Posts Tagged ‘sherley’

Supreme Court Denies Cert. in Sherley v. Sebelius

Wednesday, January 9th, 2013

The pesky worry about a possible Supreme Court review of the ruling by the D.C. Court of Appeals affirming the Circuit Court’s dismissal of a challenge to the 2009 NIH Stem Cell Funding Guidelines – which permitted NIH funding of most stem cell research – was lifted today when the Supreme Court denied plaintiff’s petition for cert. With the re-election of President Obama, who initially lifted the ban on all but very limited stem cell research imposed by President Bush, hopefully the U.S. will return to a position of leadership and help this area of research mature.

Click here to read the story from the Stem Cell Action Coalition.

Sherley v. Sibelius – The Undead Threat To Stem Cell Funding

Thursday, April 26th, 2012
Green Energy Sources

When a three judge panel of the US Court of Appeals for the D.C. Cir. dismissed a preliminary injunction obtained by plaintiffs in April 2011, and the lower court judge then  dismissed plaintiffs’ suit to block the Administration’s guidelines permitting funding for embryonic stem cell research as violative of the Dickey-Wicker amendment banning funding that might destroy or harm a human embryo, I thought the issue had been laid to rest. However, plaintiffs – not the Government – have now appealed to the appeals court, arguing that the prior ruling overturning the injunction banning hESC research is not binding on the present panel.

The earlier panel had ruled that the  Dickey-Wicker amendment, that is tacked onto some bill sure to pass Congress each year, is ambiguous in view of the more precise policies urged by the Administration and the NIH, regulating hESC research. The plaintiffs argued that the earlier panel ruling simply involved injunctive relief and should not be “the law of the case” regarding the merits of their suit. Defendants and amici argued that the panel effectively analyzed the merits of the suit: the conflict or congruence between Dickey-Wicker and the NIH policy resuming funding for stem cell research.

If the current panel does not agree that it is bound by the earlier panel’s analysis and sides with the (anti-hESC research) plaintiffs, this case will wend its way to the Supreme Court. However, if the Administration changes in November, and a new Administration reinstates the “Bush ban,” the appeal will be moot. Those who support hESC research should hope that the stem cell researchers can get some grants funded and new cell lines approved  in the next six months or so. A pro-science door that has been open for about three years may be about to close.

Read the article from Regenerative Medicine Forum

Prior posts on this subject can be found here:

July 28, 2011

May 2, 2011

Top 2011 IP Stories on Patents4Life

Saturday, December 31st, 2011

I spent a day or two looking back over the breaking IP news that resulted in posts on Patents4Life. I wrote most of them, but want to take a pause to thank regular contributors Paul Cole, Ron Schutz and Stefan Danner for their help. Patents4Life was originally intended to be a “blawg” focused on IP developments affecting the Life Sciences and, as 2011 comes to a close, I have put together a “top ten” list of stories to which attention had to be paid – by all of us in most cases – litigators, prosecutors and tech transfer professionals in the U.S. and abroad. The single most-apparent trend in IP last year was the increasing globalization of IP law – consider inter-office work-sharing and the prosecution highway. But I don’t want this column to go on into 2012, so here, in reverse order, are the “legal events” that dominated the netwaves in 2011. (I apologize for what I hope will be minor errors of fact and spelling – I am writing this from notes I made while back-tracking through the year.)

10. The Stem Cell Suits. In Sherley v. Sebelius, the district court finally dismissed the suit which had resulted in a ban on Federal funding for stem cell research, after the Court of appeals reversed its initial decision. (See Post, July 28th). However, in October, the Court of Justice of the EU ruled that claims to embryonic stem cells or even to cells that could become sources for embryonic stem cells were not patentable. (See post, Oct. 18th). Some types of gene therapy were indicated to be allowable. The future of embryonic stem cells is cloudy with a chance of further retreats like Geron’s.

9. On October 18th, Saint-Gobain petitioned for cert., urging the Supreme Court to answer a burden of proof question that comes down to: “Does holding a patent on an improvement on a patented invention that does not literally infringe insulate the accused infringer from infringement under the doctrine of equivalents?” This question has been simmering under the surface of infringement law for decades, the Fed. Cir. is clearly divided and the Supreme Court might bite. See Post of March 8, 2011 as well as October 14th post.


District Court Dismisses Stem Cell Ban Suit

Thursday, July 28th, 2011

On July 27, in Sherley v. Sibelius, Judge Royce Lamberth reversed himself, and dismissed the 2010 lawsuit that initially led to a freeze on Government funding for human embryonic stem cell research, conducted under the terms of the 2009 NIH Guidelines. His decision tracks the reasoning of  an April 29th decision by the Court of Appeals that lifted the injunction that he had imposed on the implementation of the Guidelines (See, my post of May 2, 2011: “Appeals Court Overturns Stem Cell Ban”).  The Guidelines had been formulated to implement President Obama’s executive order 13505 that, in turn, lifted Bush’s 2001 Executive Order banning such funding.

The Court of Appeals had found that the preliminary injunction was improperly granted and the Guidelines were not in conflict with the 1996 Dickey-Wicker Act, banning funding for certain research involving human embryos. The plaintiffs’ counsel, Steven H Aden of the Alliance Defense Fund, a pro-life “legal alliance of Christian attorneys”,  was quoted by the WSJ as considered their options for appeal, and called embryonic stem cell research “illegal and unethical” in a story on the ADF website.