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CRISPR Patent Fight Moves Ahead

This year may have been the CRISPR's breakout year as a technology, but the patent dispute over who owns the intellectual property for the tool is only getting underway. According to Jacob Sherkow at Stanford's Law and Biosciences Blog, a patent examiner has issued an Initial Interference Memo, paving the way for an interference proceeding.

The dispute centers on who invented the CRISPR/Cas9 genome-editing tool first. University of California, Berkeley's Jennifer Doudna and Emmanuelle Charpentier, now at the Max Planck Institute for Infection Biology, filed their patent application on March 15, 2013 — a day before, Sherkow notes, the US Patent and Trademark Office switched to first-to-file rules from the old first-to-invent rules. He adds that their initial application covered some 155 broad claims to the CRISPR technology as well as to "genetically modified cells that produce Cas9" and "Cas9 transgenic non-human multicellular organisms."

Feng Zhang from the Broad Institute and the Massachusetts Institute of Technology, meanwhile, filed his own patent application on October 15, 2013, but claimed a December 12, 2012 priority date under the old rules. His application, Sherkow points out, specifically addressed the use of CRISPR in eukaryotic cells. Zhang also requested an accelerated review, and he was issued a patent April 15, 2014.

After a number of maneuvers, the University of California asked the USPTO to review the case, and, as Sherkow now reports, Michelle Joike, the primary examiner responsible for Doudna's patent application, and an interference specialist issued an Initial Interference Memo, which recommends that the Patent Trial and Appeals Board conduct an interference proceeding between the two patent applications.

Such a proceeding, Sherkow says, "will be an event unto itself" as it will likely discourage a settlement between the two sides, and as it resembles a trial, the researchers may have to testify.

"Needless to say, this is a monumental event for patent attorneys, molecular biologists, the PTO, and the world," he adds.