In the argument to claim the rights to patent CRISPR, the Broad Institute and the University of California can only concede that one of them should receive the intellectual property rights.
Two parties have been battling for the rights to claim the patent for CRISPR, a genome editing system that will benefit the seed industry by allowing breeders to remove gene-based diseases in crops. The Broad Institution of the Massachusetts Institute of Technology and the University of California (UC), with their respective co-parties, haven’t come to a conclusion on who should take the intellectual property rights for discovering CRISPR.
The CRISPR patent battle began in 2012, when The Broad Institution’s Feng Zhang and the UC’s Jennifer Doudna published separate papers describing their discoveries of the CRISPR-Cas9 system.
The last shot in this patent battle occurred in October. The Broad Institute filed a response to an appeal made by UC in April. UC’s appeal debated a decision made by the U.S. Patent and Trademark Office Patent Trial and Appeal Board that would give the Broad Institution control over a key intellectual property estate for pursuing targeted genome editing applications in ag-bio, gene therapy and drug discovery and development.
But are broad CRISPR patents beneficial to the public?
A Policy Forum column published in Science written by a Duke University law professor says no. Arti Rai and Robert Cook-Deegan, an Arizona State University professor, declared that courts need to reign in these CRISPR patents, due to their contrary benefits to the public.
In their column, Rai and Cook-Deegan assert that this patent battle has been ongoing since the 1980s. “The much-publicized dispute over patent rights to CRISPR-Cas9 gene editing technology highlights tensions that have been percolating for almost four decades, since the U.S. Bayh-Dole Act of 1980 invoked patents as a mechanism for promoting commercialization of federally funded research.” They continue, stating, “With the encouragement provided by Bayh-Dole, academic scientists and their research institutions now race in dual competitive domains: the quest for glory in academic research and in the patent sphere.”
Instead of parties attempting to release patents to benefit the public with their discoveries, Rai and Cook-Deegan say that the parties waste resources and time by attempting to recreate each other’s work and hiring lawyers to acquire broad patents.
Part of this problem developed in 2013, when the U.S. changed from a “first-to-invent” to a “first-to-file” patent system, developing these so-called “patent races” in order to claim recognition first.
These “broad patents” don’t necessarily help innovation. Rai and Cook-Deegan suggest that broad patents concentrate on economic power instead of “essential knowledge and methods.” Because of this, the law is moving away from broad patents. If broad patents are granted in this CRISPR war, Rai and Cook-Deegan say it would be an opportunity to improve the Bayh-Dole commercialization.
“The CRISPR wars offer much-needed lessons,” Rai and Cook-Deegan write. “A first lesson involves the interplay between patent racing and scientific credit.”
“Legal rights can get confused with scientific credit. It is important to get the rules right, not only for the patent system but also for academic science.”