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Broad Institute Wins CRISPR Patent Interference; IP Fight Not Over

NEW YORK (GenomeWeb) – The Broad Institute has scored an early, decisive blow in the CRISPR patent battle against the University of California.

On Wednesday, the three-judge panel from the Patent Trial and Appeal Board (PTAB) hearing the interference case issued a judgement of no interference-in-fact, stopping UC's bid for intellectual property underpinning the most lucrative applications of genome editing.

"Broad has persuaded us that the parties claim patentably distinct subject matter," the panel wrote in its decision. "[Broad's] claims, which are all limited to CRISPR/Cas9 systems in a eukaryotic environment, are not drawn to the same invention as UC’s claims, which are all directed to CRISPR/Cas9 systems not restricted to any environment."

As a result, the Broad now controls the key IP estate for companies pursuing targeted genome editing applications in several areas, especially gene therapy, drug discovery and development, and ag-bio, which rely on editing in eukaryotic cells. For the UC-led party, it's a massive setback, but they are not without recourse.

The interference began in January 2016, when the PTAB acceded to an interference after UC's lawyers requested one. The parties have spent most of the last year filing documents and finally provided oral arguments in December, which centered on whether using CRISPR/Cas9 in eukaryotic cells was likely to be successful and if it would be obvious to the average researcher.

"Specifically, the evidence shows that the invention of such systems in eukaryotic cells would not have been obvious over the invention of CRISPR/Cas9 systems in any environment, including in prokaryotic cells or in vitro, because one of ordinary skill in the art would not have reasonably expected a CRISPR-Cas9 system to be successful in an eukaryotic environment," the judges said.

"We agree with the decision by the patent office, which confirms that the patents and applications of Broad Institute and UC Berkeley are about different subjects and do not interfere with each other," the Broad said in a statement issued following the judgment.

Editas Medicine, which has obtained an exclusive license from the Broad for therapeutic uses of CRISPR, also released a statement in support of the judgment.

The UC-led party can still appeal the decision with United States Court of Appeals for the Federal Circuit. In conference calls Thursday, Intellia therapeutics and CRISPR Therapeutics, sub-licensees to the UC patent estate, said a second interference over eukaryotic claims could also be pursued.