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Board of Appeal confirms amended patent on breast and ovarian cancer susceptibility gene after public hearing

Munich, 27 September 2007 - A Technical Board of Appeal of the European Patent Office (EPO) has decided that European patent EP 705902 is to be maintained in amended form. The patent, co-owned by the University of Utah Research Foundation and the United States of America, relates to testing for a predisposition for breast and ovarian cancer.

Following a public hearing involving the patent proprietor and the parties that contested the patent, the Board, an independent second instance body of the EPO, has concluded that the contested patent can be maintained in amended form, confirming the outcome of the first instance opposition procedure.

The patent in suit was granted in November 2001. It relates to the human BRCA1 gene isolated from the genome, mutant forms of that gene and its use in the diagnosis of predisposition to breast and ovarian cancer. Among other things, the patent describes diagnostic methods designed to identify mutant forms of the gene and to facilitate early detection of enhanced susceptibility to breast and ovarian cancer.

In August 2002 a number of parties, including the Government of the Netherlands, the Swiss Social Democratic Party, Belgian and French research institutions and Greenpeace, filed notices of opposition. In January 2005 the patent was amended in an opposition procedure before the EPO to relate to a gene probe of a defined composition and no longer included claims for therapeutic and diagnostic methods. Both the patent proprietor and the opponents appealed the decision of the opposition division. The Board of Appeal, however, now confirmed the result of the first instance.
   
The full reasons for the decision in appeal will be set out in writing and published as soon as possible; they will also be made available online and will then be open to consultation at www.epoline.org as part of the EPO's public file inspection service.

The decision concerns European patent EP 705902, "17Q-Linked breast and ovarian cancer susceptibility gene", granted on 28 November 2001. Oppositions to this patent have been filed by nine parties: the Social Democratic Party of Switzerland, Berne; Greenpeace Germany, Hamburg; the Institut Curie, Paris; Assistance publique - Hôpitaux de Paris, Paris; the Institut Gustave Roussy, Villejuif (F); the Belgian Society of Human Genetics et al., Brussels; Dr Wilhelms, Göhrde (D); the Netherlands, represented by the Ministry of Health, The Hague; and the Austrian Federal Ministry of Social Security, Vienna.