We're here today in Alexandria, Virginia at the U.S. Patent & Trademark Office and just
came out of the CRISPR/Cas9 patent interference hearing.
This is the genome-editing technology that people have said will change the world and
attorneys, representing the University of California on one side and the Broad Institute
of MIT and Harvard on the other side, just gave their case for why they should hold the
CRISPR patent.
CRISPR could potentially engineer super crops, make designer animal models for research,
and even snip genetic diseases from people.
Experts say that billions of dollars are at stake.
Our litigious timeline starts back in May 2012, when a group of biochemists and molecular
biologists, including Jennifer Doudna and Emmanuelle Charpentier, filed their first CRISPR
patent.
They published their work in a scientific journal a month later, officially kicking
off the CRISPR craze.
While Doudna and Charpentier were quickly rising to CRISPR fame, so was Feng Zhang
from the Broad Institute.
Zhang filed his first CRISPR patent in December 2012, then quickly published a paper famously
demonstrating the first use of CRISPR in mouse and human cells.
In a perfectly legal move, the Broad Institute paid to expedite the review of their patent,
and in April 2014, Zhang was the first to receive an approved patent for editing cells
with CRISPR—even though he submitted his application after the Berkeley group.
Berkeley countered by petitioning for a patent interference, a legal proceeding where federal
patent court judges determine who made the invention first.
The patent office approved Berkeley's petition but defined CRISPR as a system specifically
used in eukaryotes—such as plants, animals, and people, which are organisms whose chromosomes
are found inside a nucleus.
And remember experts think that eukaryotes are where the money's at.
Doudna and Charpentier's patent used CRISPR only in prokaryotes, such as bacteria.
Their attorneys argued that the judges messed up and basically need to get over the word
eukaryote.
If CRISPR worked for prokaryotes, it obviously would work in eukaryotes, the attorneys said.
The UC patent even cited the potential for using CRISPR in cells dozens of times.
Berkeley's attorney said that there was "no special sauce required" to move CRISPR
into eukaryotes.
And yes, they actually said special sauce.
Three times.
The Broad defended the eukaryotic distinction by turning Doudna's own words
against her: She had told the press she expected "many frustrations" in moving CRISPR from
prokaryotes to eukaryotes, and that she was unsure if it would even work.
Zhang's patents specifically showed how to use CRISPR in eukaryotic cells and, thus,
everyone should just pack their bags and go home.
At least, according to the Broad team.
There's a spectrum of possible outcomes from this hearing.
The simplest is that one side wins and the other side loses.
The losing team is likely to appeal, though, and an appeal would take the case out of the
hands of patent judges with molecular biology backgrounds, and send it to federal circuit
judges that are unlikely to have any science training at all—which may be an unappealing
prospect for CRISPR's stakeholders.
But if the winner is the Broad, Berkeley could still get its patent approved.
It would just cover prokaryotic uses of CRISPR, which look way less lucrative.
Another possible outcome is a sort of tie: The judges declare that both sides filed patents
for the same invention and this would kick off a second phase of the case, where both
sides submit lab notebooks and testimonies to figure out
who thought of the CRISPR technology first.
And there's also a possibility that CRISPR or other gene editing tools will improve so
much by the time the judges decide, their decision won't really matter.
Legal experts predict that the patent judges will release a decision early this year and
the outcome is anybody's guess.
But we want to hear yours.
Who do you think will come out on top and why?
Let us know in the comments.
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