Who will win the battle over CRISPR-Cas 9 patent rights?

Credit: Dmitrii_Guzhanin//iStock
Credit: Dmitrii_Guzhanin//iStock

History is full of cases in which several researchers have found the same or similar inventions almost simultaneously. This is the case with CRISPR‑Cas9. 

In May 2012, Professor [Jennifer] Doudna’s team at the University of California, Berkeley (UC Berkeley) rushed to the U.S. patent office to file its first patent application for CRISPR-Cas9, the first of many to follow.

A mere few months later, in December 2012, a research group at the Broad Institute affiliated with MIT and Harvard University (the Broad Institute) also filed its first patent application for CRISPR-Cas9.

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In this particular case, the question was whether UC Berkeley’s patent application for the use of CRISPR-Cas9 in any living cell made the Broad Institute’s more narrowly worded invention, the use of CRISPR-Cas9 in eukaryotic cells (i.e., animal and plant cells) in particular, obvious and thus invalid.

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On September 10, 2020, the U.S. Patent Trial and Appeal Board rejected UC Berkeley’s arguments, assigning UC Berkeley a filing date of January 28, 2013, and the Broad Institute an earlier filing date of December 12, 2012 — corresponding to the filing dates of their respective provisional patent applications. This decision confirms that, at this time, the Broad Institute has priority in the use of the CRISPR-Cas9 technique in animal and plant cells where arguably the greatest potential benefits of the technique lie.

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