NEW YORK (GenomeWeb) – The University of California is seeking to revive the CRISPR/Cas9 patent fight in the US and will appeal the Patent Trial and Appeal Board's decision to terminate the interference between UC and the Broad Institute.
UC, the University of Vienna, and Max Planck Institute for Infection Biology Director Emmanuelle Charpentier have a filed an appeal in the US Court of Appeals for the Federal Circuit to try to overturn the PTAB's Feb. 15 ruling of no interference in fact, which stopped the proceeding. The PTAB found that because the Broad's patents specified use in eukaryotic cells, it was a separately patentable invention and thus did not overlap with UC's patent application.
An appeal was one of several options available to UC; another option would have been to move on and attempt to secure a patent based on the existing application.
"Ultimately, we expect to establish definitively that the team led by [UC Berkeley Professor] Jennifer Doudna, and Emmanuelle Charpentier was the first to engineer CRISPR/Cas9 for use in all types of environments, including in non-cellular settings and within plant, animal and even human cells," UC Berkeley associate dean of biology Edward Penhoet said in a statement.
If the patent interference is not reopened, UC will not be able to make those arguments.
In a statement, the Broad noted that the Federal Circuit court will not independently weigh facts. "To overturn the PTAB decision, the Court would need to decide that the PTAB committed an error of law or lacked substantial evidence to reach its decision," the Broad said. "Given that the facts have not changed, we expect the outcome will once again be the same."
Appealing the PTAB decision has the potential to open up a two-front battle for CRISPR. Last month, the European Patent Office announced that will grant the UC-led party a patent for CRISPR/Cas9. The EPO has already granted the Broad several patents on CRISPR, which have been challenged by numerous third parties.
UC has hired Munger, Tolles & Olson to handle the appeal.