In a target article in this Journal in 2018, for which we were two of the coauthors, we discussed the problematic nature of the patenting of foundational (bio)technological processes, in particular the CRISPR-Cas9 (CRISPR) gene-editing technique. This note is intended to bring the Journal’s readers up to speed on a couple of important recent developments in the CRISPR patent sphere.
In the case of CRISPR, the patent situation is complicated by the sheer number of parties seeking patents, as a result of which any entity seeking to use or develop CRISPR faces a forest of patent claims, and thus the task of negotiating multiple licenses and/or the prospect of mouth-wateringly expensive patent litigation. However, there are two key holders of potentially unescapable patents, each with its own licensing entities, the University of California Berkeley (UCB) and The Broad Institute (Broad). Put simply, UCB has patents for CRISPR simpliciter and Broad has patents for the use of CRISPR on eukaryotes (i.e. organisms, such as plants and animals that have nuclei in their cells), the societally and commercially most important and lucrative targets for this technology. UCB filed its initial US patent application in 2012 first, but Broad had its US patent granted first and thus the question arose as to which, if either, would capture the lion’s share of the licensing revenues.