10.24.17

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The Last Comment in IP Kat (Before Censorship) Was About Patent Quality at the EPO

Posted in Europe, Patents at 5:20 am by Dr. Roy Schestowitz

We are guessing that the EPO’s management is pressuring/threatening blogs again (for deletion of critical voices); they tried it on us repeatedly and we have strong evidence that they did this to others

Erdoğan and EPO

Summary: While it’s hard to know for sure what triggered the latest IP Kat censorship, what’s clear is that people inside and outside the EPO are very disturbed by it “especially when one considers the curious silence of all “mainstream” media outlets on the situation at the EPO.”

Just before IP Kat deleted all the comments (about 40 of them) someone posted (now a broken link) a reference to Techrights and said: “On quality at EPO : position of SUEPO about the elephant in the room which is currently also being deplored among the European IP community…” (the comment was so recent that not even Google cache had it before the act of censorship; we check for latest comments every 4 hours or so)

Why is the IP Kat blog suppressing the voices of EPO critics right now? Is the EPO trying to gag its staff even outside of work?

In another IP Kat comments thread, someone said yesterday, “you understand that “just having” a patent for a small company is NOT all that helpful.”

Truthfully, patent trolls don’t count as small companies. But to the EPO, if/when it suits its agenda, anything goes! Yesterday it promoted this false (pro-UPC) narrative based on the lie that patents in Europe help SMEs. Based on leaks, the very opposite is true. The EPO just cannot stop repeating this lie. It did this at least twice yesterday (here is the second time) and it even recommended going to one’s national patent office when one needs a patent in just one nation (SMEs typically operate in just one nation). The EPO actually did that yesterday!

The next comment (after that) said: “With the quality issues at the EPO getting worse, you may soon see your first allowance.”

Here is the full comment:

what surprises me is that you say what you do, yet purport to have been in the industry for many years. Are you on the correct blog? This is about the patent industry. Patents provide monopolies in order to enable the patentee to block the actions of another party. If nobody is hurt, nobody is being blocked from acting freely. If you are in the industry, I guess you act for those hard-done-by, misunderstood, inventors of perpetual motion machines. But, just imagine the hurt if you do manage to obtain grant of a patent covering one of those things! With the quality issues at the EPO getting worse, you may soon see your first allowance.

If my amendment to the UK Patents Act was not in the alternative for (d), no patents would get granted, except those drafted by Chris.

What good is a blog that actively suppresses comments and isn’t a public forum? What has IP Kat turned into? It has long suppressed and even deleted comments about the UPC, but now this? Can’t even discuss internal EPO affairs? We are not sure, but we’re assuming it’s very much possible that the EPO threatened this blog (again).

Speaking of blogs that censor comments, we already caught Kluwer Patent Blog doing that as well. There’s currently a fairly long series of comments with several people in it (one of which is a pro-Battistelli voice, which is dubious). In case that too gets deleted, as happened there before, we have decided to reproduce the comments about patent quality below (making public copies reduces the incentive for censorship as well, as is widely known):

Bravo Thorsten. Thanks for speaking out. Speaking out works. It seems to have resulted in a new President for the EPO.

True, complaints about any fall in “Quality” need to be backed up by evidence, evidence in a form that is understandable to a 5 year old (or a delegate to the AC). Who can provide it? Who is willing to speak up and provide it? Your firm, Thorsten? It must by now have loads of data. More, in fact, than more or less any other EPO user.

The problem with a “Supervisory Board” is well-known. I experienced it myself, when sitting on the Board of a publicly-funded Arts Centre in London in the 1970’s. Management runs rings around the AC. The AC interests itself only in the accounts. It is not equipped to “take on” the management, in an area like “Quality”. Nobody expends all their troops in a battle they cannot win.

Or take VW. Take quality in diesel engine manufacture. Has its AC had the wool pulled over its eyes?

What’s to be done? I have no idea, beyond kicking up a fuss. As you are doing, in no uncertain terms. Again, bravo!

And someone complains about Dr. Ernst after that:

Thorsten – I commend your approach in being so direct. The situation at the EPO has for far too long resembled the story of the Emperor’s New Clothes, with the EPO’s management proclaiming that quality has been maintained when it has been obvious to anyone who cared to look that this is simply not true.

It is very difficult to provide direct evidence on quality without breaching confidence. The exception is cases where one is an opponent… but then, as an opponent, one would naturally be expected to complain about poor patent quality. What therefore REALLY matters is the perception of the patent profession within Europe and the actions that those within the profession take based upon that perception. On this basis, the EPO clearly has a problem with quality. This is because it does not take a genius to figure out that a vastly decreased rejection rate plus a vastly increased grant rate means that there is a high likelihood that patents are being granted with invalid claims (and perhaps with invalid claims only).

On a separate issue, I find it extremely disturbing that the chairman of the AC does not know the full facts regarding appointments (to the Boards of Appeal) for which the AC is responsible. It has long been apparent that the EPO President does not provide the AC with the (full) facts and/or presents “facts” in a very misleading way. This is an untenable situation that must be brought to an end as a matter of great urgency.

The AC’s reputation has been severely damaged by its uncritical approach to information provided by the EPO President (to say nothing about the AC’s abysmal performance in case Art. 23 1/16) and there is a lot of remedial work that needs to be done to persuade observers that the AC is not effectively controlled by the EPO President.

As a commenter said on another blog, may be even Max Drei, what is going on at the AC is he tail wagging the dog. I could not come to the meeting, but it appears clearly that the information given by the management of the EPO to the AC is biased to say the least. The present tenant of the 10th floor is manipulating the AC at will!
How on earth can the chairman of the AC claim that the problem of the Boards is solved? I fully agree with Mr Bausch that the contrary is true.
When on the other hand one hears that the appeal fee should raise up to a level of 7 000 €, in words seven thousand Euros, the strategy behind this becomes more clear every day: first dry out the working force of the Boards, make accessing them so expensive, so that every user of the system will think twice of appealing a decision of first instance.
From a purely rational point of view, when it takes too long, and is too expensive, grind your teeth and accept what is going on. The net result is that any problems with the validity of a European Patent will end up primarily at the UPC. This is a very elegant way to avoid in the long run any conflict of case law between the UPC and the Boards on the validity of patents. Is this what the big industry wants? If the answer is yes, then owe it, and stop pushing the SMEs as a kind of fig leaf.
I take bets that the opposition fee will increase as well. The pretext for increasing the appeal fee is that the Boards should provide more income in view of their costs. If one thinks about the same way for opposition proceedings, the fee will have to be increased.
At the moment there is a concerted action from the Office towards SMEs, cf. the document heralding the need of the UPC for SMEs. Can you imagine a SME forking out 7 000 € for an appeal if its application is refused, and later having the perspective of forking out another 11 000€ + in fees if it wants to start an infringement action before the UPC, or 20 000€+ if wants to make a counterclaim for revocation when attacked? This is not serious and should be hung “an die große Glocke” as Germans would say. Why is there so little said about those facts?
That the quality is going down, is clear. I have seen communications which are not worth the paper they are written on. The mobile hair dresser saloon was just one element of the top of the iceberg.
I have seen a decision from an opposition division which makes one cringe. Following a request of maintenance in amended form, the opposition division decided to reject the oppositions! All three members of the division signed, and the formalities officer did not see anything either. In spite of what the tenant of the 10th floor has been touting at the UPC conference in July, the 3 man divisions of first instance have long time gone. There are clear oral instructions given by some directors: if the first member decides to grant, the two other have to shut up and sign. With the premium system introduced, the examiners will not annoy each other. Another stupidity.
You just have to look at some decisions of the Boards in appeal following refusal of the application. There is an increasing number of decisions in which the Board cites better prior art than the one found during the search. It might not be the role of a Board to redo the search, but if the original search is appalling, what else should be done? And this only happens if the application has been refused. The internal audit figures have to be made public. The sooner the better. They speak a clear language.
What should be done is to regularly file complaints at the complaints department, but even in flagrant cases of errors, the reply is anything but satisfactory. Only if there is a clear message coming from the outside, and going not only to the EPO but also to the delegates in the AC, things will not change. It is to be hoped that epi wakes up and start complaining as well.
The latest measure in order to increase quality is to recruit examiners on 5 years contracts, renewable or not. A contract will clearly only be renewed if the examiner behaved correctly. What is happening at the boards is to be pushed through to the first instance. When one thinks that the training costs of an examiner will only be recouped after three years, it is anything but certain that this measure will be beneficial to the office in the long run. And one can guess of what will come out….
Which sensible person will accept to leave its home country, decouple himself from any national social security and pension system in order to come to the EPO with the risk of being thrown out after five or 10 years? And then be left with nothing. May be young people having just finished their studies, but certainly not people with some experience having a family and children. May be some civil servants seconded to the EPO might accept, as they will in general have a right to return, but nobody else.
The worst is that the tenant of the 10th floor wants to introduce this system on January 1st 2018. As he is leaving the office at the end of June 2018, he should even, out of plain decency leave such a big reform to his designated successor, and not pre-empt his presidency.
To sum it up: the situation is by far worse as one can think, and if nothing is happening to stop this folly, the whole patent system will go down the drain. Is this what you want?

The new Chair of the AC is a professional Hit Man from the Justice Ministry of Germany. This is the Ministry that allows a scandalous backlog of tens of thousands of court cases in Germany. The small fry are pursued relentlessly (so as to satisfy the statistics of cases completed) while the Big Fish criminals get away scot free. How so? Because Big Fish have powerful friends and engage large legal teams. These kick up so much dust that the public prosecutors are overwhelmed, to the extent that Big Fish cases are still languishing when the limitation period expires and the criminals can no longer be pursued. Just one example, the head (Funke) of the criminal bank HRE. Google it!

No wonder so many folks in Germany are so frustrated, and vote for the AfD. This is not good! Herr Maas (SPD), Herrr Ernst, readers, take note.

The definition of madness, somebody once said, is to do the same thing all over again but expect a different result. It is naive, dear reader, to expect any improvement at the EPO. The top political imperative, at AC (that is, national Government) level, is that the UPC must be a success. Any institution (EPO-DG3) that could call such success into question must therefore be ruthlessly eliminated, without delay.

From “Anonymous attorney”:

A problem with the complaints system, as I see it, is that (whether or not by design) it’s incapable of spotting systemic issues. So everything gets treated as an isolated case, and they tend to look at the specific facts (one man’s unreasonable objection is another man’s divergence in interpretation of the prior art…) rather than the overall trends. Hence the management are able to go around claiming to be blind to any systematic degradation in quality because everything regarding examination/opposition proceedings is a matter of opinion and the only metrics that they have (speed and number of grants) say everything is fine within the parameters they themselves have chosen.

Meanwhile, in the real world, I and other attorneys at my firm (and others) are increasingly seeing shoddy examination that speaks of intolerable time pressure, inadequate training and inexperienced examiners. A non-exhaustive list of depressingly common problems includes:

– half-hearted or botched attempts by the Examining Division to amend the description in a 71(3) Communication, necessitating disapproval to undo the damage and/or complete the job properly

– amendments introduced to claims by the Examining Division in a 71(3) Communication that unnecessarily affect the scope of protection, again necessitating disapproval and a stern letter to the EPO explaining that the Applicant cannot consent to the amendments

– shoddy search opinions (especially in the international phase) that only contain brief comments on the independent claims and/or only give the vaguest reference to “relevant” passages in the prior art

– “copy-and-paste” Art.94(3) communications that simply reiterate old objections verbatim and don’t at all address the amendments or arguments made in previous submissions

– Art.94(3) communications that contain perfunctory, badly-worded, muddled and/or poorly-reasoned objections that have clearly been thrown together so that the examiner can get the case off their desk in time for an arbitrarily-imposed internal deadline (since it seems that speed is all that matters for the quality metrics)

– Basic legal errors that aren’t even a matter of opinion (asserting that a reformulation of the objective technical problem in reply to an inventive step objection constitutes a violation of Article 123(2) (!!!); raising a novelty objection against a specific claim on the basis of a generic prior art disclosure; etc etc)

– unnecessarily early issuing of summons to Oral Proceedings, which I fear will only get worse once the new Guidelines take effect at the start of November

– unwillingness to take part in meaningful telephone discussions, contrary to the Guidelines

– increasingly poor standards of English in substantive communications

– refusal decisions that bear only the slightest resemblance to issues discussed during examination proceedings

I could go on…

Of course, a knock-on effect of this is that there will be an increasing number of Appeals, making the backlog problem ever-worse.

Surely it is time for a coordinated effort across Europe for attorneys to raise these concerns with their AC representatives?

The other day, when doing some file inspection work, I found a complaint letter written by the in-house representative of a German SME and sent to the EPO. If your command of German is sufficient, have a look. The writer analyses three concrete cases and draws some chilling conclusions on patent quality at the EPO and its consequences. The contrast with Mr Battistelli’s self-congratulatory trumpet-blowing is striking, to say the least.

https://register.epo.org/application?documentId=EZMRZYSD4349561&number=EP06022243&lng=en&npl=false

(if the link does not work, look up any of patents EP1777452 or EP2768359 or EP2481259 in the Register and look for the written submission dated 30 September 2016).

Best regards

Michel

This in reply to “Michel” (and the Complainant with the office in Kandel, Germany).

We need to be clear on what we mean by “quality”. I say that the patents issued by the UK Patent Office prior to 1978 were of very high quality. Clarity was a big issue. What issued was crystal clear.

Yet the UK Office in those days made no examination of obviousness. Nevertheless, patent litigation was as rare as hens teeth. And when it happened it was only when both sides thought they could win. Nobody spent money trying to enforce a claim that would like go down as obvious. Why can’t every EPC country arrange it like that?

But the firm in Kandel is distressed that the EPO is not filtering out, prior to issue, claims that are palpably obvious. Why is that so important? Has its client been enjoined by a court, to cease manufacture? I doubt it. And if it has, was that because the court declined to consider evidence of invalidity of the asserted claims? What is stopping the court being educated, that the patent owner’s claims are without foundation?

These days, more than ever, given the rise in prior art in countries like China and Korea, it is no longer tenable to assert that claims examined by a Patent Office are valid. A different definition of “quality” is needed. One might need to downgrade the level of confidence that what issues from the EPO is valid. But was that ever the case?

This morning someone posted a comment there about IP Kat censorship:

Strange things are afoot in the world of (reporting on) the EPO. After months of a self-imposed moratorium of reporting on all matters EPO, a well-known IP blog finally posted something… about the appointment of Mr Campinos. The comments on that post raised some interesting issues that – like those raised in this post – deserve some airing. But now all of those comments have been deleted and the comments function disabled for that post.

What is going on? With perhaps only one exception, I cannot see how the deleted comments could possibly have posed a legal (e.g. libel) issue. So why delete them ALL?

Whilst I am not inclined to believe in conspiracy theories, I am very troubled by this development… especially when one considers the curious silence of all “mainstream” media outlets on the situation at the EPO. If Mr Ernst is earnest in believing that “One achieves the most positive results by a critical dialogue”, then this development should trouble him too.

Against this background, I can only commend you again, Thorsten, for speaking out about the troubling situation at the EPO. Whilst most attorneys are too afraid (or too ignorant or complacent) to speak up, your airing of these issues has demonstrated to me that I am far from being alone in being appalled by the current direction of travel at the EPO. Keep up the good work!

Thorsten is now in Twitter (his handle name is @patcrit). We encourage people to support him and not let Kluwer delete comments like it did before. From now on we will actively work, even proactively, to preserve comments from anonymous insiders and stakeholders. They are being systematically gagged.

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