03.23.18

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The European Patent Office’s (EPO) Declining Patent Quality ‘Tackled’ by Making Appeals/Oppositions Harder and More Expensive

Posted in Europe, Patents at 1:34 am by Dr. Roy Schestowitz

Hiding the effect rather than actually dealing with it

The power of pricing
Battistelli hoped that offering ‘discounts’ to applicants would be a boon to the number of applications (as applications are running out, rendering staff redundant), but it lowers both quality and revenue (source: “The Power of Pricing”)

Summary: The so-called ‘System Battistelli’ is proving to be a disaster which makes both examiners and patents obsolete; Making applications cheaper while making appeals/oppositions harder and more expensive is a recipe for disaster, assuring nothing but more litigation and more workloads for courts, where fees rise to extraordinary levels (in effect externalising the costs/toll of EPO to the public, primarily for gains of patent law firms)

THE USPTO has made oppositions easier and more common (e.g. via PTAB IPRs). We are thankful for this because if patent justice is the goal, then elimination of wrongful patent grants is a desirable thing. At the EPO, by contrast, appeals or oppositions are being made harder just when they’re needed more/most (because of declining quality of grants, as a thousand courageous and moral examiners attest/confess to).

“This is bad for everyone in Europe, except perhaps law firms and patent trolls.”So far this month we have composed about four articles about increase in appeal fees (effective in 9 days), having already shown a soaring number of oppositions (possibly more than examiners can ever deal with given the unreasonable work demands/quotas). SUEPO has repeatedly complained about it, noticing that significant upsurge and noting that the new structure of groups lowers/dilutes skills level inside each. It’s a system which is designed to fail; it’s supposed to fail on justice, i.e. it’ll wind up failing to annul erroneous grants. This is bad for everyone in Europe, except perhaps law firms and patent trolls.

A site which advocates patents on life has just advertised its so-called ‘webinar’ (lobbying setup) and spoke of “late-filed EPO documents” in relation to oppositions. To quote:

Late-filed documents will come under greater scrutiny in light of changes to the European Patent Office’s (EPO) opposition procedure.

That was one of the key points discussed during a joint webinar between LSIPR and HGF yesterday, March 21.

That’s two days ago. It’s like a think tank stuffed/stacked with law firms, trying to basically ensure patent maximalism while noting that “granted patents increased from 64,619 to 105,635 at the EPO.”

The number of applications barely grew in the same period. This ratio is therefore alarming.

To quote further:

This will mainly be achieved by a significant shortening of the written proceedings phase of opposition practice. According to Moore, the streamlined opposition procedure could result in opposition divisions being stricter in allowing late-filed documents and late-filed requests into the proceedings.

“I think it’s certainly the case that late-filed documents will come under greater and greater scrutiny,” explained Moore.

“I’ve had six or seven oral proceedings in the past couple of months, some of which have required late-filed documents and the analysis on their prima facie usefulness seems to be taken at a very early stage by the Opposition Division.”

The Opposition Division is already overworked and overwhelmed. Patent maximalists prefer it that way because it helps ensure low patent quality.

The terrible assumption they (along with Team Battistelli/Team UPC) make is that patent courts will be able to better deal with patent assessment. But at what cost? Well, patent law firms profit a lot from litigation, so why would they oppose the status quo? They profit both from plaintiffs and defendants. They want the UPC because it means passage of patent assessment tasks from examiners to courts. As Benjamin Henrion put it yesterday: “UPC rules of procedure will be ratified in express mode by national parliaments? right or wrong? Can anyone confirm?”

Nothing is being ratified. Neither in the UK nor Germany. It’s not even on the agenda anymore. Without both of them ratifying — a deadlock-type process — the UPC is going nowhere. This is where we are today.

EPO revenue from applications seems to be declining. This is in spite of the goose being killed, i.e. the main ‘asset’ (experienced examiners) leaving and the backlog running out.

Yesterday the EPO wrote: “With nearly 500 more applications filed by German inventors and firms in 2017, Europe’s largest patent filing country again showed growth (+1.9%).”

“After EPO gave discounts,” I corrected them, “so overall applications revenue [was] down again…”

We wrote about this before.

The EPO also wrote (yet again): “Are you familiar with our Case Law of the Boards of Appeal publication? Tell us your opinion on it…”

This Boards of Appeal (BoA) spin continues unabated. The EPO posts this every couple of days and yesterday it was Boult Wade Tennant which joined the spin by publishing “EPO Launches a Consultation on the Revision of the Rules of Procedure of The Boards of Appeal” (EPO stenography).

But the EPO only pretends that BoA, which remains under attack from Battistelli all the time, is under public control. Battistelli wants them replaced by UPC.

The law firm wrote:

The EPO provides Applicants, Patentees, and Opponents with the opportunity to appeal decisions of the Examining Division or the Opposition Division following adverse decisions.

In recent years, the Case Law of the Boards of Appeal has developed in relation to the ability of an Appellant to present new arguments, objections, evidence, and amendments during appeal proceedings. Whilst the practice of the Boards can vary significantly in this regard, recently there has been a general trend towards a more restrictive procedure.

[...]

As a result, the need for Applicants, Patentees, and Opponents to present a full and exhaustive case before the Examining Division or Opposition Division is likely to become even more important.

The whole process is currently under attack. Examiners cannot issue patents correctly (too pressured to work in a rush), the Opposition Division sees oppositions soaring (but isn’t adequately staffed to deal with this workload), and the Boards are also grossly understaffed and lacking independence. The above is merely a face-saving and/or revisionism exercise. The EPO isn’t functioning properly. Insiders know that, but mainstream media remains (with very few exceptions) silent on the matter.

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