Bonum Certa Men Certa

One Month Passes, Only Comments in a Blog Post Actually Contain Accurate Information About EPO and UPC


Summary: The only coverage of the EPO strike came a week after the strike had ended and relegated to a blog post; most of the actual facts are sheltered away in comments while the World Wide Web is basically a pool of disinformation from Team UPC

Reproduced below for preservation purposes.

Attentive Observer says:

The dismantling of the EPO by the actual president of the EPO continues unabated.

For a start, he intends to push his teleworking scheme at any cost, although it is manifestly against the Centralisation protocol, even in its amended form.

The document on ‘professional mobility’ (CA19/12 and CA 19/12 Corr. 1) was to be submitted for information to the latest AC on 23.03.2022.

If was certainly also part of the discussions at the “Board of the Administrative Council (B28)” which is actually the decision instance. In general, what is decided at a B28 meeting is normally rubber stamped at the following meeting of the AC.

According to an open letter to the members of AC, the Central Staff Committee drew the attention to its members that under the pretext to “support to deliver high-quality patents” (sic) the President intends to use Seconded National Experts (SNEs) to work in the patent granting process, in particular within divisions without formally being part of those divisions. Such a way of working of examining divisions is certainly not compatible with the EPC.

Here again, only the teleworking scheme pushed by the actual president would enable those SNE to contribute to examining divisions of the EPO, whilst they are still sitting in their national offices.

The Central Staff Committee suggested to hold a conference of ministers of the Contracting States under Article 4a EPC.
In view of the diligence of his predecessor and of the present incumbent to convene such a conference, it is doubtful that such a conference will ever been held.

One thing is however abundantly clear: the tail is till wagging the dog and the AC has completely given up its role of controlling the actions of the president.

One wonders what could well be the hidden agenda of the last two tenants of the 10th floor. Could it be dismantling the EPO?
At least the present tenant, although called in order to restore peace at the EPO, has done everything in order to increase the conflicts between staff and management.
By reducing the salaries, reducing all other advantages or allowances, on the basis of a very shoddy financial study, everything is made to render a job less attractive at the EPO.
It might well be that in the end it could be a good solution to second to the EPO national examiners to actually do the job of examiners.

It is to be hoped that examiners will be able to sustain the pressure from management, which in the last years was always very prompt in threatening sanctions which can end up rather quickly with sanctions up to dismissal for incompetence if the target is not achieved. Legal means to this effect have been created.

Concerned observer says:

Attentive, it does not take a genius to discern the “hidden” agenda of the President and the AC. This is because almost all of their “controversial” decisions seem to me to be designed to increase the “profit” that the Member States, AC delegations and EPO senior management can extract from the coffers of the EPO.

The trouble for applicants and EPO (non-senior) staff is that to keep the trough of “profit” full enough for all of the greedy snouts feeding from it, the pips have to be well and truly squeezed … regardless of the seriously negative effect that might have on the EPO’s quality of service, or any illegalities / immoralities regarding degraded employment conditions, etc.

The direction of travel is clear enough. The scandal has been ongoing for well over a decade now and shows no signs of slowing. In fact, the pace seems to be picking up under the current President. The question is, what on earth could possibly persuade the EPO to reverse course and start paying attention to the rule of law, and to get back to providing a proper quality of (public) service?

If you can answer that question, then you will have solved a puzzle that has baffled the rest of us (who pay attention to these things) for a very long time.

Patent robot says:

If France and the Netherlands opened the PCT national route, the EPO might start paying attention…

Attentive Observer says:

Dear Concerned Observer,

As far as quality of work is concerned, one has just to look at the decisions published by the BA.
The number of patents maintained in amended form or even revoked is steadily increasing.

Although oppositions are not evenly distributed over all technical areas, some seeing hardly any, but if one extrapolates the 5% of opposed patents to the rest of the granted patents, the number of patents in force which are not really valid must be extremely high.

It is only if patents are used in infringement proceedings or if a declaration of non-infringement is thought, that the validity of the patents is considered in detail. It would be interesting to have the figure of the number of patents nullified or amended in national proceedings. The EPO does probably have the figure, but for obvious reasons it will not be published.

The problem is that industry, and especially the big one, is happy with the situation. As long as the quality of EPO patents is somehow better than that of US patents, it will be satisfied. It enough to threaten competitors. As long as the number of patents opposed or subject to national litigation remains at the present level, nothing will probably change.

There is no doubt that the quality of the work delivered by the EPO was much higher in the past, but as long as the users are satisfied with the output of the EPO, why bother?

In this respect, what will be happening at the UPC, which is primarily conceived for the big industry, is symptomatic. Why is it that the basic fee for an action in nullity is nearly double of that for infringement? This is not a coincidence.

With an opposition, the quality of a patent can be tested relatively early. If one has to wait a national procedure, or before the UPC, the latency time is much longer.
In any case, the examiner in charge has in the meantime achieved his target and the EPO and the national offices have cashed fees, so that everybody is pleased.

It is only if the industry, large or small, wakes up and realises that it is spending money which could as well be thrown out of the window that the situation may change.

Professional organisations, like epi, could do something about it as well, but the danger here is that they could well saw the branch on which they are sitting.
Lawyers are also happy charging fees.
At the end of the day, as long as the cow can be milked, why change something?

I would thus claim that the notion of “public service” is grossly misused. It is as public as the British “public schools” are actually public.

It might all sound cynical, but in this day and age, paying attention to the rule of law is not a priority for many. Here again see what is happening at the UPC.

LightBlue says:

Attentive, would you file an opposition against a patent if, after diligent research, you had identified no convincing arguments?

Attentive Observer says:

Dear Light Blue,

It is clear that without a better state of art than the one revealed during search/examination it does not bring much to launch an opposition.

And yet there are oppositions in which the value of the documents cited in the search report has not been properly evaluated.

Furthermore, when the opponent files state of the art which is in the same class as the one of the patent, or which the search has allegedly taken place, one wonders what was the subject of the search. That with such a document an independent claim as granted lacks novelty, the value of any X document mentioned in the search report established by the EPO can be queried.

The same applies if the opponent comes with a combination of documents which leads to a manifest lack of inventive step in spite of plenty of X or Y documents in the search report established by the EPO. What can be the value of such a search?

When the search report only mentions A documents and the opponent brings highly relevant documents in, again, the same classes as the one which a search was carried out, it is inevitable to query the quality of the search.

When an Art 54(3) prior art from the same applicant/inventor is filed by the opponent, one wonders what has happened at the moment of the top-up search.

The number of cases in which the patent is revoked or maintained in amended form on the basis of documents which were not available in the search files, like PhD dissertations or public prior uses, is very small compared to the number of cases in which the search was manifestly sub-optimal as the documents were not found in the available search files.

To get an idea of the problem it is very simple: just look at published decisions of the boards of appeal after an appeal on opposition and compare the documents used in appeal with the documents mentioned in search reports established by the EPO. The conclusion is flabbergasting.

As oppositions are not evenly distributed over all technical areas and are only filed for roughly 5% of granted patents, oppositions are not an absolute measure. However it gives a good idea of what is going one, whether you like it or not.

The blame is not on the examiners. They are faced with a constantly increasing production pressure. The targets are distributed top down and not reaching the target can have dire consequences going up to dismissal for incompetence. On top of it the training time has been reduced and 5 year contracts do not incite to go against management. .

The problem actually lies in the adoption of plans which look very much like the plans which were in force in Easter Europe a while ago. In those countries, like at the EPO, the plan is/was always fulfilled. If the plan was to manufacture 5000 coffee grinders, they were all on the shelves at the end of the plan, whether they were able to actually grinding coffee was actually secondary……

The last quality report for 2020 is a very a nice brochure with a lot of management buzzwords, but it reveals on page 43 that the quality of granted patents has been declining from 85% in 2017 to 76% in 2020. How a search compliance of 97,6% in 2020, cf. page 42, could be achieved is not really understandable.

Concerned observer says:

Question: given that ILO AT judgement no. 4430 declared Circular 347 unlawful, and set it aside, what was the legal basis for the EPO’s “strike registration tool”? More pertinently, why would EPO management persist with providing a tool that had no formal legal standing?

To my knowledge, the EPO has not formally rescinded Circular 347, and replaced it with rules that comply with fundamental human rights. Thus, whilst the ILO AT would almost certainly find the provisions of that Circular to be unenforceable, the EPO’s rules for staff still formally include a requirement to use the strike registration tool.

Thus, could it possibly be that, by providing a registration tool, and by (deliberately?) making that tool unreliable, the management were trying to make staff think twice about going on strike? If so, that would demonstrate a complete contempt for both the ILO AT’s rulings and fundamental rights guaranteed under EU law (and the ECHR).

francis hagel says:

It is typical for a « convincing argument » in the eyes of a potential opponent to be absolutely not convincing for the patentee. Paraphrasing military strategist Clausewitz, an opposition is the continuation of competition by other means. A purpose of opposition may be a transaction with the patentee : I accept to withdraw the opposition if you undertake not to sue me for infringement. This is a desirable outcome for the opponent since this implies a competitive advantage vs other third parties.
@attentive observer
A conception of « quality « which relies on revocation or nullification decisions is inadequate, for many reasons. For industrial users of the patent system, major factors of quality are the predictability of the rules as defined by the case law of the BOAs and the Guidelines, the comprehensiveness of search reports, the informative content provided by the description of applications/patents, the compliance with procedural rules, the participation of third parties in the process. When these factors are considered, the EPO does a fairly good job. Promotion of third party observations and complaints proceedings are unquestionably positive. However, there is room for improvement in some areas. A major issue in my view is that the EDs do not review compliance with Art 83, the EPO’s attitude is that this is an issue which is only for third parties to be raised. T 0161/18 is a case in point, the BOA raised Art 83 ex officio.
That being said, I agree with you that the EPO’s proposal to allow NPOs examiners to be seconded to the EPO is worrying as it would lead to dismantling the EPO into a network of franchised agencies each under the influence if not control of local NPOs and jeopardise the cohesiveness and sense of belonging of the staff.

Attentive Observer says:

@Francis Hagel
It is clear that “the predictability of the rules as defined by the case law of the BOAs and the Guidelines, the comprehensiveness of search reports, the informative content provided by the description of applications/patents, the compliance with procedural rules, the participation of third parties in the process” are important factors of quality.

As far as case law of the boards is concerned, when looking at decisions of the boards, one cannot refrain to note that a kind a lottery effect as it depends which boards are dealing with a case.

One recent but notable example is the difference between boards when it comes to the adaptation of the description. In T 1989/18 the board decided that the description does not need to be adapted to the claim. In T 1024/18, the board, referring to T 1989/18, made clear that the decision has to be adapted to the claims.

Another example is dealing with the absence of a measurement method for a parameter. Some boards consider that it is a problem under Art 84, which thus allows to vacate the problem in opposition appeals. Other boards consider that it is indeed a problem of sufficiency.

Last but not least, when looking at decisions it appears that the boards are exercising the vast discretion which has been granted to them by the RPBA20 in quite different ways. There is no instance to check whether a board has exercised it discretion correctly or not. This is an absence for which the boards are not responsible, but it remains a problem.

I agree that comprehensiveness of search reports is also important in this matter. By looking at decisions it appears that only in very few oppositions a revocation or a maintenance in amended form is due to a document which was not available in the search files. Conversely it becomes clear that in all the other cases, the documents were available in the search files but were not retrieved for whatever reason. This is becoming more and more apparent.

The searches at the EPO might still be better than that of other searching authorities, but when a patent is revoked or severely limited after opposition, it is not necessarily enjoyable for the proprietor.
When the proprietor owns lots of patents, the loss of the odd one might not weigh much, but should it be a commercially important one, like for a blockbuster medicine, the loss of the patent is certainly not so easy to swallow.

I therefore beg to disagree when you claim that a notion of quality which relies on revocation or nullification decisions is inadequate. To me it is exactly the contrary. It should not be overestimated, but to consider it inadequate, is also inadequate.

francis hagel says:

@attentive observer
Assessment of « quality « which relies on revocation or nullification decisions seems logical when taking a legal approach. But it can only be based on a very small percentage of granted patents and takes place years, sometimes many years after the grant. In addition, the context in terms of the resources devoted by the parties and thoroughness of the review by the BOA or the court is quite different from the context of examination proceedings. This is why I do not think such an assessment can yield meaningful conclusions.
I agree with your concern regarding the difference between T 1989/18 and T 1024/18 over the requirement to adapt the description to the claim as granted. This is important practically speaking for applicants since it affects a great deal of applications. My personal view is that the adaptation is useless but entails additional costs and delays and opens up potential 123(2) issues.
Another recent decision, T 0550/14 relating to a business method (Managing funding of catastrophe relief efforts), while it suggests an interesting approach to the assessment of what is « non-technical », does not seem to comply with the approach of the case law of the BOAs (2019, 1.4.1) which rejects the approach of the contribution to the prior art, and is at loggerheads with T 2101/12 (Vasco) over the definition of the skilled person and of the closest prior art. T 2101/12 was issued by BOA 3.5.06, not by BOA 3.5.01 which has issued T 0550/14.

Attentive Observer says:

The number of patents opposed and/or subject of national litigation is indeed relatively low. This does however not allow to conclude that the assessment of the documents used in opposition cannot yield meaningful conclusions.

The number of patents revoked or maintained in amended form on the basis of documents which were truly not available during the search, like PhD dissertations or public prior uses, is very small compared with the number of patents revoked or maintained in amend form on the basis of documents which were in the search files but not found.

As a former president of the EPO has once said, a patent is an insurance in case of success. At filing and even later at grant, no applicant/proprietor knows whether his application/patent will be a success or not.

The applicant/proprietor cannot guess whether it will be opposed or later subject to national nullity proceedings.

When the patent is opposed or subject national nullity proceedings, it means that a priori the patent has been a success, at least in that it warrants a third party to act against it.

When then the patent is revoked or maintained in amended form on the basis of documents which were not found during the original search but available in the search files, it implies directly and unambiguously that the original search was sub-optimal.

Without over interpreting the figures stemming from oppositions, as in some technical areas there are no oppositions, it nevertheless allows to draw some conclusions about the value of the original search, whether you like it or not.

It certainly does not allow to draw the conclusion that most of the searches are as compliant as stated by the EPO in its Quality Report of 2020.

Why should the context in terms of the resources devoted by the parties and thoroughness of the review by the BOA or the court be quite different from the context of examination proceedings? I do not see the logic in your statement.

That an opponent will look primarily at documents not in the search files of the EPO is an acquired fact. That he then comes up with documents which were classified in the classes where the search was carried out or the patent was classified, it is legitimate to ask question the original search.

When for example you see that features of the description are used to limit the claims as filed and that the opponent later comes with the document showing that this limitation was not valid in view of documents not found in the search files, it is again legitimate to question the original search.

That you find the adaptation of the description to be useless is your right, and nobody will have problems with it. However, it does not allow to ignore the legal requirements as interpreted according to a long lasting line of case law.

If you consider that a recent decision is at loggerheads with one or more former decisions, there is the possibility to draw the attention of the differences to the president of the EPO. He might then decide to refer a question to the Enlarged Board. In a similar case in front of a board, observations of third parties are also possible.

A referral to the Enlarged Board is a heavy procedure and the boards are only willing to go this route if they have clear difficulties with existing divergent case law. The boards have a great discretion in deciding whether or not to refer a question to the Enlarged Board. Whether this discretion is always correctly exercised remains a problem as the EPC does not foresee a body which will check the discretion of the boards. But this is a different problem.

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