Clearing the CRISPR patent landscape: Towards a solution for South Africa

Authors: Meshandren Naidoo & Donrich W Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, University of KwaZulu-Natal; Associate Professor, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 2, p. 365-406


Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short  Palindromic Repeats) genome editing technology has mushroomed to create a vast  and complex patent landscape. However, because of South Africa’s current depository  patent system, the South African CRISPR patent landscape contains foundational  patents with overlapping claims, as highlighted by the ongoing litigation in the United  States between the Broad Institute and the University of California. Both these  parties were granted four patents in South Africa. Also, the South African landscape  may contain multiple low-quality patents that have the potential to obstruct scientific  research in South Africa. The solution in the South African context is threefold, but  requires that the Intellectual Property Policy of South Africa: Phase I must first be  operationalised to: (a) prioritise CRISPR patent applications for formal examination  and substantive search and examination; (b) provide sufficient resources for extracurial  patent opposition proceedings regarding all CRISPR patent applications and  granted patents; and (c) create certainty by developing an obviousness standard with  well-defined parameters. Although CRISPR is not yet advanced enough to fall  within the class of life-saving technologies in the short-term, CRISPR may become  critical in the treatment and eradication of priority diseases such as HIV/AIDS and  tuberculosis. Accordingly, prioritising CRISPR-related patent applications serves the  public interest in access to healthcare. By using (a), (b) and (c) in tandem, a triple  layer of mechanisms will counter the problems of overlapping claims and of lowquality  patents, and hence remove these potential obstructions to CRISPR research  in South Africa.