Bonum Certa Men Certa

EPO Staff Explains That With Phony 'Quality Audits' the EPO is "in Breach of the EPC" (European Patent Convention) and Patent Examiners Are Compelled to Act in Breach of the EPC

posted by Roy Schestowitz on Feb 09, 2024,
updated Feb 09, 2024

Crime Scene Do Not Cross

The Central Staff Committee at the EPO has a new paper. It concerns patent quality again and thus - inter alia - it concerns European software patents.

It is no secret that Benoît Battistelli and António Campinos are well aware that they illegally grant patents for the sole purpose of making and gambling with more money. There's paper trail for all this.

Yesterday the Central Staff Committee said to staff:

Dear Colleagues,

The Directorate Quality Audit consists of examiners and formalities officers. DQA samples patent applications at grant or search stage from the Patent Workbench for quality audit. The auditors perform the checks and send the outcome by email to the competent Examining Division. The outcome is sent to the Examining Division both if the audit criteria are met and if deficiencies are found.

On 11 December 2023, the three Vice-Presidents of DG1, DG4 and DG5 issued Internal Procedural Instructions updating the DQA workflow.

The newly planned involvement of “line managers” and of the “DG1 independent review panel” is particularly worrying as they have disciplinary powers, reporting authority and play a decisive role in the career advancement of the members of Examining Division under the new career system. The new workflow is hence of highly questionable legality which jeopardizes the “three-man examining divisions”.

From what we can gather, this paper of theirs is less than a day old or was published less than a day ago, disseminated through members of staff by hacking around illegal censorship by the Office (the EPO continues to not obey a court ruling successfully challenging this censorship).

Here's the publication from the EPO's own staff, presented in the form of HTML, plain text, and GemText. These people know the matter best:

Zentraler Personalausschuss
Central Staff Committee
Le Comité Central du Personnel

Munich, 08-02-2024
sc24009cp

Quality Audits

What is DQA?
The Directorate Quality Audit consists of examiners and formalities officers. DQA samples patent applications at grant or search stage from the Patent Workbench for quality audit. The auditors perform the checks and send the outcome by email to the competent Examining Division. The outcome is sent to the Examining Division both if the audit criteria are met and if deficiencies are found.

The EPO Quality Report features statistics on the grant and search audit results. The latest from 2022 show (p. 46 and 38) 76% compliance for grants (vs. 85% target) and 82.6% compliance for searches.

New DQA workflow…
On 11 December 2023, the three Vice-Presidents of DG1, DG4 and DG5 issued Internal Procedural Instructions updating the DQA workflow.

As of 1 January 2024:
− the audit report, both in grant and search audits, is sent also to the line manager of the first member of the competent Examining Division,

− in case of deficiencies, a new “audit dialogue” takes place involving also the line manager of the first member,

− if no agreement is reached DQA may review each disagreed product finding internally, either by a “simplified review” of two auditors or a “full review” additionally comprising the quality audit line manager

− if DQA maintains at least one finding after a full review, it informs a new “DG1 independent review panel” which shall issue a recommendation to the division and send a revision task to the first member “to correct the action as appropriate”.

… in breach of the EPC
Examiners are first and foremost bound to the European Patent Convention (EPC)1. The EPC defines that examination of European patent applications is the sole responsibility of Examining Divisions2. Such divisions shall consist of three technically qualified members, and can, only in exceptional cases, be enlarged by decision of the responsible Examining Division with a legally qualified member to four members3.

There is no provision for the involvement of anyone else. This de facto excludes “DQA auditors”, “line managers”, the “quality audit line manager” and the “DG1 independent review panel”. Should they be involved according to the new DQA workflow, the applicable rules on the composition of the Examining Divisions are systematically violated.4

The planned involvement of “line managers” and of the “DG1 independent review panel” is

______

1 e.g. T 0162/82, headnote; or T 0500/00, cons. 2.6.1

2 Article 18(1) EPC

3 Article 18(2) EPC

4 In fact, it is undisputed that the final decision to grant a patent or refuse a patent application remains the sole competence of the Examining Division and that neither a line manager nor anybody else can replace a member of the Examining Division when taking a decision under the EPC unless being appointed as member of the Examining Division in accordance with Article 18(2) EPC.


particularly worrying as they have disciplinary powers, reporting authority and play a decisive role in the career advancement of the members of Examining Division under the new career system5.

Moreover, the “DG1 independent review panel” is presented internally as if it were a higher legal instance for reviewing the Examining Divisions’ decisions, besides the EPO Boards of Appeal, although it has no basis in the EPC at all.

The expectations of the users of the patent system
In the course of the revision of the EPC to EPC20006, the users of the European Patent System as represented by the members of SACEPO7 unanimously supported the “retention of the three-man examining divisions”. This composition of the Examining Divisions should ensure the high quality and legal certainty of the granted patents, presuming that the Divisions’ members have the required time and independence in substance for arriving at their decisions.

However, the new DQA workflow obviously undermines these principles and user expectations. The “DG1 independent review panel” even has the power to send a decision back to the entrusted examiner of the competent Examining Division for “correcting” the decision “as appropriate” taking into account the panel’s recommendation without disclosing any interference to the public8.

Twenty years after the EPC2000 reform, major users of the EPO patent system currently ask that the EPO focuses on substantive quality of patents by giving the necessary time to Examining Divisions 9 . These users never asked for new processes of highly questionable legality which jeopardize the “three-man examining divisions”.

Conclusion
The President and DG5 would be well advised to reassess the legal situation and to make the respective legal opinions on the DQA workflow available.

The users of the patent system and the public deserve to be transparently informed of the EPO’s new processes. In the past, we have already requested the President to publish the respective internal EPO guidelines10 on the work in the Divisions. Now, we request that the new DQA workflow is also published and submitted to SACEPO for consultation.

In case of questions or comments concerning the work in the Examining Divisions and the DQA workflow, please contact your Staff Representation.

The Central Staff Committee

____

5 A career system based primarily on incentives for examiners to achieve ever increasing productivity targets to allegedly guarantee the financial stability of the office.

6 see CA/PL 2/99, item I.A.

7 Standing Advisory Committee before the European Patent Office, “a group of 180 engaged, active and vocal user representatives from all over the world”, see also the SACEPO website

8 Only the names of the members of the competent Examining Division continue to be displayed to the public on the decision to grant without any trace in the public part of the examination file. This violates the findings of the Boards of Appeal that the person signing a communication or decision takes unconditional responsibility for its content. (OJ EPO SE 2/2021, p. 37, T 989/19)

9 “50 years EPC: The EPO ignoring the skilled person”, CSC paper (sc24001cp), 19-01-2024 “50 years EPC: The EPO ignoring the skilled person”, CSC paper (sc24001cp), 19-01-2024

10 see CSC letter sc20184cl (not published)

As we are going to show in a later article, the atmosphere at the Office is again deteriorating, along with quality and compliance. The EPO is basically operating outside the rule of law while relying on crooked kangaroo (and evidently anti-European) courts to let the matter be... and persist. This has become a serious reputation problem for the EU, which is only belatedly catching up with the problem of patents on seeds/plants.

Unless the EU wakes up and gets this matter under control, all this corruption will continue to spill over. This is really terrible for Europe.

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