In patent law, this moment is known as conception—the instant a lightbulb appears over an inventor’s head, revealing a definite and workable plan for how an invention is going to function.
In 2022, a specialized body called the Patent Trial and Appeal Board, or PTAB, decided that Doudna and Charpentier hadn’t fully conceived the invention because they initially encountered trouble getting their editor to work in fish and other species. Indeed, they had so much trouble that Zhang scooped them with a 2013 publication demonstrating he could use CRISPR to edit human cells.
The Nobelists appealed the finding, and yesterday the appeals court vacated it, saying the patent board applied the wrong standard and needs to reconsider the case.
According to the court, Doudna and Charpentier didn’t have to “know their invention would work” to get credit for conceiving it. What should matter more, the court said, is that it actually did work in the end.
In a statement, the University of California, Berkeley, applauded the call for a do-over.
“Today’s decision creates an opportunity for the PTAB to reevaluate the evidence under the correct legal standard and confirm what the rest of the world has recognized: that the Doudna and Charpentier team were the first to develop this groundbreaking technology for the world to share,” Jeff Lamken, one of Berkeley’s attorneys, said in the statement.
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