07.30.16

EPO Crushed the Boards of Appeal (i.e. Quality Control) and Insiders Explain Why

Posted in Europe, Patents at 11:24 am by Dr. Roy Schestowitz

This “represents a complete and utter corruption of the patent system in Europe”

Summary: Team Battistelli has made a complete mockery of the EPO and also serves to devalue EPO patents, which in the long term can doom the whole system

STAFF of the EPO is rightly afraid of retribution, having seen what happened to vocal colleagues. A lot of the staff still comments in IP Kat, which has become a de facto forum following the end of SUEPO’s forums (we might say more about that one day in the future).

Looking at IP Kat these past few days, we find one commenter who “can also [fore]see a lot of users looking for ways to recoup wasted costs from the EPO.” We are aware of several such users and will write about them in the future. To quote the comment in full:

I now realise that I had made a potentially unjustified assumption that the building in Haar would be used for oral proceedings. However, it now appears that my assumption was correct. In fact, if your prediction regarding “overbooking” is also correct, it may even be a lot worse than I feared.

Is it really envisaged that participants in OPs will be “sent home” on the day scheduled for the proceedings? If so, I can envisage a lot of users (quite understandably) getting pretty incandescent with rage if and when that starts to happen. I can also see a lot of users looking for ways to recoup wasted costs from the EPO.

Not that I disbelieve you, but do you have any figures upon the number of rooms available (both in the current and new buildings) for oral proceedings? If there is any kind of planned decrease, then that would hardly be consistent with the stated aim of “improving efficiency”!

As one person put it a couple of days ago, “for Battistelli “independent” means “you rubber-stamp whatever the investigation unit has written”.” The following comment also speaks about ILO, where many cases are dismissed without even opening the case for judgment. “2 years ago,” says the comment, “Battistelli visited ILO in Geneva to improve relationships.” One might call this lobbying. Here is the comment in full:

With the decision of the elarged board of appeal that is the subject of this article, Battistelli has made his policy clear. He will not change the text of the law, he will simply change the signification of the individual words. It took everybody a long time to understand, because we are not used to words having new meanings completely opposite to what they used to have. It’s newspeak.

Just read the decision of the enlarged board: for Battistelli “independent” means “you rubber-stamp whatever the investigation unit has written”. Can you interpret “no independent fact finding” in another way?

With that in mind, reread all what the Office has published in the past 3 years. With that in mind, consider what “independent board of appeal” means. To help you, I’ll give you an example of an independent tribunal: 2 years ago, Battistelli visited ILO in Geneva to improve relationships. Since that day, the ILO tribunal decided for the Office in 100% of the cases but one or two of little consequences. The majority of the cases are summarily dismissed without a decision on the merits. Check it if you don’t believe me: the judgements are public. THAT is what “independent tribunal” means in newspeak. That is what is coming for DG3 (and probably DG1 as well).

Now tell me how I could still work for DG3 and look at myself in a mirror.

The comment in its entirety is worth reading carefully, as is the comment about soaring costs at the appeal stage (so as to discourage appeals):

It should also be borne in mind that, as the appeal fees approach the stratosphere, and as quality is gradually streamlined out of existence in examination and opposition, the numbers of appeals will quickly fall away. Quod erat expurgandum.

PTAB analogies are brought up (correctly) as follows:

Rather than send parties away from the Haar building, it is more likely that the BoAs will be forced to introduce a concept for oral proceedings along the lines of the PTAB/CAFC with strictly controlled time allowances for pleadings (possibly not quite their ridiculous 15 min. limit though).

About the foreseen process:

I have no numbers myself, but I know from DG3 members who are discussing the matter with facility management that, at present, not enough rooms have been planned. Overbooking was seriously proposed as a solution, given that many ex parte oral proceedings take place in the absence of the appellant, so there should usually be enough rooms available. It is however still thinkable that we manage to get more rooms, or that some oral proceedings take place in the Isar building (which would make the move to Haar look even more ridiculous).

And in response to this one person wrote:

Thanks for the clarification.

So if I understand correctly, the building settled upon by the EPO management is not only in a location that will be very inconvenient for the users (compared to current facilities) but is also too small to accommodate the expected workload.

Is that correct? If so, then I reiterate my comments from 25 July. I would also add that, as well as making no sense from any objective viewpoint, BB’s decision now looks to be totally incompetent. This is because any accountant can see that squeezing the Boards into a building that is too small for them whilst paying to keep a larger (and considerably more expensive) building under-utilised is just utter nonsense. It will be interesting to see how the AC’s Budget and Finance Committee squares that particular circle!

New BoA facilities would be “too small to accommodate the expected workload.” Well, that’s just how to kill them softly. “Increasing the profitability of the EPO (whilst forgetting why the EPO exists)” is the way this person put it. In full: “It is correct (unless the plans are changed). Financially, it does make sense, if parts of IT and administration are moved from the Pschorrhöfe to the Isar building, and the planned overcapacity in examiner staff that will be recruited is then located in the newly created space in the Pschorrhöfe. At some point, of course, the EPO will need somehow(!) to get rid of the excess examiners and will sell the space that again becomes available. This will then bring a nice profit since it is office space in the city centre. Increasing the profitability of the EPO (whilst forgetting why the EPO exists) seems in any case to be one BB’s main goals.”

One person asked: “Weren’t the last IT people driven out of Isar at the time of the great asbestos abatement?

“Anyway, I think the room freed up could be used to house more BB cronies in the PR department.”

Another person referred to the ILO decisions we alluded to the other day and said: “I was not aware of the results of the last session of ILO yesterday. Apparently, the tribunal can be more independent than I thought. Good news, but I wonder how Battistelli will react. As to building rent: the Office evacuated the rented buildings in the west of Munich last years, and concentrated examiners in smaller rooms. Rent was not considered to be an option at the time.”

Published on July 28^th was the following analysis by Finnegan, Henderson, Farabow, Garrett & Dunner LLP. It’s about Battistelli rushing the whole process (uncertainty and certainty as euphemisms) and it said: “The European Patent Office (EPO) recently announced a new, streamlined procedure for oppositions under its ‘Early Certainty for Oppositions’ initiative. In particular, from 1 July 2016, straightforward opposition cases should now be decided at first instance within 15 months from the end of the nine-month opposition-filing window. This not only represents a shortening of the opposition procedure by around a year compared with current average timescales, but also benefits third parties by helping to provide legal certainty in a more timely manner. It, however, places additional pressure on patent proprietors who may need to prepare their defenses more quickly.”

This, suffice to say, is total hogwash. What Battistelli wants is a rushed process which favours large corporations and has no effective mechanism for quality control (examiners overruled). Here is someone quoting SUEPO about it:

I did not need to wait a long time to know what newspeak means for DG1. There is a new article from SUEPO. I will just cite the beginning:

Getting there faster, a case of unclarity?

An Efficiency Presentation has been given in a number of administrative directorates in Berlin during the recent weeks. It was based on a power point presentation titled “Getting there faster” and was further complemented by individual remarks by administrative as well as examining staff.

It has come to the Berlin staff committee’s attention that some parts of this presentation appear to have been misunderstood by many technically qualified examiners in Berlin who felt that those parts of the presentations in their respective directorate lead to undue interferences, be it from interested circles outside or inside the Office, with the responsibilities directly vested by the Contracting States in Examining Divisions (Articles 15 and 18 EPC) to which these examiners are administratively assigned. The title as well as some remark was understood as a prompt to ignore some of the Examining Divisions’ responsibilities in order to more quickly grant patents on European patent applications. Apparently, the following messages were perceived:
(a) the requirements under Article 84 EPC, especially clarity, were often less essential for the quality of the granted patent
(b) the description and figures should be employed, together with the claims, to determine the subject-matter for which protection is sought with the procedure up to grant
(c) clarity of the claims was no ground for opposition, and lack of clarity as such should thus not be the basis to refuse a European patent application
(d) the procedure up to grant should be a co-operative and an interactive process involving essentially the entrusted examiner and the applicants’ representatives as partners, preferably via telephone conversations instead of oral proceedings
(e) a benefit of the doubt on the part of the entrusted examiner should lead to a proposal to grant
(f) the other members of the divisions should follow the entrusted examiners’ proposals to grant
(g) the proposal to grant should promptly be signed by the other members when their own merely administrative checks have been done, i.e. without their own assessments of the requirements e.g. for patentability.

(citation end)

Expect management to deny everything. Newspeak only works as long as it is not translated.

…and the new DG1 policy is the final nail in DG3 coffin. If DG1 never refuses any patent there won’t be any appeals.

What Battistelli has done “represents a complete and utter corruption of the patent system in Europe,” said this commenter:

If what you report is accurate, then this represents a complete and utter corruption of the patent system in Europe.

The provisions of the EPC are not there merely for decoration, they serve a very important purpose (namely, ensuring an appropriate balance between the interests of patentees and the interests of the general public in Europe). The requirements for patentability, including support / clarity, cannot be ignored. Indeed, the fact that Article 84 is not a ground of opposition makes it more (not less) important that examination on that ground is taken seriously.

Further, encouraging a “rubber-stamping” approach means nothing less than the elimination of an important quality control checkpoint.

And don’t get me started on the policy of “if in doubt, grant”. Why should the general public have to go to the trouble of revoking a patent to subject matter that has never been proven (to the reasonable satisfaction of an examiner) to be patentable in the first place?

Is there any verifiable evidence that the presentation in question took place? If not, then I guess that (in view of EPOnia not being part of Europe) making freedom of information requests regarding internal policies would not elicit that evidence either. Which highlights yet another possibility for corruption that the founding fathers of the EPC did not foresee, namely the possibility for “internal policy” to be crafted that is completely at odds with the black letter law of the Convention. What a mess!

A response to this (today) said:

I don’t know any more than what I have written. This is the text directly from the suepo Berlin site, I just cut the rest, where suepo explains all this is against the EPC, but readers of ipkat already know that. And I don’t expect that anything will ever be published officially. This is typical for our new management: tell the staff about the new policy in a meeting. If people ask for written instructions or object that the policy is inconsistent with written regulations, management will consider that they belong to the people “against”. Which is a recipe for early retirement ( McGinley) or even dismissal, as exemplified recently by 4 staff representatives, one board member, one press spokesman and probably more we don’t know. Expect directors and examiners to quickly apply that new policy. People don’t resist for long after a meeting with their superior in recent times.

The same kind of methods were applied by other ENA graduates at France Telecom. It’s in the French press, some managers were found guilty. But of course Battistelli has immunity. Nevertheless, he is not going to put anything in writing.

I don’t see how the new policy can be avoided. Consider the EPO to be a registration system within a year.

Commenting on patent quality, one person noted: “Well, there would still be appeals for opposition cases, where there one side must do less well than the other.

“At least as long as this “business” isn’t carved away from the EPO to make the UPC a “success”…”

The UPC won’t happen (at least any time soon, especially not in the UK), so it’s irrelevant to Battistelli’s argument. Battistelli is killing not only the boards of appeal. The entire European patent system is in imminent and inevitable state of collapse because of him; those who dare say it out loud (without anonymity) are punished and then defamed (to discredit or distract from their message). █

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