On September 11th, Junior Party (Regents of the University of California, University of Vienna, and Emmanuelle Charpentier, collectively "CVC") in Interference No. 106,115 with The Broad Institute et al. filed a motion to file its priority statement under seal.  Specifically, CVC's motion requested that it be permitted to have the PTAB seal the priority statement until 45 days after final judgment or indefinitely; CVC also asked for 45 days after judgment to move that the statement be expunged from the record.  (In the alternative, CVC requested that its statement remain sealed until a scheduling order issued by the Board for the priority phase of the interference, and that CVC be permitted to file a motion to expunge, e.g., if the count was changed).  Last week, the Patent Trial and Appeal Board (PTAB) denied this motion, in a Decision by Administrative Patent Judge Katz, joined by APJs Moore and Lane.

CVC's motion was based on their contention that their priority statement "will contain sensitive research and development information that would be otherwise kept confidential."  CVC asserted that there were "several third-party competitors [specifically, Sigma-Aldrich, ToolGen, and Vilnius University] in the field of CRISR-Cas9 gene editing technology and that it will be prejudiced in any potential interference with these parties if its confidential research and development information were to be made public."  These competitors, according to CVC, all have competing applications filed within 10 months of CVC's priority date, and have argued that their claims interfere with CVC's claims in this interference (see "Sigma-Aldrich Wants Its Piece of CRISPR Pie").

The Board opined that, in agreement with the Broad, CVC's arguments were "based on speculation," because as yet there have been no other interferences declared between CVC and any of these other parties.  Relying as it frequently does on the procedural aspects of the questions before it (see "Sigma-Aldrich Tries Again"), the Board asserts in support of this point that "no count has been used to describe interfering subject matter between any of CVC's applications or patents" and that "CVC presents no evidence that any of the claims it asserts might interfere with CVC's own claims have been determined to be allowable."  Under these circumstances, the Board was not persuaded to deviate from its policy that "[t]he record of a Board proceeding [be] available to the public unless a patent application not otherwise available to the public is involved," citing 37 C.F.R. § 41.6(b)(1).  In particular, the opinion reminds the parties that the Board "strive[s] towards making all filings in an interference public at least by the time we issue a final judgment," and that CVC has requested that its priority statement be held under seal until 45 days after final judgment (although the Board notes that CVC can file a renewed request once judgment has been entered).

The Board was persuaded by CVC's request to keep its priority statement under seal until the Board issued a schedule for the priority phase, stating that CVC had correctly noted that 37 C.F. R. § 41.120(a) permits the Board to keep priority statements confidential "for a limited time."  The Board remained unpersuaded by the Broad's arguments that it would be prejudiced, inter alia, because "Broad's potential licensees, commercial partners, and the public will not be able to evaluate for themselves CVC's claims to priority, and Broad's patents will continue to be subject to the uncertainty CVC has sought to create around them since suggesting the 048 interference four years ago."  The opinion states in support that the parties' priority evidence will not be "made in full" until priority motions are filed if there is a priority phase in this interference.  And the Board does not see prejudice to the Broad's ability to establish priority if CVC's priority statement is kept in confidence until the priority phase commences.

The opinion mandates that CVC file by November 7th a revised proposed protective order taking into account the Board's decision to keep CVC's priority statement under seal until commencement of the priority phase.