11.12.16

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Decline in Patent Quality at the EPO Increasingly Reaffirmed by More Branches, Insiders, and Even the European Commission

Posted in Europe, Patents at 12:30 pm by Dr. Roy Schestowitz

Not everything under the Sun needs to be patented after all…

“The only patent that is valid is one which this Court has not been able to get its hands on.”

Supreme Court Justice Jackson

Summary: The lowered quality control at the European Patent Office gives reasons for concern and legitimises those who worry about Europe losing its edge in pursuit of misguided goals

The quality of EPs (European Patents at the EPO) is declining. Their quality is poor not only in the eyes of longtime workers who cross horns with Battistelli as even new workers tell me that the workplace encourages quantity, not quality. As one examiner put it, “I feel bad to say that because it brings bad reputation to EPO, to EPC, and maybe to my colleagues.”

If workers do not manage to save the EPO from Battistelli’s misguided plan that culminates in massive layoffs, then the Office will likely collapse or become a shadow of its former self, damaging Europe’s economy in the process. Watch what a burden the USPTO became to the US economy. The US Government Accountability Office (GAO) has openly complained about this recently; then the FTC did too (taking note of the parasitic role of patent trolls).

According to an article that IP Kat published yesterday, the European Commission belatedly steps in with an effort to enforce the Biotech Directive and prevent the EPO from granting patents on tomatoes (among other natural things like seeds and plants). We covered this last week, but it’s still in the news. To quote:

The Commission argues that the EPO was not bound to take the legislative history of the Biotech Directive into account and thus came to a different conclusion (but it did take it into account…). While admitting that the final wording of the Biotech Directive does not contain a provision on the patentability of products obtained through essentially biological processes, according to the Commission, “having regard to the preparatory work related to the Directive, as summarised above, certain provisions of the Directive are only consistent if plants/animals obtained by essentially biological processes are understood as being excluded from its scope”, referring to Articles 3(2), 4(1) and 4(3) of the Biotech Directive.

George Lucas of Marks & Clerk wrote about the role of the Enlarged Board of Appeal in this. It said:

Following the decision of the Enlarged Board of Appeal (EBA) in G 2/12 (Tomatoes II/State of Israel) that “… Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material…”, as reported in our article last year, the appeal that led to this referral to the EBA has been decided. In the decision, T 1242/06 (Tomatoes II/State of Israel), the Technical Board of Appeal (TBA) concluded that the subject matter of the claims of auxiliary request I was not excluded under Art 53(b).

The TBA decided to remit the decision to the Opposition Division with the order to maintain the patent, EP1211926, on the basis of auxiliary request I, claim 1 of which is reproduced below.

Another new article from Marks & Clerk also speaks of the EPO Board of Appeals, dealing with the notion of lack of impartiality — something which Battistelli certainly contributes to with his outrageous moves. To quote the opening part:

A recent decision from the EPO Board of Appeals, T 1647/15, deals with, amongst other things, the issue of suspected partiality of a member of the Opposition Division, in this case the chairman.

By all indications, as sad as it may seem, Battistelli’s solution to everything seems to be “UPC”, no matter how undesirable it is to the lion's share of Europe's businesses.

Only days ago the EPO brought its malicious “unitary” agenda to EPOPIC, as according to its own tweets [1, 2, 3]: “Yolanda Sanchéz García presented mock-ups of the Unitary Patent Protection Register. Available soon [...] Unitary Patent Protection Register: part of the EPR, same look & feel, contains info in Rule 16 UPR, allows file inspection…”

The UPR (Unitary Patent Protection) is described in the EPO’s Web site. It’s not quite the same as the UPC, but centralisation and broader enforcement seems to be the trend. There is no UPC landslide for Battistelli and no signs of anything “unitary” or “community” or “EU” (previous buzzwords for the same thing), so why were jobs even advertised for it?

The current trends witnessed inside and outside the EPO give reasons for concern. It lacks quality control and it now works to expand the scope of applicability of rather bad patents which it grants. Trolls would love the idea! So would their patent law firms.

There happens to be some good discussion about this at IP Kat this week. A couple of people correctly point out that applicants have been willing to pay a lot for EPs because of the high (perceived) certainty that courts would rule in their favour and not throw away their patents, costing them a fortune in legal fees (in vain). Patent quality was the focus of all the following comments, namely:

To Dubious, I agree re [patent] quality.

To EP No.
“If you feel the quality has declined, it is your job to defend your applicant’s rights by complaining to the EPO management that the quality you have received has declined.

There is no need to refer to the actual product, but examples can help.

And do it publicly, preferably not anonymously.”

That’s a silly suggestion. My role is to represent my clients’ interests, not to destroy them for political purposes.

“If you won’t do anything for you, we will not risk our job being proactive for you, as we will get problems when we do anything without being prompted to do so.”

Difference is, it is your job to apply the EPC diligently. You have responsibilities the wrong way round.

People from the EPO still tell us (even this week) that patent quality is declining. Battistelli is ruining the whole thing because he ceased to care about the quality of output; the public would pay the price. Here is another comment:

And who decided what is diligently? I think we both know that it is not the examiners. Effectively in this case the judge is pressurising the key to decide within an ever shorter time. The judge thinks he could do it without delay so everyone else should. If the jury spends too long – no matter how complicated the issues are or are made by the parties, the judge will apply sanctions for not meeting his target.
So who has the biggest interest in the jury’s diligence??

And “with current management,” another person said, “chose a very bad system to measure our quality” of patents. Here is the full comment:

Well, I’m not killing my career for political purposes.
I am diligently applying the PC, as far as I am given time to work on the dossier.

And please tell my bosses, that they are here to apply the EPC. (I agree, that’s not your job, and there you could have your career killed. But complaining about our product quality is your right, and likely even your obligation. The arrow would be pointed differently, as in the first case the repercussion arrow would go against the one telling the boss he did it wrong, and in the second case you point the boss’s arrow against the examiner taking shortcuts and producing things you do not want to pay our high fees for.)

If you, as outsider, are not willing to stand up, where the possibilities of repercussion are difficult to obtain by our politicians, how do you expect me to stand up, when my career, my job, my pension, my health insurance depends on it? And when I lose my job, I do not access to unemployment benefits. So I’ll loose my house/home too. And the impact on my family?

Sorry for your client(s), they deserve better. But with current management, which chose a very bad system to measure our quality, and considers quantity a major element of our work quality, I fear we are on an even steeper slippery road than last year.

“Every patent attorney is the same bound by the EPC as every examiner,” Barbi wrote. “If a patent attorney argues against an examiner than he must do it in goof faith and vice versa.”

Here is a response posted in reply to this:

Every patent attorney is the same bound by the EPC as every examiner! If a patent attorney argues agains an examiner than he must do it in goof faith and vice versa.

Well said Barbi !

I’m glad that you didn’t add “The President and the Admin Council are also bound by the EPC! If they argue against staff then they must do it in good faith.”

Let’s all focus on examiner-bashing.
Nobody else could possible be to blame for this mess.

Just like in the old Soviet system:
THE MANAGEMENT IS ALWAYS RIGHT!

Another comment on this topic:

Diligently = a far higher standard than is frequently applied today. Time is important, but only to the extent you are on the right track initially.

Searching for and analysing prior art is a time-consuming task, agreed. A diligent search is at least more than cursory. However, it is not this aspect I am challenging regarding quality. Today, simple misapplication of the law, or to be more precise, a complete lack of application of the law to the case in hand is all too common.

Polymorph patents are granted for merely being novel. Frequently, no benefit is even described, let a lone an arguably unexpected benefit. The EPO no longer even attempt to apply their own guidelines. See the EPO presentations by Dr Sofia Papathoma and others. This is not a time-consuming examination task.

Chemical compound patents are granted with no described industrial utility. I recently read a very detailed IPRP written by an EPO examiner that did the inventors job for them, explaining the utility and inventiveness of the compounds. I had thought that the IPRP must have been repeating the applicant’s arguments from their written opinion response, but no, it was the examiner’s own work. They would certainly make a good patent attorney with their arguments, because the case ultimately granted. Unfortunately, the patent drafter, possibly a non-chemist scientist, hadn’t performed their role competently. Luckily they had the examiner batting for them. The examiner didn’t rush this task, however, they simply failed in their duty to make the most basic of objections.

It is most unfortunate that many of today’s examiners operate to a far lower professional standard than in previous decades.

“EPO management has created conditions in which examiners operate to a far lower professional standard than in previous decades,” said the following person. Some day in the near future we will provide more information about that. Here is the full comment:

It is most unfortunate that many of today’s examiners operate to a far lower professional standard than in previous decades.

Shouldn’t that be redrafted ???

For example:
“It is most unfortunate that today’s EPO management has created conditions in which examiners operate to a far lower professional standard than in previous decades.”

Don’t be so quick to blame the examiners.
Start by looking at Article 10 EPC.

http://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ar10.html

“No,” said another person in reply to the same thing. “Unless you are saying that PB has ordered the hiring of incompetent staff.”

What the above serves to show is somewhat of a consensus that Battistelli has been lying about patent quality, which truly fell since he took over. No doubt he will lie to his chinchillas about it in December’s meeting.

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