On 10 September 2018, the United States Court of Appeals for the Federal Circuit upheld a judgment from interference proceedings at the US Patent and Trademark Office (USPTO).
This found that the Broad Institute’s use of CRISPR/Cas9 gene editing in eukaryotic cells was patentable independently from UC Berkeley’s use in cell-free systems.
The rulings were made under the old US ‘first-to-invent’ system, which applies to all patent applications filed before 16 March 2013, under which interference proceedings aim to grant the patent to the applicant with the earliest date of invention, regardless of the date of filing. Berkeley had sought to have the Broad Institute’s patents cancelled, Berkeley arguing that the inventors of their application were the first to invent CRISPR/Cas9 gene editing. However, the ruling of no interference means that the Broad Institute may retain their US patents and Berkeley’s pending US patent application will continue to be examined by the USPTO.
It is unclear whether the USPTO will now approve Berkeley’s patent application in its entirety, a situation further complicated by another CRISPR patent from Vilnius University that has in the meantime been granted.
The ruling is great news for Editas medicine, which develops therapies to treat genetic diseases in humans and which was co-founded by Broad scientist Feng Zhang. The Institute has also made non-exclusive licensing deals for CRISPR tools with several other agricultural and bioscience companies.
Broad has called on all institutions to “work together to ensure wide, open access to this transformative technology”.