EPO Technical Board of Appeal decision:
The European Patent Office’s (EPO) Technical Board of Appeal (Board) upheld the earlier EPO Opposition Division ruling that the Broad Institute patent EP2771468 is not formally entitled to a number of its asserted priority dates and all its claims are therefore not novel and fully revoked.
EP2771468 is viewed as the foundational Broad Institute’s CRISPR/Cas9 patent in Europe. In January of 2018 the Opposition Division found that all claims of the Broad Institute’s foundational CRISPR/Cas9 patent were invalid because the Broad Institute was not entitled to its two earliest priority dates and thus the claims lacked novelty in light of prior art. The Broad Institute appealed the Opposition Division’s decision, which the Board affirmed yesterday. Thus, all claims of the Broad Institute’s patent remain fully revoked with no option left to overturn this decision.
The Broad Institute obtained nine other patents that all suffer from the very same defect that resulted in the revocation of this first patent. Five of these nine patents have now been through the opposition process and three of them have been fully revoked by the Opposition Division while two were reduced to claim sets of no significance to the field. The Board’s decision reinforces the expectation that the remaining four patents still subject to opposition are also likely to be revoked or significantly reduced in claim scope.