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In a letter mailed on 9/29/06 (examiner signature on 8/22/06) the USPTO has granted the request of PubPat / FTCR for re-exam of the '780 (and other patents). IPBiz previously outlined the obviousness arguments in the re-exam request. The USPTO has determined that a substantial question of patentability is raised as to claims in the '780 in view of four different references. IPBiz notes that the USPTO misidentified WARF's Thomson patent as the "Thomason" patent on the fourth page of the letter (6th overall page). Not much proofreading by the USPTO here. The Piedrahita 1990 reference was found to raise a substantial question of patentability. See page five of the letter (7th overall page). The Piedrahita 1990 reference had been applied in the parent case, but was not applied as to this application. The USPTO also noted that the Piedrahita 1990 reference was applied in a new light in the re-exam request. The grant of a re-exam request is distinct from a determination that any claim is invalid over the cited prior art. The USPTO determination of whether any claim is invalid is yet to occur. *** The Wisconsin Technology Network stated: WARF, armed with a $1.5 billion endowment, has said it is prepared to take on any legal challenges to its stem cell patents. Following the PTO decision, Beth Donley, executive director of the WiCell Research Insitute, a subsidiary of WARF, said the decision was not unexpected. "The patent office grants more than 90 percent of the requests for reexamination, so this decision does not come as a surprise," Donley said in a statement. "WARF believes the Thomson patents are valid and will affirm the validity of the patents." While patent reviews have taken anywhere from one year to 10 years to complete, Simpson said that in 70 percent of requested third-party reviews, the patents either have been overturned or narrowed. Of Simpson's comment, IPBiz notes that re-examinations are about CLAIMS . Re-exams in which ALL claims are invalidated are not common. Re-exams in which SOME claims are narrowed are more common. In the director-ordered re-exam of the controversial Eolas/Berkeley patent, NO CLAIMS were altered. The Wisconsin Technology Network also noted: To receive a patent, something must be new, useful, and non-obvious. In challenging the WARF patent, the Public Patent Foundation submitted what it said was unseen "art" or evidence that the previous work of other scientists made the derivation of human embryonic stem cells "obvious and therefore unpatentable." [IPBiz notes that the re-exam request raised issues of both anticipation and obviousness.] The Network also noted: Dr. Jeanne Loring, a stem cell scientist at the Burnham Institute for Medical Research, said the real discovery of embryonic stem cells was made in 1981 by scientists Martin Evans, Matt Kaufman, and Gail Martin. Loring filed a 30-page statement in support of the challenge. Loring's declaration provided no basis to initiate the re-examination. A declaration is not a basis to establish a substantial question of patentability. ***Comment posted to californiastemcellreport.blogspot: Of the comments in the Sacramento Bee: In a break with academic tradition that has stirred controversy, the foundation has required university researchers to negotiate licenses to do virtually any sort of embryonic stem cell research. In addition, it generally negotiates "reach-through" royalty rights, giving it the right to claim a share of the proceeds from cures developed through the research. The actions of WARF about licensing seem to be directed to non-profit (e.g., university) bodies who are affiliated with for-profit entities. WARF does not seem to be after entities who are totally non-profit, and research activities of such entities would likely be insulated from infringement through 35 USC 271(e)(1). As a result, the Patent Office's decision could have financial implications for California taxpayers, who will be funding $3 billion in embryonic stem cell research in the next decade -- if voter-approved Proposition 71 survives its ongoing legal challenges. About 70 percent of patents that are accepted for re-examination by the Patent Office are ultimately altered or thrown out, according to agency figures. It usually takes between two and 10 years for the office to issue a final decision, according to Dan Ravicher, executive director of the Public Patent Foundation. Re-examination itself should be concluded much closer to the "two year" point than the "ten year" point. In the face of an unfavorable decision, WARF would have the right of judicial review, which would add additional time. It is also possible that litigation could move in tandem with re-examination. In the case of the Eolas/Berkeley patent, Eolas survived re-examination at the USPTO without any claim amendment, but is still engaged in a litigation. Separately, note that it is claims, not patents, which are investigated in a re-exam. The majority (88%) of patents involved in re-examination survive with (some) valid claims. [http://ipbiz.blogspot.com/2006/10/uspto-grants-pubpat-re-exam-request-on.html] ** The AP report on the topic contained the text: The patent office is acting in response to challenges brought by two groups who contend the patents should never have been issued because other researchers paved the way for the breakthroughs in Wisconsin. Patent claims are not invalidated because earlier researchers paved the way for later researchers. PubPat's anticipation argument for human embryonic stem cells is based on a prior reference which is not enabled as to human embryonic stem cells. To look in a different area, the work of Galileo (and others) may have paved the way for the Wright Brothers, but no one achieved three dimensional flight control before the Wright Brothers, or taught how three dimensional flight control could be achieved. PubPat's obviousness argument is based on the assertion: recipe for mouse embryonic stem cells renders obvious recipe for human embryonic stem cells. If this were true, it probably would not have taken 15 years between mouse and human. buy cilais cheap cialis cheap viagra cialis

Tags: patent, claim, cell, stem, exam

In the unending story of the Wright Brothers, there will be a statue of Harry Toulmin in Ohio. A story on WWAY has the following text: Toulmin helped the Wright brothers apply for five patents, including the flying machine's patent. That patent withstood more than 20 years of fierce legal battles over intellectual property rights. The basic Wright patent concerned three dimensional control of flight. It was filed well before the first powered flight in December 1903. The initial application was not written by Toulmin. It did not withstand 20 years of fierce legal battles. After the patent pool was set up as a result of World War I, there were no legal battles. The Akron Beacon-Journal noted: Toulmin was selected because 2006 marks the 100-year anniversary of the flying machine's patent. Officials in Springfield, Ohio, about 25 miles northeast of Dayton, hope to erect statues of the Wrights alongside Toulmin's. IPBiz observes that, although the Wright Brothers won their patent litigations, they didn't win in the marketplace, in large part because of the patent pool. After World War I, the litigations could have started again, but they didn't. The patent system did not serve the Wright Brothers well. Another story of an inventor who didn't do well in the patent system is that of Andreas Pavel (Walkman). See LARRY ROHTER in the New York Times; Section A, Page 4, Column 4, 17 Dec. 2005. Part of the Times text which should be noted by those talking about small inventors: At one point, Mr. Pavel said, he owed his lawyer hundreds of thousands of dollars and was being followed by private detectives and countersued by Sony. "They had frozen all my assets, I couldn't use checks or credit cards," and the outlook for him was grim. Of relevance to the Wright Brothers, who were consumed by their patent litigation, the Times wrote of Pavel: Some of his friends have suggested he might have a case against the manufacturers of MP3 players, reasoning that those devices are a direct descendant of the Walkman. Mr. Pavel said that while he saw a kinship, he was not eager to take on another long legal battle. "I have known other inventors in similar predicaments and most of them become that story, which is the most tragic, sad and melancholic thing that can happen," he said. "Somebody becomes a lawsuit, he loses all interest in other things and deals only with the lawsuit. Nobody ever said I was obsessed. I kept my other interests alive, in philosophy and music and literature." "I didn't have time to pursue them, but now I have reconquered my time," he continued. "So, no, I'm not interested anymore in patents or legal fights or anything like that."

Tags: patent, wright, brothers, toulmin, legal