Part I – Introduction

The word “vision” has a couple of fascinatingly different meanings. There is a famous saying by Helmut Schmidt, Germany’s chancellor from 1974-1982, who recommended to anyone proclaiming that he/she had a vision to see a doctor. According to wiktionary, vision may mean:

1. The sense or ability of sight.
2. Something seen; an object perceived visually.
3. Something imaginary one thinks one sees.
He tried drinking from the pool of water, but realized it was only a vision.
4. Something unreal or imaginary; a creation of fancy.
5. An ideal or a goal toward which one aspires.
He worked tirelessly toward his vision of world peace.
6. A religious or mystical experience of a supernatural appearance.
He had a vision of the Virgin Mary.
7. A person or thing of extraordinary beauty.
8. Pre-recorded film or tape; footage.

With that in mind, let us turn to the vision of the European Patent Office and find out which of the above meanings/definitions fit best to it. Here it is:

Our vision – what we want to be
With expert, well-supported staff, motivated to set worldwide standards in quality and efficiency, we will continue to contribute to innovation across Europe, and play a leading role in developing an effective global patent system. All our relationships – within our Office and with partners around the world – will prosper through trust, transparency, fairness and mutual respect. Our processes will empower our people to use their knowledge and skills to the full.

Ok, let us discard definitions (1), (2), and (8) from the outset. Definition (7) might also not be so appropriate unless perhaps you are the EPO President looking into the mirror in the morning. Definition (6) probably also goes a bit too far; at least I have yet to hear about someone who claims to have had a mystical experience of a supernatural appearance about any great patent office. Their job (or, nowadays, “mission”) is more of a profane and economic nature, such as, in the case of the EPO,

To support innovation, competitiveness and economic growth across Europe through a commitment to high quality and efficient services delivered under the European Patent Convention.

Thus, we find ourselves somewhere in the range from definitions (3) to (5), and it is up to the reader to decide which definition he or she finds most appropriate in these days. At a minimum, the EPO’s vision shows what the Office wants to be. Moreover, it gives some clues about the criteria in which the EPO wants to excel and, hopefully, accepts being evaluated. Summarized briefly, these are:

o Expert, well-supported and motivated staff
o Quality (EPO aims high by aiming at “standard-setting worldwide”)
o Relationships (both within the EPO and the outside world) prospering through
— Trust
— Transparency
— Fairness and
— Mutual Respect
o Efficient services delivered under the EPC.

I will therefore endeavour to draft a series of four contributions on this blog over the next couple of weeks, setting forth my personal experiences and opinions on where the EPO currently stands with regard to each of these criteria. As always, your comments, also critical ones, are welcome, but please stay respectful and to the point. Our overall aim should be to help reaching the EPO this commendable vision. This may (and sometimes must) include critique, but does not justify personal aggressions against persons having a different opinion than yours.


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16 comments

  1. Thanks Thorsten for your always enlightening blogs.

    I am looking forward to the next issues.

    One thing seems however sure, is that all what the EPO and the people at his helm claim to be wonderful is abundantly contradicted by hard facts.

    Just one thing: the differed examination which is thought off, has nothing to do with listening to the users. It has more to do with the fact that in some technical areas filings are going down so that the cupboards will be empty much quicker than expected in view of the tremendous production pressure.

    The same reason is behind the 5 years contracts for examiners. But this mere thought shows that the people coming up with such ideas do not have the faintest idea of what the examiner work entails.

    The EPO has been degraded to a play pen for would be managers. In the real world, they would have been fired a long time ago. There is no vision, just manoeuvring in order to show that administration schools are there for something, and if one measure goes to far, then the rudder is thrown to the other side in the hope that it will not end in a catastrophe.

    Nothing against waking up the EPO from its sleeping trot, but not in the way it has been done since 2010. Treating people as they have been treated since 2010 is a disgrace. At least it is requested that the AC plays the role it has been set up for, and that the tail stops wagging the dog.

    Immunity does not mean impunity, and I hope that something will be done, so that at least the ECHR applies to the staff of the EPO.

    Techrigts: while you request others to respect the rule of law, you take great deal of not doing so yourself. You did not respect my wish not to use my comments even by a mere link. People in glass houses should not throw stones. So fingers off in whichever way you may think of using my comment.

  2. Bravo Thorsten. I await with interest and attention, for you to “take the measure” of EPO management.

    Perhaps it was at the ENA, that trainee mandarins were first taught that you can make an omelette only if, first, you break a few eggs. Or dismiss a few key employees pour encouragez les autres. Of course, like all managements, that at the EPO loves the metrics, can count how many omelettes it churned out last year, with how few employees, and so measure how much more increasingly “efficient” are the services it delivers to the world.

    But for EPO management, that’s all that counts, isn’t it? How shall it measure whether the “quality” of its omelettes is rising or falling. What managers can’t measure doesn’t come within their field of “vision”, regardless how many platitudes they churn out, when telling us on their website what is their “mission” in life.

    In the end though, Thorsten, it’s only patents, isn’t it? Lifting our eyes and looking outside our professional field, the crisis within the UK National Health Service is much more serious. Patients are dying on trolleys in corridors or in ambulances queuing outside the A&E reception area.

    NHS managers will be proud to tell you how “all the indicators” show that the Service is much more “efficient”, these days. But efficiency isn’t everything. Even as NHS professional staff and helpers are as dedicated and expert as ever (ever more so, in my experience), the precious goodwill accumulated over more than half a century, that has made the NHS what it is today is being shamelessly (perhaps even deliberately) squandered by the politicians in charge, in league with their sponsors, the circling corporate vultures, waiting to take everything out of State ownership.

    Thorsten, what do you think? Does anybody of substance out there in the great wide world actually care, whether EPO-produced omelettes are any good? Does anyone care whether any esprit de corps is left at the EPO these days? Or is EPO management just mouthing platitudes?

  3. “trust, transparency, fairness and mutual respect”.
    Unbelievable.

    Thank you Mr Bausch. Looking forward to read your next contributions. Although it will be rather difficult for someone of the outer world to understand what is happening right now at the EPO. You have no idea, I am afraid.

    Next month the Administrative Council will have to decide on one of the most destructive amendments of our service regulations. Forget the five years contracts. If they vote yes, the president will be authorised to dismiss anyone at the EPO, “should his/her services be not needed” anymore.
    He will have absolute power on our lives.

    So much for trust, transparency, fairness and mutual respect.

  4. You should also keep in mind that any comments with respect to the vision make only sense if you compare the EPO to other patent offices and not only to the state you wish it had in a perfect world.

  5. It is very easy to understand what the EPO means these days: take any slogan and consider it means exactly the opposite of what is written. For example, the slogan about “Expert, well-supported and motivated staff” while it is clear that the staff is not well trained, has little support and is demotivated. I’ll leave the other bullet points as an exercise to the reader.

    BTW: the idea that slogans mean exactly the opposite of truth is a feature of all systems where governance is failing and not only in the EPO. It happens in exactly the same way and for the same reasons in all dictatorships and is a central theme in Orwell’s 1984 where “newspeak” calls the Ministry responsible for perpetual war the “Ministry of peace”, etc… It happens when the executive does not need to follow the Rule of Law because of lack of check and balances. It is a symptom of a failing governance.

    Therefore, the real problem with the EPO is governance. The President of the EPO is outside of all legislative control and has worked the past years to systematically undermine and sabotage whatever checks and balances were in place. The problem will not disappear with a new president, as it is in the system and not in the person.

  6. Peter Parker makes a good point: that we ought to compare the EPO with other Patent Offices around the world.

    Let’s do that then.

    Other Patent Offices fall under national law. If their CEO’s abuse and ride roughshod over the human rights of employees, they can be held accountable, under the law of the particular jurisdiction in which that Patent Office finds itself. Patent Office managers know this, and it keeps them honest.

    And the EPO, Peter? Or are you like the AC members, adept in turning a blind eye to the abuses going on in there?

  7. What is apparently proposed is to give EPO staff a series of renewable contracts (or not) which can be brought to an end if your services are no longer needed. And all this at the whim of pseudo managers. Do you call this job security? I do not. Will this bring people from all over Europe to leave their jobs and come with family and children to work for the EPO? I do not think so either. May be if you do not have family and are just graduated, otherwise it is suicidal.

    All those measures boil down to hiring mercenaries, which will do their job with an overwhelming enthusiasm…. If one wanted to kill the EPO, there is no better way to achieve this goal in a very short time. Just rebuff good people and hire mercenaries, the result is automatic.

    This goes on par with the suppression of any invalidity insurance, even for present staff. The worse being that the money paid by present staff for this insurance is simply kept by the EPO without any compensation. Let’s see what Geneva will make out of it. Probably not much.

    The more time goes by, the more I suspect the hidden agenda of the tenant of the 10th floor to be the transformation of the EPO in a rubber stamping authority to the full benefit of the UPC. Then it makes sense to have a central point for litigation. Having to litigate shoddy patents in all member states of the EPC would indeed be extortionate.

    In any case it will then be like in France under the old law of 1844: the patent proprietor will discover its patent on the day he will be in court. This was the opinion of Me Mathely, a well-known lawyer by the older generation. History never repeats itself, but we might face an exception to this rule.

    To come back to Peter Parker, in which developed country such a work regime would be in the faintest legal? Certainly not in any member state of the EU and even less of the UPC. I can only approve Max Drei’s comments.

    I have, out for experience, given up any hope in the AC. It is just rubber stamping the drivel concocted on the 10th floor.

    What have they done to a reputable institution? A play pen for would be managers. What a pity.

    Techrigts: FINGERS OFF! You are intelligent enough to know what it means: directly and indirectly, even by a mere link (as recently done).

  8. For the sake of clarity, it’s probably best to separate out two threads which in practice are intertwined. One serious ongoing issue is the treatment of staff and staff morale at the EPO. The other is results of the ongoing productivity drive, it’s effects on the Examination procure and how it interacts with the EPO’s quality reviews. Without wishing to diminish the seriousness of the first issue, I’m going to comment on the second, just to highlight it for the conversation thread. In particular, there’s a famous management adage that if you are using metrics to measure performance, the metrics become the performance. e.g. if you’re metric for measuring for performance is throughput, someone with a high throughput will appear a star performer, irrespective of what is actually produced. I do not believe this is the case for EPO examiners as I suspect the ‘quality’ bar may also been raised or the consequences for not meeting quality metrics has become more sever (could anyone confirm this?) – my reason for this suspicion is the increase in clarity objections over the last few years.

    There are two points with the quality reviews of the Examination procedure i) they are only applied to granted patents (bizarrely there is no spot check on refused applications – the logic being that appeals serve this purpose) and ii) there is no transparency on what metrics are being used assess ‘quality’.

    The effect of i) is that the pressure applied by a quality review only applies in one direction (towards refusal). The effect of ii) is that ‘quality’ appears to have become decoupled from how the patents are used (and whether or not they will stand up in court).

    With respect to validity – it appears the bar has dropped on novelty and inventive step, but with the caveat that less time is spent examining whether or not a claim is novel/inventive this also has the result that if the difference between the claimed invention is novel and inventive but subtle – well getting this sort of claim to grant has got much harder.

    With respect to clarity – this is becoming a serious problem – objections and amendments suggested by Examiners are now got at a point where the central question of clarity (can a skilled person understand where the limits of protection lie?) has been lost. I’m seeing a rising number of ‘clarity’ objections (and in some cases suggestions from Examiners (who to their great credit are still trying to be helpful and engage with the process)) which have the result of reducing the clarity of the claim – and a lot of clarity objections based on the form of a claim rather than content. One example that comes to mind is means for claims in a CII claim set, are being objected to as claims defined in terms of the result to be achieved despite the notes to the contrary in the Guidelines.

    I am also of the view that the quality of the reasoning provided by Examiners for their objections has also significantly dropped recently (is this a metric that is measured?).

    The result of all of this is that ironically, it appears to me that the EPO’s increase in ‘quality’ has reduced the ease of use of the EPO system and reduced the usefulness of search and examination reports produced by the EPO. The ‘clarity’ regime of the EPO is at present reducing the clarity and enforceability of granted claims.

    I also want to be very clear that this is not a dig at Examiners – as a European Patent Attorney, I essentially sell their work and in the main their work is good. It’s just not a easy a sell as it was three/four years ago (i.e. before the recent productivity drive). I more concerned about what targets they have been set and whether these targets are related solely to the needs of the EPO at the expense of the needs of Applicants.

    I look forward to Thorsten’s next posts and the ensuing debate!

    1. Richard,

      Clarity is indeed a serious issue at the EPO, but I think that the picture is more complex that you paint it.

      For example, whilst you may see more clarity objections, this may well be because they are being used as a substitute for other (more complex and time-consuming) objections.

      By way of contrast, my experience is that the clarity issues (as well as associated sufficiency issues) often get very little attention during EPO examination, especially if the issues only emerges after relatively detailed consideration of the invention as defined in the claims. Perhaps practice varies between different technical fields.

      There was a rumour some time ago that examiners would be encouraged not to raise clarity objections. It would be interesting to know whether there was any truth behind that rumour.

      1. Another explanation for the sudden increase of A84 objections might be this one:

        If I am examining an application on a field that I do not know well (and this happens rather often lately) the easiest objection to raise is for lack of clarity. In many cases it may just mean that we are not skilled persons in the field of your application.
        How can I possibly write a well-sound reasoning for lack of novelty on a subject-matter that I only understand in part? Inventive step & problem/solution?? Not even try that: your claims are not clear.

        Very sad. It took decades to create the fine-tuned system we used to have at the EPO, where the right person would search and examine each patent application. This president has managed to demolish it in less than 3 years.

    2. As an Examiner, I wish to report, that every director I had said, that being able to reach the set target (and in my case it was never negotiated, despite the rules requiring so) within the time available is also quality of examiner’s work.
      Hence, my production (grants/refusals/searches) is thmain ingredient foor the quality of my work.
      The quality measured under the ISO 9001 is irrelevant, as long as I meet my target.
      If I fail to meet my target, good quality measurements (CASE statistics) will not help me. Low quality will additionally be used against me. But so far I’ve not met one who got a low score for quality in her/his appraisal when the target was met, no matter what the CASE statistics said…. And this practice has been confirmed by ILOAT as being okay.
      Hence my production appears twice in my appraisal, and the CASE measured quality actually only if my production is low and the quality measured is low…

      But since we measure our colleagues quality, and they measure mine, we never had a need to record everything. The second member simply found the “non-conformities”…

  9. I offer my thoughts in reply to Richard Gillespie.

    I agree that the EPO is currently obsessed with “clarity” under Art 84 EPC. I suspect Examiners are delivering what the EPO’s quality police (QP) have signalled is important. Hence, in more or less every Druckexemplar you get, you find edits by the ED. These edits frequently damage rather than enhance “clarity”, but that’s not the point. They are there to satisfy the QP, and get the QP off the backs of the members of the ED.

    Of course, there is another thing about Art 84. It can be used to squeeze down the scope of claims to little more than a claim to the illustrated embodiment. That, in turn, reduces the number of post-grant oppositions and findings that granted claim is invalid. In this way, the obsession with Art 84 raises “quality” in several different ways. It’s just bad luck if you are a small Applicant needing anything as airy-fairy as a “scope of protection commensurate with your contribution to the art”. The management metric for that doesn’t exist yet, as far as I know.

    Thorsten, I have a question for you. Applicants at the EPO fall into two groups. The first group seeks patents with a presumption of validity. The second group wants as many patents as possible, as cheaply as possible, and with no refusals, and with no requirement for anything as abstruse or sophisticated as a “presumption of validity”. Do you not think that (at least within the circles in which BB and AC members move) the second group is big and loud, and the first group is not even on the radar.

    If you do think that, and if the customer is always right, does this not fully explain the conduct of BB and his lackeys on the AC?

    1. I do agree that applicants have different motives and different expectations. Some of them may be happy with any kind of patent at the end of the process, others expect more, and rightly so: The current European patent and patent litigation system (be it with or without the UPC) is built on the premise that the EPO carefully checks every application on whether or not the requirements of the European Patent Convention are fulfilled. We would not need 4300 highly qualified examiners if patents were simply to be registered and any disputes were left to the courts. This may be great for the efficiency of the patent office, but is bad for industry and the common welfare. A patent is a monopoly that requires some justification, which should lie in a valuable technical contribution to the state of the art. To find out whether or not such a contribution has been made is the job of a patent office, and it is not always an easy job. But this is what the current European Patent Convention requires the EPO to do and what the EPO’s management should support. Clarity of the claims is an important requirement, but it should not be abused as a pretext to no longer look at the merits of the invention embodied in the application.

      One should also not forget that the validation of a European Patent is extremely costly, at least when viewed on a global scale, and only affordable to SMEs if they have at least a minimum of confidence that their money is not wasted for a facade of a right that when challenged breaks down immediately.

      1. Thanks Thorsten. When they wrote the EPC in 1973, the UK Patent Office was rigorous in checking clarity and novelty but refrained from examining for obviousness. Everybody knew the Rules of the Game, in particular that any asserting of the patent against an infringer would precipitate an attack on the asserted claims, that within their scope was something obvious.

        The EPO changed the perception in the UK, that only in court, in full adversarial proceedings, could obviousness be explored meaningfully. Admirably, the EPO found a way to examine obviousness convincingly, fairly and economically, without the need for discovery and days long cross-examination of witnesses in court. As you observe, this benefits the SME’s, puts them on a more level playing field against the trans-national Global Titans of this world. Something Big Corp does not appreciate at all.

        But outside the small closeted world of EPO examiners and attorneys, few know anything about this competence at the EPO, this levelling of the playing field.

        Specifically, big business management and its legal advisers (litigators) want to “take back control” from the specialist experts in the patent community. The world changed when the EPO started in 1978 to do a great job. It’s changing again now, with a dumbed down world of “Global Players” that has no time any more for specialist experts. (Unless, of course, the experts are doctors ministering to the health of these new Masters of the Universe. Then, they can never be expert enough.)

        This might be why, Thorsten, those in power at the EPO seem not to share the view you have, as to what customers of the EPO want or need. To my mind, they do not see themselves as custodians of anything precious. They seem to have no sense of any duty to the EPC, the public or the general welfare. Sad.

  10. Many thanks Thorsten for your always outstanding blog posts.

    You cannot imagine the feeling of anxiety and fear which has spread – among a squeezed and exhausted workforce – since the publication of the new proposal of Battistelli and Bergot to the March Admin Council.

  11. In the case of EPO, raised haemoglobin & red blood cell count (haematocrit) are generally used as key indicators. Summary While EPO is often portrayed in the media as one of the most widely used performance enhancing drugs in endurance sport, little is mentioned of the significant, detrimental side effects associated with its abuse. The development of EPO was solely intended for the use of kidney failure patients who are dependent on dialysis and unable to produce EPO in sufficient amounts, not for performance enhancement in healthy individuals.

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