he meter is running like mad on the dispute over key patents on CRISPR genome editing. In its latest 10-Q filing with the Securities and Exchange Commission, Editas Medicine — which has licensed one of the patents in question — disclosed that it has spent $10.9 million so far this year on legal fees incurred by the Broad Institute and Harvard, mostly to defend patents awarded for CRISPR inventions by the Broad’s Feng Zhang.
That cost is on top of $4.7 million spent in 2015. And the dispute has, in all likelihood, years to run.
The price tag raised eyebrows.
Law professor Jacob Sherkow of New York Law School, an expert in intellectual property law who has been following the CRISPR fight closely, called the legal bill “a lot even by patent litigation standards.” He had expected the dispute, “from soup to nuts,” to come in at less than $10 million a side. (The University of California, Berkeley has challenged CRISPR patents issued to the Broad and Harvard University.)
A spokesman for UC Berkeley said it has spent $5.2 million over the past two years on legal costs related to its CRISPR patent claims, all of it reimbursed by its licensee, Caribou Biosciences. Caribou was founded by Jennifer Doudna, the Berkeley scientist who did some of the first studies showing CRISPR could be used to edit DNA.
The median cost to litigate a patent dispute of this size (meaning one with the licensing fees and other revenue expected from the Broad’s CRISPR patents) is $7 million, Sherkow said.
It is not unusual for a for-profit company (Editas went public this year) to pay legal fees associated with defending a patent, he said. “Where there’s an exclusive licensee, they frequently pay litigation fees. Even in the academic context, this isn’t rare. I don’t think it’s entirely surprising that Editas is paying the attorneys, except for the fact that they’re a new company and have much less cash than the Broad.”
In a statement to STAT, the company said, “Investing in intellectual property is one component how we are building the company to be a leader in genomic medicine,” adding that it reimburses the Broad and Harvard for expenses “associated with the prosecution and maintenance of the patent rights that we license from them.”
The Broad did not immediately reply to requests for comment.
Scientists involved in the CRISPR field have wondered privately why the Broad and UC have not reached a settlement. That head-scratching has grown as the date when they may have to testify in person at the US Patent and Trademark Office gets closer — possibly late this year.
“The thing about patent litigation is, no matter who wins, the lawyers always win,” said Sherkow. “That’s not because the attorneys are doing anything improper, but because both sides are paying their attorneys to fight vigorously. Like any war of mercenaries, their employers can call off the fight if they wish. But when both sides are invested in victory, being a soldier of fortune is lucrative.” And when someone else is footing the bill, there is little financial incentive to call off the war.
The Broad’s legal team expects a decision from the patent office in 2017. After that, the parties can appeal in federal circuit court.
This story was originally published on Aug. 12. It has since been updated to include UC Berkeley’s statement about its patent-related costs, a comment from Editas, and clarification about the source of the legal costs.