The American Lawyer - February 2008

The need to destroy embryos in the first and second processes is why President Bush decided that the government would only fund research on existing stem cell lines—those that Thomson created at Wisconsin in 1998. Korobkin counters that it’s scientifically necessary and morally acceptable to create new embryos. He notes that we already accept this in another area: Excess embryos are routinely created for individuals who use in vitro fertilization to become pregnant. Yet, though thousands of these embryos are never used, no one seriously calls for a ban on IVF. Still, Korobkin’s arguments for the creation and destruction of new embryos obviously won’t matter if they aren’t needed for stem cell research anymore.

That’s probably unlikely, though. There are undoubtedly lessons that remain to be learned from the embryonic processes. The scientists in Wisconsin and Japan, for ex-

ample, were able to figure out how to turn a mature cell into a stem cell by studying how an unfertilized egg became an embryo in the cloning procedure. So Korobkin’s case for the necessity of embryonic research may still be relevant after all.

Of the legal issues Korobkin covers, the most immediately important concerns patents. The Wisconsin Alumni Research Foundation already holds three strikingly expansive patents for Thomson’s work of a decade ago. In addition to controlling the rights to Thomson’s stem cell lines, WARF can also insist on licensing fees from anyone who creates a new line, even if they use an entirely different procedure than Thomson did. According to Korobkin, “Anecdotal claims already have surfaced that WARF’s demand for licensing fees have driven some scientists out of the field of commercial research.” The foundation, in

NEW TITLES In Brief

HARD CALL: GREAT DECISIONS AND THE EXTRAORDINARY PEOPLE WHO MADE THEM B J M C M S (Twelve; $24.99) With the arrival of primary season, John McCain is proud to bring you his latest installment in a string of literary successes. Written with longtime staffer Mark Salter—the team also penned New York Times best sellers Faith of My Fathers, Worth the Fighting For, Why Courage Matters, and Character Is Destiny—Hard Call is a not-so-subtle attempt to educate us on what it takes to be presidential. The book focuses on tough choices made by various individuals throughout history, from Branch Rickey signing the first black Major League Baseball player to Winston Churchill modernizing the British Navy prior to World War I. While the stories are thoroughly researched and inspiring, the implication is that McCain’s ability to recognize these tough choices means that he’s qualified to make a few of his own. The senator should be commended for his honesty about his own shortcomings—McCain attributes a “false sense of my own invulnerability” to his being shot down over Hanoi and held for more than five years as a POW in North Vietnam—but what’s missing from Hard Call is an in-depth analysis of perhaps the biggest “hard call” this country currently faces: Iraq. That predicament is unfortunately glossed over, and the book suffers for it.

A MATTER OF JUSTICE: EISENHOWER AND THE BEGINNING OF THE CIVIL RIGHTS REVOLUTION

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(Simon & Schuster; $27)

In this thorough examination of Dwight Eisenhower’s civil rights record, David Nichols is determined to expunge any doubt that Ike supported desegregation. Nichols uses recently released documents by Maxwell Rabb, Ike’s chief White House civil rights aide, to show how the conservative Eisenhower, born in the nineteenth century, became a staunch proponent of racial integration. Nichols acknowledges Eisenhower’s oratorical limitations—his public statement that “I will obey” the U.S. Supreme Court’s ruling in Brown v. Board of Education sounded cold and distant—but highlights his other accomplishments: Ike proposed and signed two Civil Rights Acts, desegregated the U.S. military and Washington, D.C., nominated five nonsegregationist justices to the Supreme Court—including former Chief Justice Earl Warren—and, perhaps most famously, authorized the dispatch of federal troops to Arkansas to assist the Little Rock Nine. Nichols’s praise of Eisenhower can sometimes seem overly effusive, such as when he argues that Ike did more for the civil rights movement than Harry Truman, John Kennedy, and Lyndon Johnson—a rather flimsy notion. But when all is said and done, Nichols demonstrates that there’s definitely a lot to like about Ike.

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other words, may be as big a threat to robust stem cell research as the federal government’s funding restrictions.

The Patent and Trademark Office is currently reevaluating WARF’s patents, and last March issued a preliminary opinion that they should be revoked. Korobkin agrees that the WARF patents are too broad, but says that completely overturning them would conflict with existing patent law. The better course, he believes, is a ruling that narrows WARF’s rights to the unique method that Thomson used to establish his line, such as the nutrient mix that supports the stem cells.

The new nonembryonic process may mean that WARF’s patents—which apparently only cover embryonic stem cells—won’t be as important in the future. Still, Korobkin’s analysis will provide useful guidelines for the next round of patents. The PTO clearly shouldn’t repeat the mistake it made with WARF and, for example, grant someone a patent for all stem cells created by the nonembryonic method. Rather, the office should try to identify the signature features in any procedure.

Other issues will end up in the courts, and Korobkin looks at past cases that give us a preview of what to expect. One major question: What are the rights of individuals who donate their tissues for research purposes? So far, courts have indicated that people have a right to be told how their tissues will be used before they agree to make a donation. But Korobkin expands on this concept of informed consent, adding that donors should also be told whether anyone stands to profit from research involving their tissues.

On a related note, Korobkin also argues that individuals should be compensated for their donations, a position that’s at odds with the current consensus among several expert panels. Korobkin doesn’t specify how much he thinks this compensation should be, but he appears to think that it shouldn’t cover much more than the effort involved in making a tissue donation. One possibility that he fails to consider, however, is whether the cells of certain individuals may be uniquely valuable. Suppose someone has a genetic characteristic that makes her resistant to a certain illness. Should she be entitled to greater compensation for donating her tissue?

More questions will undoubtedly come up in the future, but that’s a good thing. The potential of stem cell treatments is so great that a little litigation seems a small price to pay. Joseph Martin, the former dean of Harvard Medical School, has said that stem cell treatments “have the potential to do for chronic diseases what antibiotics did for infectious diseases.” If that happens, stem cells will indeed define the century.