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Like a couple of heavyweight boxers who just keep slugging it out, the University of California Berkeley (UCB) and the Broad Institute continue to pummel each other through the courts. No knockout blows yet, but in the latest ruling from the US Patent and Trademark Office, UCB may finally be ahead on points.

These two behemoths of genetic research are fighting over ownership of the breakthrough technology known as CRISPR-Cas9. It’s an extraordinary technology which enables its users to change the DNA code of any organism, cheaply and easily. You don’t even have to be a particularly skilled scientist to do it. If you have access to standard laboratory equipment and enough brains to do up your own lab coat properly, you’ll probably be able to get this technique to work.


Although CRISPR has been around for just seven years it has already enabled scientific breakthroughs that were previously unimaginable. Instead of using hideously complicated cross-breeding experiments that can take decades, researchers have been able to use gene-editing to change the DNA of crops such as rice directly. By doing so, they’ve created varieties that can grow in degraded soils whilst still increasing yields. Scientists are well on their way to generating pigs that can be used as sources of organs for transplantation into humans, and wheat strains that won’t trigger inflammatory bowel conditions. Work is also underway to use gene-editing used to tackle human illnesses such as sickle cell disease.

The huge range of applications for gene-editing make it an incredibly valuable technology and it’s not surprising that the two organisations most deeply involved in its development each decided to protect their inventions. Jennifer Doudna from UCB, working with Emmanuelle Charpentier from the University of Vienna, published the seminal paper in this field in 2012 where they described how to make gene-editing work in a test tube. A few months later, Feng Zhang from the Broad Institute published his research that demonstrated gene-editing would work in cells, which is the most valuable use of the technology. Both organisations filed patent applications before the scientists published their findings.

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In a strange development, the Broad paid an extra few hundred dollars to get its patent application examined quickly, but for some reason UCB didn’t do this. In the USA the valuable claims were granted for the Broad Institute. UCB cried foul, insisting that Feng Zhang’s demonstration that he could make gene-editing work in cells was nothing more than an obvious add-on to the work of Doudna and Charpentier and shouldn’t be given a dominant patent position.

The US Patent and Trademark Office has now completed its examination of a key patent application from UCB, and has signalled that it intends to accept their claims. This could give the west coast institution a key advantage in the commercial exploitation of gene-editing. UCB is jubilant and one of the lawyers acting on its behalf stated that “We are pleased the patent application is now allowed and that the issued patent will encompass the use of CRISPR-Cas9 technology in any cellular or non-cellular environment.” Note the very deliberate use of that word “cellular”, the key point on which the Broad’s claims rested.


You might think that the Broad Institute would now be acting like it’s on the ropes, but not a bit of it. In its public statements, the Institute reacted with a front of magnificently detached disdain, flicking away the latest ruling with aplomb. The latest decision “does not affect the CRISPR patent estate held by Broad in any way” their spokesperson said.

Although the Broad’s response may feel a little like the Black Knight in Monty Python and the Holy Grail insisting it’s “just a flesh wound” after both his arms have been hacked off, it’s very unlikely that it is planning to give up the fight just yet – but it must be a blow to their ambitions. UCB had already been winning the intellectual property bout in Europe, and it looks like they’ve now won the latest round in the USA as well.

So what now? It may partly depend on the appetite of those bankrolling the fight. Neither the Broad Institute nor UCB is directly paying for this battle. Instead, it’s being funded by biotech companies that have taken out licences to the key intellectual property assets in each organisation. They have already spent tens of millions of dollars and we’re not even in the most expensive phase yet. If the two organisations start to sue each other on grounds of infringement of patent claims, the costs could easily escalate into hundreds of millions.

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Scientists who want to explore basic research questions – how the butterfly gets its wing patterns, what stops the clonal raider ant from getting separated from its buddies, and any other fun thing they’d like to investigate – will carry on using gene-editing with no cares about who owns the fundamental patents. They’ll just assume that the companies who sell them the reagents they need will sort out any legal commitments. But for commercial applications of gene-editing, this ongoing uncertainty is a big problem.

The technology has the potential to help the human race address some of the most pressing problems facing the planet, such as how to create better food with a lower environmental footprint. But if the companies involved in this work aren’t certain about who they will need to pay licensing fees to, and how large those fees will ultimately be, this will act as a barrier to much-needed innovation.

A tie is very rare in a boxing match. But perhaps in this contest we’re approaching the time for the two corners to get together and agree cross-licensing strategies and agreements before everyone is too punch-drunk to continue fighting effectively.

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