Identity of Applicants for Priority Rights and the EPO’s CRISPR-Cas/Broad Institute Decision T 0844/18 ‒ Scope of the EPO’s ‘Formal Review’ to Establish Identity of the Holder of the Priority Right

Abstract

Abstract The Technical Board of Appeal 3.3.08 (hereinafter ‘the Board’) has handed down the much-awaited written decision regarding the denial of the CRISPR/Cas9 patent EP2771468. The Board did not acknowledge the patentee’s claim to priority from a provisional US application naming more applicants than the subsequent Patent Cooperation Treaty (PCT) application from which the European patent was derived. The Board considered the priority claim invalid because there was no identity between the applicants of the prior and subsequent application. This article does not second-guess the ‘all applicants’ approach as confirmed by the Board, but considers the consequences of the decision for the claiming of priority by the ‘same applicants’.