By Timothy S. Donahue

Top Takeaways:

• Patent Revoked: Patent judges in Europe rejected Juul Labs’ appeal.
• Multiple Defects: The claims failed on disclosure, added subject matter and novelty grounds.
• Industry Challenge: The companies Nicoventures and Strawman opposed the patent.

Juul’s efforts to protect its vaping technology have run into another wall in Europe.

The European Patent Office’s Technical Board of Appeal has revoked a Juul Labs patent covering airflow management in e-cigarettes, overturning an earlier decision that had allowed the patent to survive in an amended form.

The Sept. 29 decision, published Oct. 21, concerns a patent titled Airflow Management for Vaporizer Device. The technology addresses airflow through a vaporizer cartridge and pressure control within its liquid reservoir to maintain the flow of e-liquid to the heating element.

Nicoventures Trading Limited, a subsidiary of British American Tobacco, and Strawman Limited, a corporate service provider, challenged the patent. After the EPO’s opposition division maintained the patent in a restricted form, Juul Labs appealed, but the appeals board rejected the company’s attempts to preserve its claims.

The board found that the patent did not adequately explain how to implement certain claimed configurations. Juul argued that preventing airflow between a cartridge’s inlet and outlet satisfied a requirement that both openings be closed, even if one remained physically open.

The decision stated, “The board is not convinced by this argument,” and found that the patent did not sufficiently disclose the claimed arrangement.

Other proposed amendments introduced technical features that were not adequately supported by the original patent application. The board also found that another claim lacked novelty because previously disclosed technology included the relevant airflow-management features.

Juul’s approach to preserving alternative claim combinations drew particularly pointed criticism. The company had argued that a general statement allowing possible future deletions of dependent claims should be treated as a valid request to amend the patent.

The board disagreed, calling such an approach “little more than the announcement of pulling a rabbit out of a hat.”

The judges nevertheless admitted one of Juul’s amended claim requests for consideration because it did not add complexity. That request ultimately failed because the claimed technology lacked novelty relative to an earlier disclosure.

The appeals board rejected another proposed amendment because it would have required the board to examine a new combination of technical features that the opposition division had not assessed.

The board ultimately reversed the earlier decision and ordered the patent’s revocation in its entirety. “The decision under appeal is set aside. The patent is revoked,” the ruling stated.

The decision eliminates the European patent protection at issue but does not address Juul Labs’ regulatory authorization to market vaping products.