Tuesday, December 20, 2005

Hwang Woo-suk, the real questions

(Disclaimer: I am not a lawyer. Nothing in this post should be construed as legal advice or proper opinion. I am simply some idiot trying to make sense of things. Please consult proper legal counsel before making any decision.)

One of the discussions missing from the brouhaha over Dr. Hwang's "faked" research is, "What about his patents?" This is not a trivial footnote for Korea. One, if not the only, reason praise and research money was heaped upon Hwang was that he was emblematic of Korea's goal to become a "Knowledge Economy". Fueled by Dr. Hwang mania, Korea hoped the "World Stem Cell Hub" would become a patent factory capable of eliminating the licensing trade deficit Korea is constantly fretting over (the most recent hand-wringing  can be found here).

Hwang currently has about 10 patents, or applications, on file with the Korean Intellectual Property Office (KIPO). From what I can tell, all are PCT applications, or in layman's terms applications that will eventually (or hopefully) receive a string of patents worldwide in order to protect the invention around the world. Some of the ten have been granted patents in Korea already.

Incidentally one has already received a US patent (US Pat.No. 6,590,139), "Method for producing cloned cows". As an interesting aside, this application was filled with KIPO back in June 2000. This conflicts with his claims in December 2004 of him being too poor to get any patent. Apparently he has always access to some capital.

The exact dispositions of an individual application is immaterial for this post. However I will try to get an english language summary of the 10 or so patents Hwang and his team have filed for. What I wonder about is, in a general sense, does the possibly that Hwang faked his research effect his patents.

Under Korean Patent Law (you can find the text, in English, on KIPO's English website), I cannot find any text requiring that the invention must be worked, or that is must be proven that it could be worked (at one time many patent offices worldwide required a working prototype ). However there are some areas worth citing:

"The detailed explanation of the invention...must state the purpose, construction, and the effect of invention in such a manner that it may be easily carried out by a person with ordinary skill in the art..." Korean Patent Law, Article 42, Paragraph 3.

Under this, Hwang must state his invention so as another scientists can replicate it. In a manner this is being confirmed now by scientists worldwide based on his Nature article. However note it still does not say that the invention needs to work in the first place, only simply it needs to be described so one could create and work it. However if other scientist cannot recreate his research, or even himself, one could argue against patentability.

As I think about the case, I am reminded of one of the more elemental parts of Korean Patent Law:

"'Invention' means the highly advanced creation of a technical idea using the rules of nature;" Korean Patent Law, Article 2, Paragraph 1

The key part of this is "using the rules of nature". For example, I cannot patent a perpetual motion machine since it would violate the second law of thermodynamics as well as Newton's Third Law (excuse me if there are errors, my degree was in economics). Accordingly if Hwang's patent, or application, has procedures that violate the laws of science, there may be problems. This argument may be esoteric, but relevant.

Finally as a bit of side note, Articles 226 and 228 of Korean Patent Law deal with respectively penalties for applying for a patent (successfully or not) using perjury and fraud. I wonder if these will be invoked based on the specifics of the application/patent.

Stay tuned, I hope to have more detailed info on Hwang's patents soon.


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