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03.11.17

Higher Patent Quality Guarded Even Under the Trump Administration While the EPO Goes the Other Way

Posted in America, Europe, Patents at 6:36 pm by Dr. Roy Schestowitz

Patents by the bucketloads at EPO*, devaluing all European patents (past and present)

Empty bucket

Summary: The European Patent Office (EPO) keeps kicking the bucket, whereas the US patent system seems to be taking its old place, owing to more pedantic management that comprehends patent quality and its effect on patent trolls

THE EPO is all bad news these days, but the US patent system is exactly the opposite. We were delighted to learn today, based on this post published just after midnight, that “Michelle K. Lee is the Director of the United States Patent and Trademark Office” (i.e. she officially managed to keep her job under Trump, contrary to malicious rumours).

Regular readers of ours probably already know how she was personally attacked, heckled, falsely ‘scandalised’, subjected to a witch-hunt and even whispering campaigns (with fake news to that effect). She survived and endured all that. “I still do not sufficiently understand DC politics,” Patently-O remarked, “to grasp why the Dir. Lee’s position was not public for the past 50+ days, but I am glad that we may now return to some semblance of normalcy in relations between the USPTO and the public.”

“It’s a symptom of a real problem; many illegitimate patents are still lodged inside the belly of the Office, presumed valid unless or until proven otherwise.”We recently wrote about a dozen posts defending Michelle Lee, who had done a good job getting patent quality under control. We recently wrote about that notorious IBM patent on "out-of-office electronic mail messaging system” (covered before were even worse examples than that). It’s a symptom of a real problem; many illegitimate patents are still lodged inside the belly of the Office, presumed valid unless or until proven otherwise. Just a short while ago yet another site wrote about this IBM patent, noting that “In January 2017 the United States Patent Office granted a patent application lodged seven years previously by IBM for an Out-of-Office email notification system. Seven weeks later IBM formally disclaimed the patent. What does this say about software patents?”

What does that say about IBM’s widely-celebrated patents? What does that say about quality control among patent examiners in 2017, three years after Alice? Was this an accident, oversight, negligence, or simply an attempt to fill up quotas?

Earlier today in IP Kat someone commented on Merpel’s last post (regarding the EPO) and noted that “EPO used to work like a machine producing reliable and high-quality patents…”

Now, however (as Battistelli kills the EPO by opening the patent floodgates), “[d]epending on the examiner, I simply get a patent that should never have been granted” (like the USPTO a decade ago). See? Even stakeholders realise that it’s harmful to them and it’s hardly shocking that Battistelli’s approval rating among stakeholders sank to 0% (it does not get any lower than this). To quote the comment in its entirety:

Merpel, you really have done an excellent job. Many thanks for your dedication!

I had always great respect for the patent examiners working at the EPO. They produced detailed search reports. The correspondence with them during the examination phase showed profound technical know-how and a broad domain knowledge. I felt treated fairly in the procedures as well as in oral proceedings. The EPO used to work like a machine producing reliable and high-quality patents, no matter who was the primary examiner and no matter whether I was co-operative or not.

This has changed. Examiners told me that they mainly rely on the output of computer-generated overviews of the prior art now. Sometimes a simple search in Google produces better results than an EPO search report costing 1,875 euro. Furthermore, examiners now try to charge applicants for non-unity based on dubious reasons. I have received so many quasi-empty letters from examiners. It is obvious that they do not spend enough time anymore to get things right. Depending on the examiner, I simply get a patent that should never have been granted, or I have to deal with procedural traps into which they try to entice me.

I understand that the examiners have moved to this working practice because Battistelli introduced Rank and Yank. Last year, the EPO granted 90,000 patents, which is 50% more than in the years before. The examiners increased their production by 50% just to compete with their colleagues for a salary increase of about 2,000 euro per year, which only half of the examiners are entitled to receive.

I am sorry, but I have lost all my respect for the patent examiners in the EPO. They might be excellent scientists or engineers. But falling into this well-known trap shows that they are dumb, irresponsible, and greedy. The annual salary of a patent examiner is about 100,000 euro (tax-free). Battistelli managed to lure them with a bonus of 2,000 euro for every second examiner and achieved a performance increase of 50%.

But it is even worse. A judge remains in limbo, union officials have been fired, the appeal court will be moved to the outskirts of Munich. And the staff in the EPO remains silent. Poor people! They get what they deserve. “Even if you win the rat race, you are still a rat.”

The above stakeholder ought to take a look at this leak. It’s probably even worse than he or she imagines.
_________
* Covered here in five:

  1. EPO Record Low on Quality of European Patents (EPs) in 2016
  2. The European Patent Office is Wasting Its Already Limited Budget on Misleading Press Releases/Paid-for Coverage That Overlook Sharp Decline in Patent Quality
  3. Latest EPO ‘Results’ Should be Grounds for Immediate Dismissal of Battistelli Rather Than Celebrations
  4. ‘Evil Tongues’ Inside and Outside the EPO Explain Why Battistelli’s 2016 ‘Results’ Are Bad While the Media Mindlessly Repeats EPO Management’s Talking Points
  5. The EPO is Lying About Patent Quality in Its Official Web Site
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