05.12.22

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Central Staff Committee of the EPO Reminds the EPO’s Management, Yet Again, That It is Breaking Laws

Posted in Europe, Law, Patents at 2:22 pm by Dr. Roy Schestowitz

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EPO Does Not Care What the Law Says
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Summary: Sinking quality of European Patents [1, 2], plus a Patent Granting Process that is not compliant with the law, quite likely mean the EPO drives straight into a wall; the Central Staff Committee is still trying to save the institution, but management is uncaring and unresponsive (these people typically serve a term and leave, so they couldn’t care less about the long-term viability of their employer)

EARLIER this year the higher-level management of the EPO (Team Campinos) received a letter of concern that people won’t find in suepo.org and epo.org, so we’re sharing the latest correspondence below.

“Notice that between 10 March 2022 and 4 April 2022 nothing happened. In other words, the super-busy management took 4 weeks to reply.”As it turns out, the EPO violates many rules, including EPC rules, and maybe even ILO ruling would be negatively affected. Not to mention EU regulations! This happens not less frequently than in the Benoît Battistelli era. It has probably gotten a lot worse since then. Here’s the letter from 4 weeks ago. Notice that between 10 March 2022 and 4 April 2022 nothing happened. In other words, the super-busy management took 4 weeks to reply. Here we go:

Reference: sc22045cl
Date: 14.04.2022

European Patent Office | 80298 MUNICH | GERMANY

Mr Steve Rowan
Vice-President DG 1

By email

OPEN LETTER

Formal deficiencies in the electronic Patent Granting Process vs standards for electronic identification

Dear Mr Rowan,

In our open letter of 10 March 2022, we addressed the problem that the current electronic file flow is inadequate to reliably provide properly authenticated actions of the Examining Division where such authentication is a legal requirement of the EPC. In that letter, we also suggested possible remedies. In your reply of 4 April 2022, you unfortunately do not refer in any satisfactory manner to either the problem of authenticated signatures in the electronic file flow nor the suggested solution of introducing electronic signatures into the system.

We do not agree that any deficiencies of the tools provided to the patent examiners to perform their duties should be remedied by simply giving further instructions, be they internal or public, to the examiners, line managers or formality officers. Rather, it can be expected from an organisation that regards itself as one of the leading patent offices in the world to work with tools that – if not at the forefront of technology – meet at least widely recognised standards. In the specific case, such a standard is e.g. set by EU Regulation No 910/2014 on electronic identification means or in the Verordnung über die elektronische Aktenführung (EAPatV) of the German Ministry of Justice. In particular in view of the implementation of


the Unitary Patent it can be expected from the Office to be aware of and apply such standards.

More specifically, it is technically possible to implement an electronic file flow in which each time the EPC requires the signatures of the examining division, the relevant document is electronically signed by each examiner at the moment the examiner signals their approval in the tool provided to control the electronic file flow (currently the Patent Work Bench). The advantage of such an approach is that the validity of the electronic signature and the authenticity of the signed document as well as the identity of the undersigned can be verified later, enhancing legal certainty and increasing trust in the actions issued by the Office. We already referred to severe problems with the signature of an examiner on Search Reports that had been changed without his knowledge and with designating staff as Authorized Officer in public documents who in fact never see those documents (AT-ILO Judgments Nos. 1344, respectively 2417). Furthermore, the Legal Board of Appeal emphasised in decision J 16/17 in all clarity that the requirement laid down in Rule 113(1) EPC (signature and name) is not just a mere formality but an essential procedural step in the decision-taking process.

We are aware that it is the task of DG4 to provide the tools for examiners. However, we think that DG1 should define their technical requirements. Otherwise, DG1 may receive tools that are new and shiny, but inadequate for the work examiners have to perform. Should DG4 currently lack capacity and/or expertise to implement electronic signatures for the electronic file flow, the Office could also make use of expertise in the European Patent Network, e.g. in the German Patent and Trademark Office, which seems to have been working with a functioning system implementing the standards since 2020.

The Central Staff Committee is confident that after your first somewhat evasive answer to our constructive proposal, you are now addressing the real problem and working on a sustainable solution in the interest of staff, the Office and the public.

Yours sincerely,

Alain Dumont
Chairman of the Central Staff Committee

How long can EU officials turn a blind ever to EPO misconduct? These scandals rapidly become a liability to the EU itself.

In the words of the staff representatives: “In this open letter to Vice-President DG1, we address again the legal requirement of signature authentication in the electronic file flow. It can be expected from an organisation that regards itself as one of the leading patent offices in the world to work with tools that – if not at the forefront of technology – meet at least widely recognised standards, also in view of the implementation of the Unitary Patent. We are confident that after a first somewhat evasive answer to our constructive proposal, he is now addressing the real problem and working on a sustainable solution in the interest of staff, the Office and the public.”

The attempt to forcibly impose “Unitary Patent” is yet another act of abuse or criminality; they knowingly do something illegal. But that’s a different subject.

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