CRISPR BoA Hearing

Follow this page for the latest updates from CRISPR BoA Hearing in Munich from Monday 13th January to Friday 17th January. HGF Patent Director Dr Emma Longland from our expert CRISPR team will be reporting all the key moments throughout the week along with daily roundups.

CRISPR Patent Revoked by the Boards of Appeal in Europe

On 16th January 2020, the Board of Appeal at the European Patent Office took the significant step of revoking EP2771468 ("the Patent"), which had been granted in the names of The Broad Institute, Inc., Massachusetts Institute of Technology, and President and Fellows of Harvard College ("the Patentees"). The Patent covered guide sequences for use in directing Cas9 enzymes to target sequences, such as might be used in CRISPR-Cas9 gene editing, for example.

The grant of the Patent had been opposed by nine parties ("the Opponents"), and at the end of those opposition proceedings the Patent was revoked. The Board of Appeal have now upheld that decision to revoke the Patent, after four days of hearing arguments.

Revocation

The reason for the revocation is that the Patent claimed priority from the filing of 12 earlier US provisional applications. The 2 earliest of those applications ("P1" and "P2") named a group of researchers as inventors and, since the applications were filed before the America Invents Act came into effect in the US, those inventors were also the applicants for the provisional applications. Luciano Marraffini was one of those inventor/applicants.

It is accepted law in Europe that a valid priority claim can only be made if the Applicants making the claim own the priority rights of all the applicants of the earlier (priority) application when they file their European application. However, when the international application, which resulted in the Patent in Europe, was filed, Luciano Marraffini was not named as an applicant and the Patentees for the granted Patent could not provide evidence to show that Luciano Marraffini's priority rights were owned by any of the Applicants on the filing date of the international application.

The priority claim was therefore deemed invalid. This meant that scientific articles, which had been published after P1 and P2 were filed, became relevant and took away the novelty of the invention in the Patent. The Patent was revoked for this lack of novelty.

During the Oral Proceedings, the Patentees presented various arguments as to why the Opposition Division were wrong in coming to...