Judicial Activism, WARF and Embryonic Stem Cell Patents

The Corporate Counsel Web site/magazine today called up some interesting history involving an appellate court judge in the California-based challenge to an important patent on human embryonic stem cells.

The case involves WARF, the Wisconsin Alumni Research Foundation, which holds the patent on the work done by Jamie Thomson of the University of Wisconsin. Challenging the patent is Consumer Watchdog of Santa Monica, Ca., and Jeanne Loring, head of the stem cell program at Scripps, and Daniel Ravicher of Public Patent Foundation of New York.

Today they filed a petition with the U.S. Supreme Court to overturn an appellate court ruling that they had no standing to sue (see here and here). That ruling was written by Randall Rader, one of three judges on the appellate panel.  

Lisa Shuchman, a reporter for Corporate Counsel, wrote,

“It was one of the last decisions written by then-Chief Judge Rader before he resigned (as head judge) amid an ethics controversy.”

She continued,

“WARF did not raise the issue of standing in its Federal Circuit briefs. But about 20 seconds into Ravicher’s oral argument before the court, Rader interrupted, asking him, ‘Do you have standing to be here?’ That question eventually led the panel to rule against the advocacy group.

“On Twitter, Ravicher on Friday called that ruling ‘judicial activism at its finest.’

“'Statutes expressly say non profit groups like @ConsumerWD can challenge patents in court. Fed Cir decision judicial activism at its finest.— Daniel B. Ravicher (@danravicher) October 31, 2014’ 

“A year before the Federal Circuit’s June decision, the Supreme Court reversed the Federal Circuit in Association for Molecular Pathology v. Myriad Genetics Inc., ruling that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.

“'Under Myriad, there’s no way WARF’s patent would survive,’ Ravicher said. ‘Rader was on the record saying he thought the Supreme Court got Myriad wrong, and he looked for a way to avoid hearing this case on the merits because he didn’t want to further enforce the Myriad rule.’”