On 07/02/98, Shelly Warwick <swarwick[_at_]sprynet.com> wrote:
>
> I haven't been following this issue closely, but in Jamie Boyle's
> book, "Shamans, Software, and Spleens" he discusses a case where a
> patient was told that his spleen needed to be removed for medical
> reasons that would benefit him though the persons involve in the
> removal already knew they were going to use the cells. From the
> discussion in the book it appeared that no tailoring was done to the
> genetic material before it was patent by the medical researchers.
If you read the case (or look at the patent) you will find 1) that the subject matter of the patent was not Moore's genetic material, but rather a cell line derived from Moore's cells, and 2) the cell line (like all cell lines) was artificially manipulated. As a rule, normal human cells don't just grow in the laboratory on thier own, they have to be immortalized (the process of creating a cell line).
> The patient sued, and but lost on the patent case.
The California Supreme Court specifically held that Moore did not have an interest in the cell line *because* it was the result of Dr. Golde's manipulation.
> What would happen under patent if someone else found an other individual
> with very similiar (if not identical) cell characteristics and sold
> those cells for same purpose that the original patent holder was selling
> their cells?
This depends entirely on the construction of the claims to the cell line. Any cell line within the scope of the claims (or equivalents) would infringe. Indedpendent development is not a defense to patent infringement.
> Also, could the discoverer (or is it inventor) of the second set of
> cells patent them?
Yes, if they meet the statutory requirements.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:30 GMT