Earlier this year, we reported on the EPO Board of Appeal’s decision to uphold the revocation of the Broad Institute’s CRISPR patent (here). Now it appears that the Broad Institute is gearing up to put forward a petition for review by the Enlarged Board of Appeal as a last resort to save their patent.
The Broad Institute (the patentee) has proposed several amendments to the minutes of the oral proceedings. It appears from these proposed changes that the patentee wishes to record how, despite asking for the chance to argue for a referral to the Enlarged Board of Appeal (EBA), they were not provided with such an opportunity. These actions indicate their intention to file a petition for review on the grounds of a fundamental violation of the right to be heard.
Response of the Opponents
Three opponents have responded in detail. All responses insist on the correctness and completeness of the minutes as they stand. One opponent argues firstly that the signor of the submission was not present during the appeal proceedings and thus the submission is based on hearsay. Secondly, that the legal requirements as to the content and corrections of minutes are unmet, quoting R.124(1) EPC and various case law. Thirdly, that the corrections are without any merits.
Petition for review
In a petition for review “[a]ny party to appeal proceedings adversely affected by the decision of the Board of Appeal may file a petition for review of the decision by the Enlarged Board of Appeal.” (Art.112a and Art.22(1) EPC).
Only a few petitions for review have been allowed in the past. Amongst them, the most recent petition deemed allowable by the EBA was R 4/17 in January 2018, also on the grounds of a fundamental violation of right to be heard.
In the above case, the petitioner argued that it had no record of ever having received the communication regarding the appeal, and that it had no knowledge of the existence of the appeal until receiving the decision in the appeal case. Thus, they argued that they were unable to exercise their right to be heard and it had been obviously impossible for them to raise this objection during appeal proceedings.
This presented a clear-cut case to the EBA where the petitioner was not given the opportunity to be heard in proceedings.
Regarding the Broad Institute’s case, it seems unlikely that the EBA will allow the petition. They would have to persuade the EBA that i) they had the right to be heard on the issue of referral; ii) their rights.