Ayanna Nahmias, Editor-in-ChiefLast Modified: 14:43 PM EDT, 12 July 2010

July 10, 2010 - Last week U.S. scientists reported that they have isolated three powerful antibodies for HIV — one of which neutralizes 91% of HIV strains. This could be the basis for an eventual vaccine for AIDS. The antibodies were discovered in the cells of a 60-year-old African-American gay man, known only as “Donor 45.”

This is wonderful news and the scientists are going to start “blending” antibodies to see if they can knock out all strains.

What is interesting legally in these breakthrough moments is the source for the antibodies is rarely given significant value for his unique antibodies. This has been an issue that has repeatedly been raised and courts have generally favored hospitals and researchers in blocking demands for compensation. This issue was raised in Moore v. Regents of the University of California, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 793 P.2d 479 (1991).

In that case, Moore was treated for hairy cell leukemia at UCLA Medical Center. His doctor, Dr. David W. Golde and others soon realized that Moore’s cells were promising for genetic research. Moore was never told that his cells were being used for research and was never told that blood and tissue samples were being taken specifically for such research. Indeed, he alleged that follow-up visits were scheduled primarily to harvest such material.

Golde patented a cell line using Moore’s cells and he and his colleagues made a great deal of money. Moore argued conversion and lost. The court ruled that he had no expectation that such blood and tissue would be returned — even though he would have likely demanded compensation if he knew that he was being harvested for valuable genetic material. The most that the courts were willing to give Moore was a ruling that the hospital violated the duty of disclosure and the requirement of consent. However, damages for such torts are far less than what he would have received under a conversion claim. Source: Wall Street Journal