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| schestowitz | EPO and User Friendliness | Aug 29 13:14 |
|---|---|---|
| schestowitz | http://patentblog.kluweriplaw.com/2020/08/17/the-epo-and-user-friendliness/?doing_wp_cron=1598522529.7470240592956542968750 | Aug 29 13:14 |
| -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | The EPO and User Friendliness - Kluwer Patent Blog | Aug 29 13:14 | |
| schestowitz | " | Aug 29 13:15 |
| schestowitz | Thorsten, | Aug 29 13:15 |
| schestowitz | Frankly, this is as much as can be expected under the “new normal” at the EPO. | Aug 29 13:15 |
| schestowitz | You will recall, for example, that there was ZERO consultation with users before the EPO made the (seemingly unlawful) decision that all examination oral proceedings will be conducted by video conference, even if this is against the applicant’s wishes. Whilst the option of video proceedings is much appreciated, experience suggests that it can be a poor substitute for in-person proceedings. | Aug 29 13:15 |
| schestowitz | It therefore seems that the EPO’s new understanding of “user friendliness” amounts to giving consideration to issues of relevance to users … but then pressing ahead with whatever decision happens to best suit the EPO’s own internal needs. This is certainly a strange approach for an organisation that is 100% funded by its users. On the other hand, other than switching to filing applications at national offices, what tools do | Aug 29 13:15 |
| schestowitz | users have at their disposal to ensure that their voices are heard by the EPO’s management? | Aug 29 13:15 |
| schestowitz | There is perhaps a chance that the EPO will deign to listen to users on this occasion. I do hope so … though I will not be holding my breath! | Aug 29 13:15 |
| schestowitz | Attentive Observer | Aug 29 13:15 |
| schestowitz | AUGUST 18, 2020 AT 1:15 AM | Aug 29 13:15 |
| schestowitz | I wonder where is the legal basis for the President deciding by “ordre de mufti” that all oral proceedings in examination are to be held in the form of video conferences. A mere reference to Art 10(2,a) and Art 116 does not seem sufficient to allow him to take such a far reaching decision. When looking at the “travaux préparatoires” I doubt that it has ever been envisaged to hold oral proceedings other than in form of a face to | Aug 29 13:15 |
| schestowitz | face meeting. | Aug 29 13:15 |
| schestowitz | At best, Art 10(2,c) allows the president to submit to the Administrative Council any proposal for amending the EPC. | Aug 29 13:15 |
| schestowitz | Oral proceedings in examination on the premises of the EPO can be requested by the applicant for serious reasons. The president’s decision (OJ 2020, A39) is silent on what those reasons could be. Some explanation can be found in the notice (OJ 2020, A40, Point 3). In case of refusal the applicant will be informed of the reasons of refusing such a request, but such a refusal is not separately appealable! | Aug 29 13:15 |
| schestowitz | The granting of a request for oral proceedings to be held on the premises of the EPO will be at the discretion of the competent division. At least the Boards will have to decide whether the discretion was correctly exercised by the division. | Aug 29 13:15 |
| schestowitz | I understand something different under user friendliness. | Aug 29 13:15 |
| schestowitz | The EPC and its Rules of Procedure allow the President to take certain actions, but certainly not to interpret the EPC in the manner it is presently done for oral proceedings in examination. At best this is the role of the Enlarged Board of Appeal. | Aug 29 13:15 |
| schestowitz | On the other hand, it might certainly be possible for the latter to give a “dynamic interpretation” of the EPC which suits the upper management of the EPO. | Aug 29 13:15 |
| schestowitz | EPI has written a letter to the president about the problems facing some representatives with oral proceedings in form of videoconferences. As any reply be recived? | Aug 29 13:15 |
| schestowitz | A “pilot” project for oral proceedings before opposition divisions in form of videoconferences has started on May 5th 2020 and should last until April 30th 2021, see OJ 2020, A41 and A42. When I read or hear the word “pilot” stemming from EPO’s management, I would like to scream. Experience shows that anything started under the term “pilot” is there to stay. Do you remember BEST? It was also a pilot! | Aug 29 13:15 |
| schestowitz | At least oral proceedings in form of videoconferences can only be held if the parties consent. I would not consent as a matter of principle until a proper legal basis is given to those decisions of the president. | Aug 29 13:15 |
| schestowitz | As far as the Boards of Appeal are concerned, they also want to be modern and hold oral proceedings in form of videoconferences. We have been gratified with new rules of procedures for the boards of appeal, but in those there are no procedural rules relating to videoconferences, beside a short reference in Art 12(1,e). My question is thus as well: where is the legal basis for such a decision? As for oral proceedings in opposition, the | Aug 29 13:15 |
| schestowitz | consent of the parties is also required. I would not consent as a matter of principle until a proper legal basis is given to those decisions by the administrative council. | Aug 29 13:15 |
| schestowitz | For oral proceedings before the boards held in Haar or in the Isar buiding, there is a further problem not mentioned in Thorsten’s blog. According to the last communiqué of the boards, see https://www.epo.org/law-practice/case-law-appeals/communications/2020/20200729.html, it has been decided that “Attendance is generally restricted to a maximum of two people per party”. I also wonder where the legal basis for limiting attendance | Aug 29 13:15 |
| -TechBytesBot/#techbytes-www.epo.org | EPO - Oral proceedings before the Boards of Appeal – reassessment of the measures adopted due to the coronavirus (COVID-19) pandemic | Aug 29 13:15 | |
| schestowitz | to two people per party can be found. | Aug 29 13:15 |
| schestowitz | It is nice to add that “Parties wishing to attend with more than two people should submit a reasoned request to that effect in advance of the oral proceedings. It will be for the board to decide on their request.” That means the boards have the discretion to decide whether a party can be represented by more than two people or not. Knowing how the Enlarged Board “checks” the exercise of discretion by the boards, does not look | Aug 29 13:15 |
| schestowitz | encouraging if a request to attend with more than two people is refused. | Aug 29 13:15 |
| schestowitz | That in the present pandemic period the number of accompanying persons should be reduced might appear acceptable, but there again, where is the legal basis? | Aug 29 13:15 |
| schestowitz | When looking at T 437/17, the user friendliness of the boards is also a souvenir of better times. | Aug 29 13:15 |
| schestowitz | I am not against adapting to the situation created by the pandemic and using modern ways of communication, but this has to be done in a legal manner. This is certainly not the case here! | Aug 29 13:15 |
| schestowitz | Thanks again to Thorsten for putting the finger were it has to be put, and not let the EPO think it can decide as it thinks fit, disregarding any legal rules. | Aug 29 13:15 |
| schestowitz | As far as user friendliness is concerned it has clearly started to vanish from 2010 onwards. But the production has increased tremendously without having a negative influence on the quality. If the EPO management tells you so, you have to believe it! And if on top the perception of the independence of the boards has increased, what are you complaining about? | Aug 29 13:16 |
| schestowitz | peter | Aug 29 13:16 |
| schestowitz | AUGUST 18, 2020 AT 10:53 AM | Aug 29 13:16 |
| schestowitz | Mr Bausch, your frustration is totally understandable and I hope the needs of the users are listened to. At least in these clear issues of “user-friendliness”. I also see the point of Concerned Observer regarding compulsory video proceedings and, for what I know, EPO examiners are not much happier with it. However, it seems the Covid crisis is going to last for some time while business has to continue. Then I wonder what, in the | Aug 29 13:16 |
| schestowitz | eyes of the user community, would be a better option: keep postponing every 4-5 months, postpone all oral proceedings sine die? | Aug 29 13:16 |
| schestowitz | The experience at the opposition section is not very encouraging in this regard, I heard. If one of the parties does not agree to video conference, the oral proceedings are postponed (again). This means that hearings summoned more than a year ago are being re-scheduled for the end 2021. I wonder if this is a better option. Perhaps it is, for at least one of the parties, but not for all, I guess. And certainly, it is not good for the | Aug 29 13:16 |
| schestowitz | public, the other “user” of this system, too often forgotten. | Aug 29 13:16 |
| schestowitz | Concerned observer | Aug 29 13:16 |
| schestowitz | AUGUST 18, 2020 AT 3:25 PM | Aug 29 13:16 |
| schestowitz | Peter, | Aug 29 13:16 |
| schestowitz | It is certainly a balancing act. However, it is very clear that the wrong point of balance has been chosen. | Aug 29 13:16 |
| schestowitz | There have been enormous increases in the “productivity” of EPO examiners during the past decade. Thus, delaying oral proceedings for all applicants who would like to attend in person would be very unlikely to result in an average time to grant any longer than was the norm during the first decade of this century. | Aug 29 13:16 |
| schestowitz | So what would be so wrong with an alternative solution that involves accepting that proceedings have to either be delayed or instead continued in writing? | Aug 29 13:16 |
| schestowitz | The fact that the EPO has prioritised keeping up its “production” levels over the needs of applicants speaks volumes. What is so important about high production that it trumps the applicant’s right to be (fully) heard? Could it have anything to do with targets, “profitability”, bonuses and/or national renewal fee income? Perish the thought! | Aug 29 13:16 |
| schestowitz | Attentive Observer | Aug 29 13:16 |
| schestowitz | AUGUST 18, 2020 AT 11:20 PM | Aug 29 13:16 |
| schestowitz | @ Peter, | Aug 29 13:16 |
| schestowitz | If EPO or at least its upper management was really caring about the public as user, it would not frantically push production and increase production targets year after year. What the public needs are solid patents, but this is not any longer the case for quite a while. | Aug 29 13:16 |
| schestowitz | How do you think high quality patents can be obtained if timeliness is presently the only valid criterion to assess quality? This combined with a reduced training period, due to 5 year contracts for examiners, is certainly not promoting quality. That the quality delivered by the EPO is still better than that of the USPTO is not an excuse for the upper management to feel satisfied. | Aug 29 13:16 |
| schestowitz | For quite a while now the EPO is not any longer an attractive employer, and the number of people deciding not to come to the EPO after receiving a contract proposal has tremendously risen. Would you leave your country of origin, sever all ties with your national health and pension system to risk being on the dole after 5 years? I know very few people with a family who would do so. | Aug 29 13:16 |
| schestowitz | User friendliness is long gone, and in spite of vehement denegation by the upper management, staff friendliness has gone as well. The number of people presently leaving the EPO as soon as they have reached the minimum age to obtain a pension is extremely high. The only reply the management has found is to envisage raising the minimum age to obtain a pension. | Aug 29 13:16 |
| schestowitz | francis hagel | Aug 29 13:16 |
| schestowitz | AUGUST 18, 2020 AT 3:08 PM | Aug 29 13:16 |
| schestowitz | It is entirely right to signal cases when the EPO is not up to its claimed objective of user-friendliness and Mr Bausch post and the information and views provided by the commenters must be given full consideration by the EPO. | Aug 29 13:16 |
| schestowitz | However, it is also fair to mitigate these critical comments with a positive note. Generally speaking, the EPO has a strong record in terms of user-friendliness. A few examples : | Aug 29 13:16 |
| schestowitz | – audit of granted patent files by external assessors as part of the SACEPO working group on quality (first meeting in October 2019) ; | Aug 29 13:16 |
| schestowitz | – prompt and forceful handling of the complaint procedure introduced a few years ago, very efficient when the EPO has failed to comply with a party’s “right to be heard”;; | Aug 29 13:16 |
| schestowitz | – handling of third party-s observations under Article 115 EPC, which examiners are required to consider;= ; | Aug 29 13:16 |
| schestowitz | – free and efficient public access to the EPO patent database including access to translation of patent documents esp. from Asia. | Aug 29 13:16 |
| schestowitz | Attentive Observer | Aug 29 13:16 |
| schestowitz | AUGUST 18, 2020 AT 11:21 PM | Aug 29 13:16 |
| schestowitz | Cher Monsieur Hagel, | Aug 29 13:16 |
| schestowitz | Your comment reminds me of a glass. For some the glass is half full, for others half empty. | Aug 29 13:16 |
| schestowitz | I would rather classify you among those who find the glass half full, whereas I would rather find the glass half empty. I am not alone with this position. | Aug 29 13:16 |
| schestowitz | If you take a careful look at decisions of the boards of appeal you will see that the number of patents revoked or severely limited after an opposition is quite high. Even taking into account that only 5% of granted patents are subject to an opposition, when this figure is extrapolated, the result becomes frightening. One of the reasons is often that the original search was not correctly carried out. | Aug 29 13:16 |
| schestowitz | I do not know what the external assessors have found out, but it would be interesting to know who decides on the cases to be assessed externally. If it is the EPO, such assessment is not worth a penny. | Aug 29 13:16 |
| schestowitz | For instance, if you have a look at T 1089/17, T 0568/17 and T 0943/16, you will see that the corresponding applications have been refused but the search was atrocious and the examining division showed a rather high level of incompetence. | Aug 29 13:16 |
| schestowitz | As far as the complaint procedure is concerned, I know by experience that the number of non-committing replies is also quite high. In general the reply does not say much more than “The Guidelines have been followed”, and yet one wonders which Guidelines have been followed. | Aug 29 13:16 |
| schestowitz | I do not consider that having access to the EPO database is so wonderful. After all, the users of the system have paid for it, so it does not appear to be to be a favour, but rather something due. | Aug 29 13:16 |
| schestowitz | It is abundantly clear that the “EPO is not up to its claimed objective of user-friendliness”, and if you think that “the views provided by the commenters must be given full consideration by the EPO”, you might rather end up like Godot. | Aug 29 13:16 |
| schestowitz | As Concerned Observer has stated, EPO’s upper management is only interested in a high production in the shortest possible time so that the annual fees flow as quickly as possible into the budget of the member states. This paired with a very “selective” cooperation policy helps the management to get approval in the AC of any measure it thinks fit, and which end up with a fat bonus for the upper management. | Aug 29 13:17 |
| schestowitz | I would not be surprised if the “pilot” for oral proceedings in opposition will lead to amendments of the implement rules rendering them mandatory in form of videoconferences. With a bit of time, the same will also apply to oral proceedings in appeal. | Aug 29 13:17 |
| schestowitz | That something had to be done in view of the pandemic is not at stake. But what is done is so much against the letter and the spirit of the EPC that it brings shudders. The EPO often insists on having consulted users, but one just wonders which users have actually been consulted. | Aug 29 13:17 |
| schestowitz | francis hagel | Aug 29 13:17 |
| schestowitz | AUGUST 19, 2020 AT 9:27 PM | Aug 29 13:17 |
| schestowitz | Dear Attentive Observer, | Aug 29 13:17 |
| schestowitz | Thank you for this detailed and personal reply. You are right that I am optimistic, this is my temperament rather than a systematic position. I like the phrase by William of Orange: “Hope is not necessary to engagement, nor success to perseverance ». But I also try to be realistic. When I voice views in articles, they relate to issues on which my views might have some influence. For example, I have repeatedly pointed out that the | Aug 29 13:17 |
| schestowitz | requirement of Article 83 was not given sufficient attention during the EPO examination (on this topic, the recent BOA decision T 0161/18 provides a strong illustration and hopefully will trigger a reckoning esp. in AI cases). I also think a significant ingredient of user-friendliness is predictability of the decisions and I have advocated changes in EPO policies in CII cases. | Aug 29 13:17 |
| schestowitz | Replies to some of your specific comments : | Aug 29 13:17 |
| schestowitz | – I have a recent experience of the complaint procedure and it turned out to be extremely efficient as the EPO’s response was both very prompt and forceful beyond my expectation. | Aug 29 13:17 |
| schestowitz | – As to the audit of granted patent files by external assessors within SACEPO, my experience as an assessor was quite positive, the meeting was well organised. I do not know how the EPO selected the cases to be audited but I can say the two files I audited pertained to different technical areas and the conclusions were also quite different. | Aug 29 13:17 |
| schestowitz | – The public and free access to the EPO database is a source of technical information of enormous value given its scope and structure optimised for searching, not just for applicants who pay fees and third parties but for the public at large. Efforts to promote its use should be boosted by NPOs and patent professionals by including on a broader level training in education programs for students, scientists and the technical staff of | Aug 29 13:17 |
| schestowitz | companies. The creation and updating of this resource is a major objective of the patent system. The EPO deserves credit for its achievements in this area. | Aug 29 13:17 |
| schestowitz | Eric Cogniat | Aug 29 13:17 |
| schestowitz | AUGUST 19, 2020 AT 8:50 AM | Aug 29 13:17 |
| schestowitz | Thank you Mr Bausch for bringing our attention to these new technical measures. Based on a test this morning, it seems that the page limit has already been increased to 2000 pages. But this is still too low for files in the life science or pharma fields… | Aug 29 13:17 |
| schestowitz | Benajmin Quest | Aug 29 13:17 |
| schestowitz | AUGUST 19, 2020 AT 6:01 PM | Aug 29 13:17 |
| schestowitz | Oh, while we’re at it: | Aug 29 13:17 |
| schestowitz | 1) The new Espacenet is a pain to use if you’re not sitting in front of a screen with at least 21 inch diagonale. Yes, you may say, this is not a big requirement. Until you have to acess Espacenet with any kind of laptop. The user interface is a waste of space that takes up about one thrid of the screen and then presents no acutal information. Trying to review a larger list of documetns is close to impossible. For downloading the | Aug 29 13:17 |
| schestowitz | original file you have to click yourself through a nested menu and you arrive at no less than knowledgeable three clicks what you could have done with one. The split screen “feature” of the new Espacenet should be optional, usually I am interested in the content of only one of those panes. Or its size “distribution” could be configurable (I do not need a “full” “half-screen” with the Figures all the time). | Aug 29 13:17 |
| schestowitz | When BiSSAP came out I thought it was a really poor interface design with a lot of wastes space an unnecessary scrolling actions to arrive at a button that could have been placed just a bit smarter and thereby avoid scrolling altogether. In view of the new Espacenet, BiSSAP shines in comparison. | Aug 29 13:17 |
| schestowitz | P.S.: You can still use the “old” Espacenet and take a survey why you’re using the old one. | Aug 29 13:17 |
| schestowitz | 2) The EPO Register search line. | Aug 29 13:17 |
| schestowitz | a) Why can’t it simply ignore spaces and/or special characters? Search EP 1 234 567 and it will find nothing, search EP123456 and here comes the entry! Search for WO 2019/012345 and it will find nothing, search for WO2019012345 and here come the entry! User friendly? | Aug 29 13:17 |
| schestowitz | b) Search for PCT/US2015/012345 -> nothing. Search for PCTUS2015012345 -> nothing What? OK if you use WO2015US12345, THEN you will find the entry. That is you ahve to convert the totally regular PCT application number to something entirely non-intuitive (as you will have to omit also any leading ‘0’). It is so unintuitive that I usually search with the PCT application number at Patentscope to there get the WO publication number and | Aug 29 13:17 |
| schestowitz | with that go back to the EP Register. | Aug 29 13:17 |
| schestowitz | c) Try to find anything using a US provisional application number; unless you do a mental salto mortale, i.e. to convert US 62/619,146 into US201862619146P you will not have any luck. The same holds true for JP priority filings … | Aug 29 13:17 |
| schestowitz | It is not user friendly to make use of an entirely “homegrown” application number or priority number fomatting scheme. Honestly, we’re in the year 2020 and to rectify the above “search line quirks” should be nothig more than a programming task for a first semester IT student. | Aug 29 13:17 |
| schestowitz | 3) Should we talk about the user-friendliness of the sequence listing standard, ST.26, to come? Not today … Biotech patent practitioners: Seid atf der Htt [pun intended] | Aug 29 13:17 |
| schestowitz | " | Aug 29 13:17 |
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| schestowitz | Re: Don't Bring Me Down | Aug 29 23:45 |
| schestowitz | > /No-No No-No No-No No! | Aug 29 23:45 |
| schestowitz | > / | Aug 29 23:46 |
| schestowitz | > Enjoying the Bruce Perens slide-readalong. Surprised someone with his | Aug 29 23:46 |
| schestowitz | > level of corporate experience is reading full slides, but at least it | Aug 29 23:46 |
| schestowitz | > saves the hunt for a transcript. I find his voice relaxing, more than | Aug 29 23:46 |
| schestowitz | > his writing. | Aug 29 23:46 |
| schestowitz | > | Aug 29 23:46 |
| schestowitz | > He does a great job describing the problems, and people should pay | Aug 29 23:46 |
| schestowitz | > attention to that. But his solutions have some of the same problems that | Aug 29 23:46 |
| schestowitz | > Open Source do with regards to Free Software-- and he says things like | Aug 29 23:46 |
| schestowitz | > two similar licenses in a set of 3 makes it more like 2.5 licenses | Aug 29 23:46 |
| schestowitz | > because you don't have to learn three completely different ones. | Aug 29 23:46 |
| schestowitz | > | Aug 29 23:46 |
| schestowitz | > That's true on a certain level, but mostly 3 licenses are three licenses | Aug 29 23:46 |
| schestowitz | > if you change a word or sometimes a semicolon. So sharing substantial | Aug 29 23:46 |
| schestowitz | > text (in a legal document like that)-- even if he has a point, it wont | Aug 29 23:46 |
| schestowitz | > have the effect he claims-- not for people who are actually going to | Aug 29 23:46 |
| schestowitz | > learn the license. I suspect he will clarify that later as I'm sure he | Aug 29 23:46 |
| schestowitz | > knows better and doesn't gain from misleading on that. | Aug 29 23:46 |
| schestowitz | > | Aug 29 23:46 |
| schestowitz | > Discussion of serious problems: YES! | Aug 29 23:46 |
| schestowitz | > | Aug 29 23:46 |
| schestowitz | > Serious solutions proposed... | Aug 29 23:46 |
| schestowitz | > | Aug 29 23:46 |
| schestowitz | > Where's that picture of the monkey that looks sidewise then looks away? | Aug 29 23:46 |
| schestowitz | We make a meme of that months ago. | Aug 29 23:46 |
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