12.23.17

Patent Quality Nosedives at EPO, Say Insiders Whose Permanent Contract is About to be Terminated in 8 Days to Increase Pressure to Grant Patents Sparingly

Posted in Europe, Patents at 4:28 am by Dr. Roy Schestowitz

Performance-based means number of grants or “products” as Battistelli calls them

Summary: Hastened/lenient granting (e.g. PPH) and growing ‘production’ demands give greater/broader grounds for dismissal and worker pressure through fear, assuring that the EPO becomes a low-quality ‘production/assembly line’ of patents rather than a patent office (examination)

The EPO-FLIER team’s latest issue, which is now 12 days old, speaks about patent quality. It repeats a lot of arguments heard before; it has citations, too. This was published just before the meeting of the Administrative Council.

“One last message before Christmas: we’re going to grant patents even faster!”The issue has become ever more relevant in light of yesterday’s “news” from the EPO’s Web site (warning: epo.org link). One last message before Christmas: we’re going to grant patents even faster! So EPO management is, in effect, throwing to the sharks what’s left of patent quality — the very thing the EPO long took pride in. The EPO will process applications for speed, not accuracy. Terrible. It’s not just PPH but also PACE, Early Certainty etc. The writings are on the wall. Here’s what the EPO wrote yesterday: “With effect from 6 January 2018, the EPO will be extending its PPH pilot programmes with four partners around the globe, namely Canada, Israel, Mexico and Singapore, thus enabling innovators from Europe and these countries to continue obtaining patents more quickly and efficiently.”

“The reality of the matter is, Battistelli crushed the appeals and opposition process. He just wants patents to be granted quickly with minimal scrutiny, i.e. quality control.”Seriously? The words “quickly and efficiently” miss the point; what applicants want is legal certainty irrespective of speed and “efficiency” — whatever this ludicrous concept even means in the context of patents (it’s ‘production line’ terminology, just like “pay grade” or “return on investment”).

The reality of the matter is, Battistelli crushed the appeals and opposition process. He just wants patents to be granted quickly with minimal scrutiny, i.e. quality control. He wants the EPO to become INPI (France) or SIPO (China).

An article by Matthew Fletcher (Abel & Imray) was published yesterday regarding the EPO Enlarged Board’s decision G1/16. It’s increasingly hard to believe that the EPO Enlarged Board will survive long as Battistelli attacks both the Boards and the EPC (he routinely violates the EPC, not just in spirit). Fletcher wrote:

The inclusion of a disclaimer, where subject matter is carved out from the scope of a patent claim by means of a negative feature is not explicitly allowed for in the European Patent Convention (EPC). In most circumstances, the subject matter of amendments to European patent applications must be derivable from the application as filed. However, Enlarged Board decision G1/03 and G2/10 allowed disclaimers in some circumstances. G1/16 confirms that the criteria for the allowability of an undisclosed disclaimer set out in G1/03 remain applicable and it is not also necessary for the subject matter of the disclaimer to be derivable from the application as filed.

These are structural constraints; not pertaining to technicality per se. The matter of fact is — and it’s crucial to remember this — the Boards are grossly understaffed and they’re unable to look at as many cases as they ought to. This is what Battistelli et al must have intended. They just keep the Boards around to maintain the “perception” of adherence to the EPC (without any real “perception” of independence). The whole thing is catastrophic as it lets patent quality slip without the Boards having the capacity (or courage) to publicly point this out. Nobody there wishes to be the ‘next Corcoran’, who now wastes an extraordinary amount of money — probably his and his wife’s personal savings — on legal fees in two countries with proceedings in a language foreign to him (Croatian and German). It’s classic legal bullying.

“They just keep the Boards around to maintain the “perception” of adherence to the EPC (without any real “perception” of independence).”Now is a good time to reproduce the EPO-FLIER team’s latest issue, which was posted at epostaff4rights.org (No. 33) as a PDF that’s not easy to convert to HTML (we are having to do this manually using a text editor). They too worry a great deal about patent quality and supposed speed, the attack on quality control (“opposition divisions”) etc.

The final straw for patent quality?

Proposed fixed-term contracts for examiners

In its October meeting, some delegations to the Budget and Finance Committee (BFC) heavily criticised proposal CA/103/17 for a “modernisation of the employment framework” presented by the Office. It’s status was then reduced from for opinion to for information. The proposal would have allowed the Office to employ 100% of all new examiners on fixed-term contracts, starting from January 2018¹.

But the proposal is not off the table. During its last Board 28 meeting², it was agreed that a final proposal would be tabled for the March 2018 Council meeting. The revised proposal as it stands sets down that up to 40% of examiners may be employed on five-year renewable contracts. But permanent employment is a mandatory requirement for the
independence of the examining divisions (Article 18 EPC), which have already suffered many “reforms” since 2013. We must therefore warn in the strongest terms against the implementation of any “reform” which would further deteriorate the working conditions, the working atmosphere, and the independence of the examining and opposition divisions.

Impact of past “reforms” on employees’ commitment to quality

Until few years ago, examiners and formalities officers were committed to delivering high quality services, including search reports and granted patents. This attitude has more and
more given way to feelings of despair and resignation³. For many, the priority has shifted towards satisfying their line manager’s production demands in order to protect themselves from being targeted as “low performers”.

Examiners are finding it increasingly difficult, if not impossible, to comply with the still rising production demands whilst maintaining good quality. But the full adverse impact on
the quality of the EPO’s services of the past “reforms” – the new career system CA/D 10/14, the DG1/DG2 reorganisation CA/65/17⁴ and the “reform” of the internal justice system CA/D 7/17 – is yet to materialise.

Following CA/D 7/17, fast track procedures⁵ are currently being implemented which will make it rather simple to dismiss employees for professional incompetence – starting on 1

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¹ LAST NAIL IN THE COFFIN? (13.11.2017; su17019hp)
² B28/10/17 (04.12.2017)
³ DG1: Rat race 2.0 – Part I – How did we get there? What will come next? (04.12.2017; su17022hp)
⁴ See EPO-FLIER No. 30 DG1-DG2 Reorganisation (www.epostaff4rights.org)
⁵ A new body called “Joint Committee on Article 52 and 53” is in charge of dealing with professional incompetence

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January 2018. In April 2017 the Techrights blog reported ⁶ on rumours that the Office intended to dismiss a predefined number of examiners (at least 24 office-wide) in order to instill fear and drive examiners to accept and fulfil even higher production targets. PD-HR was requested to rebut the allegations swiftly, if indeed they were unfounded⁷. But there has apparently not been any reaction up to now.

Due to the excessive level of production forced out of examiners since the introduction of the new career system, examiners will soon run out of search files and will then be forced to generate their production primarily from examination⁸. It is likely that fear of dismissal for professional incompetence will drive examiners towards further lowering the quality bar for patent grants.

From 1 January 2018 on, opposition work will be increasingly done with a strong focus on “efficiency” and “timeliness”⁹. With less time given to deal with a case, members of opposition divisions are likely to examine the parties’ requests less thoroughly, with consequences for the legal certainty of their decisions. Users of the patent system should start seeing the effects in the second half of 2018. It will be interesting to see whether the parties to opposition proceedings consider poorly examined cases to constitute “efficiency”.

An independent 2016 patent survey¹⁰ found that less than half of the survey’s participants were happy with the quality of the European patent examination process. The situation has not improved since, rather the contrary¹¹.

Potential impact of planned “reform”

In the current situation, hiring examiners on fixed-term contracts is likely to be the final straw, and the examiners’ commitment to provide quality will collapse completely. This will be a road of no return.

The European Public Service Union (EPSU) expressed the following criticism on the
original proposal:

“… introducing such a comprehensive reform just before the new Director Mr. Campinos takes office smells of bad administration, and frankly of cynicism. It makes the work of Mr. Campinos more difficult to have a proper social dialogue almost setting him up for failure.”¹²

We at the Flier Team fully agree with that statement.

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⁶ http://techrights.org/2017/04/21/wrong-patents-in-bulk/
⁷ Letter from SUEPO The Hague to Ms Bergot on Alleged HR dismissal policies for EPO examiners (17.05.2017)
⁸ Open letter from the CSC to the president (08.11.2017; sc17172cl)
⁹ Opposition & Central Formalities Directorates; VP1 announcement (06.12.2017) and slideshow (05. & 06.10.2017)
¹⁰ Conducted by the well-respected German legal magazine JUVE (https://suepo.org/public/ex17003cpe.pdf)
¹¹ EPO – All Problems Solved? (http://patentblog.kluweriplaw.com/2017/10/16/epo-all-problems-solved/)
¹² Letter on Employment Framework at EPO (https://www.suepo.org/documents/44455/56843.pdf)

www.epostaff4rights.org

It’s worth noting that the EPO closed the year with the above statement about rushed examination. This is a hallmark of Battistelli’s regime. When we leaked details about PACE a little over 2 years ago the EPO went ballistic and threatened to sue. These leaks demonostrated quite clearly that the EPO was discriminating against SMEs. Nowadays (even as recently as yesterday) the EPO writes every single day some tweets with the hashtag #IPforSMEs, probably in an effort to obscure the fact EPO hates/harms SMEs. The basic idea is, if people attempt to find any information related to this, all that will turn up in search engines is EPO puff pieces or ‘studies’.

“It’s like workers of the EPO not only lack human rights but also labour rights.”Also don’t lose sight of the EPO’s very latest (or last) tweets. One says: “Please note that all our offices will be closed over the holiday period from 23 Dec 2017 & will open again on 2 Jan 2018.”

6 working days off is ridiculously low. Most companies give twice as much! The EPO then tweeted: “Happy holidays & warm wishes for 2018 from all of us at the European Patent Office!”

“Happy holidays” after the EPO canceled three holidays. It’s like workers of the EPO not only lack human rights but also labour rights. And who can they complain to? The EPO certainly continues to demonstrate that it’s above the law and beyond any form of accountability. █

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