The patent fight over the rights to CRISPR technology has turned "ugly," says Nature News, as the parties argue not only over the scientific details of who discovered what, but also whether the skills of highly respected scientists such as George Church could be considered "ordinary."
This is part of what the US Patent and Trademark Office (USPTO) and European Patent Office (EPO) have to consider in order to determine who really has the right to patent CRISPR, both in the US and in Europe.
The EPO is arguing that Berkeley's provisional patent application fails to mention PAM sequences, and is therefore inadequate, Nature News says. Berkeley is counter-arguing that PAM sequences are common knowledge in the field.
And that leads to a new argument of its own — what is the relevant field? The EPO says it's genome engineering, not microbiology, and that genome engineers may not be completely up to date on PAM sequences and other details of bacterial CRISPR systems. Therefore, Nature News says, the EPO could decide that Berkeley's earliest patent filing date cannot stand.
The Broad is facing challenges in Europe to seven patents. These may hinge on the fact that the Broad included a Rockefeller University collaborator in the initial EPO application, but not in later versions, Nature News reports. That's OK to do in US, but not in Europe, which requires all named inventors to give their consent to being left off later applications.
In the US, resolution of the fight could hinge on what the USPTO considers "ordinary."
"The Broad asserts that Berkeley's initial patent filing described using CRISPR-Cas9 in prokaryotes such as bacteria, but did not sufficiently describe the procedure in eukaryotes such as mice and human cells," Nature News reports. "Berkeley argues that the application of CRISPR-Cas9 to eukaryotic cells was obvious and that 'persons of ordinary skill,' such as a postdoc with relevant expertise, could have made the leap."
But the Broad isn't buying it, Nature News says — scientists like George Church, Jennifer Doudna, and Feng Zhang (who Berkeley all pointed to as being able to make the leap to using CRISPR in eukaryotic cells) are experts, the Broad argues, and are hardly "ordinary."
The rancor is unusual, but perhaps not surprising in this case. "What is really behind this is not the academic institutions, it is the commercial interests," patent lawyer Mark Summerfield tells Nature News. "That's when I realized that they're not going to come to an agreement. They're going to fight it out until the bitter end."