STAT, September 10, 2018
Sharon Begley


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A federal appeals court on Monday struck another blow against the University of California’s hopes of invalidating key CRISPR patents held by the Broad Institute of MIT and Harvard, ruling unanimously that a U.S. patent board correctly concluded that the Broad’s patents did not “interfere” with those that UC had applied for.

Barring an appeal to the U.S. Supreme Court, which is highly unlikely to accept the case, the long and bitter legal saga is largely over, at least in the U.S. (The fight over CRISPR patents in Europe continues.)

The decision, by the U.S. Court of Appeals for the Federal Circuit, held that there was “no interference in fact” between CRISPR patents awarded to the Broad and CRISPR patents that UC had applied for. That is what three judges on the Patent Trial and Appeal Board, part of the U.S. patent office, had ruled unanimously in 2017.

The decision turned on two key and related points: whether the work that Broad scientist Feng Zhang did to make CRISPR edit the genome of mammalian cells was “obvious” in light of what Jennifer Doudna, of the University of California, Berkeley, accomplished in editing free floating DNA in test tubes, and whether Zhang and other scientists trying to do that had a “reasonable expectation of success.”

The appeals court decision, in the case argued on April 30, clarifies the commercial landscape only partly, however. It allows the Broad to keep its patents, the first of which was awarded in 2014, on the foundational CRISPR-Cas9 genome editing technology for eukaryotic cells invented by Zhang. And it lets the Broad’s many licensees (notably Editas Medicine, which paid the Broad’s eight-figure legal costs) breathe easier. [...]

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