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A Knockout in the Biotech Fight of the Century

Feb 16, 2017

This essay appears in today's edition of the Fortune Brainstorm Health Daily. Get it delivered straight to your inbox.

Down goes Frazier! Down goes Frazier! Down goes Frazier!

So shouted Howard Cosell two minutes into the first round of the Sunshine Showdown in Jamaica, as a punishing upper cut from George Foreman sent Smokin’ Joe to the canvas on January 22, 1973.

And if you listen very closely, there are echoes of Cosell’s legendary incantation, his exultant chime, in this one-sentence call made yesterday by a three-judge patent trial and appeal board in Alexandria, Virginia:

“In light of the determination that the parties’ claims do not interfere…we enter judgment of no interference-in-fact, which neither cancels nor finally refuses either parties’ claims.”

It takes a second or two, but you can hear, in those words, the brutal poetry of pugilism. The biggest biotech fight of the century thus far, the heavyweight title bout between the Broad Institute of Harvard and MIT and the University of California over the ownership of the CRISPR-Cas9 genome-editing technology—or the Thrilla in Virginia, as I described it in December—is over. And decided by the most technical of TKOs.

“Down goes Doudna!” the words from the patent office cry.

That would be Jennifer Doudna, of UC Berkeley, who developed the modern-day version of CRISPR—a revolutionary hack of an age-old bacterial defense system—with Emmanuelle Charpentier, who is now affiliated with Berlin’s Max Planck Institute for Infection Biology. The technique, widely hailed as a breakthrough, allows for the simple and (mostly) precise editing of virtually any genome.

But…the most valuable patents for this invention (at least for now) will remain with the Broad scientist who got the patent office to “fast track” his claim. Yesterday’s ruling effectively said that Feng Zhang’s adoption of the technique in human and mouse cells was, in fact, a new and patentable invention rather than an “obvious” extension of Doudna’s and Charpentier’s work. (Sharon Begley at STAT has a nice analysis here as well as a link to the patent appeal board’s 51-page explanation of its judgment.)

That decision could be worth billions of dollars to the Broad and its parent institutions. And in my view, it will also put yet another chill on collaborative science, forcing inventors to keep their discoveries close to the vest until they’re absolutely sure they’ve unlocked every last cent of financial value. Expect university lawyers and tech transfer offices to tighten those lids even more than they already do.

After that first knockdown by Foreman in the 1973 bout, the champ got his mandatory eight count and then returned to his feet. But in round two, Frazier would go to the mat five more times before the fight was called.

The University of California released a press release yesterday that suggests it isn’t giving up hope. But just as with the Foreman-Frazier fight, this match is clearly won.

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