Previously, this blog has discussed the Wisconsin Alumni Research Foundation’s (WARF) several human embryonic stem cell patents that were being re-examined by the USPTO pursuant to a request made by the Foundation for Taxpayer and Consumer Rights (FTCR) and the Public Patent Foundation (PUBPAT). The emphasis on ‘were’ being due to the recent rejection of all the patent claims resulting from the re-exam. As a result of this development, Daniel Ravicher (PUBPAT’s President and Executive Director) has stated his belief that WARF should simply drop its claims to the patents altogether. According to the press release on PUBPAT’s website the outcome was likely to happen, as

Third party requests for patent re-examination, like the ones filed by FTCR and PUBPAT, are ultimately successful in having the subject patent either changed or completely revoked roughly 70% of the time

In light of this ruling, WARF has two months to make an official response to either attempt to prove that its claims are novel or take Dan’s advice and let the patents go. Option number one seems most likely given WARF’s position articulated by WARF Managing Director Carl E. Gulbrandsen, who stated that “WARF has absolute confidence in the appropriateness and legitimacy of these patents.” The press release from WARF went on to detail the myriad avenues available to defend the patents:

This first rejection, for example, gives WARF the opportunity to respond directly to the examiner, a response in which WARF will vigorously defend its patent claims. That response could persuade the examiner to sustain the patents and terminate the reexaminations. If the examiner maintains the rejection, WARF could, and most probably would, appeal the examiner’s decision to the PTO Board of Patent Appeals. And, if that body fails to sustain the patents, WARF can then appeal to the courts.

So, while PUBPAT and the FTCR have won the battle, the war is far from over.

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