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01.22.18

How the Opposition to CRISPR Patents at the EPO Sent Shockwaves Through the Industry

Posted in Europe, Patents at 5:09 am by Dr. Roy Schestowitz

Not only CRISPR is impacted

DNA fingerprint

Summary: Additional reports/coverage on the EPO (European Patent Office) revoking Broad Institute’s CRISPR patent show that the issue at hand isn’t just one sole patent but the whole class/family of patents

The weekend was spent covering mostly US patent matters. Last week was a quiet week for the EPO (no updates from SUEPO and barely even from the EPO), but the main news was about CRISPR.

The patent microcosm still seems to be in somewhat of a shock over the EPO doing the right thing. They try to digest the news as it might mean that the oppositions at the Office will cull out many more patents. A lot of circles are very pleased with these opposition proceedings, reposting some news at GM Watch for example.

Are opposition proceedings going to also weaken other patents on life and maybe on cancer treatments? Just days ago a company issued this press release quoting the CEO, Göran Forsberg. It seems very important for them to tell shareholders that the EP remains in force. To quote:

The opposition proceedings at the European Patent Office (“EPO”) concerning Cantargia AB’s (“Cantargia”) patent for treatment of solid tumours have now been completed. The EPO has rejected the opposition and Cantargia’s patent is thus maintained with unchanged claims.

Whether oppositions or DG3 do the quality control, it’s good to know that something is still functional at the Office. Yesterday someone left the following anonymous comment:

Does it help, I wonder, to keep in mind that i) the Guidelines are distilled out of DG3′s leading cases, the Established Caselaw of DG3, no less, ii) the Guidelines are not written by judges, and iii) the Guidelines are for EPO Examiners. The Guidelines are intended as a help to DG1 in its task of examining consistently the applications filed at the EPO. For the Established Caselaw of the Boards of Appeal of the EPO, see the White Book.

Thus, in argument with DG1, quote the Guidelines. For DG1 it is holy writ. These days, no member of DG1 will have the nerve to push The Guidelines. But, in presenting cases to the EPO’s Boards of Appeal, don’t make the mistake of shaking a copy of The Guidelines at the Board. Instead, remind them what is their own Established Caselaw, direct from the White Book.

If you want to push the legal envelope, you are not going to do it with The Guidelines but only on appeal to DG3, by arguing convincingly that DG3′s “established” caselaw is not so established as to be carved in stone.

When it comes to the EPO, our criticism was always about quality of patents. DG3 has historically helped extend the scope of patents; will that change? Can it change now that Battistelli attacks judges whom he does not like?

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