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01.17.18

No Patents on Life (CRISPR), Said EPO Boards of Appeal Just a Few Hours Ago

Posted in Europe, Patents at 12:01 pm by Dr. Roy Schestowitz

The Boards nail Broad

DNA

Summary: Broad spectacularly loses its key case, which may soon mean that any other patents on CRISPR too will be considered invalid

THE decline of patent quality at the EPO is a real problem. The granting of CRISPR patents is an issue we wrote about this morning, having addressed the subject many times before (here’s some background).

Thankfully, the appeal board ended up deciding to toss out these stupid patents (metaphorically speaking, not politely put as courts typically do). This was foreseen by a longtime observer and UPC booster. They benefit from sheer abundance of patents. Here is what he wrote last year:

In Europe, the first patent of UC Berkeley has very recently been granted by the EPO.

As in the US, however, the Broad Institute has been the first one to get a patent issued in Europe, namely EP 2 771 468. Against this patent, 9 oppositions have been filed, most of which appear to be so-called strawman oppositions.

The final decision was covered by Daniel Lim, who describes himself as “IP lawyer at Allen & Overy, specialising in life sciences patent litigation. I am particularly interested in CRISPR, I-O and molecular Dx.”

“These patents should never have been granted in the first place.”So he’s into patent litigation in CRISPR, hence he relies on CRISPR patents. Earlier today he wrote: “BREAKING: #EPO’s opposition division has revoked the @broadinstitute’s #CRISPR-Cas9 patent EP2771468 in its entirety. Things wrapped up v quickly once priority was lost. Broad’s 64 aux requests not admitted and novelty not contested. Appeal already flagged…”

Found via Team UPC were a bunch of his other tweets (maybe Broad is his client) and there’s lots more in this thread, noting for example: “Appeal to the Technical Board of Appeal of the #EPO already flagged. The Broad considers this to be an issue of “international inconsistency, not just for CRISPR patents, but for a wider range of European patents and applications that originated as U.S. provisional applications…”

He then wrote: “BREAKING: #EPO has just found @broadinstitute’s European #CRISPR Patent (EP2771468) not entitled to claim priority from P1, P2, P5 and P11 – upholding the preliminary opinion on this point – inventorship dispute with Marraffini and Rockefeller Uni comes back to bite…”

Broad is in ‘damage control’ mode (over loss of European Patent/s) and Lim mostly amplifies their side in this dispute. They wrote “[f]or journalists”:

In a decision that is unrelated to the substantive merits of the CRISPR patent, an initial review panel of the European Patent Office (EPO) denied the Broad Institute’s reliance on its U.S. priority provisional application in Europe based on a technical formality.

This technicality concerns the current interpretation of rules that dictate what happens when the names of inventors differ across international applications. This interpretation affects many other European patents that rely on U.S. provisional patent applications, and is inconsistent with treaties designed to harmonize the international patent process, including that of the United States and Europe.

These patents should never have been granted in the first place. It’s not hard to see why Lim relies on such patents; his desire, however, should not become policy. It’s about public interest.

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