Epic battle over heart valves continues as EPO revokes two Edwards patents

In a combined hearing, Technical Board of Appeal 3.2.02 under chairman Alvazzi Delfrate recently revoked two divisional patents from the same family (case IDs: T 1268/23 and T 1176/22). EP 3 590 471 and EP 3 494 929 belong to Edwards Lifesciences and protect a low-profile delivery system for transcatheter heart valves. The EPO Opposition Division had previously upheld both patents in amended form.

While these specific patents are not subject to UPC litigation, courts in the UK, Germany and Italy have heard cases concerning them. Meril Life Sciences has been challenging various patents from Edwards’ heart valve portfolio for several years.

Edwards had originally filed multiple infringement suits in national courts against Meril’s heart valve products. The two companies are now also battling over other patents at the UPC, with market share in the lucrative global heart valve business at stake.

In January, the EPO Boards of Appeal ruled in favour of an opposition by Meril and revoked another Edwards patent.

Shifting advisors

UK patent attorneys Jonathan Stafford and Gregory Carty-Hornsby, partners at mixed UK patent firm Marks & Clerk, led the opposition for Meril. Hogan Lovells had initially filed the EPO opposition on Meril’s behalf. Patent attorney and partner Alexander Klicznik continues to provide technical support for the lawyers across various national and UPC proceedings. Hogan Lovells also coordinates the overall European dispute for Meril.

Edwards relied on its regular patent attorney firm Thum IP. Name partner Bernhard Thum and Jonas Weickert led the proceedings. Both took the client with them when they founded IP firm Thum & Partner in autumn 2021. Since then, they have represented Edwards in numerous EPO opposition proceedings and at the UPC.

Medtronic had also initially opposed the grant of EP 929, with support from Munich-based patent attorney firm Zimmermann & Partners, but later withdrew.

Awaiting UPC decision

On 16 January, the UPC’s Nordic-Baltic regional division under presiding judge Stefan Johansson heard Edwards’ infringement suit against Meril concerning EP 3 769 722. Both companies now await the judgment (case ID: CFI_380/2023). EP 722 belongs to the same patent family as EP 929 and EP 471, but is formulated differently.

The same court will hear the next infringement claim against Meril over Edwards’ EP 2 628 464 on 18 July (case ID: CFI_8/2023). Meril filed counterclaims for revocation in both cases.

Patent attorney teams from Marks & Clerk and Thum IP are handling both EPO cases. For the legal side, Edwards relies on teams from Powell Gilbert and local advisors from Gulliksson. Meril instructs lawyers from Hogan Lovells and Swedish law firm Sandart & Partner.