CRISPR patent wars highlight problem of granting broad intellectual property rights for tech that offers public benefits

November 17, 2017 by Bob Yirka, Phys.org report
CRISPR-associated protein Cas9 (white) from Staphylococcus aureus based on Protein Database ID 5AXW. Credit: Thomas Splettstoesser (Wikipedia, CC BY-SA 4.0)

(Phys.org)—Duke University Law professor Arti Rai and bio-technology professor Robert Cook-Deegan with Arizona State University have stepped into the gene editing patent war with an Intellectual Property Policy Forum paper they have had published in the journal Science. They suggest that courts should take more into account than who invented what first in some property rights disputes. With technology, such as CRISPR-Cas9, for example, they argue that some thought (and rights) should to be given to the public as beneficiaries of future research efforts related to that technology.

CRISPR-Cas9 is a cutting-edge . It has been in the news as many researchers are using it to conduct gene editing research. But it has also been in the news because two parties are claiming they invented it. They are the University of California and the Broad Institute. It is believed that rights will generate a significant amount of revenue for the ultimate winner of the war due to licensing rights.

As Rai and Cook-Degan note, the patent war (or another one like it) has been in the making for several decades due to passage of the Bayh-Dole Act back in 1980, which allowed entities to obtain patents on work done for federally funded research efforts. In the CRISPR war, both parties received funding from NIH and both applied for patents, but the timing is murky. But as the authors also note, something that should not be lost or overlooked in the legal wrangling is the rights of the public. If one party in the war wins, they are set to assume control over who can use the gene editing technique and in which sorts of ways. In granting such full ownership to a single entity, the courts could be hindering genetic research in possibly detrimental ways. What if a team of researchers is making progress on eliminating a genetic disease, for example, but is slowed because it cannot gain licensing to proceed? Innocent people might thus suffer due to a decision. The authors suggest that the solution is for the courts to move away from granting broad patents in such cases and instead grant narrow patents that allow the holder some rights, but not all, creating a more open system of use for cutting-edge technology.

Explore further: Gene editing patent ruling sways fortune of biotech hopefuls

More information: Racing for academic glory and patents: Lessons from CRISPR, Science  17 Nov 2017: Vol. 358, Issue 6365, pp. 874-876, DOI: 10.1126/science.aao2468 , http://science.sciencemag.org/content/358/6365/874

Summary
The much-publicized dispute over patent rights to CRISPR-Cas9 gene-editing technology highlights tensions that have been percolating for almost four decades, since the U.S. Bayh-Dole Act of 1980 invoked patents as a mechanism for promoting commercialization of federally funded research. With the encouragement provided by Bayh-Dole, academic scientists and their research institutions now race in dual competitive domains: the quest for glory in academic research and in the patent sphere. Yet, a robust economic literature argues that races are often socially wasteful; the racing parties expend duplicative resources, in terms of both the research itself and the legal fees spent attempting to acquire patents, all in the pursuit of what may be a modest acceleration of invention. For CRISPR, and future races involving broadly useful technologies for which it may set a precedent, the relationship between these competitive domains needs to be parsed carefully. On the basis of legal maneuvers thus far, it appears that the litigants will try for broad rights; public benefit will depend on courts reining them in and, when broad patents slip through, on updating Bayh-Dole's pro-commercialization safeguards with underused features of the Act.

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LED Guy
3 / 5 (1) Nov 17, 2017
This is more than a little scary - invent something too useful and you loose rights.

I work with patent litigation and if a technology has already been licensed, a company can sue for a license at "reasonable rates".

Keep in mind that the government retains some rights to technology developed as a result of federal funding. The government can always exercise those rights to in the interest of the public good.
slweed
5 / 5 (3) Nov 17, 2017
If federal funds are used for the funding of research and despite the U.S. Bayh-Dole Act of 1980, shouldn't out of fairness, the American people receive at least some of the economic benefits of any patents granted as a result of the research?
axemaster
5 / 5 (2) Nov 17, 2017
if a technology has already been licensed, a company can sue for a license at "reasonable rates".

This may be, but more likely they will simply give up on the technology rather than go through so much trouble. Essentially freezing the field for 20 years.

If federal funds are used for the funding of research and despite the U.S. Bayh-Dole Act of 1980, shouldn't out of fairness, the American people receive at least some of the economic benefits of any patents granted as a result of the research?

This is part of why the corporate control of the US government is so damaging. The public takes on the risk and all the profits are privatized. This is one of several direct causes to the immense inequality in the US today.
ddaye
5 / 5 (1) Nov 17, 2017
The ascendant power block of the USA is opposed to the most basic concept of a public commons. They insist there shouldn't be anything except private ownership and benefits. Many of the trends within the US are occurring around the world so for the rest of the world that hasn't moved as far as the US in privatizing all things public, it's probably time to stop fighting each of a myriad of battles on separate issues to put more effort into addressing the basic struggle underlying it all.
TheGhostofOtto1923
5 / 5 (2) Nov 19, 2017
The ascendant power block of the USA is opposed to the most basic concept of a public commons. They insist there shouldn't be anything except private ownership and benefits. Many of the trends within the US are occurring around the world so for the rest of the world that hasn't moved as far as the US in privatizing all things public, it's probably time to stop fighting each of a myriad of battles on separate issues to put more effort into addressing the basic struggle underlying it all.
I googled 'ascendent power block' and got this:

"Powerblock - the world's best dumbell"

- How apropos-

Let's not forget that 'the US' invented the internet.
rrwillsj
3.7 / 5 (3) Nov 19, 2017
There was a great fear of losing AT&T's continent spanning telephone lines at the St. Louis hub to a single nuclear bomb. The US Military developed Arpanet.

The US Government used grants to colleges and universities to finance computer science programs. Requiring all of them to interlink as a dispersed network. Thus Arpanet was conceived, to mutate and evolve into what we now call the Internet and the World Wide Web.

Having seen the multitude of profitable endeavors that utilize Public and Private resources. Now investors in biological processes and products are trying to carve out secure niches, even monopolistic domains for personal profit.

Remember the loud claims that "The Data Must Be Free!"? So that the freeloader could then turn around and sell what they had 'liberated' from the Commons?

If you are in need of medical innovation and do not wish to be impoverished buying such? You will oppose privatization of Public resources and taxpayer funded research.

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