Swimming with CRISPR

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This spring the USPTO’s Patent Trial and Appeals Board (PTAB) ruled in favor of The Broad Institute of MIT & Harvard, finding that the UC Berkeley CRISPR patent, filed before The Broad’s patent, does not prevent The Broad team from obtaining a patent as the first group to use CRISPR in eukaryotic cells (for an earlier article that discusses the dispute, click here). However, the summer heat has reignited the dispute between the Broad and UC Berkeley. On July 26, 2017, UC Berkeley announced the filing of its initial brief to appeal the PTAB decision with the Court of Appeals for the Federal Circuit in Washington, D.C. Just when it looked like things were settled, the dispute could be far from over.

The uncertainty surrounding the patent rights for CRISPR, which has been hailed as the future of medicine, is concerning. Numerous companies have licensed patent rights from each side involved in the dispute and have begun developing CRISPR-based therapies in the background of the interference proceedings. All the uncertainty begs the question: if CRISPR supposedly holds the key to treating some of the most devastating human diseases, should there be such uncertainty and contentiousness over the right to monopolize the use CRISPR? Disputes over patent rights and licensing may only serve to stunt the very innovation that the patent system is supposed to promote. In order to quell the uncertainty and provide a more accessible platform for driving CRISPR-based innovations, it may be time for patent holders to dive into a CRISPR patent pool.

Patent pools are not a novel concept, having been previously used in the electronics industry. Utilizing a patent pool for CRISPR could provide a solution that benefits both the patent owner and the innovator, while providing more clarity and efficiency in obtaining CRISPR patent rights. The idea would be to pool fundamental CRISPR patents for industry use on a nonexclusive and cost-efficient basis. Those in industry can pay a licensing fee to have access to a suite of CRISPR patent rights, which will provide more transparency, certainty and will be more cost effective than a patent-by-patent licensing scheme. Providing access to many patents in one transaction will allow industry to focus on creating innovative and effective CRISPR-based products and therapies. CRISPR patent owners will still benefit from joining the pool by receiving their share of reasonable licensing royalties. Therefore, a CRISPR pool will still promote the economic incentives that drive modern innovation and scientific discovery.

It appears that some major players in the CRISPR field feel the same way. In a press release on July 10th, a group of CRISPR patent owners, which included The Broad, announced that they have turned over 22 of their CRISPR patents to be considered as part of a global CRISPR licensing platform run by the firm MPEG LA, LLC. Larry Horn, President and CEO of MPEG LA, argues that a CRISPR pool “would expand and accelerate commercialization of CRISPR-based products and therapies by providing developers easy access to a package of essential patent rights in a single licensing transaction.”

The groups of CRISPR patent owners who have agreed to test the waters of the CRISPR pool represent a small fraction of the organizations who hold the 60+ CRISPR patents in the U.S. Only time will tell if the other organizations are willing to take a dip in the CRISPR patent pool.


Trace the saga’s course, read “The CRISPR Patent Battle.”

Or, learn more about Open Source Software, a Yellow Brick Road for Software Development and Innovation.

Written by Roger McLaughlin.
Feature image – Photo by Matthew Modoono/Northeastern University.

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