Yesterday, on January 16, 2020, the Board of Appeal in the opposition proceedings for revocation of the European patent No. EP 2 771 468, Broad Institutes initial patent claiming the gene editing approach in mammalian cells, has been revoked after 4 days of intensive proceedings at the European Patent Office (EPO) in Munich.
Nine opponents had filed oppositions against the grant of the CRISPR patent, and the appeal proceedings had been initiated by the Broad Institute after a first instance decision to revoke the patent in its entirety as not novel because of a defect in the priority claim. The Technical Board of Appeal yesterday confirmed the first instance decision surprisingly; since the day before it had indicated its preliminary inclination to refer this case to the Enlarged Board of Appeal – the highest judicial body at the EPO. However, after yesterday’s pleadings, apparently, the Technical Board changed its mind in a dramatic reversal of its previous announcements and dismissed the appeal. The patent remains revoked; the decision is final and cannot be contested for substantive reasons.
While a disaster for the Broad Institutes CRISPR patent portfolio, the decision will render development and business in the gene editing field in Europe possibly easier. From a legal point of view, the decision again confirms the long standing practice of the EPO to demand identity between the applicant of the priority application and the subsequent application, or an impeccable chain of transfer of the original priority rights to the non-identical applicant of the later application. This underlines the complexity and importance of establishing a correct priority claim under European law.