In the dispute between Illumina, a US-based company that provides products, technologies and services for genetic variation and biological function analysis, and MGI, a Chinese biotechnology company affiliated with BGI Genomics, the European Patent Office (EPO) has revoked two patents of Illumina related to DNA sequencing technology. Although appeals are still possible in the latest cases, the revocation of two patents from the same family is a final decision.

The two patents, EP 3 363 809 and EP 3 002 289, both involve modified nucleotides for multibase sequencing. The EPO revoked EP 809 on the grounds of added subject matter, similar to another patent from the same family, EP 3 587 433, which was also revoked in February this year. Illumina initially appealed against the revocation of EP 433, but withdrew the appeal in June. Therefore, the revocation of EP 433 is a final decision.

EP 289 was one of several DNA sequencing technology patents that were disputed between Illumina and BGI/MGI (controlled by the latter). These also include the original patent EP 1 530 578 and its divisional patents EP 3 587 433, EP 3 363 809, and EP 289, which have now been revoked. The dispute between Illumina and MGI involves multiple countries, including the UK, Germany, France, Belgium, Spain, Sweden, Italy, Switzerland and the US.

The EPO’s Board of Appeal revoked EP 289 in spring this year. Illumina requested to refer the case to the Enlarged Board of Appeal, but the Board of Appeal rejected the request.

The EPO’s Opposition Division issued a preliminary opinion indicating that the patent could be maintained as granted, but eventually revoked it due to added subject matter. The reason was similar to the case involving “modified nucleotides” from the same patent family EP 3 587 433.

Illumina can still appeal against the decision on EP 809.