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29-01-2020 » Decision in case T 844/18 on the CRISPR gene editing technology – The importance of assignments for the right to priority I Beau de Loménie

The EPO Board of Appeal in case T 844/18  revoked the European patent EP2771468 of the Broad Institute relating to the CRISPR gene editing technology for lack of novelty in view of intermediate prior art. This prior art became relevant because the EPO did not acknowledge the patentee's claim to priority from a US provisional application naming more Applicants than the subsequent PCT application from which EP2771468 is derived.

The key issue was that the scientist Luciano Marrafini, who was listed as an applicant in the US provisional application, assigned his priority rights to Rockefeller University, which was not listed as an applicant in the PCT application. Since Luciano Marrafini had not transferred his rights to any Applicants of the PCT application, the priority claim was considered invalid.

There are other CRISPR patents in the same situation that might be affected by this decision and be revoked in the near future.

This decision highlights the risks that hang over priority applications filed in the name of the inventors, which is the case for US applications. It is therefore particularly important to prepare a clean chain of rights from the inventors to the Applicants before overseas filing of a patent application in order to be sure to keep the right to priority alive in Europe. 

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