On May 28th, Junior Party the Broad Institute, Harvard University and MIT (collectively, "Broad") filed its Contingent Preliminary Motion No. 2 in CRISPR Interference No. 106,126 (where ToolGen is the Senior Party), pursuant to 37 C.F.R. §§ 41.121(a)(1)(i) and 41.208(a)(2) and Standing Order ("SO") 203.2.  This motion is contingent on the Board's grant of Broad's Substantive Preliminary Motion No. 1.  In that motion, Broad asked the Board to substitute (in part) a new Count No. 2 in place of Count 1 in the '126 Interference as instituted (see "Broad Files Substantive Preliminary Motion No. 1 in CRISPR Interference").

In this motion, Broad asks the Board to add their U.S. Application Nos. 15/160,710 (having allowable claims 1, 40, and 41) and 15/430,260 (allowable claims 74, 94, and 95) to the Interference and designate the allowable claims as corresponding to Proposed Count 2.  Consistent with their arguments in Motion No. 1, Broad contends that these claims recite "generic" limitations with regard to the RNA components of CRISPR, i.e., both dual-molecule and single-molecule guide RNA.  In the alternative (i.e., should the Board deny Broad's Substantive Preliminary Motion No. 1), Broad in this motion asks the Board to designate claim 1 of the '710 application and claim 95 of the '260 application as corresponding to current Count 1.

Broad takes its opportunity in this motion to continue to argue that the current Count 1 is unfair because it is limited to single-guise RNA (sgRNA) species of CRISPR and in doing so deprives Broad of their best proofs (which purportedly prevent Broad from evidence of dual-molecule CRISPR embodiments that would permit the Party to prevail, at least with regard to such "generic" patent claims).  Broad repeats many arguments set forth in Motion No. 1 related to this unfairness and the risk Broad is subject to should ToolGen prevail on claims to sgRNA embodiments (including being estopped under MPEP § 2308.03 from pursuing dual-molecule CRISPR embodiments).

After setting forth the legal arguments, Broad's brief sets out charts illustrating correspondence between claims of the '710 patent and Proposed Count No. 2:

Claim Chart Showing Correspondence Of Claims 1, 40, and 41 of the '710 Application

and similar correspondence with claims of the '260 application:

Claim Chart Showing Correspondence Of Claims 74, 94, and 95 of the '260 Application

The brief sets forth in support thereof arguments that substituting this Count would substitute Count 2, reiterating and synopsizing arguments Broad set forth in its Substantive Preliminary Motion No. 1.