The CRISPR Revolution: What Editing Human DNA Reveals About the Patent System's DNA

Not since the invention that launched Genentech and the entire biotech industry has a life science invention offered such promise. If CRISPR lives up to that promise, the technology could well be one of the greatest life science inventions of all time. Gene editing techniques existed before, of course, but they were slow, inaccurate, and expensive. The CRISPR invention is like moving from the manual typewriter to modern word processing.As we stand at this remarkable threshold, what of the patent system? Companies are racing to develop commercial applications for CRISPR, and researchers are using the technology, even though it is not clear where they will have to go to get a license for it. Commercialization is moving forward, and not on the patent system’s timeline. Thus, in the case of CRISPR, the patent system is not fully playing the role that patent theorists might expect. Perhaps CRISPR is the exception that proves the rule. After all, great leaps forward may never fit the day-to-day regime. But do we really want a patent system that works only for mediocrity? Shouldn’t the patent system be designed for the truly great? Regardless of whether CRISPR lives up to its promise, the experience should prompt us to examine the functioning of the patent system. Just as CRISPR allows editing of human DNA, how can we edit the patent system’s DNA so that it performs to its greatest potential?