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04.16.17

EPO Patent Quality and Quality of Service Have Become a Disaster, Say EPO Stakeholders

Posted in Europe, Patents at 11:31 am by Dr. Roy Schestowitz

“The situation is unfortunately getting out of control at the EPO.”Anonymous

A fiery texture

Summary: Stakeholders of the EPO, in various sites that attract them, are complaining about the service of the EPO, the declining quality of patents (and the rushed processes), including the fact that Battistelli’s blind obsession with so-called ‘production’ dooms the already-up-in-flames EPO and makes it uncompetitive

Thorsten Bausch is a brave man who will likely be reviled by Team Battistelli for saying the truth about the EPO. Typically, EPO stakeholders only speak anonymously about the EPO (for instance revealing that 0% of them support Battistelli).

The USPTO is probably looking at this as an opportunity these days. What has happened to the EPO as world leader? The EPO grants patents on just about anything (even things that the USPTO rejects as a matter of principle/law), and it’s granting such patents fast. It’s madness. It’s like 'SIPO Europe'. Except in SIPO there is an actual demand for patents (a million or more applications last year), whereas in the EPO the number of applications is declining. The other day we caught this new press release that brags about an EP by saying: “With the grant by the EPO the Company can now validate the patent in the 38 countries that are Member States of the European Patent Organisation. This is a procedural step, which includes filing some paperwork and paying a validation fee, but no further review is required. The Company will validate the patent in countries based on the size of the market opportunity that exists in each country.”

But how potent is this patent really? As we have shown here before, many EPs are now bunk. They’re worse than worthless because if one sues with such patents there will be nothing except legal bills. Is this a good thing for patent law firms? Potentially, but only up to a point. The thing is, they too recognise that people are walking away from this system, which would mean less business for them.

Looking at part two of the series from Bausch, here is a comment from “LC” which says: “I fully agree with the author [Bausch]. In addition, the dramatic and unexpected increase of grants puts a pressure on the budgets : more validation costs, more oppositions to file. Regrarding oppositions, not only the number of patents gets higher, but as their quality is lower, the proportion of patents to oppose will also increase.”

This is no good!

Magnus Stiebe wrote: “I totally agree with Dr. Bausch. We have internally discussed not only problems with early and unnecessary summons to oral proceedings, but especially the decreasing quality of search reports and search opinions: often no attention at all is paid to the dependent claims, which are sweepingly declared to refer to minor design issues, even when this is clearly not the case. Even the independent claims are sometimes dealt with in an apparently careless manner.

“I once had a boss who did not want to spend more resources on the patent department and who tried to solve backlog problems by declaring that priority should be given to certain tasks. At the end of the day all tasks had to be handled with priority. Not very surprisingly, this had an impact on quality.”

In relation to “a possible return to national filings,” Stiebe later added, “me and most of my colleagues (based in Spain) have traditionally preferred the EPO for first filings, at least in part due to the value of the search report and, to a substantial extent, the search opinion, including the examiners’ views on issues like clarity and inventive step. However, lately we have started considering using the Spanish PTO as an option for the first filing. We actually think that at present the Spanish PTO may provide equally good or even better search results.”

See what is happening? The “Spanish PTO may provide equally good or even better search results” than the EPO, at a far lower cost!

Benjamin Quest wrote: “I consent to that. None of my clients desire a force-closure of the examination proceedings within 12 months. Those who are interested in swift examination proceedings waive their right to receive a Communication under Rule 161 or 70 EPC, file PACE requests and provide quick instructions to Examination reports. None of the PACE proceedings that I’m in charge of leave anything in demand with respect to the speed of the proceedings.

“In my daily practice I also observe an erosion of the quality of examination as well as a rise in prematurely issued Summons to Attend Oral Proceedings. Sometimes this results in a hectic series of informal interviews in order to just settle the case (or the remnants of it) for now and the subsequent filing of a divisional application. In fact, divisional applications are about to become the only recourse for applicants to ease this situation. Filing (a series of) divisional applications, however, is a pretty expensive strategy. This leads to the situation that the “early certainty” strategy of the EPO in examination proceedings discriminates applicants that are SMEs, universities and private applicants.

“Hence, speeding up examination proceedings just for the sake of bragging with production figures fixes a problem that nobody has.”

The original author, Thorsten Bausch, responded with: “Thank you. And if you consider the most recent statistics of the EPO that just came out and show that 40% more patents were granted last year than in the year 2015, this will give us a feeling about the order of magnitude of the problem…”

As some then rightly pointed out, examiners are “caught in a system which has degraded them to chain workers.” It’s a very long comment and we have decided to reproduce it in full as it’s copyrighted by an anonymous author:

The idea of early certainty for search is, as such, not bad. It is important for an applicant to receive a good search report as soon as practicably possible, accompanied by an equally good opinion on patentability. But a thorough examination is as important and not just a useless play with words.

Reality shows that in lots of cases the search is done in a very slovenly way, and any reason to stop the search is a good reason. For instance finding an X document means in general that the search is stopped very early. When the independent claim is not patentable, then none of the dependent claims are. Why then bother with the latter and give a full view on all the claims?

Even if later it turns out to grant, the clarity of the dependent claims is simply forgotten, with all dire consequences in opposition. Why do you think that in G 3/14 the President has considered it necessary to have clarity examined for every patent opposed? Simply to try to weed out for opposed patents the blunders made during examination.

In one case, the search examiner has cited as an X document a publication of the inventors. The problem is simply that the document was published, for good reasons, after filing! Unbelievable, but true. This is certainly not what it should be. You can guess that the corresponding opinion was of the same quality. It might look prima facie as a single incident, but it is simply exemplary of what happens now on a large scale.

Just watch out if the documents cited on the search report are not family members of the documents having been found during other searches, the result of which has to be communicated to the EPO. It is an old trick, but it works.

I am not entirely blaming the examiners, as they are caught in a system which has degraded them to chain workers. The machine is simply getting mad, and if any examiner does not want to be left behind, meaning that he will get no bonus, or even will be considered incompetent, he has to follow the system. They have nevertheless for a vast majority accepted the system.

Summons to oral proceedings are merely used to twist the arm of the applicant or its representative. If you do not come to oral proceedings, then your application will be refused, and then you can only continue by filing an appeal. The costs are for you, and we do not care about this point.

If the Board of Appeal is of another opinion, he will in general remit the case back, either with the order to grant or to continue proceedings. If a case comes back from the Boards of Appeal, unless it is to merely adapt the description to the claims, the counter is reset and the examiner receives the full allocation of points for a final action (grant or refusal) when he has been ordered to continue the procedure. This is valid even if the examining division has committed a substantial procedural violation! Hence the production can be increased again, not only for the single examiner, but also for the directorate. The director will thus not complain at all.

The idea of early certainty of search and examination has sprung in the minds of the top management of DG1, and has been fully endorsed by the President. It is all benefit for him: the production looks good, and since grant has occurred, the validation states are happy as well, as money flows as early as possible to them and not to the EPO. May be an increase in the procedural fees will have to be decided if hardly any direct revenue from renewal fees comes to the EPO?

There is one question to be asked: who are the users who have stressed that it is a priority for them [to obtain a quick grant] and, as such, timeliness is a priority for the EPO? One could accept it, if the quality would be there, but alas, this is not any longer the case.

Beside the meaningless quality marker under ISO 9000 which is regularly trumpeted to be excellent, the EPO should publish the real quality statistics which are set up by the audit department. The figure will probably look quite different, hence a reason why they are well kept secret.

The tragedy is that SMEs are the direct victims of such a system. Either they get applications refused for flimsy reasons, and often cannot afford to appeal. They may also get patents which are hardly enforceable, as not correctly examined, or they are confronted with patents which are so broad that any attack can bring them on the brink of collapse. We are always told that the EP and UP (so far as it will materialise) systems are good for the SMEs, especially European ones. The contrary is true, as the examiner has no time to consider the application as he should do. I am not pleading that an examiner should give more time to an application coming from an SME, but what is happening now, is directly detrimental to SMEs.

PACEing every single application is against the needs of the users, but they are there to pay and shut up.

It is high time that the profession says something, and does not continue to look at the disaster without reacting. It is good that Mr Bausch has taken up the issue. It might be difficult in the long run to get applicants to pay for such a mediocre quality, and one might see in a long run a return to national filings, especially if the number of states in which a validation is envisaged is small. Then good by EPC and UPC.

The problem is that certainty of everything is ending in certainty of nothing, but the production figures are excellent. It just depends under which point of view one looks at them.

“The situation is unfortunately getting out of control at the EPO,” said the following comment, crediting Bausch for the courageous ‘coming out’ with this issue:

Thank you so much for your support.
The situation is unfortunately getting out of control at the EPO.
Management is coming up everyday with new ideas to speed up grant. For example, I hope you are fully aware that from 1.12.2016 also a phone call from us may be considered as first action in examinination (ppn12/2016). This means that we can summon oral proceedings after you get our minutes for the telephone conversation.
We cannot stop this alone. Please help us to put an end at it.
Thank you

The final comment said that the EPO isn’t as transparent as it likes to claim. This alluded mostly to technical parts of the procedure undertaken by law firms:

It was a long standing policy decision that the first action of an examining division could not be a phone conversation. it is only in case of possible grant that small formal amendments should be introduced at the R 71(3) stage, but they had to be discussed with the applicant before sending the R 71(3) communication. Another form of twisting the applicant’s arm…..

The problem with minutes of telephone conversations is that in the vast majority of the files they are not a true account of what was discussed, but give only the result of the discussion. This makes it difficult for third parties to understand why an examining division comes to grant. It does not seem that this slapdash way of minuting has improved, and looking at files, it has rather gone worse.

The reasons why a decision to grant has been taken are as such not public. It must however be clear from the evolution of the file what lead to grant. When there are only sweeping statements about dependent claims, it is easy for an applicant to say that they were not justified and then the applicant combines the original independent claim with a dependent, and then a grant follows. For what reason? God knows.

If the EPO claims to be transparent, a first action might be to publish the reasons why an examining division decides a grant, not only the page containing the signatures of the members of the examining division (page 4 of Form 2035) but also the reasons why the examining division considers that a patent can be granted (page 1 and 2 of Form 2035). Why is the public only informed of the reasons why an application has been refused? It should also be aware of the reasons having led to grant.

In spite of IP Kat‘s decision to no longer criticise the EPO, comments there too are mostly dissenting and dissatisfied. At the early days of this month someone wrote: “Ravi Srinivasan (J A Kemp) was up next, with a fascinating insight from a patent attorney perspective as to why a system has arisen which facilitates cascading divisionals – potentially for the duration of the patent. Ravi noted that the particular problems presented by the Fujifilm v AbbVie case are specific to the EPO, and do not apply to the UK IPO. Although the UK IPO allows patentees to file cascading divisionals, all applications are time limited (4 years and 6 months from priority date of parent patent to grant – see s20(1) of Patents Act 1977 and rule 30 of Patent Rules). In Ravi’s experience, the UK IPO works exceptionally hard to get its work done within these deadlines. Ravi noted that some other jurisdictions do not allow the filing of divisionals at all.”

If patents at the EPO (EPs) and service of the EPO cannot even compete with the Spanish, how can they even compete with the UK-IPO, which is pretty decent?

Here is a remark on associated costs:

“the sliding scale of EUR 210 (for a divisional filed within 2 years) to EUR850 (for a divisional filed at 5 years +) is hardly an effective sanction.”

This statement is not in line with the RRFE of the EPO. In fact, it is not the time the divisional application is filed but its generation (divisional of divisional) which determines the applicable official fee.

It has since been corrected:

Anonymous at 17.10 – thank you for this. I have checked the position and you are absolutely spot on (my misunderstanding as a solicitor, not being familiar with the detail of EPO practice). Corrected above, with a note to the source.

More about fees:

In my experience, mechanical engineering cases, what does deter those new to the notion of cascading divisionals at the EPO is the accumulated annuity fee payment on filing, especially if the new div is going to be filed relatively late on in the 20 year base term. They find it outrageous of the EPO. They are somewhat mollified when I point out how much annuities cost, after the EPO grants a patent. Wouldn’t you rather keep all your cases pending at the EPO, I ask them, at least until you sniff infringement on the horizon?

The EPO is often accused of keeping cases pending forever, in order to bump up its own annuity “take”. But isn’t it the Applicant community (its customer base) that the EPO is doing its best to serve, when it is routinely tardy in granting cases?

And the conversation about fees went on:

It is not just the filing fee, you also have to pay all the accumulated renewal fees that were paid on the original parent application. My understanding is that a divisional is a completely independent patent, and so you cannot rely on the date of publication of the parent when it comes to seeking damages for infringement: you can only rely on the date of publication of the divisional itself.

“I know of a case kept pending at the EPO for 25 years,” another person added, “just in case an SPC was needed.”

The bottom line is, how can the EPO expect to remain competitive and attract applications when it does the job in a rush and still charges so much money? The matter of fact is, Battistelli is killing the EPO and stakeholders very easily recognise that. It’s obvious. This will mean many layoffs.

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