Commentary: ‘Robin Hood’ declares war on lucrative U.S. patents

November 12, 2007

A scientist describes how she decided that a legal fight would advance science

At 9 p.m. on 9 August, 2001, US President George W. Bush announced the first opportunity to obtain federal funding for experiments on human embryonic stem cells (ES cells). Because funding was limited to lines already established at that time, Bush’s executive order is perceived to be a constraint on this research. In fact, more restrictive decisions have already been made by another US government agency.

On 1 December, 1998, the US Patent and Trademark Office (USPTO) issued a patent that covers all primate (including human) embryonic stem (ES) cells. This patent, entitled ‘Primate Embryonic Stem Cells’ (Patent 5,843,780), was followed on 13 March, 2001 by a second (Patent 6,200,806) with the same title, but limited to human ES cells. Unlike a scientific publication, which encourages other scientists to reproduce a researcher’s work, a patent has the force of law to exclude others from working with the patented invention or material. In this case, the patents are quite broad. Through a “composition of matter” claim, the patents would cover even human ES cells that were not derived through James Thomson’s method, on whose work the patent is founded. (Nature Reports Stem Cells)