On 7/6/98, Shelly Warwick <swarwick[_at_]sprynet.com> wrote:
>
> Obviously human cells don't just grow on their own... but what
> was the extent of the manipulation?
First, the manipulation in cell line passage is always fairly extensive, and second, degree of manipulation is really not a requirement for patentability -- there must be some human intervention to meet the 101 subject matter requirement, but that's it. The standard is not sweat of the brow.
> Was it just enough to keep the cell line going to utilize a unique
> property of Moore's cells, or did the unique property result from
> the work of doctor?
Both.
> It appears to me that the unique property was in Moore's cells
This is beginning to get a bit metaphysical, but there would have been no cell line had there been no intervention by Dr. Golde, so any unique property that Moore's cells might have had would not have been available for use.
> (or why not just take any available cells)
For the same reason that you wouldn't take "just any available" material to construct a building. Some require wood, some steel, some rattan. The choice of materials depends on what the builder intends to end up with.
> and that it was recognized (discovered - not invented) by the doctor.
First, recognition of the properties of starting materials is frequently a necessary step to invention, as I have indicated above. Second, you are making assumptions about what constitutes "invention" that are probably not correct under U.S. patent law. The statute simply calls for novelty and non-obviousness, which in some instances could be satisfied by isolation and characterization.
> I'm not really up on patent law, but in copyright one of the basis for
> denying protection to facts is that they are discovered and do not owe
> their origin to an author.
Even under a copyright-like origin standard, the cell line "originated" with the inventor. Prior to Dr. Golde's intervention, the cell line did not exist as a discrete entity.
> It makes no sense to me that someone can patent a property that they
> observed in someone else's cells,
"Properties" are not patented -- machines, compositions of matter, articles of manufacture, or processes are. Properties define the scope of the claims.
> especially when the cells were removed without informing the
> individual of the doctor's intent to use the cells for study let
> alone profit.
This is an entirely different claim, for lack of informed consent, and for which the California Supreme Court held Moore had a cause of action.
> Prof. Boyle has a very interesting discussion of the decision in the
> case whereby it was reasoned that if individuals were allowed property
> rights in their own cells it would block research but to allow medical
> researchers property rights would promote research. Again, to go back
> to a copyright approach, this seems equivalent of telling an author
> their work is not eligible for copyright protection then granting that
> protection to a publisher who has taken the work without permission.
I tend to think that this analogy is badly flawed. Moore is clearly not the "author" of the cell line under any standard of any corpus of intellectual property law with which I am familiar. If you feel that Dr. Golde failed to exercise creativity or inventorship in isolating and developing the cell line, how can Moore -- who engaged in no intervention or manipulation whatsoever, and in fact didn't even know that any useful cells were present -- have exercised any creativity or inventorship? The fact that his spleen contained any useful starting materials at all was pure happenstance.
> Both the publisher and the researcher have worked to make the original
> material accessible (the publisher through printing, advertising,
> distribution, and perhaps editing - the researcher through culturing
> the cell line and perhaps strengthening it). Why should the researcher
> be considered the author of the cells rather than the publisher of the
> cells?
Aside from the fact that the statute and cases say that he is, for the same reason that creators of copyrighted works, who draw from the public domain for ideas and other starting materials, are authors and not "publishers."
> Why shouldn't Moore be the author?
For the reasons indicated above. Also, you have not articulated any reason that he *should* be -- clearly he should not be on a labor "desert" theory, or an economic incentive theory, or on a prospect theory, or on a Schumpeterian investment theory.
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