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Federal Circuit Decides CRISPR Patent Appeal

By George Khoury, Esq. on September 11, 2018 | Last updated on March 21, 2019

We may not quite be living in the world of Gattaca, but it seems like only a matter of time before researchers figure out what they're actually doing with CRISPR.

The recent decision in the University of California v. Broad Institute patent war over a CRISPR-cas9 gene editing method could have wide reaching implications. A panel of justices at the federal circuit court of appeals upheld the PTAB's ruling the Broad Institute's patent for using the CRISPR-cas9 method on plant and animal cells. UC Berkeley had challenged Broad's patent on the basis that it had filed its patent application for using that method in bacteria, prior to Broad.

Fight of the Scientists

The Berkeley scientists battling this fight out may have sunk their own battleships. While the Berkeley scientists seem to have solid evidence that in the race to prove who invented the method for using CRISPR-cas9 to edit animal and plant cells, they were first to successful use the method in bacteria. But as the PTAB and federal circuit court of appeals pointed out, the Berkeley scientists were doubtful of their method's success in plant and animal cells, and failed to successfully apply the CRISPR-cas9 to those types of cells. Meanwhile, researchers at the Broad institute were successful, and not only applied for a patent, they expedited the process, and successfully had their patent granted before Berkeley. 

However, despite the win here, for the Broad institute, the fight likely isn't over. Although the official statement from Berkeley's in-house counsel is that the university is looking at its options, there's potentially an ungodly amount of money to be made if it can be successfully used in humans, and as such, we can probably expect the university to request a rehearing en banc, and after that, regardless of outcome, the parties will likely need SCOTUS to chime in (or refuse to do so).

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