01.03.16
The Long EPO Queue for European SMEs That Cannot Hop Like Multinational Corporations
No patent neutrality at the ‘European’ Patent Office (EPO), which is actually international(ist) and formally detached from the European Union
Summary: “My perception,” says an inventor who dealt with the EPO for years (and spent as much as a house’s worth doing so), “is that they [EPO] only like dealing with corporations and their lawyers”
THIS year’s coverage of the EPO will naturally (as promised) show how the EPO discriminates against Europeans. This would only get worse if the UPC ever became a reality — an ambition that Team Battistelli hopes will exacerbate things further (better for multinationals at the expense of everybody else). The point we hope to express and to get across to everyone is that patent applicants too, especially ‘small’ ones and definitely European ones, are not treated fairly. In turn, this also threatens the careers of European patent lawyers, so they too should be up in arms.
One patent applicant, a person who saw firsthand how the EPO mistreats European SMEs, has sent us the following observations which readers may find interesting. As this person put it last night, “I am not a patent attorney, just an inventor simply battling an impregnable system.”
Here is the list of what this person called “Generic Problems”:
1. Repeated Process
Why do we have a two-stage process? One first has to get a country patent and then one has to repeat the process at the European level. Some countries’ patent offices may not meet an acceptable grade, but surely patent offices could be accredited and then the granting by one country office is accepted over the entire EU. People should be free to apply at whichever country’s patent office that they wanted. An accreditation process for patent offices would be much cheaper than every inventor having to undertake the process twice. In any event, patent challenges would soon show which patent offices were effective. Engendering competition between patent offices maybe no bad thing.
2. Delay
Looking at recent experiences, response times from the EPO have varied from 77 to 193 days! Response times obviously will vary by complexity, but surely we should be able to expect a response within 2 or 4 weeks. There seems to be no mechanism that one can call on to get a response when matters drag. There needs to be some legal penalty. I equate my patent value loss at between 30% to 100%. This is a loss of economic value from the patent and does not include the many costs incurred in trying to secure a patent. For many, delay will mean the death of their patent hopes. I can’t help but wonder how many patents have been wrongly rejected. Personally I have received many improper rejections. There should be a monitoring process to ward against this type of problem and feedback from all rejected applications. So a record to processing time on each application, average times on applications, basis and number of rejections etc.
3. Complexity
There needs to be structure and patents law is complicated. However, the process needs to be intelligible to the average inventor and explanations should be in plain language. Codes should be used to elucidate and not bamboozle. With two master (both with distinctions) I think it should be reasonably easy for me to understand both process and documents; this hasn’t been my experience. Whilst the process needs to be rigorous it also needs to be somewhat supportive or good inventions will get lost. There should be some obligation and some incentive to help. Currently the system is designed by lawyers, operated by lawyers and financed by poor inventors paying their legal fees. What incentive is there on the patent office to simplify matters? I initially had lawyers acting for me, until funds (circa £60k) ran out. Dealing with matters personally I found the EPO unhelpful and on complaint they suggested I employ a lawyer. My lawyers also found the EPO’s examiner difficult. My perception is that they only like dealing with corporations and their lawyers. Certainly my experience as regards oral hearings (just cancel your flight when time constraints applied) showed no understanding of cost pressures on a single individual. Likewise calling a second oral hearing seemed wholly unnecessary and clearly the EPO seemed to expect me to cancel my honeymoon to attend.
4. Accountability and Recourse
There does not seem to be any system of accountability arising from delay or error. In fact the examiner is more like a demigod who cannot be challenged or held to account. By way of example they can infer something from a document which could be helpful or could be damaging. Such inferences that a document implies something or what might be general understood by someone steeped in the art of the invention needs to be capable of independent challenge without having to resort, in the first instance at least, to the courts (a second independent opinion). My experience is that a troublesome examiner can simply sit on his hands whilst the value of your invention evaporates or your costs spiral.
Perhaps the current fee structure should be replaced by a percentage on profits arising from patent protection. There needs to be either a legal requirement or some encouragement to move expeditiously and grant where possible whilst simultaneously having penalties for failure. In my case I would like recourse due to delay, issues being dealt with repeatedly, false statement as regard prior art or one’s own invention.
5. Communication
Hard as it may be to believe, but the EPO officially doesn’t communicate by email. You can do electronic communication by fax, otherwise it is post. I fail to see the logic especially when most lawyers communicate by email these days. In reality some in the organisation will communicate by email, but this seems to depend on their mood. Whilst things need to be documented, understanding and agreement would be facilitated enormously by using the phone or teleconferencing. This would save time and money and lead to a happier working relationship between inventor and EPO. Oral hearings should be recorded and sidebars (excluding the applicant from the room should be discouraged). The recording I made of my oral hearing has been invaluable as the minutes are completely inadequate. In the current hiatus they also prove the examiners’ deception and other false statements. Frankly not taping proceedings I think leaves anyone as a possible hostage to fortune, the EPO included. The oral hearing process should also allow for a period of reflection after the event in common with many other legal/contractual situations.
6. Language
My examiner is [redacted] and whilst his language is reasonable, it is not at the level I believe is needed. So by way of example I had communications saying things should be in written, which after several months was corrected to they need to be by fax or mail (not email). Legal matters are complicated enough without having to add further complexity. Speaking legal is bad enough, patent legal even worse but then patent legal with sentences structured by a [redacted] in his OK but not fluent English is not helpful. For my oral hearing, held in English, not one of the three man panel had English as their first language. Surely the examiner’s mother tongue should be the language of the application or applicant and at a hearing at least one panel member the same tongue as the applicant.
7. Complaints Process
Complaining is difficult. It is not only extremely time consuming but it makes for a very difficult dynamic. Firstly it impacts on the relationship you have with your examiner. It is easily within the capabilities of an aggrieved examiner to delay of through up obstacles and/or objections. Secondly a complaint about an examiner may reflect badly on his manager. Thirdly any complaint also impacts internal relationships between colleagues and hierarchy. At the very least there should be a separate department that looks at complaints and ideally an independent process. The response to my second complaint has been so blanket and summary to the extent it contradicts the findings of the first complaint. If the EPO were customer-focused, they would have a customer complaints department which tried to ascertain and ameliorate any problems. They would be in touch with customers seeking to keep them happy. Confusingly complaints are split between process and examination division. Not only are the responses and interactions impersonal (i.e. you are not consulted and no sense that they either understand or appreciate your grief) you get the classic response so associated with large bureaucracies.
The complaints process should be open, publicly recorded and open to evaluation. This way underlying problems can be exposed and then addressed. At the same time there needs to be an acceptance that failure can and does happen everywhere.
Then there are “Global Issues”, which are as follows:
- As a knowledge economy innovation and by corollary patent protection is extremely important. This, however, clearly is being contrasted with first mover advantage. For many the patenting process is so slow, uncertain and expensive that it is not bothered with. Personally I wish I had never started on the process. To be effective the process as detailed needs to be timely. The time taken to secure a patent perhaps should be added to the period of patent protection, i.e. you get X years from grant.
- Recently the law changed for ‘artistic’ patents to I believe 50 years and rights even extend beyond death. I fail to see why artistic inventions should receive a longer period or put another way why technical inventions should have any lesser protection. It would benefit the UK if patent life was similarly increased in line with artistic rights. In respect of pharmaceuticals this and point 1 would enable drug costs to fall as development costs could be amortised over a longer period.
It is worth noting that SUEPO has expressed concerns about some of the above. Also, the UPC would serve to exacerbate things, e.g. by weakening the independent boards that typically deal with appeals (this relates to point (7) above). █
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