European flagThe European Patent Office (EPO) has weighed in on the CRISPR patent dispute between University of California Berkeley and The Broad Institute of MIT and Harvard, announcing its “intention to grant a patent” to UC Berkeley that would have broad coverage of the CRISPR technology. 

In February 2017 the US Patent and Trademark Office (USPTO) upheld a series of patents covering CRISPR/Cas9 gene editing granted to the Broad, dealing a substantial blow to attempts by the University of California Berkeley to overturn those patents. The new decision by the EPO, announced on March 23, is a sharp departure from the position of the USPTO.

Jennifer Doudna and her team at UC Berkeley were the first to publish on CRISPR, demonstrating that the technique could be applied to bacterial cells. But the Broad were the first to apply CRISPR to human cells, opening up a potential billion dollar marketplace for therapeutics, and claiming the first US patents for the technology in the process. UC Berkely filed for “interference” against the Broad, arguing that their patent application, currently under review, covered both bacterial and human applications. In February the USPTO ruled that it wasn’t obvious that UC’s discovery would work in human and other eukaryotic cells, giving the upper hand to the Broad. 

Robert Cook-Deegan, a patent expert at Arizona State University in Tempe who is based in Washington, D.C., who has closely followed the CRISPR dispute, says the Broad likely will contest the EPO decision. “This does illustrate that it’s a moving target, and as events unfold the relative strength of the stakeholders will fluctuate,” Cook-Deegan says. “This going to be protracted and complicated.” UC also plans to further challenge USPTO’s decision that favors the Broad.

How will the EPO decision affect any companies looking to license the CRISPR technology? This remains unclear. Companies already pay fees to both the Broad and UC Berkeley to license CRISPR, some of which cover the international use. “Licensing is usually smoother and easier while there is still a veil of uncertainty,” says Cook-Deegan, “so everyone has a stake in cutting the deal and gets a bit of what they want, even though they don’t know if the license is actually needed in the end.”

Each of the key patent holders for CRISPR has granted exclusive rights to their own spinoff companies, a common means for academic institutions to commercialise their most valuable patents. But legal experts have argued that this model “could rapidly bottleneck the use of CRISPR technology to discover and develop useful human therapeutics.” 

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