Scott Daniels | April 30, 2010

In a case having potentially great impact on the stem cell industry, the PTO Board of Appeals has rejected the claims of U.S. Patent No. 7,029,913, entitled “Primate Embryonic Stem Cells.”  In doing so, the Board reversed the examiner’s decision that had earlier confirmed the patentability of those claims.

The ‘913 patent is owned by the Wisconsin Alumni Research Foundation.  The Reexamination Request was filed in 2006 by the Public Patent Foundation (“PubPat”) on behalf of The Foundation for Taxpayer & Consumer Rights (“FTCR”), both public interest organizations.

The ‘913 specification explains that

“stem cells are undifferentiated cells which can give rise to a succession of mature functional cells. For example, a hematopoietic stem cell may give rise to any of the different types of terminally differentiated blood cells. Embryonic stem (ES) cells are derived from the embryo and are pluripotent, thus possessing the capability of developing into any organ or tissue type or, at least potentially, into a complete embryo.”

The claims recited a “replicating” of “human embryonic stem cells derived from a pre-implantation embryo… .”  The examiner initially rejected the ‘913 claims, but later concluded that they were patentable and withdrew the rejections.

The Requester FTCR appealed to the Board, which found that the Williams patent (1) was enabling for the claimed “replicating” of cells and (2) anticipated each of the characteristics of that “replicating.”  The Board also found that the prior disclosed a “finite number of identified” and “predictable solutions” for making the claimed invention, concluding that it would have been obvious for one skilled in the art to try the “replicating” as claimed.

Reexaminations were previously conducted for two related patents – U.S. Patent Nos. 5,843,780 and 6,200,806 – and in both instances, the PTO confirmed the patentability of the claims.

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