Bonum Certa Men Certa

EPO Staff Explains That With Phony 'Quality Audits' the EPO is "in Breach of the EPC" (European Patent Convention) and Patent Examiners Are Compelled to Act in Breach of the EPC

posted by Roy Schestowitz on Feb 09, 2024,
updated Feb 09, 2024

Crime Scene Do Not Cross

The Central Staff Committee at the EPO has a new paper. It concerns patent quality again and thus - inter alia - it concerns European software patents.

It is no secret that Benoît Battistelli and António Campinos are well aware that they illegally grant patents for the sole purpose of making and gambling with more money. There's paper trail for all this.

Yesterday the Central Staff Committee said to staff:

Dear Colleagues,

The Directorate Quality Audit consists of examiners and formalities officers. DQA samples patent applications at grant or search stage from the Patent Workbench for quality audit. The auditors perform the checks and send the outcome by email to the competent Examining Division. The outcome is sent to the Examining Division both if the audit criteria are met and if deficiencies are found.

On 11 December 2023, the three Vice-Presidents of DG1, DG4 and DG5 issued Internal Procedural Instructions updating the DQA workflow.

The newly planned involvement of “line managers” and of the “DG1 independent review panel” is particularly worrying as they have disciplinary powers, reporting authority and play a decisive role in the career advancement of the members of Examining Division under the new career system. The new workflow is hence of highly questionable legality which jeopardizes the “three-man examining divisions”.

From what we can gather, this paper of theirs is less than a day old or was published less than a day ago, disseminated through members of staff by hacking around illegal censorship by the Office (the EPO continues to not obey a court ruling successfully challenging this censorship).

Here's the publication from the EPO's own staff, presented in the form of HTML, plain text, and GemText. These people know the matter best:

Zentraler Personalausschuss
Central Staff Committee
Le Comité Central du Personnel

Munich, 08-02-2024
sc24009cp

Quality Audits

What is DQA?
The Directorate Quality Audit consists of examiners and formalities officers. DQA samples patent applications at grant or search stage from the Patent Workbench for quality audit. The auditors perform the checks and send the outcome by email to the competent Examining Division. The outcome is sent to the Examining Division both if the audit criteria are met and if deficiencies are found.

The EPO Quality Report features statistics on the grant and search audit results. The latest from 2022 show (p. 46 and 38) 76% compliance for grants (vs. 85% target) and 82.6% compliance for searches.

New DQA workflow…
On 11 December 2023, the three Vice-Presidents of DG1, DG4 and DG5 issued Internal Procedural Instructions updating the DQA workflow.

As of 1 January 2024:
− the audit report, both in grant and search audits, is sent also to the line manager of the first member of the competent Examining Division,

− in case of deficiencies, a new “audit dialogue” takes place involving also the line manager of the first member,

− if no agreement is reached DQA may review each disagreed product finding internally, either by a “simplified review” of two auditors or a “full review” additionally comprising the quality audit line manager

− if DQA maintains at least one finding after a full review, it informs a new “DG1 independent review panel” which shall issue a recommendation to the division and send a revision task to the first member “to correct the action as appropriate”.

… in breach of the EPC
Examiners are first and foremost bound to the European Patent Convention (EPC)1. The EPC defines that examination of European patent applications is the sole responsibility of Examining Divisions2. Such divisions shall consist of three technically qualified members, and can, only in exceptional cases, be enlarged by decision of the responsible Examining Division with a legally qualified member to four members3.

There is no provision for the involvement of anyone else. This de facto excludes “DQA auditors”, “line managers”, the “quality audit line manager” and the “DG1 independent review panel”. Should they be involved according to the new DQA workflow, the applicable rules on the composition of the Examining Divisions are systematically violated.4

The planned involvement of “line managers” and of the “DG1 independent review panel” is

______

1 e.g. T 0162/82, headnote; or T 0500/00, cons. 2.6.1

2 Article 18(1) EPC

3 Article 18(2) EPC

4 In fact, it is undisputed that the final decision to grant a patent or refuse a patent application remains the sole competence of the Examining Division and that neither a line manager nor anybody else can replace a member of the Examining Division when taking a decision under the EPC unless being appointed as member of the Examining Division in accordance with Article 18(2) EPC.


particularly worrying as they have disciplinary powers, reporting authority and play a decisive role in the career advancement of the members of Examining Division under the new career system5.

Moreover, the “DG1 independent review panel” is presented internally as if it were a higher legal instance for reviewing the Examining Divisions’ decisions, besides the EPO Boards of Appeal, although it has no basis in the EPC at all.

The expectations of the users of the patent system
In the course of the revision of the EPC to EPC20006, the users of the European Patent System as represented by the members of SACEPO7 unanimously supported the “retention of the three-man examining divisions”. This composition of the Examining Divisions should ensure the high quality and legal certainty of the granted patents, presuming that the Divisions’ members have the required time and independence in substance for arriving at their decisions.

However, the new DQA workflow obviously undermines these principles and user expectations. The “DG1 independent review panel” even has the power to send a decision back to the entrusted examiner of the competent Examining Division for “correcting” the decision “as appropriate” taking into account the panel’s recommendation without disclosing any interference to the public8.

Twenty years after the EPC2000 reform, major users of the EPO patent system currently ask that the EPO focuses on substantive quality of patents by giving the necessary time to Examining Divisions 9 . These users never asked for new processes of highly questionable legality which jeopardize the “three-man examining divisions”.

Conclusion
The President and DG5 would be well advised to reassess the legal situation and to make the respective legal opinions on the DQA workflow available.

The users of the patent system and the public deserve to be transparently informed of the EPO’s new processes. In the past, we have already requested the President to publish the respective internal EPO guidelines10 on the work in the Divisions. Now, we request that the new DQA workflow is also published and submitted to SACEPO for consultation.

In case of questions or comments concerning the work in the Examining Divisions and the DQA workflow, please contact your Staff Representation.

The Central Staff Committee

____

5 A career system based primarily on incentives for examiners to achieve ever increasing productivity targets to allegedly guarantee the financial stability of the office.

6 see CA/PL 2/99, item I.A.

7 Standing Advisory Committee before the European Patent Office, “a group of 180 engaged, active and vocal user representatives from all over the world”, see also the SACEPO website

8 Only the names of the members of the competent Examining Division continue to be displayed to the public on the decision to grant without any trace in the public part of the examination file. This violates the findings of the Boards of Appeal that the person signing a communication or decision takes unconditional responsibility for its content. (OJ EPO SE 2/2021, p. 37, T 989/19)

9 “50 years EPC: The EPO ignoring the skilled person”, CSC paper (sc24001cp), 19-01-2024 “50 years EPC: The EPO ignoring the skilled person”, CSC paper (sc24001cp), 19-01-2024

10 see CSC letter sc20184cl (not published)

As we are going to show in a later article, the atmosphere at the Office is again deteriorating, along with quality and compliance. The EPO is basically operating outside the rule of law while relying on crooked kangaroo (and evidently anti-European) courts to let the matter be... and persist. This has become a serious reputation problem for the EU, which is only belatedly catching up with the problem of patents on seeds/plants.

Unless the EU wakes up and gets this matter under control, all this corruption will continue to spill over. This is really terrible for Europe.

Other Recent Techrights' Posts

Microsoft's Windows Falls to All-Time Low and Layoffs Reported by Managers in the Windows Division
One manager probably broke an NDA or two when he spoke about it in social control media
Inclusion of Dissent and Diversity of Views (Opinions, Interpretations, Scenarios)
Stand for freedom of expression as much as you insist on software freedom
 
North America, Home of Microsoft and of Windows, is Moving to GNU/Linux
Can it top 5% by year's end?
[Meme] The Heart of Staff Rep
Rowan heartily grateful
Management-Friendly Staff Representatives at the EPO Voted Out (or Simply Did Not Run Anymore)
The good news is that they're no longer in a position of authority
Microsofters in 'Linux Foundation' Clothing Continue to Shift Security Scrutiny to 'Linux'
Pay closer attention to the latest Microsoft breach and security catastrophes
Links 17/04/2024: Free-Market Policies Wane, China Marks Economic Recovery
Links for the day
Gemini Links 17/04/2024: "Failure Is An Option", Profectus Alpha 0.5 From a Microsofter Trying to Dethrone Gemini
Links for the day
How does unpaid Debian work impact our families?
Reprinted with permission from Daniel Pocock
When you give money to Debian, where does it go?
Reprinted with permission from Daniel Pocock
How do teams work in Debian?
Reprinted with permission from Daniel Pocock
Joint Authors & Debian Family Legitimate Interests
Reprinted with permission from Daniel Pocock
Bad faith: Debian logo and theme use authorized
Reprinted with permission from Daniel Pocock
Links 17/04/2024: TikTok Killing Youth, More Layoff Rounds
Links for the day
Jack Wallen Has Been Assigned by ZDNet to Write Fake (Sponsored) 'Reviews'
Wallen is selling out. Shilling for the corporations, not the community.
Links 17/04/2024: SAP, Kwalee, and Take-Two Layoffs
Links for the day
IRC Proceedings: Tuesday, April 16, 2024
IRC logs for Tuesday, April 16, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Examining Code of Conduct violations
Reprinted with permission from the Free Software Fellowship
Ruben Schade's Story Shows the Toxicity of Social Control Media, Not GNU/Linux
The issue here is Social Control Media [sic], which unlike the media rewards people for brigading otherwise OK or reasonable people
Upgrading IRCd
We use the latest Debian BTW
The Free Software Community is Under Attack (Waged Mostly by Lawyers, Not Developers)
Licensing and legalese may seem "boring" or "complicated" (depending on where one stands w.r.t. development), but it matters a great deal
Jonathan Cohen, Charles Fussell & Debian embezzlement
Reprinted with permission from disguised.work
Grasping at Straws in IBM (Red Hat Layoff Rumours in 2024)
researching rumours around Red Hat layoffs
GNU/Linux Continues to Get More Prevalent Worldwide (Also on the Desktop)
Desktops (or laptops) aren't everything, but...
Who is a real Debian Developer?
Reprinted with permission from Daniel Pocock
Links 16/04/2024: Many More Layoffs, Broadcom/VMware Probed (Antitrust)
Links for the day
Links 16/04/2024: Second Sunday After Easter and "Re-inventing the Wheel"
Links for the day
Upcoming Themes and Articles in Techrights
we expect to have already caught up with most of the administrivia and hopefully we'll be back to the prior pace some time later this week
Links 16/04/2024: Levente "anthraxx" Polyák as Arch Linux 2024 Leader, openSUSE Leap Micro 6 Now Alpha, Facebook Blocking News
Links for the day
Where is the copyright notice and license for Debian GNU/Linux itself?
Reprinted with permission from Daniel Pocock
Halász Dávid & IBM Red Hat, OSCAL, Albania dating
Reprinted with permission from the Free Software Fellowship
Apology & Correction: Daniele Scasciafratte & Mozilla, OSCAL, Albania dating
Reprinted with permission from the Free Software Fellowship
Next Week Marks a Year Since Red Hat Mass Layoffs, Another Round Would be "Consistent With Other Layoffs at IBM."
"From anon: Global D&I team has been cut in half."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 15, 2024
IRC logs for Monday, April 15, 2024
Links 15/04/2024: Navartis, AWS and Tesla Layoffs
Links for the day
Gemini Links 15/04/2024: YAML Issues and Gemtext Specification 0.24.0
Links for the day
Richard Stallman to Give Public Talk in Portugal on Wednesday
new addition to his page
Richard Stallman's Hair Has Grown Back and He Does Not Talk About Cancer
May he live a long and happy life
New Video of Richard Stallman's Talk in Italy (Delivered a Week Ago)
a working copy of the video
Microsoft Windows Falling to New Lows in the United Kingdom and Worldwide
What's noteworthy here is that there's no sign at all of a Windows rebound
[Meme] Quantity of European Patents
they've rigged the system to make more money
Why do free software organizations eliminate community representatives?
Reprinted with permission from the Free Software Fellowship
[Teaser] Freenode LTD: What Happened
Upcoming series based on insiders' account with evidence
Links 15/04/2024: Signs of Desperation at Microsoft and Tesla Employees Brace for Mass Layoffs (Update: Yes, Over 10% at Tesla Laid Off)
Links for the day
Matthias Kirschner & FSFE People Trafficking, coercion of volunteers
Reprinted with permission from the Free Software Fellowship
Gemini Links 15/04/2024: Profectus Alpha 0.4 and RPG of One Capsule Progress
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 14, 2024
IRC logs for Sunday, April 14, 2024
Oceania: GNU/Linux Measured at Lower Than the International Average (4% or 7% Including ChromeOS)
statCounter's data
Human Rights Tribunal of Ontario (HRTO) Does Not Wish to Become an Instrument of Cost-Free Harassment or 'Cheap Revenge', It Says "Justice is Not Free. Quite the Contrary. Justice is Expensive."
Long story short, there is no lawsuit, there is a just a hateful, lying idiot abusing "the system" (which this idiot rejects entirely)