specific holders of certain papers, then just outright pay them from whatever public purse whose politicos they control, and leave the actual economy and business of getting jobs done alone.

    Patents and other IPR seems like a good idea to some because their costs are not accounted for, but there is no macroeconomic difference between the privatized taxation rights of IPR and taxing and having the state pay out for per-patent use. Except, of course, it's much easier to say 'we're giving 20 years of monopoly rights to encourage innovation' than 'we're handing out X billions of which barely 20% is used for the purpose we intended'. And, of course, the fact that private monopolies seem to become even less efficient than (at least accountable) public monopolies.

  • Re:here you go (Score:5, Insightful)

    by kurokame ( 1764228 ) on Monday May 24, 2010 @02:39PM (#32326838)
    The point of patents is that if you come up with something cool, the patent protects your ability to make a living off of having done so both through marketing it yourself and through licensing it to others.

    It doesn't often work that way in practice. Patents are used to prevent competition instead of encouraging it, and licensing fees are used to determine who can and who cannot practically work with the technology. It's yet another case where the basic idea was sound but the implementation is lacking. A major issue has been that the scientific and corporate landscape has changed significantly over time, while the patent system has not adapted adequately.
  • hyperbole (Score:2, Insightful)

    by Anonymous Coward on Monday May 24, 2010 @02:53PM (#32327022)

    I used to think statements like this were hyperbole but now it seems an unavoidable conclusion. There was a time when America, and "the West" in general, were animated by a respect for science in and of itself.
    Now there is something deeply broken in our country, it's as if there has been a kind of fundamental rejection of the concept of progress as one of the central aspects of our national identity. The idea that together we can make the future better than the present has seemingly been supplanted by authoritarian greediness. Americans don't generally believe in improving the world, we have rejected the idea of the "common good".
    The American project was founded on Enlightenment values, somewhere along the way we lost sight of those values and have drifted from their moral trajectory into a dystopia.

  • by Venik ( 915777 ) on Monday May 24, 2010 @02:54PM (#32327038)

    So the only people the current patent system helps, are the big companies and the courts.

    Perhaps, but it would appear that the real problem is the incompetent assgobblins holed up in the US Patent and Trademark Orifice. I think a good first step would be to introduce compulsory IQ testing at the USPTO and lay off employees scoring below seventy, confiscating all of their square pegs and round holes. The remaining six patent analysts should be offered early retirement with full benefits and a conciliatory "years of service" plaque.

  • by MightyMartian ( 840721 ) on Monday May 24, 2010 @02:56PM (#32327058) Journal

    Which is all well and fine, but in the meantime research is put on hold and the fraudsters (let's be blunt, that's what these guys are) may lose the patent but will suffer nothing else from what amounts to the IP equivalent of forging bad checks. This company is hardly the first. Probably the most famous patent con artists were Alexander Graham Bell and Thomas Edison, both of which have, ironically, come to represent the towering achievers of the modern patent system.

  • Re:Prior art? (Score:3, Insightful)

    by vxice ( 1690200 ) on Monday May 24, 2010 @03:02PM (#32327118)
    Actually when filing for the patent StemCells should have had to prove originality of their idea. If their patent is found invalidated hopefully they will be forced to compensate for legal fees, but since many of these companies are small shell companies made to collect profit and compartmentalize risk they will have just enough assets for whatever their purpose is and no more so wont be able to pay any thing to the courts if they loose the case.
  • huh? (Score:1, Insightful)

    by Anonymous Coward on Monday May 24, 2010 @03:20PM (#32327336)

    Your argument presupposes nationalism as an element of ideology.

    Also, I believe the OP was suggesting that scientists who desire to engage in research unencumbered by the American insanity should work in those countries. It's not about ideology to them, it's about doing science. You seem to be suggesting that before these scientists can be scientists they must first become political revolutionaries. That sounds very nice and all, but it is a bit of an absurd proposition. Not to mention a tremendous misallocation of scientists. I say, if America and the West now value power, greed, and irrationalism more than progress then we should cheer the scientists on for their courage in advancing the cause of science by escaping their oppression.

  • I am in Canada... (Score:2, Insightful)

    by mano.m ( 1587187 ) on Monday May 24, 2010 @03:21PM (#32327352)
    and we are very much part of 'the western world'. Right there next to you. A little to the north. There you go.
  • by Manos_Of_Fate ( 1092793 ) <> on Monday May 24, 2010 @03:22PM (#32327372)
    It does, however, apply to the GP's suggestion that this sort of thing should not be patentable by anyone, even the creator, because it could still be abused to prevent medical innovations.
  • Re:Prior art? (Score:2, Insightful)

    by Anonymous Coward on Monday May 24, 2010 @03:43PM (#32327636)

    This may seem obvioud to you and me, but many people don't get it. Stem cell research has the potential to CURE many medical problems. That's CURE, as in permanently fix them. Most of "Big Pharma" makes most of their revenue from the boat load of maintenance medications that they ship out every day to TREAT THE SYMPTOMS of the many "chronic" and "incurable" diseases that are out there. My dad has taken a handful of pills every day of his life for the last 20 years to keep the prostate cancer that he got those two decades ago from coming back. Would have been a lot cheaper for him to have taken just a few magic blue pills to cure it once by straightening out the genes that make him have it in the first place. Same goes for AIDS / HIV patients. I've seen the cup fulls of pills they go through on a day to day basis to stay "healthy" or at least postpone the inevitable. If they found a way to kill or render ineffective HIV, then how much revenue would drug makers loose practically overnight?

    There is NO LONG TERM MONEY to be made for drug companies in curing diseases. There IS a public health benifit to it though. Once governments see past their own politician's greed for being lobbied by these companies and start to promote university research at curing these diseases while being free of BS lawsuits like this impacting their work, medicine will stay where it has been for the last two decades, stagnated.

  • by Khashishi ( 775369 ) on Monday May 24, 2010 @03:50PM (#32327718) Journal

    Surely it's criminal perjury to falsely claim an invention in a patent. Assholes who hire thugs (lawyers) to intimidate people should be tried and punished.

  • by Anonymous Coward on Monday May 24, 2010 @05:51PM (#32329286)

    Nice try, but the Supreme Court already decided that one. Research is a commercial interest. See Madey V Duke.

  • by Anonymous Coward on Monday May 24, 2010 @06:10PM (#32329460)

    The stupid ones are the hospital's lawyers. They should ignore the letter from StemCells. This isn't a court order, it is just a threatening letter.

      If the hospital's work has no commercial value, the company isn't going to spend the time/money suing in federal court to stop them from.

  • by slashqwerty ( 1099091 ) on Monday May 24, 2010 @08:51PM (#32330806)

    Research is a noncommercial endeavour, and as such patent infringement cannot occur.

    You are not a lawyer (and neither am I). Granting patents is one of congress's 18 enumerated powers. Congress can grant patents that have nothing to do with commerce. In fact, patent law spells out four exclusive rights the patent holder has. A patent holder can stop other people from:

    1. Making
    2. Using
    3. Selling
    4. Offering for sale

    the product or process that is described in the patent claims. There does not need to be any commercial activity involved.

  • by Labcoat Samurai ( 1517479 ) on Tuesday May 25, 2010 @01:59AM (#32332594)
    Here, I'll put it another way. There's not a person out there who is advocating embryonic stem cell research because they love the idea of irritating religious conservatives. They propose the idea because it has genuine promise. Now I'll be the first to point out that there has been a great deal of promise shown in adult stem cell therapies and that they are absolutely worthy of funding and research. The difference between you and me is your desire to rationalize an ethically founded objection to one avenue of research as though it were actually a scientifically founded objection.

No problem is so large it can't be fit in somewhere.