The intellectual property rights surrounding the genome editing tool CRISPR-Cas9 has caused more commotion in the legal world than one might expect from a scientific patent. The technology is being hailed as the scientific discovery of the century, but with a patent interference case before the U.S. Patent and Trademark Office (USPTO), its fate is up in the air.
Broken down into simple terms, patent interference occurs when two applicants claim to have intellectual property rights over a single invention. In U.S. law, the first person to invent a technology is considered the owner even if they weren’t the first to file for a patent. This means that if someone patents your invention a year before you file, you can still request an interference and protect your intellectual property rights.
To understand how the terms “patent interference” and “CRISPR” became so intertwined in the modern scientific and legal worlds, you must first have a basic understanding of the technology. CRISPR allows geneticists to “edit parts of the genome by removing, adding, or altering sections of the DNA sequence.”
CRISPR isn’t the only form of genetic manipulation, but it’s currently the one of the most simplistic, and adaptable methods to use. This process can help fight conditions such as high blood pressure, hepatitis B, cancer, and other disorders that have genetic components. This makes the technology worth potential billions.
The CRISPR patent interference case can be said to have started back in May 2012. This is when a patent was filed by a University of California, Berkeley research group, led by Jennifer Doudna, with the USPTO. The research team created the CRISPR technology and showed that it was capable of altering prokaryotic cells.
Less than seven months after Doudna’s research was released, a Broad Institute of MIT and Harvard research team, headed up by Feng Zhang, released a study showing that CRISPR could be used in eukaryotic cells. The team had filed for a patent one month earlier. Doudna’s team published similar findings less than a month after Zhang’s research was released.
The Broad Institute team filed several fast-track patent applications and received more than a dozen patents. The Berkeley researchers filed for a larger patent before this, but it was still being reviewed when the Broad Institute researchers received their patents. The University of California went on to file a patent interference, claiming that the extended use of CRISPR on eukaryotic cells was “obvious.”
The USPTO might grant the intellectual property rights of CRISPR to one, both, or neither side. If they’re granted to one side, it will continue a trend that many scientists have come to loathe: an inability for other researchers to fully use and develop the technology. “Owning” this type of science means the patent holder could hinder further progress or charge prohibitive amounts of money for others to perform further biotech research. If the USPTO surprisingly decides that neither side deserves a patent, it could remove incentive for academics to perform research.
If the Broad Institute takes home the spoils, it could also result in researchers not immediately releasing important findings out of a fear of others hijacking their intellectual property rights. The implications for intellectual property rights and patents in general, however, are far more consequential. Patents were created to promote entrepreneurial innovation”not scientific breakthroughs.
Considering the huge amount of attention the CRISPR case is receiving, it’s a very real possibility that the USPTO could reconsider how it handles scientific breakthroughs. This patent interference case could prove that intellectual property law hasn’t kept up with technology, and in reality, the government may no longer feel comfortable handing the fate of a world-altering discovery over to the holder of a patent.