CRISPR EP Update: Oral hearing at EPO in opposition case against Broad patent is scheduled for 16 January 2018. Preliminary opinion negative for Broad

The patent dispute about the revolutionary CRISPR-Cas9 gene-editing technology between the Broad Institute (jointly operated by Harvard and MIT) on the one side and UC Berkeley on the other side is of great interest in the biotech community.

In the US, the Broad Institute prevailed in the interference hearing at the USPTO. The UC Berkeley has meanwhile filed an appeal to the CAFC.

In Europe, the first patent of UC Berkeley has very recently been granted by the EPO.

As in the US, however, the Broad Institute has been the first one to get a patent issued in Europe, namely EP 2 771 468. Against this patent, 9 oppositions have been filed, most of which appear to be so-called strawman oppositions.

With office communication of April 19, the EPO has now scheduled oral proceedings at the EPO main building at 16 January 2018. In the preliminary opinion issued together with the summons to the oral hearing, the oppisition division takes the non-binding provisional view that the opposition is expected to be successful on the ground of added matter (claims 1 and 2) and the ground of lack of novelty (claims 1-6 and 9-17). Even though the EPO emphasizes the non-binding nature of such provisional opinions, it is in most cases very difficult for the party negatively affected by the opinion to reverse the view of the opposition division. It will thus be tough for the Broad Institute to repeat its success in the US in Europe.

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