Wednesday, September 21, 2016

The Value of Patents

Some sixty years ago when I first started some semblance of academic pursuit, I got involved in my first patent discussion. A friend's mother was a telephone receptionist. In those days when you called Mr Smith or Mrs Jones at a company the call went to the switchboard and then to a telephone receptionist, the person who placed the call. Back then these people, all women as far as I could tell, wore official Bell System issued head gear. It was heavier than a sonar operators ear phones during WW II. After all it was Bell System. These women wanted something lighter and not as destructive to their expensive hair styling. I suspect Bell System engineers were all male and most likely never even noticed their spouses.

Thus one of these women suggested a new head set. I wrote a patent application and then it was suggested we send it to AT&T. Yes, not my idea, but we "trusted" them. We naturally got a letter back saying "thanks but no thanks". Five years latter that very same head set came out from, you guessed it, the Bell System. Coincidence? You guess.

Now what did this teach me? That patents may very well be useless unless you have a large pool of money for lawyers, since any good idea can be copied and unless you can sue and win, if and if, you are wasting time. Might just as well tell the world, get visceral credit and block the big guys patents.

Now why all this old stuff? CRISPRS!

In Nature they discuss the current battle which we had anticipated. They state:

Much of the focus is on the teams centred at Berkeley and the Broad Institute, whose ‘foundational’ patents cover a wide swathe of CRISPR–Cas9 applications. Although Berkeley’s team filed for a patent first, the Broad opted for an expedited review process, and its patents were granted earlier. The Berkeley team then asked the USPTO to declare a ‘patent interference’, launching a complicated process to establish who first came up with the invention. Since January, the two sides have been making their case in filings to USPTO patent judges. The Broad asserts that Berkeley’s initial patent filing described using CRISPR–Cas9 in prokaryotes such as bacteria, but did not sufficiently describe the procedure in eukaryotes such as mice and human cells. That distinction is important: CRISPR’s most lucrative applications are likely to be in medicine, and several biotechnology companies have already licensed patents from either Berkeley or the Broad. Berkeley argues that the application of CRISPR–Cas9 to eukaryotic cells was obvious and that “persons of ordinary skill”, such as a postdoc with relevant expertise, could have made the leap. Berkeley points to the swift success of several teams — led by Doudna; Zhang; Church (at Harvard Medical School in Boston, Massachusetts); and genome engineer Jin-Soo Kim at the Institute for Basic Science in Seoul — that applied CRISPR to human cells. The Broad countered that these scientists are all leaders in their field and could hardly be considered ‘ordinary’.

Yes this is a proverbial "p.....g" contest. Broad (MIT and Harvard) versus Berkeley (California). And in the middle the USPTO. Now the PTO is not the brightest set of bulbs on the rack, especially when it comes to litigation. This is Administrative law and we don't have a bunch of Harvard and Stanford lawyers. They are patent types. That means GS-11 thru 13s.

How this will end is uncertain. What will be of interest is how the Nobel Committee handles this.