No crisp upper hand in CRISPR
What the most recent CRISPR ruling means for companies looking to access the IP
While the most recent ruling in the ongoing CRISPR IP battle maintained the Broad Institute’s dominant patent position in the U.S., University of California Berkeley’s dominant position in Europe, coupled with the looming possibility of additional interference cases, means that companies may still have to seek licenses from both parties to create global therapeutics.
On Sept. 10, the U.S. Court of Appeals for the Federal Circuit (CAFC) upheld a no interference-in-fact decision made by the Patent Trial and Appeal Board (PTAB) last year in a case pitting the Regents of the University of California against the Broad Institute of MIT and Harvard.
The ruling confirmed no legal mistakes were made during PTAB’s examination but did not re-examine the evidence (see “Seeking CRISPR Answers”). Its outcome has firmed up the Broad Institute’s IP advantage in the U.S. -- at least in the short term.
But the interference is just one fight in the battle over ownership of foundational CRISPR-Cas9 claims.
Three patent attorneys who spoke with BioCentury agreed that while UC Berkeley is likely out of plays for this interference, it still has plenty of other options for arguing it was first to invent CRISPR-Cas9 gene editing for eukaryotic cells. Those options include additional interference cases and challenges that re-examine the validity of the claims either before or after issue, respectively.
Michael Stramiello, an IP attorney at Paul Hastings LLP, told BioCentury that other interference claims had already been made but were put on hold while the first case worked its way through the courts. Stramiello does not represent any of the parties involved.
While UC Berkeley is likely out of plays for this interference, it still has plenty