The patent trap? Open science advocates want CRISPR technology to be free

Should two U.S. universities be fighting to privatize one of the most important scientific discoveries in history? Canadian open science advocates say no.

Should a U.S. university be allowed to privatize gene-editing technology?

Neither James Watson nor Francis Crick ever attempted to patent the structure of DNA. (Shutterstock)

They lined up early Monday morning for ringside seats at the most sensational scientific showdown in the modern era.

The moment the doors opened, lawyers, reporters and hedge fund investors raced for a spot in the cramped, windowless U.S. Patent and Trademark Office in Alexandria, Va.

The tension in the room was electric, as the historic fight for the patent rights to the CRISPR gene editing technology got underway.

CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) is a revolutionary gene editing tool that allows scientists to edit DNA with unparalleled ease and precision. Two prominent public institutions — MIT and Harvard's Broad Institute and University of California Berkeley — are locked in a legal cage match, fighting to privatize CRISPR.

It could be months before a victor emerges, but the winner will walk away with billions of dollars in licensing fees and total control over one of the world's most important scientific discoveries.

Jennifer Doudna, right, a molecular biologist at Berkeley, filed for a patent after her research team used CRISPR–Cas9 in May 2012. (Peter Barreras/Invision/AP)

But what if there was no single winner? What if there was no fight? 

What if CRISPR was offered up free to the world, unencumbered by licenses or restrictions, open to all to advance the health of humanity?

Publicly funded science

If it were up to Aled Edwards at the University of Toronto, that's what would happen. Watching the CRISPR fight from Toronto, Edwards just shakes his head.

"It's a terrible situation, in my opinion," Edwards said. "By filing patents and inhibiting corporations from using it, what they've done is dramatically slowed down discovery, slowed down the uptake of technology, slowed down its ability to make cures."

Edwards has been advocating for publicly funded science in Toronto for more than a decade. He's already given away volumes of scientific data and many chemicals and molecules that could become future drugs.

It's a radical approach to public sector research at the Structural Genomics Consortium, where he heads a group of 300 scientists funded by the University of Toronto and other public and private sector organizations. 

I think being open will accelerate discovery and it's the important thing to do with public money.- Dr. Guy Rouleau, director, Montreal Neurological Institute 

It's not the only Canadian experiment in open science.

At the Montreal Neurological Institute at McGill University, they're also giving their science away.

The 60 researchers there have sworn off patenting their research into neurological disorders including ALS, Parkinson's disease and glioma brain tumours.

"The overall guiding principle is not open for the sake of 'open,' but whatever is necessary to find new treatments more rapidly for diseases," said Dr. Guy Rouleau, director of the institute.

"I think being open will accelerate discovery and it's the important thing to do with public money."

Pressure to patent

For decades, governments and universities have pressured academic researchers to patent everything they discover.

The 60 researchers at the Montreal Neurological Institute and Hospital have sworn off patenting their research into neurological disorders including ALS, Parkinson's disease and glioma brain tumors. (Facebook)

But at the Montreal Neurological Institute, they realized that almost none of their patents have generated any value over the long term.

The original purpose of patenting discoveries at universities was not to generate revenue, Edwards said. It was to get the discoveries out there, so they could be developed into technologies and medicines that would benefit society.

CRISPR didn't need any help in this respect. It was immediately picked up by laboratories around the world.

"This is really a case where patents did nothing to provide incentive. It only creates uncertainty," said McGill law professor Richard Gold. 

Who wins?

Using the CRISPR-Cas9 system, scientists can already alter plants and animals in dramatic ways, wiping out malaria mosquitos, creating designer livestock and developing new therapies for cancer and other diseases.

But most commercialization is on hold until U.S. patent officials decide who gets to claim the multi-billion-dollar patent.

In one corner, there's Harvard and MIT's Broad Institute, where scientist Feng Zhang was the first to file patents using CRIPSR to edit eukaryote cells (that is, cells that have a nucleus, such as human cells).

Feng Zhang of the Broad Institute filed his own patent claim demonstrating the use of CRISPR in more complex cells in December 2012. (Justin Knight/Broad Communications/Canadian Press)

In the other corner is the University of California, Berkeley, with scientist Jennifer Doudna claiming she discovered CRISPR for use in all types of plant, animal and bacterial cells, before Zhang filed his patent papers.

This week, lawyers for both sides appeared in U.S. patent court for the first and only public hearing. Everyone is waiting for the final decision, which is expected in a couple of months.

The current fight is over U.S. patent rights, which will last for 20 years. But there will be similar patents issued in Canada, the European Union and Australia.

'There's still cause for concern'

While they're waiting for the decision, academic researchers have been allowed to use the CRISPR technology.

"But there's still cause for concern there," said Tania Bubela, professor of public health at the University of Alberta.

"It's blurry what's pure research and commercial research," she said. "They're still locking up a lot of activity in the research domain."

Edwards argues the entire history of patenting in academic research has slowed discovery. For evidence, he points to a study by MIT economist Heidi Williams.

To test the theory that patents generate economic activity, Williams compared two sets of genes, one patented and one patent-free. Her conclusion? The patents reduced scientific research and product development by up to 30 per cent.

"We've ascribed to a belief that the way science and the economy advances is to keep things secret, raise money, start little companies and sell them," Edwards said. 

"I would argue our progress has not been that impressive."

A brief history of giveaway discoveries

There is precedent for major scientific discoveries to be patent-free.

For example, there's the Nobel Prize-winning discovery of monoclonal antibodies by scientists at the UK Medical Research Council in 1975. 

Jonas Salk released the polio vaccine, patent-free, famously asking, "Can you patent the sun?"

Neither James Watson nor Francis Crick even attempted to patent the structure of DNA in 1953. Watson later protested against efforts to patent human genes, a practice that was later banned by the U.S. Supreme Court.


Kelly Crowe

Medical science

Kelly Crowe is a health and science reporter, who previously spent more than 30 years reporting on a wide range of national news and current affairs for CBC News.