Patent quality? That's the old EPO. Now it's all about quantity!

The Leader of the Luddites, engraving of 1812

Summary: Battistelli, who tries to automate and streamline everything so as to maximise patent grants rather than examine applications properly, is making incredible claims that will almost certainly backfire on him

AMID EPO crisis, which undoubtedly continues to deepen, more and more people start to compare it to the USPTO, where patent quality has been rather notorious for quite some time (they almost just rubberstamp applications, with a 92% acceptance rate).

For weeks now (if not a whole month and a half!) the EPO has been 'spamming' universities in Europe on a daily basis, in order to help Battistelli's lobbying campaign (today was no exception [1, 2]). Both time and money may be running out. Talented workers are already leaving, causing brain drain that's unprecedented in the EPO's history. What will perhaps be left is just the job skill of using a rubber stamp, causing a copious lump of patents to come through with no quality assessment/control. That's a nightmare scenario for the EPO's reputation, on which has been based for decades. For the third time in one week the EPO does the unthinkable by inviting software patents. "At the EPO," it wrote today, computer-implemented inventions must fulfil special patentability criteria. Learn more here!"

This is the third time in just a few days that the EPO tacitly promotes software patents in Europe. Remember that these are not legal in Europe (political decisions were made on patent scope more than a decade ago), but then again, under Battistelli the EPO is above the law anyway. Or so it claims. It just ignores court decisions against it, flaunting immunity. Is there any credibility left to lose? Is the EPO's Twitter account signaling that the EPO will likely rubberstamp just about anything, including software patents (provided they're written in some misleading fashion, as per the EPO's advice)? This could become a threat to the very existence of the EPO. People won't pay to receive (or renew) patents. The demand may go down. Prices (fees) likewise. What might be the impact on salaries?

"You should see the new issue of the Gazette," one person told us, "a piece of Pravda-type propaganda.... interview with Battistelli, Lisbon with Battistelli... what is also interesting is that they have employed two more "investigators"..." (a subject we shall expand on another day).

So the EPO is apparently the embodiment of just one person, Battistelli, examiners that are treated like machine operators in an assembly line, and daily propaganda to keep those operators chugging along. No wonder a lot of smart people have decided to leave or retire early. They see the writings on the wall. Battistelli is just a liquidator, not a leader.

A new article by Andrew Chung, who wrote a highly misleading headline (unless his editor types the headlines, as is quite common) that we noted last night using a screenshot, is repeating Battistelli's latest propaganda in a new puff piece (published 24 hours ago). It's again misleading and we can't help but wonder what Chung has been drinking (maybe more of that aforementioned Kool-Aid). Basically, Battistelli is riding the coattails of older patents. He ruins EP (European Patent) quality while hiding it using the accomplishment of his predecessors. This guy is so clueless about patents (his workers know far more than he will ever know), but Chung acts like some kind of Battistelli stenographer (reposted in other news sites) and the editor went with the headline "Europe issues better patents than U.S. - Europe patent boss" (as if the US is a good yardstick these days).

As realised by EPO insiders, Battistelli is demolishing the EPO as they once know it and he now lies to everyone, much to the pleasure of those who lie for him (here he is propped up by CIPA and other interest groups or publishers that are in bed with the EPO [1, 2, 3, 4]).

The article itself will probably help Battistelli's lobbying (he likes to cite his paid "media partners" for support of his claims) and here is what it says:

Amid growing concerns by some U.S. lawmakers that federal officials may be granting patents that fuel abusive litigation, the head of the European Patent Office says his agency is producing better-quality patents than its American counterpart.

EPO President Benoît Battistelli said his office scrutinizes patent applications more closely than the U.S. Patent and Trademark Office, which he said results in patents that are more legally sound going out the door.

[...]

Battistelli, a French national who has led the EPO since 2010, said his agency has developed databases and search engines that allow it to perform the most comprehensive research on prior inventions that could lead to a rejection of a patent.

Unlike in the United States, he added, all patent applications are scrutinized by three officials, known as patent examiners, rather than just one.

This leads to a lower rate of granted patents, he said, but they are legally solid.

On the other hand, it costs roughly twice as much to obtain a patent in Europe, around 5,000 euros ($5,625), than in the United States.

Fact-checking Battistelli's claims? Not needed. Just write down what a chronic liar says and call yourself a "Reuters journalist".

This article was sent to us by several EPO insiders although we actually noticed it an hour after it had been published (we have an alerting system for all things EPO). Here is what a patent attorney wrote in response to a related discussion today:

On how to trade off quality and productivity, the USPTO and the EPO cannot meaningfully be compared. That's because the EPO is master of its own house and the USPTO is not. Who makes the law of patent validity in Europe? The EPO's Enlarged Board of Appeal. Who in the USA? The Supreme Court of the USA and it makes law that i) frustrates any USPTO drive towards productivity and quality and ii) encourages Applicants and their lawyers to obfuscate and work diligently away from clarity in the claims.

So of course Mr Spigarelli sees it all as very simple. Pure self-interest drives Applicants at the EPO to draft clearly. EPO separation of search and examination, and strict enforcement of EPC Rules by DG1, makes it imperative that i) from the outset, Applicant presents an exhaustive set of dependent claims and ii) DG1 searches them all, at the outset, exhaustively. That way lies both quality and productivity. Simples. But not yet at the USPTO.

Now that the USA is on a First to File system however, Applicant self-interest in that country will kick in, gradually to improve drafting in the USA and, in its wake, will come better quality and productivity. How so? Because the US will now find it has to ratchet up its "written description" requirement to somewhere near the EPO's exacting Gold Standard for disclosure, in order fairly to judge issues of novelty, priority and added matter.

In response to this, one person wrote:

Improving patent quality flows both ways, with the quality of the drafted claims submitted for examination being an equally important aspect in the equation. The article mentioned situations where the examiners don't understand the invention - that's a clear indictment of the patent attorney who drafted the claims, isn't it? A strategy of drafting overly broad claims and seeing what sticks is not helpful for anyone (other than the attorney charging fees to his client).

The examiners in the USPTO need more time, better IT support and investment to help improve the quality of their work. They are working hard in less than perfect circumstances and we should all support them. Sharing lessons learned with the EPO is a good start, but attorneys need to do their part too, IMHO.

Also in response to the above:

"The U.S. speakers mostly assumed a trade-off between the two goals of productivity and quality...snip...Alfred Spigarelli, European Patent Office (EPO), disagreed with the trade-off premise, and stated that at the EPO, a focus on quality results in productivity. He argued the ultimate goal is always quality, from which productivity flows."

At the EPO, "Early Certainty" equals quality with timeliness. And timeliness increases productivity, since examiners are given targets on that. The trade-off is merely hidden and fully loaded onto the individual examiners' shoulders.

"Professors Melissa Wasserman and Michael D. Frakes discussed their study which indicates that promoted USPTO examiners may generally grant more patents because of less examination time as they are promoted."

At the the EPO, promoted and non-promoted examiners have the same examination time, but promoted examiners likely grant more.

Same here, same there, same everywhere ...

Looking at another thread, this one new comment on "Early Certainty" reveals how insiders feel about the patent quality and overcapacity:

- Overrecruitment is discussed in internal FAQ's on Early Certainty, but not in the external one, of course.

- Production demands for newcomers have always been inflating, as they doe for all other examiners on a yearly basis.

- Contracts for examiners: the numbers are in the Social Report published by the EPO.

We shall expand on that another day, possibly this weekend, due to lack of time. The above comments (the first three) were posted in response to coverage from an event that was mentioned here a few days ago. David Kappos, as we expected, used it to lobby for software patents again (he'd paid for that lobbying). Being like a corrupt official-turned-lobbyist, here is what he did: "Finally, David Kappos, former head of USPTO and current partner at Cravath, Swain and Moore, reviewed how the USPTO has historically worked on patent quality. He pointed out that the USPTO has been applying the changing standards and rules set by the courts. He stated that the U.S. Supreme Court’s Alice test is not a helpful flexible rule, but arbitrary and vague. He believes that the courts and USPTO are placed in a position of having to apply an impossible standard and should not be blamed for their application of said standard."

This utter nonsense from Kappos, calling for decline in patent quality (like it was under his reign), comes at an interesting/strategic time when software patents are pretty much dead. There are few exceptions to that, as we mentioned here before, but in the vast majority of cases software patents drop like flies, even in bulk. Last night we mentioned articles like this one (cherry-picking of cases by the patent microcosm) and here we have a Microsoft advocacy site, citing Microsoft's lobbying site, showing that Microsoft props up illusions of software patents resurgence, pretending they're fine (they're not). Remember that Microsoft is among the companies that pay Kappos to lobby along those lines. Here is what Microsoft has to say: "The U.S. Court of Appeals for the Federal Circuit yesterday issued an important decision strengthening the law related to software patent eligibility under Section 101 of the Patent Act. This ruling gives us useful guidance for determining which software innovations qualify for protection and helping provide greater stability to the U.S. patent system, a foundation for our digital economy. Erich Andersen, vice president and deputy general counsel of Microsoft’s IP (Intellectual Property) Group wrote a blog post expressing his views on this ruling."

Well, as expected right from the start, patent law firms yank out their misleading jubilations because of McRO (one single patent!) [1, 2] and Gene Quinn generalises at Watchtroll, having ignored pretty much all the recent decisions which invalidated software patents (the cherry-picking or selective coverage tactic).

"What we see in the US is a dodgy system wherein the patent office is inclined to just grant everything, courts reject a lot of patents, and if Battistelli gets his way the EPO will be the same, inviting a lot of patent trolls, software patents that hamper innovation, and a lot more money for the patent microcosm."In other news regarding patent scope in the US, “patented software” became the subject of an antitrust lawsuit, a drug patent of Teva got invalidated by PTAB [1, 2, 3], and USPTO examiners awarded another software patent (which courts would likely invalidate if ever scrutinised properly).

What we see in the US is a dodgy system wherein the patent office is inclined to just grant everything, courts reject a lot of patents, and if Battistelli gets his way the EPO will be the same, inviting a lot of patent trolls, software patents that hamper innovation, and a lot more money for the patent microcosm. So, are EPO patents better than US patents? Well, the old ones probably are, but Battistelli is going to change that. As a Conservative Neo-liberal he's likely to just abuse science, just like his 'master' Sarkozy, who is now publicly denying climate science. ⬆