Frazer v. Schlegel

Dr. Ian Frazer (plaintiff) worked at an Australian university to design a vaccine for cancer-causing human papillomaviruses (HPVs). The vaccine used recombinant DNA technology to produce virus-like particles that could be introduced into a human’s system to spur the generation of HPV antibodies. On May 21, 1991, Frazer published a journal article on the technique for producing the virus-like particles. The article explained that the particles were produced by recombinant DNA encoding of both the HPV-16 L1 and L2 genes. On July 19, 1991, Frazer filed a patent application in Australia that included the journal article’s data. On July 20, 1992, Frazer filed a Patent Cooperation Treaty (PCT) application, claiming priority on the basis of the Australian application. This application included Frazer’s recent discovery that expression of the L1 gene alone would produce the particle. Frazer filed a US patent application on January 19, 1994, claiming priority on the basis of the Australian and PCT applications. Dr. C. Richard Schlegel (defendant) invented a similar vaccine and filed a US patent application on June 25, 1992. Frazer and Schlegel’s applications were put before the US Patent Office’s Board of Patent Appeals and Interferences, which found that the disclosure of the invention in Frazer’s Australian application was inadequate and held that Frazer should not be extended the benefit of the Australian filing date. Because Schlegel had filed first in the US, the board found that Schlegel was the vaccine’s first inventor.