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Europe: Legal issues lead to invalidation of Broad patent

The opposition system

Under the European system, which covers 38 member countries through the European Patent Office (EPO), anyone can challenge the grant of a patent within nine months after issuance through a process known as an “opposition.” Opponents provide written arguments and evidence explaining why the patent should not have been granted, with opportunities for the patent owner to provide arguments and evidence explaining why the patent was properly granted. At the end of the written submissions, a three-member panel conducts a hearing, where the opponents and patent owner make arguments and a decision is rendered.

Broad loses European patent through opposition

On January 17, 2018, at the opposition hearing, the EPO revoked the Broad Institute’s earliest European patent based on a priority defect. The EPO concluded that the patent was invalid because various publications already disclosed the inventions that the Broad sought to claim in its December 2013 patent application. The Broad attempted to argue that it could rely on the priority dates of earlier patent applications that it had filed in the United States.   However, well-established European patent procedures only permit priority claims when the applicants on the European patent application are identical to the applicants of the priority application. Several of the U.S. priority applications named scientists from Harvard University, MIT and Rockefeller University; when the Broad filed its European patent application, it excluded a scientist from Rockefeller University as a co-applicant. In accordance with well-established European patent precedent, the EPO refused to allow priority to be claimed to the earlier U.S. patent applications because those applications did not include the Rockefeller scientist. After two days of oral argument, the EPO revoked the Broad patent.

The Broad has appealed the Opposition Division’s adverse decision to the EPO Technical Boards of Appeal (TBA).

Because a number of the Broad’s other European patents suffer from the same defect, the decision should also apply to these patents. The Broad asked for some oppositions to those patents to be put on hold until its TBA appeal is decided, but the EPO has refused the Broad’s request. Thus, the oppositions of the Broad’s other European patents will progress and it is likely that most will receive the same decision.

 

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