Will the CRISPR patent dispute continue before the EPO ?

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The revolutionary CRISPR-Cas9 gene editing method is presently the hottest issue in molecular biology. The scientists Jennifer Doudna of UC Berkely and Emmanuelle Charpentier of the Max-Planck Institute for Infection Biology in Berlin even are among the top contenders for the Nobel prize for Chemistry to be announced on Wednesdy, October 7. But there is also a dispute about who owns the IP related to this scientific breakthrough. A third scientist, namely Feng Zhang of the Broad Institute (jointly operated by the MIT and Harvard University) has built up a strong patent position and achieved the first patent grant for CRISPR technology in the US already in April 2014. The original patent application by Doudna and Charpentier (and from which the above illustration of the DNA editing is taken) is still pending (on October 5, 2015) before the USPTO and the EPO. In April 2015 the University of California has meawhile initiated interference proceedings before the USPTO to decide ownership of the technology.

A review of the EPO register now reveals that the agggressive patent stategy of the Broad Institute and Mr. Zhang was even more successful in Europe. By means of an ultra-fast prosecution procedure the grant of 4 patents was achieved between February 11 and September 2, 2015. Further applications are still pending. The patents were issued by the EPO even with knowledge of the original publications of Doudna and Charpentier, which predate the priority dates of the Zhang patents and have been submitted to the EPO files by anonymous third-party observations.

It is therefore not unlikely that a further main battleground of the IP dispute on who owns the CRISPR-Cas9 technology will soon be the EPO, where opposition proceedings against the 4 granted patents are likely and the legal rules for determining ownership on an invention differ from that in the US.

Let´s see how the Nobel committe will decide on Wednesday this week. It will then be interesting to observe if a Nobel prize for CRISPR-Cas9 in 2015 or one of the following years will influence the outcome of the legal dispute.

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