Only a few days after the one-year anniversary of hearing oral argument, the Federal Circuit handed down its decision in Regents of the University of California v. Broad Institute, Inc. In short -- and to be explicated more fully in a coming post -- the decision was completely in the Regents' favor (except for the panel affirming the Patent Trial and Appeal Board's decision on Preliminary Motion denying Regents the benefit of the priority date of two earlier-filed provisional applications on written description grounds). The opinion, by Judge Reyna joined by Judges Hughes and Cunningham, criticized, found legal error, and vacated every basis upon which the PTAB panel awarded priority to Broad. The Federal Circuit also found moot Broad's cross-appeal seeking to have the language of the Count regarding "guide RNA" to encompass both single- and dual-guide embodiments. The case was remanded to the PTAB, instructing the Board "to reconsider the issue of conception in a manner consistent with this opinion."
Of course, as a consequence the question of what group of inventors were the first to invent and thus are entitled to patents on eukaryotic versions of CRISPR remains undecided, with all the investment and licensing uncertainty that these circumstances create. And it is unlikely that investors, licensees, or the public will have a definitive answer on this issue any earlier than one or two years from now.
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