Muddied waters: the CRISPR IP landscape in Europe

The continuing interference proceedings in the US concerning clustered regularly interspaced short palindromic repeats (CRISPR)/Cas9 systems for gene-editing of eukaryotes have received much media attention. Coverage focuses on two groups: one led by Feng Zhang of the Broad Institute of Harvard University and the Massachusetts Institute of Technology, and the other by Jennifer Doudna of the University of California, Berkeley and Emmanuelle Charpentier of the Helmholtz Centre for Infection Research. The commentary focuses on a potential winner-takes-all scenario.

However, the situation in Europe, where both groups’ patent applications will be examined under a first-to-file system, has received much less media attention. The question remains, which of these two groups will have the underlying rights to CRISPR/Cas9 in Europe? Or will filings by other applicants during this period lead to a more complex early CRISPR/cas9 landscape in Europe?

European legislation

The content of patent applications which enter Europe and are filed before, yet published after, the filing of a specific European patent application (application X) can be cited for novelty against application X for the content filed before application X, according to article 54(3) of the European Patent Convention (EPC).

In a rapidly evolving area of technology, where a plethora of interwoven priority applications are made in a short time period, a number of article 54(3) EPC applications may be cited against a specific European patent application. This would confuse the CRISPR IP landscape and make the maintenance of an earliest possible priority date essential to obtain the widest patentable scope.

In Table 1, we delve into the CRISPR landscape for gene-editing of eukaryotes in Europe by referring to the filings from March 2012 to December 2013 by the six key groups working in this field.

Table 1: CRISPR patent filings in Europe from March 2012 to December 2013