Has Crispr’s patent battle run its course?
How many times have you had an argument with a sibling, spouse, friend or parent, and got so caught up in the quarrel that you forget what the original spat was about? By the time you’ve finished slinging escalating insults at each other in an effort to have the final say, the source of the dispute probably seems irrelevant.
The long-running legal wrangling over two patents to Crispr-Cas9 gene editing techniques is beginning to have this feeling to it. In the latest skirmish, a US federal appeals court has upheld a previous decision that patents filed by Feng Zhang’s team at the Broad Institute in Cambridge, US, does not interfere with patents filed by Jennifer Doudna’s group from the University of California in Berkeley, US. The Berkeley group’s patents cover using Crispr-Cas9 in cell-free systems, whereas the Broad Institute is laying claim to using the technique in eukaryotic cells.
The ruling means both patents can exist side by side, and be individually licensed and exploited by their owners and the numerous companies they have already partnered with to commercialise the technology. It could be argued that the validity of the Berkeley group’s patents might be easier to challenge in light of these rulings, but that is for later court cases to decide.
Doudna and Berkeley still have the option of taking their complaints to the US supreme court. But is there any point? Both teams have been granted further patents on a range of other Crispr-related technology, but so have numerous other companies, universities and other organisations. Chemicals giant DowDuPont has quietly become one of the biggest controllers of Crispr intellectual property, thanks to a combination of its own patents and exclusive licensing deals. Merck KGaA of Germany holds patents in China, Australia, Canada, Europe, Israel, Singapore and South Korea, with filings progressing in a clutch of other countries as well.
As the technology matures, new developments have emerged – for example using different nuclease systems in place of the Cas9 element covered in the Broad and Berkeley Crispr patents, and covering more specific applications. Anyone looking to commercialise Crispr-based technology would almost certainly look to protect the newly-developed intellectual property with its own patents. All this will begin to render these much-fought-over patents less and less relevant (and less valuable).
So what are the Broad and Berkeley even fighting over, when it comes down to it? Is it really about commercially valuable intellectual property, or simply planting a flag and the right to claim a great tranche of the currency most craved by academics – prestige and recognition?