ONE source of ours, a European SME, seriously thought about suing the EPO for mishandling or misconduct, having waited for 6 years without being granted a patent which had already been, in principle, secured, based on a hearing.
A recent case decided by the EPO’s Board of Appeal has tackled the issue of delays in prosecution and noted that, for the application in issue, the duration of the first instance proceedings (12 years) amounted to an excessive delay. Reference was made in the reasons of the decision to other cases in which the Applicant’s rights under Article 6(1) of the European Convention on Human Rights have been infringed.
The decision in case T 0823/11 appeared shortly before Christmas last year and relates to European patent application number 96915827.8 which was filed as a PCT application way back in May 1995. The application entered the regional phase in December 1997 and the supplementary European search report issued in February 1999. A delay of nearly 5 and a half years then occurred before the first examination report issued (following a chaser letter from the Applicant).
The EPO and the Applicant exchanged chaser letters, exam reports and replies over the next 3 years but a summons to oral proceedings was not issued until March 2010.
The patent application was refused by the Examining division and the Applicant duly appealed. The Appeal Board decision is dated 21 December 2015.
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i) the first instance proceedings following regional phase entry had taken over 12 years and this was regarded as excessive by the Appeal Board. Reference was made to two other cases (T315/03 and Kristiansen and Tyvik AS v. Norway before the European Court of Human Rights) in which delays were regarded as an infringement of Article 6(1) of the European Convention on Human Rights. The conclusions of these cases were regarded as relevant to the present case, in particular because the delays were not affected by any unusual behaviour of the Applicant;