Rushing examiners, but at what cost? Lots for Battistelli to cherry-pick from...

Reference: Quality (business)

Summary: By lowering the quality of patents granted by the European Patent Office Battistelli hopes to create an illusion of success, where success is not measured properly and is assessed by biased firms which he finances

TECHRIGHTS has expressed deep and genuine concerns about the quality of EPO patents for quite some time (about half a decade, not just in relation to software patents). The growing threat is an irreversible decline in quality that would superficially elevate the number of granted patents (devaluing/diluting their value, especially older ones) just like at the USPTO (which many would agree is in a chaotic state when it comes to patent quality). More is not always merrier, especially when it comes to patent monopoly/protection. It's not beneficial to innovation (over-patenting) and it often brings with it many false positives, i.e. patents erroneously granted, which leads to spurious demands, court cases, disputes, etc.

The following is a very sad story (also a rather long one) from an EPO patent examiner. This examiner openly (but anonymously, for his/her protection) admits quality has been ruined under Battistelli. Here is the comment in full:

Just to complete the picture since it appears everyone is shocked of how things are run when they become a bit public. My unfortunate reality is these reports do not deviate from the daily life in-house. I am an examiner. Or more accurately, I was an experienced examiner, I am now on the payroll. I was once proud of doing my job diligently. Maybe it is linked to the technical field, I used to examine diligently with a low rate of grants, even when compared to my close colleagues. Most files I examined were withdrawn when explained why they would not satisfy the technical and legal requirements. I refused the large part of the other applications and, amongst the refusals challenged all but one stood before the BoAs.

Following the procedure towards a sound refusal requires serious work and takes time. I was never processing high numbers of applications, average compared to colleagues, had no rapid career but was proud of my work. Sure cutting many corners would have provided me immediate financial advantages in terms of promotions but would have been at the expense of the public, the competitors and my pride. I don't know which one mattered most. I never gave in anyway.

Things have changed over the last three years. Production targets were raised, colleagues were put in direct competition for steps and promotions. The collaborative work we used to do mostly vanished. I have tried to stay focused on my work and its quality. I was soon put under pressure of my direct boss for having a low "productivity" (some kind of bizarre calculation dividing a weighted sum of the times you pressed a button claiming a search report is out and of the times that an application is granted, refused, withdrawn or that the applicant stopped paying the renewal fees by the available working time. Unrelated to the amount of actual work done but use to promote and punish). Not that my "productivity" had changed but the ones of my colleagues went up dramatically (rat race for grabbing big bonuses) and I am now in the target line. My manager explained me that I needed to do 40% more productivity to stay out of trouble. I told him that it was totally unreasonable and the work could not be done this way. He assured me he knew that but had no margin and had to follow the orders.

I then reflected on the actions of my own government represented in the Administrative Council. They obviously do not care. Neither do most other countries. The very same goes for the public at large and applicants.

I decided to preserve my health, my family and stopped doing my job. This year I will deliver more patents than I have done over the last 10 years at least. I am going back home earlier, have longer coffee breaks and do not elaborate relevant technical and legal arguments anymore. I avoid citing pieces of prior art that are too relevant; citing an approximate document is enough to write a formal objection, wait for the answer and submit it to the colleagues. I do not believe they read anymore what they sign and everyone is happy. Not my pride. But the price is paid. Had I known I would have end up in such a situation, I could have acted this way much earlier to get promoted. It is hardly a secret that most of today's managers reached their positions either by having extraordinary "productivities" or by escaping towards functions not having any "productivity" calculations. Ask examiners about ridiculous examples of patents granted by their managers!

I am now making most people happy: my manager, Mr. Battistelli, the Member States, the Administrative Council, the applicants, their representatives, my family. I can only be sorry for my lost pride, my lack of courage, the public at large for restricting freedoms, the competitors for the unfair competition, the taxpayers for the extra expenses of the judiciary, the consumers for the extra licensing costs and the reader because I am too verbose. Telling makes my sense of guilt more bearable.

This comment isn't from some 'rotten apple' or an outlier. Judging by reactions to it (thus far), many people at the EPO feel the same way. "The recent slide in examination quality has been very clear to those of us who study cases carefully," one person wrote. Here is the comment in full:

Thank you for your heartfelt confessional. You are not alone. The recent slide in examination quality has been very clear to those of us who study cases carefully. But not only in the sense of granting applications too easily. We are also seeing negative communications issued with virtually no serious analysis. Cite a few documents, cut and paste the standard paragraph about being routine for the skilled person - job done! The application will be shelved for the next two or three years, while the EPO continues to collect those juicy renewal fees.

Responding to the part which said "This year I will deliver more patents than I have done over the last 10 years at least," one person writes: "It seems that the effects are starting to see."

We have been warning about this for a very long time and the cited blog post we already mentioned here the other day. Here is an observation from another thread:

Some further thoughts.

A big jump in grants will lead to a big jump in oppositions, even without any change in "quality" of decisions to grant.

Oppositions, I understand, are priority 1, even more so after the proposed changes to procedure.

And yet I am seeing an increasing number of zombie applications [more than 10 years old] being brought into examination, sometimes with an examiner amendment on a Rule 71(3) notice. How are you finding time to deal with the long tail of old applications?

The response to it uses internal terminology, which suggests these are indeed EPO insiders who speak on the subject:

I too have seen an increase in re-surfacing zombies, generally where there has been an exam report many years ago. Often the exam report just required a response to a PCT Written Opinion, in the days before the present Rule 161.

As I understand it, such zombies would be priority 2 under ECfS, above starting new examinations. Presumably this is why Examiners are able to allocate time to them.

"Indeed," notes a response to it. "Those examination dossiers where the applicant would not get a refund due to a first communication already having been sent are priority 2. The first action blocking a refund is, IMHO, a trigger for a higher priority I can stand behind. Finish startes [sic] files instead of having as many started as possible, which seemed to be the priority for some of my colleagues. If you ask for accelerated, or when the next comm. can be expected, the file is lifted up to priority 1."

Meanwhile, in relation to the US system (where patent quality is rather appalling for reasons we have mentioned for a decade), Professor Dennis Crouch now shows that despite the number of patents almost doubling, "Certificates of Correction" remain at a similar number and are seemingly peaking this year. In Crouch's words: "A substantial percentage of patents continue to pass through the post-issuance correction process that leads to a Certificate of Correction."

He also wrote: "The number of corrections has remained relatively steady over the past 15 years. Since the number of issued patents issued has risen so dramatically during that time, this steady-state of correction filings means that the average number of corrections per recently issued patent has continued dropped steadily for the past decade with the odd exception of patents issued in 2009. About 14% of patents issued 1990 to 2005 went through the correction process. That percentage is now down under 10%."

This is one indication of decline of quality control. Now, compare that to the number of appeals at the EPO (a subject previously explored here) and imagine what's to come with increased appeal fees (reportedly to skyrocket), especially if Battistelli gets his way and altogether eliminates the appeal boards.

Responding to the original rant (from "1984") about patent quality, one person wrote:

I totally agree with you, 1984 - and also share the same, big regret: I should have started earlier to send out...

Another person wrote:

Thank you, 1984, for expressing so accurately my own feelings! Both so funny and sad to think you may just be in another country or just next door. We will never talk about it, we will never know. If the word were to be spread on the identity of anyone talking, our families would be screwed. Not worth the risk of the institutional retaliation.

Then came a humorous response from "The Investigative Unit" [1, 2] and one person seemed befuddled by IAM (the EPO is still leaning on its IAM propagandists to pretend patent quality and service are fine). To quote:

What I find rather impressive is that the Epo keeps winning each and every patent quality survey. Not only are we the best of the world but in 2015 our quality greatly improved over 2014...

That's nonsense. It's IAM nonsense, i.e. the usual.

Here is one response to that:

Do you remember the fate of the Survey organized by the Office about the reform of the BoA?

The results were completely misrepresented by Battistelli to support his agenda - as a post by Merpel detailed.

Do you really expect El Presidentitssimo to report any negative results that do not fit his agenda?

Good luck with that.

"The results were completely misrepresented by Battistelli to support his agenda," the above says, "as a post by Merpel detailed." This is what we have come to expect from just about any 'survey' by and about the EPO. Follow the money, follow the invoices. We have. Battistelli's expensive information war [1, 2, 3, 4] is hoping to distract from and discourage (e.g. by spying) messages like that from "1984". Truth/objectivity is not allowed at today's EPO and Battistelli runs his Ministry of Truth, just like in the book "1984". ⬆