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Genome Editing – EPO revokes Broad’s CRISPR patent

It’s a Brave New World folks, as Aldous Huxley said…but is it?

by Dr Tim Fray

Gene editing/genetic modification is more than just finding new types of corn on the cob

OK –Aldous Huxley didn’t discuss CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats), but his book certainly pointed towards gene editing which is what CRISPR is all about.

CRISPR is a family of DNA sequences found within the genomes of bacteria. These sequences are derived from DNA fragments of bacteriophages that have previously infected the bacteria, and are used to detect and destroy DNA from similar phages during subsequent infections. Cas9 (or “CRISPR-associated protein 9”) is an enzyme that uses CRISPR sequences as a guide to recognize and cleave specific strands of DNA that are complementary to the CRISPR sequence. Cas9 enzymes together with CRISPR sequences form the basis of a technology known as CRISPR-Cas9 that can be used to edit genes within organisms. This editing process has a wide variety of applications including basic biological research, development of biotechnology products, and treatment of diseases.

The future is bright for CRISPR, but not so at the European Patent Office (EPO) who recently announced that it will uphold an earlier ruling to revoke a key CRISPR/Cas9 genome editing patent held by the Broad Institute of Harvard and MIT, Massachusetts.

European patent EP 2771468 relates to the CRISPR gene editing technology. The EPO opposition division had revoked the patent for lack of novelty in view of intermediate prior art. This prior art became relevant because the opposition division did not acknowledge the patentee’s claim to priority from a US provisional application naming more applicants than the subsequent PCT application from which EP 2771468 is derived. Since the omitted applicant had not transferred his rights to the applicants of the PCT application the priority claim was considered invalid.

On 16 January 2020, the EPO Board of Appeal in case T 844/18 dismissed the patent proprietor’s appeal against the decision of the opposition division and thus confirmed the revocation of the patent. The board did not refer questions to the Enlarged Board of Appeal.

Do you think we should be able to pick and choose our genetic makeup or leave it to Darwinian selection?

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