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Unofficial translation of todays annoncement :
BioPortos NGAL cutoff patent EP1831699, issued in Europe november 2010, is provisionally rejected by the Opposition Division at the European Patent Organisation held in Den Haag (Holland) earlier today . BioPorto and Høiberg (The Patent advisor) finds the ruling erroneous and is therefore immediately appealing the decision; until the appeal has been heard the patent remains in force.
EPOO finds, that there is inadequate description in the patent as to how to carry out the method as described in Claim 1. The verdict is not reasoned in EPO’s oral verdict, but EPO will justify the decision in a written statement which is expected within 1 – 2 months (WHAT – they need a month to justify their decision !!! my note) . Susanne Høiberg who led the on behalf of BioPorto, have litigated the matter in accordance with the two statements filed in the case, the first report of december 23rd 2010, and later of December 7th 2011.
According to the arguments by Susanne Hoøiberg, there is sufficient description in the patent to perform the method as claimed in claim 1. However – it has not been possible to convince the EPO by filing a revised set of claims . Why is unclear – as EPO has not justified the decision. The Appeals case is expected to begin in early June 2012.
Cutoff patents and patent applications in other countries are not affected by this decision. So the patents issued is still valid in Japan, India, New Zealand, Singapore, Hong Kong, South Africa, South Korea, Australia and Israel and the patent applications in the U.S., Canada and China are upheld. The same applies to BioPorto other NGAL Immaterial Rights, including the newly issued trauma NGAL patent in Europe.
BioPorto offer other companies license access to BioPorto NGAL IP rights in other test formats (heterogenous) than the homogeneous. The first license agreement for access to BioPorto NGAL IP rights was signed in 2011 by Instrumentation Laboratory. As a result of this EPO decision Bioporto has decided to postpone further negotiations on access license, until there is greater clarification of the patent situation in Europe, USA and China.
I’ve taken the liberty of translating this as BioPorto – for whatever reason – have not put up an international version on their website
There is no denying – this is a setback. But – bear in mind:
A: BioPorto’s patent have been sent back to be revised EPO – the decision is appealed.
B: It is highly unusual not to explain in detail how the verdict was reached. (My assumption is that they had problems dealing with the fact that they miscalculated in the first place)
C: BioPorto still have the only homogenous NGAL test in the world
D: The Patent is upheld in other important geographical areas
E: There is no change in the applicatiion process in the US/China
F: Marketcap is very small – aprox 40-50 million USD – making the company a sitting duck if someone wants to buy it
G: They will be the only ones on the market for a period, the only thing that might have to change is the pricetag on the NGAL test
No related posts.