BERKELEY, Calif. — In the world of genetic-editing technology known as CRISPR, a major battle is brewing between rival scientists who both feel they deserve the patent.
CRISPR might be better described as “clipper” because it allows specific areas of DNA to be clipped out and replaced with new information, according to a report by the South China Morning Post. Genome editing, or changing the DNA of living things, is considered a game-changer in the field of genetics.
Jennifer Doudna, a biochemist at the University of California, Berkeley, partnered with Emmanuelle Charpentier of the Max Planck Institute of Berlin to develop CRISPR-Cas9. Their findings were published in the journal Science in 2012, causing a stir in the field of genetics. That first publication described using CRISPR on bacteria.
However, the patent rights to CRISPR have sparked a battle between the two scientists and Feng Zhang of the Broad Institute. Zhang published his findings months after Doudna and Charpentier, but his findings demonstrated the possibility of using CRISPR on human cells, as he worked with cells containing a nucleus, known as eukaryotes. Zhang applied for a fast-tracked patent, and won.
Robin Feldman, a professor at the UC Hastings College of Law in San Francisco, said it would seem that since Doudna and Charpentier applied for the patent in 2012 it should be granted to them — but perhaps not.
“Most people think a patent represents a circle in which no one else can stand,” she told the Northern California Record. “But that is not necessarily the case. Patents can be overlapping, with the most valuable territory covered by both. In that case, everyone would need permission from both patent holders to operate in the most valuable territory.”
Feldman said that a patent grants its holder only the right to exclude.
“For example, Inventor A can hold a patent that excludes everyone from all uses of a chemical solvent, while Inventor B holds a later patent that excludes everyone from a new use for that chemical for treating baldness,” Feldman said. “If treating baldness is the most valuable use, neither inventor can do it without the permission of the other, and anyone who wants to use the chemical to treat baldness needs a license from both.”
The CRISPR patent is likely to be disputed in court for years, Feldman said.
“Not since Genentech launched the biotech industry has a technology offered so much promise,” she said. “With so much money at stake and so much bad blood between the parties, furious legal battles lie ahead. For example, Doudna’s group could appeal the Patent Office ruling on the interference in federal court, specifically the federal circuit.”
Even if the patent battle gets resolved, there are other legal battles ahead.
“Both Zhang’s and Doudna’s patents are likely to be embroiled in other court battles as well. If either accuses the other of infringement, or accuses other companies of infringement, the accused companies will attack the patents,” Feldman said.
Even with the disputes in the courts, scientists are already forging ahead with the CRISPR technology.
“Although the patent rights may not be resolved for years, no one is willing to sit on the sidelines. Companies and universities have jumped into research with or without a license,” Feldman said. “As the patent system plays out its slow and awkward dance, innovation keeps moving. That is the Silicon Valley way. Science moves forward, and not on the patent system’s timeline.”