The University of California, Berkeley, and the Broad Institute are vying for lucrative rights to the gene-editing system.
On 6 December, lawyers for the university laid out its claim to the gene-editing tool called CRISPR–Cas9 during a hearing at the US Patent and Trademark Office (USPTO) — and drew intense, sometimes sceptical, questioning from the three judges who will decide the fate of patents that could be worth billions of dollars.
Berkeley and its rival, the Broad Institute of MIT and Harvard in Cambridge, Massachusetts, are each vying for the intellectual property underlying CRISPR–Cas9, which is adapted from a system that bacteria use to fend off viruses. During the hearing in Alexandria, Virginia, the USPTO judges challenged Berkeley’s central claim: that once its researchers demonstrated that CRISPR–Cas9 could be used to edit DNA in bacteria, any reasonably skilled person could have adapted the technique for use in more complex cells.
If the court decides that is true, it would invalidate the patent now held by the Broad Institute. But the Berkeley argument is a difficult one to make, given that it hinges on “a really subjective standard” — especially when applied to extraordinarily accomplished scientists such as those at Broad, says Jacob Sherkow, a legal scholar at New York Law School in New York City.