Gene Editing, Legal

The Broad wins another — perhaps final — battle in the war over Feng Zhang’s CRISPR patents

Editas $EDIT and its rivals’ long running legal battle over the IP for the CRISPR/Cas9 tech used to edit genes may well be over.

A federal appeals court has ruled in favor of the Broad Institute, confirming an earlier US patent board decision that their patents from the lab of investigator Feng Zhang did not “interfere” with the ones sought by UC.

And the judges came down so solidly in favor of the Broad that there’s likely little hope for any continuing appeals moves — though the UC system quickly put out a statement saying they’re still evaluating their options on litigating the issue.

The Broad, which quickly heralded the ruling, noted that their patents “are for genome editing in eukaryotic (including animal, human, and plant) cells, while the claims in UCB’s application were based on studies in cell-free systems and not directed to genome editing in eukaryotic cells.” The institute continued:

It is time for all institutions to move beyond litigation. We should work together to ensure wide, open access to this transformative technology.

Editas, which has been directly involved in protecting these patents, will second that motion. But it’s unlikely that the biotechs supported by UC’s Jennifer Doudna and her colleague Emmanuelle Charpentier — including CRISPR Therapeutics $CRSP — will be happy about the news.

From today’s ruling:

The Board performed a thorough analysis of the factual evidence and considered a variety of statements by experts for both parties and the inventors, past failures and successes in the field, evi- dence of simultaneous invention, and the extent to which the art provided instructions for applying the CRISPR- Cas9 technology in a new environment. In light of this exhaustive analysis and on this record, we conclude that substantial evidence supports the Board’s finding that there was not a reasonable expectation of success, and the Board did not err in its determination that there is no interference-in-fact.

We have considered UC’s remaining arguments and find them unpersuasive.

The UC system, though, may not be done wrangling over the subject. They offered this statement on Monday afternoon:

We are evaluating further litigation options. We also look forward to proving that Drs. Doudna and Charpentier first invented usage in plant and animal cells – a fact that is already widely recognized by the global scientific community – as the Doudna-Charpentier team’s several pending patent applications that cover use of CRISPR-Cas9 in plant and animal cells are now under examination by the patent office.

And after the market closed Monday afternoon, CRISPR, Intellia and Caribou — all allied with the Doudna/Charpentier side — offered a collective harrumph.

“The Federal Circuit, like the PTAB, did not decide whether UC or the Broad actually first invented the CRISPR/Cas9 genome editing technology,” they noted. “The Federal Circuit opinion also does not preclude other proceedings, either at the USPTO or in the courts, to determine which research group is the actual inventor and, thus, the proper owner of the technology.”


Image: Feng Zhang. MIT


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