Central Staff Committee on EPO Bribing Its Critics, Using a "Sharp and Abrupt Reduction, Estimated at 80% to 90%, in the Number of Refusals and Summons for Oral Proceedings in Areas Related to Software Patents"
The EPO's chronically corrupt President, António Campinos, is served further spectacular humiliation as national representatives (delegates) are being informed of his intensifying campaign of corruption, followed by attempts to bribe those who speak about the corruption (granting them monopolies through shortcuts). The EPO is a growing reputational risk to the EU, as the EPO funded Belarus and EPO management seem just about as corrupt as the Kremlin.
The EPO's Central Staff Committee (CSC) has escalated its tone somewhat, having just issued another update on a scandal we wrote about earlier this month. There's some background and short introduction for those who haven't paid attention. From the CSC: "The press continues to be critical about the EPO strategy to primarily focus on speed and efficiency. DG1 Operations is continuing to arbitrarily reallocate patent applications to new Examining Divisions without explanation and without disclosing the criteria. The focus is put on patent applications from signatories of the IPQC charter.
"Interferences with Examining Divisions and wrong incentives to shorten the procedure have already resulted in a sharp and abrupt reduction, estimated at 80% to 90%, in the number of refusals and summons for oral proceedings in areas related to software patents, particularly in the fields of business methods and digital simulations.
"The concern is such that a prompt reaction to our letters (1 and 2) to the President was expected, but so far the silence has been deafening.
"In this open letter, we urge the Administrative Council to exert its supervisory role and to put an end to the serious interferences in the EPO patent granting process."
This is becoming a problem for the EU as a whole. The UPC's booster at the top-level EC, Mr. Breton, has just resigned, but another UPC booster (i.e. someone who undermines the very concept of law and justice) became head of state in France. That's Mr. Barnier. If the EPO isn't brought under control and those who engage in corruption at the EPO aren't brought to justice, the whole "European project" will suffer serious credibility issues.
The following letter, dated yesterday, was sent to delegates of EPO member states (about 40; that's more than the EU). It does name the issue of software patents, too. That's a refreshing change. European software patents - i.e. patents which are both illegal and undesirable - are a big part of the problem. Nowadays patent offices encourage applicants to call them "hey hi" and receive accolades for conforming with buzzwords/hype (like "4IR" some years ago).
European Patent Office
80298 Munich
GermanyCentral Staff Committee
Comité central du personnel
Zentraler PersonalausschusscentralSTCOM@epo.org
Reference: sc24057cl
Date: 19/09/2024
European Patent Office | 80298 MUNICH | GERMANY
To: Heads of Delegation in the Budget and
Finance CommitteeCc: Mr António Campinos
President of the EPOBy email:
council@epo.org
president@epo.orgOPEN LETTER
Serious interferences in the EPO patent granting process
Dear Heads of Delegation,
The Süddeutsche Zeitung (second largest German daily newspaper) of 12 August 2024 published an article1 highlighting the fact that companies from Asia and the USA are filing many more patent applications in the field of artificial intelligence than European companies. Several patent attorneys and patent applicants are quoted and heavily criticise the EPO for aiming in this context at being primarily fast and efficient (Strategic Plan 2028). In their view, it is more important to have valid and internationally enforceable patents, especially in the field of Artificial Intelligence (AI) and digital simulation. As a result, Siemens AG, one of the largest applicants for European patents, is even considering turning away from the EPO.
The Central Staff Committee called by letter2 (Annex 1) for a reaction from the President and a reassessment of the EPO’s strategy. We regret that the EPO has since then still remained silent on the matter. On the other hand, the European Commission sees it differently and is vocal on the topic. It has published on 9 September 2024 a report “The future of
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1 "Europa wird bei künstlicher Intelligenz von China abgehängt", SZ article of 12-08- 2024 (ex24014cp)
2 “Article “China hängt Europa bei KI ab” in the Süddeutsche Zeitung of 12 August 2024”, CSC letter of 29-08-2024 (sc24051cl) [Annex 1]
European Competitiveness” revealing in its analysis (p. 231) “the Chinese government’s attempt to prioritise quantity over quality in patents to increase China’s geopolitical visibility”. It refers to another report “What Do China’s High Patent Numbers Really Mean?”, published by the Centre for International Governance Innovation in 2021 which is critical about the resulting low quality of China’s patents.
While the press is being critical of EPO processes and in preparation of high-level user meetings in autumn, DG1 Operations put in place a specific unit in charge of scrutinizing patent applications filed by Siemens AG. For a number of these patent applications, the Examining Division in charge had already sent summons to oral proceedings. Nevertheless, the specific unit took the decision to allocate to the files new Examining Divisions working in another Directorate and in another field. The latter cancelled the oral proceedings that may have led to refusals but instead directly sent intentions to grant. DG1 Directors acknowledged to their teams that the focus was put on patent applications from Siemens AG, Ericsson and Bayer, who are members of the IPQC and publicly critical about the EPO.
The CSC wrote3 (Annex 2) to the President urging him to put an end to this course of action, which can be considered to be against the principle of neutrality in the treatment of patent applications. The matter is of such importance that a prompt reaction from the President was expected, but so far the silence has been deafening.
The EPO examiners are left facing arbitrariness and speculation. They were never consulted on the intention to reallocate their applications and not given an opportunity to bring corrections or to comment. They were not informed in advance of the reallocation and were not provided with any reason for the change. In some Directorates, contradictory sets of new “Golden Rules” were presented in team meetings, but not handed out. There was the explicit mention that these shall remain confidential4 (Annex 3). DG1 Operations is also seeking to introduce a notable change in the approach to processing software patents. This revised practice seems to deviate from the established EPO Guidelines and the decisions of the Boards of Appeal.
The reallocation of Examining Divisions cannot be seen as a “quality action”. First, this unilateral and arbitrary action from DG1 Operations is outside the Office’s Quality Management System (QMS). Second, it does not comply with ISO 9001 and ISO quality management principles because of the lack of “capturing and sharing [of] undocumented knowledge and experience”, the lack of “lessons learned from failures and successful projects” and the lack of “results in improvements in processes”. Third, it is in contradiction with the EPO Patent Quality Charter allegedly promoting “open and transparent feedback” and “collaborative and interactive ways of working to […] gain experience”,
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3 “High-level user meetings and special treatment of patent applications”, CSC letter of 29-08-2024 (sc24050cl) [Annex 2]
4 “Arbitrary reallocation of patent applications and cancellation of oral proceedings”, CSC paper of 12-09-2024 (sc24056cp) [Annex 3]
and fostering a “culture of mutual learning”. Finally, it is in breach of the Quality Action Plan 2024 setting as priority to “strengthen learning through feedback from peers, managers”.
The European Patent Convention (EPC) was designed to prevent such ongoing interferences in the patent grant process. There is good reason for the provision that Article 18(2) EPC stipulates that an Examining Division shall consist of three technically qualified examiners. This number of members is a further safeguard that decisions be not influenced by external influence and arbitrary considerations. After an Examining Division has become responsible for the examination of a European patent application under Rule 10(2) EPC, an arbitrary replacement of its members according to a non-documented procedure or secret criteria does not appear to be in line with this objective. No ”specific unit” or the like is foreseen in the EPC.
In the case of the aforementioned fields of Artificial Intelligence (AI) and digital simulation there is currently intense political debate. The European Court of Auditors recently published a special report on the EU Artificial intelligence ambition. WIPO presented detailed statistics in its Patent Landscape Report on Generative Artificial Intelligence. On 1 August 2024, the European Artificial Intelligence Act entered into force, which aims to establish a harmonised internal market for AI in the EU.
The decisions on granting European patents and rejections of European patent applications (Article 97 EPC) should still continue to be in the hands of Examining Divisions consisting of three technically qualified examiners. The examination should continue to be governed by the EPC, oriented on the case law of the Boards of Appeal, and guided by the Guidelines for Examination – in this hierarchical order. Instead of irregular interferences by arbitrary reallocation of files, hidden instructions and a “specific unit”, the appeals procedure according to Part VI of the EPC is the appropriate measure for dealing with decisions which adversely affect an applicant.
Over the past 50 years of the EPC, this chain of instances has led to a carefully balanced legal system, which has contributed significantly to the success of the European Patent Office, not least in the field of computer- implemented inventions including Artificial Intelligence (AI) and digital simulation. However, should there be a political interest in changing the patent granting practice in these areas, for example in the direction of more grants, then the conference of ministers of the Contracting States (Article 4a EPC) and the revision of the EPC by the Conference of the Contracting States (Article 172 EPC) is the appropriate and competent body.
The Central Staff Committee is very concerned that at a time when the increased number of patents granted by the EPO and their quality have become a major concern among users of the patent system, the EPO is taking the wrong course of action by interfering with the Examining Divisions and creating wrong incentives for shortening the procedure
towards an intention to grant. As a result, a sharp and abrupt reduction, estimated at 80% to 90%, can already be seen in the number of refusals and summons for oral proceedings in areas related to software patents, particularly in the fields of business methods and digital simulations.
We therefore urge the Administrative Council to exert its supervisory role and to put an end to the serious interferences in the EPO patent granting process.
Sincerely yours
Derek Kelly
Chairman of the Central Staff CommitteeList of Annexes:
Annex 1 | “Article “China hängt Europa bei KI ab” in the Süddeutsche Zeitung of 12 August 2024”, CSC letter of 29-08-2024
Annex 2 | “High-level user meetings and special treatment of patent applications”, CSC letter of 29-08-2024
Annex 3 | “Arbitrary reallocation of patent applications and cancellation of oral proceedings”, CSC paper of 12-09-2024
Annex 1 was published 11 days ago as HTML/text/GemText.
Annex 2 got published here a day earlier.
Annex 3 was reproduced here exactly a week ago.
The above contains a lot of context too. Should silence be expected again? In this case, silence would be a form of enhanced complicity, in effect endorsing both bribes and violation of the EPC. █