Although the oral proceedings in the CRISPR priority appeal, T 844/18, concluded on 16 January 2020 with the Board of Appeal upholding the opposition division’s decision to revoke CRISPR patent EP2771468 (see our earlier note here), the story is not over yet.
The Patentees have requested that the Board of Appeal amends the minutes of the oral proceedings. The proposed amendments concern the record of how the Board handled the Patentees’ request for a referral to the Enlarged Board of Appeal during the oral proceedings. You can read the Patentees’ submissions on the file register here.
The Patentees may be trying to introduce into the record an indication their right to be heard on the issue of a referral had been violated, which could pave the way for a Petition for Review (as suggested in our earlier note). Petitions for Review are rarely successful, but if a Petition was found to be admissible and subsequently allowable, the Board’s decision to uphold the decision to revoke the patent would be set aside and proceedings before the Board would be re-opened. This would give the Patentees another chance to argue their case (presumably this would be limited to whether questions on the interpretation of the law on priority should be referred to the Enlarged Board).
While we are a long way from any reconsideration of the substantive issues in this appeal, this latest action by the Patentees indicates that they are not ready to give up on this appeal just yet. We will continue to monitor and report developments as they happen.
For more details on the hearing and background to the case, click here.