Breaking: EPO board to refer key issues in Broad appeal to higher panel
The European Patent Office (EPO) will refer several questions in the Broad Institute’s ongoing CRISPR patent case to the enlarged board of appeal, meaning the case is set to drag out further.
The appeals board hearing the case made the announcement at the start of proceedings in Munich this morning, January 15.
Under the European Patent Convention (EPC), the enlarged board of appeal is a higher panel which reviews questions of “fundamental importance” that have been referred to it by a lower appeals board or the EPO president.
Speaking in Munich this morning, the appeals board hearing the Broad’s case also clarified that making the referral would mean the current proceedings would be adjourned.
Based in Massachusetts, the Broad Institute is appealing a decision of the EPO to revoke one of its CRISPR/Cas9 patents on the grounds that it could not claim priority to an earlier US filing.
Emma Longland, patent director at HGF, has been following the case in Munich. She told LSIPR that the appeals board envisages sending at least three questions to the enlarged board for further clarification.
These include whether the EPO should be deciding questions of entitlement to priority, what the meaning of the phrase “any person” is in European patent law, and whether US law should be applied in the case.
Day one of the proceedings dealt largely with the meaning of “any person” in Article 87(1) of the EPC.
The outcome of that debate will have significant implications for whether the Broad Institute is entitled to claim priority to an earlier US filing.
The chair of the appeals board said these questions were being referred because they were a matter of “fundamental” importance, Longland said.
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