Will the EPO’s Enlarged Board hear the Broad’s CRISPR case?

As the Broad Institute faces a formidable task in defending its revoked CRISPR patent claims in a pending appeal at the EPO, European academics Jakob Wested, Timo Minssen, and Esther van Zimmeren are wondering whether some of the issues might be referred to the Enlarged Board of Appeal.

“The Opposition Division’s interpretation of the European Patent Convention (EPC) is inconsistent with treaties designed to harmonise the international patent process, including that of the US and Europe.” This was the rather strong reaction of the Broad Institute (BI) after the European Patent Office’s (EPO) Opposition Division’s (OD) decision to revoke one of its CRISPR patents.

It could, however, also be argued that the case presents a simple failure of the patent applicants to comply with the long-standing European practice to apply an ‘all applicants’ approach when claiming priority under article 87 EPC. In a comment on the IPKat Blog, for example, Rose Hughes stated that “The Broad Institute and its co-proprietors have fallen foul of the trap opened up by the difference in the US and European requirements for a valid priority claim.” Nonetheless, the BI very quickly announced its decision to appeal against the OD decision before the Board of Appeal (BoA).

In the following, we will consider whether some of the arguments raised by the BI against the decision of the OD may ultimately reach the Enlarged BoA (EBoA).