The Technical Board of Appeal 3.2.02 of the European Patent Office has fully revoked Boston Scientific’s EP 3 388 032 after it had been maintained in amended form by the Opposition Division.
On March 25, 2020, Biotronik AG (Biotronik) filed an opposition against the European Patent EP 3 388 032 of Boston Scientific Scimed, Inc. (Boston Scientific) pertaining to a “Reduced granulation and inflammation stent design”. The patent was maintained in amended form by the Opposition Division of the EPO on January 18, 2022.
Biotronik appealed the decision on June 28, 2022, and entrusted BARDEHLE PAGENBERG with handling the appeal proceedings. After an exchange of several briefs, in September 2024, the Board of Appeal 3.2.02 issued its preliminary opinion that the patent will likely be revoked, as claim 1 as maintained does not seem to be allowable for lack of novelty, or at least lack of inventive step.
On November 20, 2024, the oral hearing in the appeal proceedings took place. At the end of the oral hearing, the patent was revoked in full. Neither the claims as maintained by the Opposition Division nor any of the 8 Auxiliary Requests were found to provide an inventive step.
No further regular appeal is possible. The written grounds have not yet been served.
Representatives of Biotronik: BARDEHLE
PAGENBERG (Munich, Germany):
Dr. Georg Anetsberger (German and European
Patent Attorney, UPC Representative, Partner)
Sabrina Smyczek (German and European Patent
Attorney, UPC Representative, Senior Associate)
Representatives of Boston Scientific:
Dr. Gerhard Hermann, Vossius & Partner
Patrick Willey, Vossius & Partner
Board of Appeal 3.2.02:
Chairman M. Alvazzi Delfrate