The CRISPR patent case that was being investigated since 2013 was finally decided on Wednesday, Feb. 15, 2017.
The U.S. Patent and Trademark Office (USPTO) decided to permit Feng Zhang, Ph.D., and the Broad Institution of Massachusetts Institute of Technology and Harvard University to keep their current patents, which give them ownership of applying CRISPR to eukaryotic cells.
The decision could be perceived as an upset to Jennifer Doudna, Ph.D., and her team at the University of California, Berkeley, because they initially discovered and published how the CRISPR gene-editing system works in 2013. They have yet to receive a patent for their work, despite applying for one later that same year.
However, Zhang and his team published findings of how to utilize CRISPR in cells other than their native prokaryotes shortly after Doudna’s initial publication. Zhang applied for an expedited patent, which was granted shortly after.
A significant part of the USPTO’s reasoning relied on the notion that uncovering the mechanism of CRISPR itself is separate from using CRISPR in other cells. This separates Doudna’s discovery from Zhang’s, and indicates that they require separate patents.
In Doudna’s initial patent request, she sought to obtain ownership for CRISPR used “in any setting, including eukaryotic cells and other cell types.” Zhang’s request sought to cover only the conditions for which their findings were published: CRISPR in eukaryotic cells.
Doudna and the rest of UC Berkeley are holding an optimistic attitude despite their initial patent not being fulfilled, and the language used by the USPTO gives reason for their positive outlook.
In the 50-page report discussing the CRISPR patent case, the USPTO indicates that just because one aspect of a discovery has been granted a patent, a subset or broader category of that discovery could be issued a separate patent.
Another option for Berkeley is to appeal the court’s decision; they have two months to decide whether to do so.
The decision of CRISPR’s patent case does not hinder the growing opportunity in the innovative field of gene-editing research. European patents are still up for grabs, and other lucrative gene-editing technology remains undiscovered.