The Broad Institute has a Patent Revoked by the EPO on Technical Grounds

January 24, 2018
Post by Blog Staff

The CRISPR/Cas9 landscape continues to evolve around the world. On January 17, 2018, the EPO’s Opposition Division revoked Broad’s patent EP2771468 on the grounds it lacked novelty. The revocation will not be take effect until after any appeal is heard. EP2771468 claimed priority to a US provisional application, which would have allowed the patent to predate several references cited against its validity. In Europe, when filing a later patent application, the list of inventors must either be the same or if fewer, the dropped inventors must have transferred the right to claim priority to the other applicant(s). This transfer must also occur prior to the filing of the later application. Neither Broad nor Rockefeller transferred any rights as the dispute was not settled until January 15, 2018, after the later applications were filed. This lack of transferred rights led the EPO to determine that Broad could not claim priority to the provisional application to predate the prior art which, ultimately rendering the patent anticipated. Broad, with the support of many experts, has announced it will appeal this decision to the EPO’s Technical Board of Appeals. Broad, along with the experts, wants the EPO to use this case to harmonize the EPO procedures with international treaties and make their procedures compatible with the Paris Convention. Specifically, they want the EPO to recognize the same priority dates as the home country, in this case the USPTO, recognizes to which a later application claims priority. Many of Broad’s other patents in Opposition proceedings also face the same result if the decision is not overturned during appeal. This case highlights the importance of conducting early inventorship analysis in collaborative research.

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