Bonum Certa Men Certa

The Last Comment in IP Kat (Before Censorship) Was About Patent Quality at the EPO

We are guessing that the EPO's management is pressuring/threatening blogs again (for deletion of critical voices); they tried it on us repeatedly and we have strong evidence that they did this to others

ErdoÄŸan and EPO



Summary: While it's hard to know for sure what triggered the latest IP Kat censorship, what's clear is that people inside and outside the EPO are very disturbed by it "especially when one considers the curious silence of all “mainstream” media outlets on the situation at the EPO."

Just before IP Kat deleted all the comments (about 40 of them) someone posted (now a broken link) a reference to Techrights and said: "On quality at EPO : position of SUEPO about the elephant in the room which is currently also being deplored among the European IP community..." (the comment was so recent that not even Google cache had it before the act of censorship; we check for latest comments every 4 hours or so)



Why is the IP Kat blog suppressing the voices of EPO critics right now? Is the EPO trying to gag its staff even outside of work?

In another IP Kat comments thread, someone said yesterday, "you understand that “just having” a patent for a small company is NOT all that helpful."

Truthfully, patent trolls don't count as small companies. But to the EPO, if/when it suits its agenda, anything goes! Yesterday it promoted this false (pro-UPC) narrative based on the lie that patents in Europe help SMEs. Based on leaks, the very opposite is true. The EPO just cannot stop repeating this lie. It did this at least twice yesterday (here is the second time) and it even recommended going to one’s national patent office when one needs a patent in just one nation (SMEs typically operate in just one nation). The EPO actually did that yesterday!

The next comment (after that) said: "With the quality issues at the EPO getting worse, you may soon see your first allowance."

Here is the full comment:

what surprises me is that you say what you do, yet purport to have been in the industry for many years. Are you on the correct blog? This is about the patent industry. Patents provide monopolies in order to enable the patentee to block the actions of another party. If nobody is hurt, nobody is being blocked from acting freely. If you are in the industry, I guess you act for those hard-done-by, misunderstood, inventors of perpetual motion machines. But, just imagine the hurt if you do manage to obtain grant of a patent covering one of those things! With the quality issues at the EPO getting worse, you may soon see your first allowance.

If my amendment to the UK Patents Act was not in the alternative for (d), no patents would get granted, except those drafted by Chris.


What good is a blog that actively suppresses comments and isn't a public forum? What has IP Kat turned into? It has long suppressed and even deleted comments about the UPC, but now this? Can't even discuss internal EPO affairs? We are not sure, but we're assuming it's very much possible that the EPO threatened this blog (again).

Speaking of blogs that censor comments, we already caught Kluwer Patent Blog doing that as well. There's currently a fairly long series of comments with several people in it (one of which is a pro-Battistelli voice, which is dubious). In case that too gets deleted, as happened there before, we have decided to reproduce the comments about patent quality below (making public copies reduces the incentive for censorship as well, as is widely known):

Bravo Thorsten. Thanks for speaking out. Speaking out works. It seems to have resulted in a new President for the EPO.

True, complaints about any fall in “Quality” need to be backed up by evidence, evidence in a form that is understandable to a 5 year old (or a delegate to the AC). Who can provide it? Who is willing to speak up and provide it? Your firm, Thorsten? It must by now have loads of data. More, in fact, than more or less any other EPO user.

The problem with a “Supervisory Board” is well-known. I experienced it myself, when sitting on the Board of a publicly-funded Arts Centre in London in the 1970’s. Management runs rings around the AC. The AC interests itself only in the accounts. It is not equipped to “take on” the management, in an area like “Quality”. Nobody expends all their troops in a battle they cannot win.

Or take VW. Take quality in diesel engine manufacture. Has its AC had the wool pulled over its eyes?

What’s to be done? I have no idea, beyond kicking up a fuss. As you are doing, in no uncertain terms. Again, bravo!


And someone complains about Dr. Ernst after that:

Thorsten – I commend your approach in being so direct. The situation at the EPO has for far too long resembled the story of the Emperor’s New Clothes, with the EPO’s management proclaiming that quality has been maintained when it has been obvious to anyone who cared to look that this is simply not true.

It is very difficult to provide direct evidence on quality without breaching confidence. The exception is cases where one is an opponent… but then, as an opponent, one would naturally be expected to complain about poor patent quality. What therefore REALLY matters is the perception of the patent profession within Europe and the actions that those within the profession take based upon that perception. On this basis, the EPO clearly has a problem with quality. This is because it does not take a genius to figure out that a vastly decreased rejection rate plus a vastly increased grant rate means that there is a high likelihood that patents are being granted with invalid claims (and perhaps with invalid claims only).

On a separate issue, I find it extremely disturbing that the chairman of the AC does not know the full facts regarding appointments (to the Boards of Appeal) for which the AC is responsible. It has long been apparent that the EPO President does not provide the AC with the (full) facts and/or presents “facts” in a very misleading way. This is an untenable situation that must be brought to an end as a matter of great urgency.

The AC’s reputation has been severely damaged by its uncritical approach to information provided by the EPO President (to say nothing about the AC’s abysmal performance in case Art. 23 1/16) and there is a lot of remedial work that needs to be done to persuade observers that the AC is not effectively controlled by the EPO President.


As a commenter said on another blog, may be even Max Drei, what is going on at the AC is he tail wagging the dog. I could not come to the meeting, but it appears clearly that the information given by the management of the EPO to the AC is biased to say the least. The present tenant of the 10th floor is manipulating the AC at will! How on earth can the chairman of the AC claim that the problem of the Boards is solved? I fully agree with Mr Bausch that the contrary is true. When on the other hand one hears that the appeal fee should raise up to a level of 7 000 €, in words seven thousand Euros, the strategy behind this becomes more clear every day: first dry out the working force of the Boards, make accessing them so expensive, so that every user of the system will think twice of appealing a decision of first instance. From a purely rational point of view, when it takes too long, and is too expensive, grind your teeth and accept what is going on. The net result is that any problems with the validity of a European Patent will end up primarily at the UPC. This is a very elegant way to avoid in the long run any conflict of case law between the UPC and the Boards on the validity of patents. Is this what the big industry wants? If the answer is yes, then owe it, and stop pushing the SMEs as a kind of fig leaf. I take bets that the opposition fee will increase as well. The pretext for increasing the appeal fee is that the Boards should provide more income in view of their costs. If one thinks about the same way for opposition proceedings, the fee will have to be increased. At the moment there is a concerted action from the Office towards SMEs, cf. the document heralding the need of the UPC for SMEs. Can you imagine a SME forking out 7 000 € for an appeal if its application is refused, and later having the perspective of forking out another 11 000€ + in fees if it wants to start an infringement action before the UPC, or 20 000€+ if wants to make a counterclaim for revocation when attacked? This is not serious and should be hung “an die große Glocke” as Germans would say. Why is there so little said about those facts? That the quality is going down, is clear. I have seen communications which are not worth the paper they are written on. The mobile hair dresser saloon was just one element of the top of the iceberg. I have seen a decision from an opposition division which makes one cringe. Following a request of maintenance in amended form, the opposition division decided to reject the oppositions! All three members of the division signed, and the formalities officer did not see anything either. In spite of what the tenant of the 10th floor has been touting at the UPC conference in July, the 3 man divisions of first instance have long time gone. There are clear oral instructions given by some directors: if the first member decides to grant, the two other have to shut up and sign. With the premium system introduced, the examiners will not annoy each other. Another stupidity. You just have to look at some decisions of the Boards in appeal following refusal of the application. There is an increasing number of decisions in which the Board cites better prior art than the one found during the search. It might not be the role of a Board to redo the search, but if the original search is appalling, what else should be done? And this only happens if the application has been refused. The internal audit figures have to be made public. The sooner the better. They speak a clear language. What should be done is to regularly file complaints at the complaints department, but even in flagrant cases of errors, the reply is anything but satisfactory. Only if there is a clear message coming from the outside, and going not only to the EPO but also to the delegates in the AC, things will not change. It is to be hoped that epi wakes up and start complaining as well. The latest measure in order to increase quality is to recruit examiners on 5 years contracts, renewable or not. A contract will clearly only be renewed if the examiner behaved correctly. What is happening at the boards is to be pushed through to the first instance. When one thinks that the training costs of an examiner will only be recouped after three years, it is anything but certain that this measure will be beneficial to the office in the long run. And one can guess of what will come out…. Which sensible person will accept to leave its home country, decouple himself from any national social security and pension system in order to come to the EPO with the risk of being thrown out after five or 10 years? And then be left with nothing. May be young people having just finished their studies, but certainly not people with some experience having a family and children. May be some civil servants seconded to the EPO might accept, as they will in general have a right to return, but nobody else. The worst is that the tenant of the 10th floor wants to introduce this system on January 1st 2018. As he is leaving the office at the end of June 2018, he should even, out of plain decency leave such a big reform to his designated successor, and not pre-empt his presidency. To sum it up: the situation is by far worse as one can think, and if nothing is happening to stop this folly, the whole patent system will go down the drain. Is this what you want?


The new Chair of the AC is a professional Hit Man from the Justice Ministry of Germany. This is the Ministry that allows a scandalous backlog of tens of thousands of court cases in Germany. The small fry are pursued relentlessly (so as to satisfy the statistics of cases completed) while the Big Fish criminals get away scot free. How so? Because Big Fish have powerful friends and engage large legal teams. These kick up so much dust that the public prosecutors are overwhelmed, to the extent that Big Fish cases are still languishing when the limitation period expires and the criminals can no longer be pursued. Just one example, the head (Funke) of the criminal bank HRE. Google it!

No wonder so many folks in Germany are so frustrated, and vote for the AfD. This is not good! Herr Maas (SPD), Herrr Ernst, readers, take note.

The definition of madness, somebody once said, is to do the same thing all over again but expect a different result. It is naive, dear reader, to expect any improvement at the EPO. The top political imperative, at AC (that is, national Government) level, is that the UPC must be a success. Any institution (EPO-DG3) that could call such success into question must therefore be ruthlessly eliminated, without delay.


From "Anonymous attorney":

A problem with the complaints system, as I see it, is that (whether or not by design) it’s incapable of spotting systemic issues. So everything gets treated as an isolated case, and they tend to look at the specific facts (one man’s unreasonable objection is another man’s divergence in interpretation of the prior art…) rather than the overall trends. Hence the management are able to go around claiming to be blind to any systematic degradation in quality because everything regarding examination/opposition proceedings is a matter of opinion and the only metrics that they have (speed and number of grants) say everything is fine within the parameters they themselves have chosen.

Meanwhile, in the real world, I and other attorneys at my firm (and others) are increasingly seeing shoddy examination that speaks of intolerable time pressure, inadequate training and inexperienced examiners. A non-exhaustive list of depressingly common problems includes:

– half-hearted or botched attempts by the Examining Division to amend the description in a 71(3) Communication, necessitating disapproval to undo the damage and/or complete the job properly

– amendments introduced to claims by the Examining Division in a 71(3) Communication that unnecessarily affect the scope of protection, again necessitating disapproval and a stern letter to the EPO explaining that the Applicant cannot consent to the amendments

– shoddy search opinions (especially in the international phase) that only contain brief comments on the independent claims and/or only give the vaguest reference to “relevant” passages in the prior art

– “copy-and-paste” Art.94(3) communications that simply reiterate old objections verbatim and don’t at all address the amendments or arguments made in previous submissions

– Art.94(3) communications that contain perfunctory, badly-worded, muddled and/or poorly-reasoned objections that have clearly been thrown together so that the examiner can get the case off their desk in time for an arbitrarily-imposed internal deadline (since it seems that speed is all that matters for the quality metrics)

– Basic legal errors that aren’t even a matter of opinion (asserting that a reformulation of the objective technical problem in reply to an inventive step objection constitutes a violation of Article 123(2) (!!!); raising a novelty objection against a specific claim on the basis of a generic prior art disclosure; etc etc)

– unnecessarily early issuing of summons to Oral Proceedings, which I fear will only get worse once the new Guidelines take effect at the start of November

– unwillingness to take part in meaningful telephone discussions, contrary to the Guidelines

– increasingly poor standards of English in substantive communications

– refusal decisions that bear only the slightest resemblance to issues discussed during examination proceedings

I could go on…

Of course, a knock-on effect of this is that there will be an increasing number of Appeals, making the backlog problem ever-worse.

Surely it is time for a coordinated effort across Europe for attorneys to raise these concerns with their AC representatives?


The other day, when doing some file inspection work, I found a complaint letter written by the in-house representative of a German SME and sent to the EPO. If your command of German is sufficient, have a look. The writer analyses three concrete cases and draws some chilling conclusions on patent quality at the EPO and its consequences. The contrast with Mr Battistelli’s self-congratulatory trumpet-blowing is striking, to say the least.

https://register.epo.org/application?documentId=EZMRZYSD4349561&number=EP06022243&lng=en&npl=false

(if the link does not work, look up any of patents EP1777452 or EP2768359 or EP2481259 in the Register and look for the written submission dated 30 September 2016).

Best regards

Michel


This in reply to “Michel” (and the Complainant with the office in Kandel, Germany).

We need to be clear on what we mean by “quality”. I say that the patents issued by the UK Patent Office prior to 1978 were of very high quality. Clarity was a big issue. What issued was crystal clear.

Yet the UK Office in those days made no examination of obviousness. Nevertheless, patent litigation was as rare as hens teeth. And when it happened it was only when both sides thought they could win. Nobody spent money trying to enforce a claim that would like go down as obvious. Why can’t every EPC country arrange it like that?

But the firm in Kandel is distressed that the EPO is not filtering out, prior to issue, claims that are palpably obvious. Why is that so important? Has its client been enjoined by a court, to cease manufacture? I doubt it. And if it has, was that because the court declined to consider evidence of invalidity of the asserted claims? What is stopping the court being educated, that the patent owner’s claims are without foundation?

These days, more than ever, given the rise in prior art in countries like China and Korea, it is no longer tenable to assert that claims examined by a Patent Office are valid. A different definition of “quality” is needed. One might need to downgrade the level of confidence that what issues from the EPO is valid. But was that ever the case?


This morning someone posted a comment there about IP Kat censorship:

Strange things are afoot in the world of (reporting on) the EPO. After months of a self-imposed moratorium of reporting on all matters EPO, a well-known IP blog finally posted something… about the appointment of Mr Campinos. The comments on that post raised some interesting issues that – like those raised in this post – deserve some airing. But now all of those comments have been deleted and the comments function disabled for that post.

What is going on? With perhaps only one exception, I cannot see how the deleted comments could possibly have posed a legal (e.g. libel) issue. So why delete them ALL?

Whilst I am not inclined to believe in conspiracy theories, I am very troubled by this development… especially when one considers the curious silence of all “mainstream” media outlets on the situation at the EPO. If Mr Ernst is earnest in believing that “One achieves the most positive results by a critical dialogue”, then this development should trouble him too.

Against this background, I can only commend you again, Thorsten, for speaking out about the troubling situation at the EPO. Whilst most attorneys are too afraid (or too ignorant or complacent) to speak up, your airing of these issues has demonstrated to me that I am far from being alone in being appalled by the current direction of travel at the EPO. Keep up the good work!


Thorsten is now in Twitter (his handle name is @patcrit). We encourage people to support him and not let Kluwer delete comments like it did before. From now on we will actively work, even proactively, to preserve comments from anonymous insiders and stakeholders. They are being systematically gagged. ⬆

Recent Techrights' Posts

Brigading Against Women - Part XVI - When Your Own Colleagues Complain About You Maybe the Problem is You
"if 2 people tell you that you're drunk, you go to sleep"
Brigading Against Women - Part XV - Trying to Put Women in Prisons
We'll soon get to the 'meat' or the 'beef', showing how "Gas The Jews" Lozza helped Garrett a few days after we had sued him in September 2024
A Leap in GNU/Linux Usage, Japan's Share in Particular
One thing that merits attention right now is Japan. It looks like it's adopting GNU/Linux instead of GAFAM.
 
Michael Catanzaro Seems to be Missing the Point
Calling people you disagree with "Ostriches" is lazy name-calling
Free Software Foundation (FSF) Turns 41
People who want humans and communities to maintain their software chains (and by extension their digital life) will back GNU
Links 03/10/2026: "Banned Books Week 2026" and "American Journalist Imprisoned as a Spy in Russia"
Links for the day
In Case Anybody Still Believes Microsoft Lunduke Cares About GNU/Linux...
GNU/Linux users aren't bots
Gemini Links 03/10/2026: Speculative Realism, Paper2SlopBot, Joplin, and Offline Experiment
Links for the day
Union Syndicale Fédérale (USF) Tries to Compel the European Patent Office (EPO) to Actually Function Properly
We'll be covering the EPO a lot more soon
Links 03/10/2026: Slop-Generated War Songs and "Privatisation Has Failed"
Links for the day
Proprietary Software Giant Microsoft is Quietly Laying Off Lots of Employees, Insider Explains How It's Done
about Microsoft exits
United States: More Than One in Ten Using GNU/Linux on Laptop/Desktop
Clownflare Radar seems to show a similar trend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 02, 2026
IRC logs for Friday, October 02, 2026
Gemini Links 02/10/2026: Hitchhiking, Dream, Journey of Thoughts, and ROOPHLOCH
Links for the day
IBM in Such a Bad Shape That Silent Layoffs Have Come to India
Make it hard for IBM to hide what's happening
The Mass Layoffs at Red Hat (Secret Layoffs) Not Limited to This Week or to October 1st
Red Hat can shed off 10% of its staff without anyone in the media uttering a word
The Latest "PARTNER CONTENT" at The Register MS is by Chief Marketing Officer at VergeIO
Maybe The Register MS can just run ads, not articles, and hope nobody will notice
Links 02/10/2026: Turkey's Censorship of Journalists Grows, "Hong Kong Journalist Arrested After Covering Gathering Linked to 2019 Protests"
Links for the day
IBM's Red Hat is a Slave of Microsoft, It Does Not Compete With Microsoft
As released and shown earlier today in "Red Hat Partner Connect"/redhat.com
Red Hat: Stop Saying Master, It's Racist. Today's Red Hat: "Master Your Skills" and Adopt Slop Plagiarism
IBM is shredding Red Hat to pieces while it keeps humiliating the collective intelligence of communities
Reform UK, Nigel Farage's party/company, admits missing winding-up petition
Reprinted with permission from Daniel Pocock
European Patent Office (EPO) Series: A Costa-Benefit Analysis: Has the Asset Become a Liability?
All other things being equal, one could expect the Portuguese political establishment to support Campinos in his reappointment bid. But what if all other things are no longer equal because the former "asset" has in the meantime become a "liability"?
Brigading Against Women - Part XIV - Mastery of Distraction
The finger-pointing actions themselves prove the saying that even an accusation is likely a confession
Links 02/10/2026: "McDonald's Caught Cheating Consumers for Profit" and "It's Not Illegal If You Buy New Laws"
Links for the day
EPO "Cocaine Communication Manager" - Part XVII - A Vote for Campinos This Month (Reappointment) Would be an Endorsement of Cocaine
The harder they try to silence critics, the worse it'll get
The Cyber Show on "Career Scientists" (Resellers of Establishment Brands Like GAFAM)
"The "career scientist" - with PhD and research office by their mid-twenties - follows well oiled tracks and institutional signposts, steering away from controversial or "difficult" subjects."
Reporting Court Matters While Preserving Dignity of Staff
There's a high and growing probability we'll take our appeal to the Court of Appeal next year
Broligarchs Speech-Policing, Faux 'Community' or 'Hub' in 'User-Driven' Clothing
Until a broligarch decides to "flag" inconvenient stories
Gemini Links 02/10/2026: Haiku, Microsoft EEE ('Linux' as a Container in Windows), and ROOPHLOCH 2026 Roundup
Links for the day
Microsoft Promised Them Bonuses, Instead They May Get Laid Off
Laid off or paid off?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 01, 2026
IRC logs for Thursday, October 01, 2026
Lots of People Left Red Hat This Week, No Announcement Made of Layoffs
Companies just find ways and excuses not to announce their layoffs
Gemini Links 01/10/2026: Gemini-to-Web Proxies Considered Harmful, ROOPHLOCH 2026 at Griffith Park Observatory
Links for the day
"SPONSORED FEATURE" of HPE and NVIDIA at The Register MS Has Just Mentioned "AI" 68 Times in One Page!
Meanwhile, grown-ups ignore the hype and get work done without slop
Microsoft's XBox Layoffs Not Finished, Won't be Finished, It's Called "Forever Layoffs"
Microsoft will shut down (XBox) after shrinking it, there's no need to sell anything (a straw man)
IBM's Red Hat Lost Lots of People Today, Chief People Officer (CPO) Dethroned
Headcount falls shortly in secret.
Microsoft is "Pushing Up Daisies" Amid Mass Layoffs (Secret Ones)
"Longtime Microsoft research leader Peter Lee and former LinkedIn CEO Ryan Roslansky to depart"
Links 01/10/2026: "Lawyer Cites ChatGPT-Invented Fake Witnesses in Murder Appeal" and The 'Linux' Foundation Technical Advisory Board (TAB) Has Vacuum
Links for the day
Brigading Against Women - Part XIII - The Offer We Didn't Ask For (and Under Threats to a Lady at the Webhost, a Form of Extortion From America)
Two and a half months ago Garrett made an offer to my wife
Creditors beware: VMS Enterprises Ltd vs Brexit Party (Reform UK Party Ltd)
Reprinted with permission from Daniel Pocock
Techrights Turning 20 Next Month
Our image is under attack, our finances are constantly under attack and so on
Links 01/10/2026: "Meat Proxies" and "Japan’s Far Right Is Courting Young Voters"
Links for the day
Red Hat Being Phased Out of Existence (Like Many Other Companies That IBM Bought)
The "Red Hat" brand (and badge) is being dissolved some more today [...] IBM is imploding 'creatively'.
IBM Layoffs Cover-up
thelayoff.com is censoring threads
"Restricted Boot" Garrett's State is Now Implementing Kill Switches (Just What We've Warned About All Along)
The underlying concept is hardly new
Brett Wilson LLP Has Had No Annual Report in 16 Months
A cynic might hint that they try to hide something
Reform UK last minute accounts filing
Reprinted with permission from Daniel Pocock
Gemini Links 01/10/2026: "Babel With Better Hardware", Software Input That's Slop, and DWeb Cascadia 2026
Links for the day
Today is D-Day at Red Hat and People Leave in Droves
They said there would be "bluewashing", we're mostly seeing people announcing they're leaving
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 30, 2026
IRC logs for Wednesday, September 30, 2026