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04.13.17

Awful Quality of EPO-Granted European Patents (EPs) Becomes a Mainstream Topic

Posted in Europe, Patents at 11:20 am by Dr. Roy Schestowitz

The mainstream media is finally talking about it

EPO patent quality declining

Summary: The sharp decline in quality of EPs is being noticed by EPO insiders, EPO stakeholders (attorneys, applicants etc.) and even the media, which tells the wider public about it

TECHRIGHTS has already spent years writing about declining quality of patents granted by the EPO, usually but not always based on words from the inside (insiders do express great concern about it, only to face threatening words from Team Battistelli if they do so publicly rather than privately).

As recently became apparent, outsiders too are noticing and Thorsten Bausch (Hoffmann Eitle) did a whole series about it. Not only he is complaining; watch the comments on his posts (mostly from other patent practitioners) and recall this recent poll from Juve, which showed that patent practitioners are getting fed up with the EPO. So do their clients. In other words, nobody at all seems to be happy and nobody is gaining from this. Maybe some patent trolls overseas are already licking their lips over the potential to sue a lot of European businesses they previously could not sue. Look what happens in Germany, which is quickly morphing into a hub for patent trolls. At whose expense would they gain if the UPC became a reality in Germany? Has Germany learned nothing from the errors of the USPTO?

“Usually the more you speak about something,” someone wrote today. “the less you practice it. Let’s us try with Quality at EPO, article over 2 pages…”

This refers to this morning’s article from The Register, which is based on our posts and posts from Thorsten Bausch. To quote the opening portion alone (it’s a long article):

When he’s not ignoring national laws and threatening employees, the president of the European Patent Office (EPO), Benoit Battistelli, is on a crusade to make things work faster.

Against an ever-more unhappy background of EPO staff and patent examiners, Battistelli has for several years put forward the same defence: he is making things run more efficiently.

Last month, as some countries called for his ousting, Battistelli presented figures and later gave a press conference focused on one thing: the EPO has granted more patents faster than ever before. And it has done so, he claims, with rising quality.

“The first of these is a key result,” he wrote in a subsequent blog post. “The number of patents granted has risen by 40 per cent, with the total reaching 96,000. It indicated that we’re processing more patents, more efficiently and with the minimum of delay. This achievement is not because there has been a significant rise in the granting rate. It is the result of the consistent application of a quality and efficiency policy and the reforms that we have made.”

A very similar philosophical thread was pushed by Battistelli last year as well. That time it was a pre-occupation with “early certainty” – which means an early indication to someone applying for a patent whether they are likely to have it approved or not.

Battistelli pushed the exact same points: greater speed while retaining quality. This is his overarching vision and the justification behind his campaign of intimidation against staff, as well as his rewriting of the rules of every part of the EPO that has resisted – even for a second – his reform ideas.

As usual, nobody disagrees with the author in the comments. The first comment says:

How long can it be before Battistelli’s Reality Distortion Field finally gives up on him?

The sooner the better I say….

“What makes you think He’ll relinquish his position in 2018,” one person asked about Battistelli. “The way he’s re-writing the the organisations remit, I wouldn’t be surprised if the necessary ‘hooks’ were already in place to ensure permanent control.”

We wrote quite a lot about that lately.

“A cynic might question whether this is partly because there’s less time to bill hours,” another person said. “It would be interesting to see whether, despite being busier, lawyers are billing less time against each patent.”

The situation may be good for Team UPC, which is now pushing Battistelli’s agenda, including at IP Kat sometimes. These are people who would profit if there was chaotic patent litigation all across Europe. They don’t care at whose expense…

“No doubt some companies like long processing times (likely phrarma who patent a lot),” said another person. “I seriously doubt most small companies do though: the last patent I got through took five years! What odds your company’s inventor works for you anymore by the time you know if spending R&D for v2.0 is financially viable?”

Another wrote: “Would somebody like to tell the US Patent Office? Where the practice is that not even a superficial examination is performed with just a rubber stamping and adding to statistics to prove how innovative US business are. All that then happens is that patent validity is considered “somebody else’s problem”, much to the delight of the US legal system.”

Actually, the EPO has sunk below the quality of the USPTO in many ways. Patents that the USPTO is denying are now being welcomed by the EPO. The EPO is trying to outSIPO SIPO or simply become another SIPO. It would be highly destructive if it was allowed to go on.

“I can’t wait for the EPO to become a proper EU institution like so many others,” wrote another person. “Answerable to normal procedures (and ultimately to Parliament), normal laws, normal operating frameworks that can be amended if needed and people that can be fired if they don’t perform. These fiefdoms don’t benefit innovation.”

The way things are going, there might soon be no EPO left. UPC is an EU thing (hence Britain cannot participate) and EU-IPO seems to be getting close enough to the EPO to make a merger feasible.

Here is a comment relating to a subject we covered earlier this week:

“From 54 per cent unhappiness to 7.7 per cent by, um, deciding that everyone that didn’t answer failed to do so because they were 100 per cent happy with the EPO.”

And even then it doesn’t really help their case. 7.7% isn’t “close” to 4%, it’s close to double that number. Even after all those contortions, they still end up claiming that their policies have resulted in a 100% increase in unhappiness among their customers. That’s well past the point where a normal business would be asking serious questions about what’s gone so horribly wrong, and even if they try to spin it to not look so bad to the outside world they certainly wouldn’t be crowing about it in internal communications. I’ve mainly viewed Battistelli as your run-of-the-mill power-mad dictator, but it’s seeming more and more as though the entire management team has completely lost contact with reality. We’ve gone from regular Soviet-style propaganda to all out “Kim-Jong Benoit was born on a unicorn and invented rainbows”.

A suitable/apt response to that was:

As the old saying goes – Lies, damn lies and statistics.

If you take the figures in the story and change the spin to the opposite direction:

14.28% response rate because every one else is unhappy but don’t see any benefit in responding either because it will impact on any future applications, or because they think it won’t make a difference. This means 144 non-respondents with the 13 who did and weren’t happy is 157 of the 168 sample.

Or tp put it another way 93.45% of are unhappy. As is often the case with these things the actual figure will be somewhere between but just as a purely speculative number for take it half of non-respondents were happy and half weren’t. The satisfaction rate would then be 72 no response plus 13 who did = 85 of 168 = 50.59%

Seems to me that is still a much bigger unhappiness level than there was.

None of this would be complete with some quotes from concerned patent practitioners. One of them focused merely on the pace of granting rather than the quality. It’s about a controversial pilot programme we leaked in 2015, whereupon (after a huge amount of negative publicity) the EPO made it available to everyone and changed history (revisionism). To quote:

I fully understand and approve the comment.
One size fits all is not what applicants/user of the EP system need.
The present rush for quick grant (of easy files) is nothing else than applying the PACE procedure indistinctly.
The number of PACE application, has been, beside certain applicants, never been very high in the past. The reasons are obvious: it is when the validation start that it becomes expensive for the applicant/proprietor.
Why then get a patent quickly? There are no reasons to get a patent as quickly as possible for an applicant, unless specific reasons are present.
The only parties interesting in a quick grant are actually the member states. After grant, the annual fee go to the member states, and only 50% of the annual fees are for the EPO. Before grant, if grant takes more than 3 years, 100% of the annual fee goes to the EPO, and 0% to the member states.
How to get a “positive” vote from member states? Simply allow them to cash in very rapidly annual fees, or to “enhance” cooperation, in other send money from the EPO to the member states (or certain member states which are “worth it “.
Then one should not wonder why certain decisions are issued by the Administrative Council of the EPO. Tactically very clever.
The question is thus: is the primary aim of the EPO or the EPC to help member states or to help the users of the EPO/EPC system?
I think the answer is pretty obvious…..

Another person from that profession wrote:

Thorsten it is my understanding that the “early certainty” from search was intended for the public as much as the Applicant. I mean, when you review emerging A (and WO) publications, you want to do a clearance study. For that you need the prior art. Ideal then would be an A publication, supplemented by a perfect search report and perfect analysis of the adverse effects on patentability, and a law on “added matter” that excludes any improvement in Applicant’s position after filing. That’s as close to a “certain” clearance as you can reasonably get.

After that, it doesn’t matter so much to the public, if Applicant has divisionals pending till the end of the 20 year term, or if nothing at all issues till near the end of the 20 year patent term.

Is the EPO to be commended then, for giving more deference, these days, to the needs of the public, the same degree of deference in fact, as it gives to the needs of the Applicant community?

The original author, Thorsten Bausch, then wrote:

I am not sure whether the EPO management introduced this program in order to satisfy a heretofore unmet need of the public for earlier certainty, which I personally fail to recognize. Other motives suggested by some of the responders appear to me much more plausible. Add to this the quantity-quality fallacy, i.e. the wrong (in my view) belief that high production numbers are always good and a sign of efficient management. In the end, however, it is quality that matters.

The programme was actually introduced secretly and made available only to few large corporations after Microsoft had asked for it. So it was actually designed with large patent bullies in mind. Not even European companies…

Defending Bausch, another person wrote:

The problem is not to obtain as quickly as reasonably possible a search result and an opinion about the patentability of the claimed invention.

There is nothing to say against this, provided the search is carried out seriously and the opinion is not a collection of standard phrases, which looks like an evaluation, but is often not an evaluation of the true value of the invention.

What the problem is, is the idea of the top management of the EPO to grant an application as quickly as it thinks that it is needed by the applicant.

This is what is criticised, and rightly so, by Mr Bausch. The only beneficiaries of this hurry are the member states, and not necessarily the applicants.

The following comment said “this does not justify the rush to patent everything within 12 months after a shoddy search and a meaningless examination.”

As an applicant I want to keep my options open as long as possible, but as third party, I want to have as early as possible certainty on what I might face.

It appears quite difficult to reconcile both points of view, but this does not justify the rush to patent everything within 12 months after a shoddy search and a meaningless examination.

Early certainty yes, but at reasonable cost and in a way that my patent does not risk being pulled apart at the first occasion, or that the patents of my competitors are so bad, that I cannot decide what they cover.

As things develop presently, we are rather in the position of having early certainty in everything meaning early certainty of nothing…

The last comment about this alluded to Battistelli and “his macho instincts, willy-waving at the Americans. Anything you can do, France can do better.” Here is the comment:

OK. I see in your Part II the “early certainty” mantra extension, from mere “search” now to “examination” and “opposition”. I regret to say that I think it is another manifestation of BB indulging his macho instincts, willy-waving at the Americans. Anything you can do, France can do better.

But I stand by my original point, that not only Applicant but also the patent owner’s competitor would like to have “early certainty” to be delivered by the EPO.

Years ago we hoped that examiners and stakeholders alike would start a debate about the declining quality of patents granted by the EPO. Today, the subject is finally in the mainstream media (Britain’s biggest technology site) and people in Team UPC-affiliated blogs are equally concerned. They must be aware that the EPO’s declining reputation is a threat to their project (and Battistelli’s project), the UPC. That’s now how they foresaw this so-called ‘reform’ (more like a coup in practice).

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