http://www.newscientist.com/article.ns?id=dn8601

Disgraced Cloning Pioneer could keep his Patents and join the Raelians!

16:36 18 January 2006

NewScientist.com news service

Barry Fox

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A patent application, filed by disgraced stem cell scientist Woo Suk Hwang and colleagues and based on work now admitted to be fabricated, may nevertheless be granted, a New Scientist investigation has found.

Furthermore, the filing of the application could present a substantial obstacle to anyone seeking future patents in the same field.

The application was filed on 30 December 2003 by Hwang, along with 19 other researchers at Seoul National University. SNU has publicly apologised for Hwang’s misconduct, but told New Scientist that it "does not currently intend to abandon the patent applications as some incorrect news media report". However, Jung-Hye Roe, Dean at the SNU Office for Research Affairs adds: "We are considering modifying the applications based on the report from the SNU committee", which found Hwang's work to be falsified.

Hwang's patent submission (in pdf format) stakes a claim in over 120 countries for a legal monopoly on the broad concept of “an embryonic stem cell (ESC) line derived from a nucleus-transferred oocyte prepared by transferring a nucleus of a human somatic cell into an enucleated human oocyte”. Or, in simple terms, an ESC line derived from a cloned human embryo – a technique which, if achieved, could prove crucial to future therapeutic cloning methods.

In support of the claim, the application details experimental methods and cites a sample ESC line deposited with the Korean Cell Line Research Foundation. The sample, number KCLRF-BP-00092, has since been discredited by the SNU investigation committee. The committee's report was published on 10 January.

Flying saucer

The UK Patent Office has taken a leading role in trying to clarify what aspects of stem cell research can be patented in Europe. Lawrence Smith-Higgins at the UKPO says: “European patent examiners are not interested in whether something will work or not. The commercial world, which is where patents belong, will judge. As long as an invention is not clearly contrary to scientific laws – like time travel – research has no bearing on the grant of a patent.”

Unproven ideas are often be easily patented because there is a good chance no one has previously filed the same claim. In 1973, for example, the British Railways Board was granted a patent on plans for a notional nuclear-powered “space vehicle” that was unashamedly a flying saucer.

George Schlich, a patent attorney and counsel for leading stem cell company Stem Cell Sciences agrees with Smith-Higgins: “Europe takes a matter-of-fact view. Does it really matter if the man made up his results? Let him try and sell it."

Not enforceable

But while the patent application appears to stand a good chance in Europe, the situation in the US is different, explains David Wilson, a biotech litigator with international law firm Bird and Bird.

“In Europe, what matters is whether an invention is novel, inventive and sufficiently described. Fraud is not a ground for invalidating a patent," he says. “In the US an applicant has an obligation to give the US Patent and Trademark Office (USPTO) any material information. It is all right to leave out the theory of how the invention works, or even get the theory wrong, as long as you don’t say ‘I have built it’ when you haven’t. If you do this you may still obtain your patent, but if challenged your patent may not be enforceable”.

Because of this, it has become common practice in the US for anyone accused of infringing a patent to accuse the inventor of “inequitable conduct” or “fraud on the Patent Office”, by withholding or misrepresenting information. However, even in cases where information was misrepresented, the patent holder has not always lost the case.

Undue experimentation

Oren Livne, a registered patent agent and associate director for licensing at the University of California, Santa Barbara, US, adds: “The bottom line is, even if the results are faked, he might still get a patent – if his method for making a stem cell line describes how to do it in a way that someone else could make a stem cell line without 'undue experimentation'."

Furthermore, warns Robert Berliner, a patent lawyer with US law firm Fulbright & Jaworski in Los Angeles: “The USPTO was once much more pro-active in dealing with fraud or inequitable conduct. The present view is that examiners do not have the resources."

Greg Aharonian, author of the Internet Patent News Service and outspoken critic of the USPTO, is pragmatic: “If the patent office is paying any attention, they will ask for some experimental results and further enablement details, like they do for perpetual-motion machine patent applications”.

But even if the Hwang patent is now abandoned, or proved worthless in some countries, or found un-enforceable in court, there is still a sting in its tail. Once a patent application has been published anywhere in the world, it becomes a permanent prior disclosure.

“The Hwang publication could block subsequent patents on work that constitutes an obvious extension of what Hwang described, even if the Hwang work proves unworkable itself," says Wilson. "But whether it could block patents to the same work depends on whether what Hwang described works or not.”

**

There's fraud -- and then there's fraud

Posted by Stephen Pincock

[Entry posted at 2006-01-18 14:14:13]

As if things weren't bleak enough for disgraced South Korean cloner Hwang Woo-suk, it emerged last night that he has been offered public support by Clonaid, the UFO cult founded by a former French sports journalist. In a posting on its website, Clonaid, which claims it has cloned several human embryos but is keeping the results secret, tries to draw a parallel between Hwang's recent difficulties and its own activities.

The website asks: 'It is interesting to do the mental exercise, for just a few seconds, and ask oneself - why would Dr. Hwang play with the hope of millions of people who are desperately waiting for stem-cell cure to be available for either themselves or one of their relatives? Why would he declare that he has made these lines, if he wasn't able to do it, knowing that millions are watching him and that he would have to deliver them soon?'

'In the same way, how can people believe that Clonaid's announcement of a cloned child being born was a hoax while thousands of parents-to-be were and are counting on us? Thankfully these parents didn't trust the media and today many of them had their baby...'

Reading this, my instant reaction was that there are a number of possible reasons why a scientist in Hwang's position might be involved in fraud--perhaps, for example, he felt the pressure of the adulation of the South Korean people. In short, the answer to the question is probably complex.

In contrast, however, the reason people don't believe Clonaid's claims is very straightforward. They haven't offered a shred of evidence to support them.

Clonaid is closely linked to the Raelians, whose leader, Claude Vorhilon (aka Rael) says cloning is a step toward everlasting life. In their statement they say they believe Hwang did in fact clone human embryos, but has been 'discredited as he wasn't in line with what the political and religious powers of this world wanted regarding the cloning technology.'

In consideration of the fact that he's out of a job, Clonaid has apparently offered him a chance to collaborate in one of Clonaid's laboratories.