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14 January 2020EuropeRory O'Neill

EPO appeals board weighs-up Broad’s CRISPR claims

The first day of a landmark hearing on CRISPR ownership dealt nearly exclusively with untangling linguistic arguments, lawyers following the proceedings told LSIPR.

The case, being heard by the European Patent Office’s (EPO) Board of Appeal, deals with rightful ownership of a European patent (EP 2771468) for CRISPR/Cas9 technology, filed by the Broad Institute.

Day one of the hearing kicked off yesterday, January 13, in Munich, with further hearings to continue throughout the week.

EP 2771468 covers the use of CRISPR/Cas9 for the “engineering of systems, methods and optimised guide compositions for sequence manipulation”.

It claims priority from earlier US provisional patent applications, one of which names Luciano Marraffini as an inventor-applicant.

Marraffini is not named on the Broad Institute’s subsequent patent application, which has led to the case currently being heard by the EPO appeals board in Munich.

The EPO is defending the decision of its opposition division to revoke EP 2771468 because the Broad Institute alone cannot claim priority from a filing which also lists Marraffini as inventor-applicant.

‘Any person’ clause

Today’s hearing examined the Broad  Institute ’s interpretation of article 87 (1) of the European Patent Convention.

This clause states that “any person” who has filed a patent application will have right of priority for 12 months after the filing date, for the purposes of a subsequent European patent application.

According to the Broad Institute, “any person” means that, where the original application is filed by more than one party, any of them can claim priority from that filing.

As such, the Broad Institute can claim priority from the earlier filings that list both it and Marraffini, it argues.

The EPO disagrees. According to the office, an overly broad interpretation of this clause could potentially allow a third party to “steal someone else’s right to the patent application”.

Emma Longland, patent director at HGF, is in Munich observing the case.

According to Longland, both sides traded arguments on how “celui qui”, the original French wording of “any person”, is used in everyday language.

Longland said that, despite the appeals board’s wish to avoid purely linguistic arguments, day one of the trial frequently strayed into this area.

She said the Broad Institute had focused largely on the purpose of the “any person” wording, as well as the concept of priority right more generally.

The hearing is set to conclude later this week.

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More on this story

Biotechnology
4 November 2019   The Board of Appeal of the European Patent Office has issued new communication summarising issues that will be discussed at a hearing on whether the EPO erred in its revocation of a patent owned by the Broad Institute.

More on this story

Biotechnology
4 November 2019   The Board of Appeal of the European Patent Office has issued new communication summarising issues that will be discussed at a hearing on whether the EPO erred in its revocation of a patent owned by the Broad Institute.