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01.09.18

For European Patents to Maintain Value the EPO Must Fix Patent Quality and Attract ‘Expensive’ (High-Calibre) Staff

Posted in America, Europe, Patents at 1:06 am by Dr. Roy Schestowitz

Quality of European Patents is Declining (and With it Patent Justice) While the World is Noticing

Quality Metrics
Reference: Quality Metrics

Summary: After the Battistelli-induced exodus of experienced examiners we continually observe concerns that patents granted by the EPO (EPs) have lost their value and the perception of patent justice is deeply damaged

AS a European and as a software professional, I profoundly worry about the fate of the EPO. We need a strong EPO and strong staff. We don’t need an ‘assembly line’ of patents. But the ‘cheapening’ of the EPO, leading to the exodus of highly-specialised professionals, poses a real threat. Recruitment standards have fallen and working conditions deteriorated beyond belief. The EPO rapidly becomes like a Chinese colony inside Bavaria.

“The Boards of Appeal have historically been responsible for upholding/preserving patent quality and assessing conformity with respect to the EPC.”At the moment, the EPO ought to hire for the Boards of Appeal (BoA), but in practice it is driving out existing staff and engaging in legal bullying, demotions, etc. It ought fix the lack of independence, but instead it does the opposite (for example by sending them all to ‘exile’ in Haar against their will). Adding interns can be a burden to these people, but this is exactly what the EPO bragged about yesterday when it wrote: “Tomorrow [that's today] is the last day you can apply for the Judicial internships at the Boards of Appeal…”

The Boards of Appeal have historically been responsible for upholding/preserving patent quality and assessing conformity with respect to the EPC. That cannot happen anymore. They openly complain about their lack of independence from the Office and the ‘king’ of the Office.

Yesterday this press release was issued to say:

This seminar addresses the parallel, but substantially different, rules for drafting and prosecuting patents required by the Examiners and Appeal Boards of the EPO and USPTO [PTAB].

PTAB is sort of the US equivalent of BoA; that too is under attack (by the patent ‘industry’) — a subject we shall revisit later today.

In the meantime, CIPO and EPO plan to speed up examination even further (what’s needed is accuracy, not speed/haste). Yesterday CIPO wrote about it in English and in French. To quote the English: “#Canada and @EPOorg #Patent Prosecution Highway extension effective January 6, 2018….

So in addition to Early Certainty, PACE and so on they now have a special intercontinental process to help legal aggressors (there’s also one for Australia and Asia). Even lower quality of patents (than before) is assured because burden of speed — not quality — is being put on examiners. If justice is being rushed, then perhaps justice itself isn’t really a priority.

“For the third consecutive time, and even more emphatically than in past years, blogposts about the EPO and its impassive president Benoit Battistelli, the ‘dictator’ or ‘Napoleon of the tenth floor’, as one of our commenters has often written, dominates the top ten of best read articles of the Kluwer Patent Blog.”
      –Kluwer Patent Blogger
What do stakeholders (so-called ‘users’, lawyers etc.) think about all this? Well, they too aren’t particularly happy. A pro-UPC blog, Kluwer Patent Blog, was having uptime issues yesterday (very long downtimes for the site lately). But when it became accessible again we saw this new post which alludes to Battistelli as “the ‘dictator’ or ‘Napoleon of the tenth floor’,” noting that there’s a lot of interest in EPO scandals and in the gradual collapse of the UPC (which won’t materialise as long as justice at the EPO is perceived to be deeply flawed.

Yesterday we also saw this promotion of Drafting a Common Specification for US and EPO Practice — an event in which Sullivan Fountain of Keltie LLP (UPC liars) “will discuss drafting a common specification for filing and prosecution in both the USPTO and the EPO.”

The very fact that the USPTO is treated or dealt with in tandem (to the EPO) is worrying; the USPTO has long been granting an extraordinary amount of low-quality patents. This matter has been all over the news lately and there is even a new paper about it.

In yesterday’s news we also saw this new assessment of new fees at the UK-IPO. For the EPO to be competitive on terms such as price it will need to ensure patent quality is very high, but it might be too late for that. To quote price comparisons:

Official fees for UK patent applications are expected to rise in 2018. Nevertheless, by international standards, the UK will remain inexpensive. For example, UK fees will remain lower than at the EPO, where a granted patent application enforceable in the UK is obtainable through the direct European (EP) or International (PCT(EP)) route.

As detailed below, the UKIPO plans to introduce new fees for excess claims and description pages, and to increase the existing application, search, examination and renewal fees. The changes are expected to take effect from April 6, 2018.

[...]

However, excess claims fees will be payable to the UKIPO only for claim 26 onwards. This is generous compared to the respective 15 and 20 ‘free’ claims currently allowed at the EPO and USPTO. Furthermore, the new UKIPO fee of £20 per claim will be significantly cheaper than the respective €235 per claim and $80 per claim currently charged at the EPO and USPTO.

[...]

The new UKIPO fee of £10 per page will be for description pages beyond 35, for example resulting in an excess fee of £650 for an application having 100 description pages. However, and in contrast to the EPO, we currently understand that the excess fees will not be levied on claims, abstract and drawings pages.

The number of applications for EPs has fallen; it fell very sharply in (or from) the US. After Battistelli implemented his so-called ‘reforms’ we are not sure that the EPO is even competitive.

Yesterday we saw Arecor bragging (in a press release) about a “Notice of Intention to Grant” at the EPO, but does Arecor even know that the Office suffers a patent quality crisis and many granted EPs would turn out to be invalid/null (if tested in court)? Arecor wrote this:

Arecor Ltd is pleased to announce the European Patent Office (EPO) has issued “Notice of Intention to Grant” for Arecor’s patent application protecting the Company’s proprietary technology used in the development of stable, low-viscosity formulations of highly concentrated protein therapeutics, including monoclonal antibodies such as trastuzumab or ustekinumab or fusion proteins such as abatacept.

The prestige associated with EPs is rapidly being lost; EPO insiders can feel it and legal professionals worry deeply about it. If ‘demand’ for EPs is falling, it’s going to hurt them personally. A patent office without proficient and effective quality control (Oppositions and BoA, which is grossly understaffed and overburdened right now) will devolve to become another SIPO, ushering in plenty of patent trolls (also like SIPO). We wrote about that yesterday.

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