04.06.17

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Thorsten Bausch (Hoffmann Eitle) Bemoans Declining Quality (Service and Patents) at the European Patent Office

Posted in Europe, Patents at 6:09 am by Dr. Roy Schestowitz

Thorsten Bausch (Hoffmann Eitle)

Summary: Some courageous stakeholders are willing to say the truth about what the EPO has turned into, even without a cloak of anonymity (for fear of retribution)

RECENTLY, Benoît Battistelli met Michelle Lee and then spread the lie of “higher quality patent procedures”, shortly after we had criticised the EPO preparing photo ops (sometimes the EPO publishes things just to distract from Techrights, e.g. [1, 2]).

“Think prosecution. Think litigation. Battistelli makes it easier to sue companies in Europe and issue injunctions against more of them (in several countries) in one fell swoop.”A rebuttal to the latest nonsense from Benoît Battistelli is necessary because the EPO is just dripping lies. It’s embarrassing. The EPO now promotes this ‘blog’ post Battistelli, which ends with (warning: epo.org link): “I would like to take this opportunity to thank Under Secretary of Commerce and USPTO Director Michelle Lee, Commissioner Komiya of the JPO and the industry representatives for their engagement in supporting this important process. Following this Trilateral session, it is clear that we can look ahead with confidence to the upcoming IP5 meeting in May, where we will deepen our harmonisation efforts with our colleagues from China and South Korea.”

What he means by “harmonisation” (similar to the language used to promote the UPC well before it was known as “UPC”) is not what people typically assume. We wrote about this in great length more than half a decade ago. We provided extensive proof — at times citing material from Wikileaks as evidence — just over half a decade ago. Think prosecution. Think litigation. Battistelli makes it easier to sue companies in Europe and issue injunctions against more of them (in several countries) in one fell swoop. He is swapping quality examination with maximal sanctions. It’s a nightmare for innovation and also for trade. It’s everything that the patent system was not supposed to be for. But let’s leave aside UPC for a moment, as we intend to deal with it separately later today.

“Anyone who still thinks that the EPO is a world leader in patent quality is clearly not paying attention, relying on past (outdated) truisms instead.”What we are seeing these days at the EPO is a rapid transition; it’s a transition away from quality examination and into patent maximalism. See this new press release for example (turned up this morning). Not only does the EPO grant controversial patents on cancer but it also grants a patent before JPO, SIPO and the USPTO do (because EPO quality control does not really matter anymore). To quote the press release: “In addition to Europe, Cantargia has submitted patent applications for CAN04 in several other territories, including the United States, Japan and China.”

But it certainly seems like the EPO was the first to grant, just like it recently granted patents on life (which the USPTO objected to as a matter of principle).

“Thorsten Bausch, an attorney from the firm Hoffmann Eitle, is a brave man.”Anyone who still thinks that the EPO is a world leader in patent quality is clearly not paying attention, relying on past (outdated) truisms instead. In one year alone the number of granted patent is claimed to have skyrocketed/gone up by 40% (while demand decreased). What does that tell us? What do these leaked EPO E-mails teach us? There is poor quality of service and patents from the EPO and the EPO keeps lying about that in an effort to hide and discourage discussion about it. If the staff speaks about, watch or recall what happens.

Thorsten Bausch, an attorney from the firm Hoffmann Eitle, is a brave man. Using his real name (not a pseudonym like “Merpel”) he has begun a series diplomatically criticising the EPO’s policies on technical grounds. His opening part states:

…is everything now in order with the EPO’s speed of handling cases? I am afraid not. The latest initiatives by EPO management seem to be focused on working on a problem (“early certainty” in examination) that most applicants do not really have, while not doing much, if anything, about the EPO’s real problem: the extremely slow speed of appeal proceedings.

Examiners too are complaining about “early certainty”; they don’t like it. Neither do we and we have repeatedly explained the dangers of issuing any judgment at all before facts are known because it biases the outcome (attempting to support a premature conclusion). In part 2, Bausch went into specifics: (we have added emphasis)

In my personal opinion, receiving an early and well-reasoned search report is, indeed, of great value for many users of the EPO. However, as concerns the examination stage, there are practical consequences of the President’s program, which may, in fact, be highly undesirable and will not be liked by applicants and their representatives.

First and foremost, it is my impression that the pressure exerted by the “Early Certainty” program on the work output of examiners has considerably increased. Perhaps unsurprisingly, several colleagues of mine have started to observe that the quality of the reasoning and the depth of analysis of official communications at least in some technical areas has been declining to a noticeable degree. This is exactly what should not happen. Superficial examination, whatever its outcome may be, helps no one.

Additionally, we are currently experiencing a significant surge in summons to oral proceedings by examining divisions in some technical areas. Some of my colleagues have received the same number of summons by examining divisions in the last half year that they had received in the previous ten years. And not only the frequency of summons is without precedence, but also the stage of the procedure at which summons are issued. Of nine summons received by one of my colleagues for oral hearings before examining divisions this year, five were issued after a single (!) examination report under Art. 94(3) EPC. Such early summons, on such a broad scale, are unheard of and certainly not welcomed by applicants.

Fortunately, this new practice has not been implemented with the same rigorousness in all technical fields (“clusters” in EPO speak). And it should not (principiis obsta)! This is because such a change in practice would have quite dramatic consequences for applicants and their European representatives, particularly if it is implemented all of a sudden rather than gradually over some years.

[...]

Conclusion

In summary, I am afraid that the “early certainty” program in examination proceedings, at least if implemented as described above, i.e. if it results in a significant increase in the number of oral proceedings at an early stage of the examination proceedings, will – needlessly – have quite significant negative consequences for most applicants. In my view, there is no need to introduce such an “early certainty” program in examination proceedings at all, provided that the EPO continues its previous practice to accelerate examination proceedings when so requested by the applicant (via a PACE request) or a third party (via observations under Art 115 EPC).

This would also give the examiners the necessary leeway and resources to speed up those (usually more important) cases where an actual dispute needs to be quickly resolved, i.e. contentious examination proceedings and opposition proceedings.

“Knowing patterns of Battistelli’s character, all he might do now is punish the stakeholders (particular firms/people if not collective punishment) — just what he allegedly did to the French in retaliation for political complaints.”The EPO under Battistelli is in a state of collapse and 'only' 0% of stakeholders (like Bausch) tolerate him. What should the EPO’s Council or Board conclude from all this? Knowing patterns of Battistelli’s character, all he might do now is punish the stakeholders (particular firms/people if not collective punishment) — just what he allegedly did to the French in retaliation for political complaints. The man acts as though he is clinically insane. As one person recently put it, “this man should not have been in charge of anything more involved than a hamster cage (without the hamster, because that would have been animal cruelty)…”

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