Abstract
This will be a very long post (sorry, dear readers!), yet it cannot and will not be comprehensive enough to cover all aspects of this topic. In summary, my take on EPO quality is that not all is bad and a lot of people are still doing a good job. However, it is presently not at all the case that quality is outstanding or “setting worldwide standards”. Even worse, the trend of quality is downwards, which is most likely caused by the current EPO policy focusing too much on “production”. Honesty and a sober and realistic approach by EPO management would be needed to really improve quality and to bring the EPO closer to its vision.
Introduction
The EPO strives to set worldwide standards in quality. Official communications from the EPO emphasize this time and again. President Battistelli writes: “But no matter the project or initiative scheduled for 2018, one issue at the EPO will take precedence above all others – quality. 2017 was a significant year for quality at the EPO and has given us a strong momentum to take forward into the next twelve months.” Vice President Casado writes “While we have kept pace with handling the rising number of applications by increasing productivity, quality takes precedence above all other considerations at the EPO.” Very good, so at least the priorities are set right.
Where does the EPO now stand with regard to quality? Looking again at the official communications and reports first, it seems that quality at the EPO is nothing but an incredible success story. And what is more, you can simultaneously rise both quality and productivity! In the EPO Gazette of 2017, the President wrote:
“So far, we’ve done a good job of ensuring that quality and productivity are rising simultaneously and we’ve shown that by the results in recent years – both in terms of internal quality targets and also user satisfaction. Once again we were ranked first among the IP5 offices and there has been increasing satisfaction in our User Satisfaction Surveys. But what will separate us from the pack (sic!) in the future is the ability to provide quality patents in a timely manner.”
To attain this goal, the President wrote in the same Gazette that “internal quality objectives continue to be set and achieved.” and in the very next sentence he continues: “Each year our staff attain more ambitious goals”. Hmm, so is there still something to improve? Not much it seems, since according to the EPO’s Quality Report 2016 as many as 80% of “Users” are “satisfied or very satisfied” with search and examination services, 17% find it average and only 4% seem to be “not satisfied”. Likewise, regarding patent administration services, even 87% of “Users” in 2016 were “satisfied” or “very satisfied” and only 4% “not satisfied”.
So everything is in perfect order and the quality of EPO services is fantastic.
Really?
I find “quality” an extremely difficult subject to cover objectively. Firstly, how to measure it? User satisfaction surveys seem to strongly depend on the participants and the questions that were asked. JuVe, for example, published the following survey results on their website at about the same time as the EPO, i.e. in 2016:
“Zunehmend Sorge bereiten der Industrie dagegen mögliche Qualitätsprobleme als Folge interner Querelen, die das Münchner Amt nun schon seit mehreren Jahren beschäftigen. Nur noch 46 Prozent der Umfrageteilnehmer sind mit der Qualität der Patenterteilungsverfahren zufrieden, 54 Prozent sind es nicht. Auch in Bezug auf die Beschwerdeverfahren sieht eine knappe Mehrheit von 50,2 Prozent ein Qualitätsproblem.”
“Industry is increasingly worried about possible quality problems as a consequence of internal struggles that keep the Munich Office busy for several years by now. Only 46% of the survey participants were satisfied with the quality of the patent examination proceedings, 54 were not. Also in regard to appeal proceedings, a small majority of 50.2% sees a quality problem.”
The EPO figures in the Intellectual Asset Management (IAM) survey seem to be better, though not nearly as good as the EPO’s own figures.
According to Wikipedia,
Quality is a perceptual, conditional, and somewhat subjective attribute and may be understood differently by different people. Consumers may focus on the specification quality of a product/service, or how it compares to competitors in the marketplace. Producers might measure the conformance quality, or degree to which the product/service was produced correctly.
So for what it’s worth, let me give you my own take on what I perceive the quality of EPO products to be in these days:
1. I think that the overall quality is still mostly satisfactory, but not as good as it could or should be. I would rate it perhaps with a 3 on a scale from 1 (very good) to 6 (unsatisfactory), on average. I will provide a few examples below that I hope will justify my rating. I am perfectly happy to concede that other sensible observers may come to a slightly better or worse rating.
2. In normal times, the quality of EPO products only changes relatively slowly over time.
3. Having said that, I do think that quality has decreased over the last two years.
4. My greatest concern is the long-term impact of the current policy of EPO management, which I think is very much at odds with the stated objective of “quality takes precedence over all other considerations”.
In this contribution, I will try to strictly separate quality (in content/accuracy) from efficiency (speed), which will be subject of a different blog. Note, however, that many observers/surveys may confuse the two for understandable reasons. In the end, no patent office will be rated with “good” if its office actions or decisions take forever.
1. Quality – Current Ratings
Most, but certainly not all, office actions that I get to read are reasonably well substantiated and provide an acceptable basis for proceeding further. The same is true for decisions by the opposition divisions. I do not have my own well-substantiated view on the quality of searches – so, dear readers, you may wish to chime in here.
I also do not have the time to systematically study the quality of the patents granted, but my general experience-based impression is that if and when the EPO errs, it mostly errs in favour of applicants. Note that this will not necessarily generate complaints or negative ratings in user surveys. If anything, it may rather have a positive impact. Thus, the dramatic increase in patent grants over the last two years will not necessarily be accompanied by great user dissatisfaction. In the end, every applicant gets what he/she wants, and “only a fraction” of patents granted have a scope that seriously disturbs and annoys competitors to an extent that they will file an opposition. Moreover, the budgets of most companies are pretty tightly constrained, with the result that there is not necessarily more money for filing oppositions now than in the past. I would therefore caution against taking too much comfort from positive ratings in undefined “user surveys” and from the number of oppositions filed per year, which, as I would have expected, has not increased with the strongly increasing number of grants. It has even decreased somewhat from 2014 (5%) to 4% in the years 2015 and 2016. In my view, none of this is a reliable quality indicator.
The EPO’s own figures in the Quality Report 2016 seem to suggest that its Directorate Quality Audit (DQA) is happy with about 85% of the intentions to grant (R 71(3) Communications), whereas the number of search reports found “compliant” by quality audits is in the order of as much as 95%. This in turn means that 15% of the (internal) decisions to grant are not found compliant with the EPO’s own standards.
The EPO’s representation of these results is interesting. Here is the relevant paragraph from the EPO’s Quality Report 2016 2016, p. 18, with my emphasis added.
The EPO’s Directorate Quality Audit (DQA), which is placed under the direct control of the President, audits the compliance of products delivered by patent examiners and patent administration with legal requirements. DQA performs annual audits on European and international search reports and on applications proposed for grant. Furthermore it audits opposition and refusal decisions bi-annually. Patent administration products and processes are audited based on risks identified in this area. A detailed analysis of approximately 925 search and examination procedures per year takes place. The 2016 results of the quality checks were positive: the objective for compliance in search was exceeded and the objective for classification was met. The audits produced recommendations for improvement that are being addressed by specific actions.
It seems to me a bit of an attempt to embellish the situation that the rate of compliance in grants is not mentioned or critically commented in this summary. Perhaps it is hidden behind the cloudy language “recommendations for improvement”, which the audits produced and which are (of course) being addressed, albeit not with any measurable success at least between 2015 and 2016. But I would personally not call the fact that about 15% of all grants are non-compliant with the EPO’s DQA’s own standards a “positive” result.
Let me be clear: I like the fact that the EPO has produced a comprehensive Quality Report for 2016 and I would encourage it to compile such reports in the future. However, when reading and trying to understand the 2016 Report, I could not resist feeling that it uses a too bright colour palette to depict the present situation. Let me give you one more example:
Patent invalidity in Europe is very low. This is illustrated by the example of Germany, the main validation country for European patents, and one of the main European jurisdictions. (…) These invalidated patents represent less than 0.01% of the total number of granted EP patents valid in Germany.
The figure of less than 0.01% may be correct as such, but it is almost certainly misleading. Only a minute fraction of EP patents is attacked in German nullity proceedings. Of these patents, about 70-75% are found wholly or partially invalid by the German Federal Court every year. Note that I am not arguing here that this figure would mean that 70-75% of EP patents are completely or partly invalid, since most nullity plaintiffs obviously select the patents they want to attack under the aspects of (a) whether and how the patent disturbs their economic activities or plans and (b) the chances of success. I would, however, posit that the figure of 70-75% of invalid or at least partially invalid patents tells you more about patent quality than the absolute figure of 0.01%.
The EPO’s second observation about Germany is that
“In 80% of infringement cases in Germany the defendant does not even try to challenge validity. Indeed, there are approximately 1200 infringement cases in Germany each year, compared to only 250 nullity cases (Bundespatentgericht, Annual Report 2014). This suggests that in the vast majority of cases the potential infringer does not see any chance of challenging the validity of the patent concerned.”
Again, and with all due respect, I think this is wrong and misleading. Firstly, the counting of infringement cases by the infringement courts is different and more generous than the counting by the Federal Patent Court. For example, if a patent is enforced in parallel by an infringement action and a request for provisional injunction, this counts as two infringement cases, but the invalidity counter-attack only counts as one. Secondly, a German nullity action may only be filed once no opposition proceedings are pending (or can be made pending) anymore, which means that the only available counter-measure in many cases is the filing of an opposition or an intervention in pending opposition proceedings. Thirdly, the defendant in an infringement action may obviously be of the view that he has sufficiently good chances to win by pleading non-infringement only. Therefore, the discrepancy between the figures of the infringement courts and the figures of the Bundespatentgericht is certainly not due to “the infringer not seeing any chance of challenging the validity of the patent concerned”. Some reality check may be appropriate here: In my entire professional life of now more than 25 years, I have indeed reviewed and attacked many patents, but I have never come to the professional conclusion that there is “not any chance of challenging the validity of the patent concerned”.
I must admit that statements like these in a Quality Report of the EPO, which are obviously made with an intent to assure readers that the quality of EPO products is fantastic, make me a bit suspicious. Maybe the German Patent and Trademark Office or the UKIPO might wish to carry out their own and independent validity check of a random sample of EP patents – it would certainly be interesting to compare these results with the EPO’s. Moreover and more importantly, it would provide the EPO’s Administrative Council with a truly independent quality control audit. I am sure that the EPO’s DQA’s are doing a good job, but I am also certain that they would not be allowed to publish any result that would put the EPO in a negative light. Readers be reminded of Article 20(2) of the Service Regulations according to which:
A permanent employee shall not, whether alone or together with others, publish or cause to be published, without the permission of the President of the Office, any matter dealing with the work of the Organisation. Permission shall be refused only where the proposed publication is liable to prejudice the interests of the Organisation.
So we can be 100% certain that if the President wants the quality of the EPO to be “excellent” and “setting world standards”, and if he thinks, for whatever reason, that it is in the interest of the “Organisation” that the current quality of the EPO products is praised as much as possible in order to justify his agenda, then the quality will be praised exactly like that. Any more sober or realistic rating by an EPO employee runs the risk of “prejudicing the interests of the Organisation” and may have personal consequences for him or her. It is bitter that I have to write this so clearly, but I would urge the EPO’s supervisors to bear that firmly in mind when looking at the EPO’s official figures.
2 Quality – “Stickiness”
My second thesis about quality at the EPO is that it does not dramatically change overnight. The reason is quite simple: Well-trained and experienced examiners and formalities officers will generally continue to provide good products, at least unless they are pressurized to an extent that this ceases to be possible. As I argued before, you cannot turn the conveyor belt faster every year, thus I find the EPO management’s stated objective for 2018 to increase the number of “products” per employee by another 7% both ridiculous and dangerous. We may live in Modern Times, but even there turning the conveyor belt faster has not really worked and, on a more serious note, the time necessary for a careful review of a case or a thorough prior art search cannot simply be shortened ad libitum. This is the difference between a car manufacturer and a Patent Office, and I specifically dedicate this comment to the AC’s Chairman Dr. Ernst, who gave me the impression that he does not (want to) comprehend this connection.
But coming back to my second thesis, I think it is true that “quality” will only slowly and incrementally change under “normal” circumstances. The EPO’s quality report 2016, for what it’s worth, seems to confirm this by and large, see particularly figures 9, 10, and 12, whereas I do not believe that the sudden jump shown in figure 14 between 2013 and 2014 has to do with real-world quality metrics. Furthermore, I find it hard to make sense of figure 15, where some bars or parts thereof seem to be missing.
3 Quality – Direction of Change
Why am I of the opinion that quality has somewhat decreased over the last few years? A few observations:
My firm files more than 3000 EP applications every year. This means we have certain standards and routine procedures that we follow in their prosecution. One of them was to make use, as a standard procedure, of the possibility to waive a second communication according to Rule 71(3) after we have drawn the EPO’s attention to errors in the first communication (which are quite frequent!). Before this backdrop, here is an internal email of one of my partners:
About 10 % of 71(3) texts that I receive include a Druckexemplar including errors in compiling the text within the EPO. These errors can be corrected when responding. If the amendments are trivial, I have tended to file the response with a waiver. No longer.
Sadly the EPO’s incompetence has extended itself on 2 of my files to the Druckexemplar attached to the “Information” Communication following such a waiver by introducing new random errors. These are much less easy to correct as the file irrevocably enters the EPO’s granting machinery about 3 days or so after the date of the “Information” Communication. In my latest case our Office did not receive the “Information” until 7 days after the date which it bears. Too late to halt grant.
I am swiftly coming to the view that filing a waiver to the first 71(3) Communication is no longer appropriate in view of the current abysmal levels of quality control within the EPO.
And my partner was not alone with his complaint. Meanwhile we have changed our standard procedure and no longer recommend our clients such a waiver, since we cannot rely on the EPO any more.
When preparing for this blog, I thought I might as well do a short poll among my colleagues to see whether my own rating is an outlier or well within the mainstream. So I asked them two quick questions: (i) How do you rate the overall quality of EPO work products on a scale from 1 (very good) to 6 (unsatisfactory)? (ii) In your opinion, has this quality improved, deteriorated or stayed about the same in the last 2-3 years? I received more than 50 answers. The average rating on this scale was 3.2, with a few “2”s, many “3”s, a couple of “4”s and one “5”. On question (ii), two thirds responded that quality has decreased over the last 2-3 years, one third responded that quality has stayed about the same, and exactly none (zero) responded that there was an improvement in quality. This result alone should give the EPO management and its supervisors, the Administrative Council, something to think about.
Some of my colleagues provided further comments, so I thought I might share them with you and, hopefully, the EPO in order to give them an idea where a bunch of people are happy and where there might still be room for improvement:
– Some of the “products” have clearly unjustified objections but most are good.
– I would say the decrease in quality was slight. Where I have seen changes: Examiners are granting praps sooner, but are making more amendments themselves in the R71(3). I also have the impression that an Exam div will issue a summons, but then avoid oral procs if they can. In terms of formalities, recently I have had a couple of slip ups.
– Quality has (very evidently) decreased: some patent applications are granted, although I myself believe that the claims on file do not merit a grant at all …, more and more simple but serious mistakes, both in examination and opposition proceedings
– Clearly decreased (4-)! Number of R 71(3) communications is steadily increasing, at the same time EESR and Rule 70 as well as Art. 94(3) communications only deal with few specific issues (like inventive step), other issues that should be discussed are simply left for a later point in time! Clear impression of more time-pressure that is being compensated by a decrease of quality!
– I see the full breadth of quality variations, would tend towards 3-4 (for Opposition Divisions rather 4; perhaps this is because I have more hearings in The Hague than in Munich:-)
– Stayed about the same? Yes – the average is pretty good, but still quite a lot of variation (both examination and opposition). Some examiners are very reasonable, others are unwilling to engage with our submissions.
– Obsession with “clarity”, Art 84, is getting more and more irritating. They object under Art 84 just for the sake of it. Any excuse will do. Deferring to their objections does not improve “clarity”. Often, it prejudices it. Often, I have to ask them to withdraw their silly insertions in their Druckexemplar.
– One has the feeling that, for Examiners, the days of making an adult, intelligent, overall assessment of patentability takes second place to virtue signalling, to the EPO’s in-house Quality Police, using Art 84 EPC, that I’m meeting the quality metrics imposed on me.
– The examiners seem to be under a lot of pressure and do strange things. Example: Examiner calls me indicating that the claims are grantable, but the adaptation of the description is missing. He then sends me a draft adapted description by email, asking for a quick reply. The whole thing had to be done twice since his/her adaptation was quite sloppy.
– The worst point is the 71(3) quality. Nearly all texts are faulty. I have complained to several examiners about this. They know about this problem but allegedly can’t change it (it’s allegedly a software problem) and encouraged me to complain officially.
– Also noticed more errors in decisions, such as missing pages etc.
– Generally it seems to me that more and more tasks are pushed onto the applicant (or rather the representative) while the EPO still levies the same fees. For example the EPO online submission of oppositions requires a detailed submission of information for each cited document, so that it can readily be moved onto the register without any input from the EPO. Another example, due to the errors in the 71(3) I have now been asked by examiners to not only file the amended pages but the entire spec, so that they do not have to do any work anymore putting it together or checking correctness.
– The examiners are forced to summon very early in prosecution (to a degree where even they consider it “ridiculous” as one examiner put it). Various examiners are helpful to telephone instead of issuing an examination report, but this cannot be the solution to this inflexibility.
– The quality of first instance decisions are extremely variable (but I think there are plans to create a pool of examiners specialised on opposition proceedings).
– There are of course still good examiners, ODs and BoAs, but it seems to me that they are put under more and more time-pressure to deliver, and this (at least in my view) clearly takes its toll on quality.
– A positive point: the ticket system for enquiries. Generally you get an answer within 1 or 2 days!!
– Decreased – primarily caused by over reliance on IT systems which cannot “think”.
– Everything is relative – compared to the US, I think they are better, but this doesn’t help your survey. (3 – a bit better than satisfactory)
– As to direction, I say it has decreased: I see less and less situation-specific reasoning and engagement with written arguments and more “standard sentences” to raise objections / maintain objections.
– I reserve particular criticism for the current quality of the Annex to the Summons in Opposition which has in my view overall degraded, the workload to prepare for OPs, the number of auxiliary requests which are prudent and thus the costs for the party having increased because one simply has no idea of the direction in which the OD is thinking, so one must assume that even crazy points run by the other side will gain traction!
Several of these views were also earlier held by “Anonymous Attorney” in response to one of my earlier posts. Let me take this opportunity to thank all responders for your thoughtful (or at least thought-provoking) opinionated comments.
If I may summarize in one word the main problem that I and many others are perceiving at present, it would be superficiality; sometimes even sloppiness. My perception is that examiners are meanwhile being exposed to so much “production pressure” that at least a part of them is no longer examining applications thoroughly. The processes revolving around the communication pursuant Rule 71(3) EPC may deserve special attention in this regard.
4 Quality – Policy Recommendations
In view of the above, I would argue that both the EPO’s and the Applicants’ long-term interests would be served better if the EPO management were to reverse its misplaced “production policy” and allow examiners sufficient time for a thorough search and examination, as well as for professional training. I also think that many of the recent HR measures are not going in the right direction. For example, the EPO used to have small directorates headed by one director who oversaw about 20-30 examiners. One of the jobs of this director was to review the products of his/her examiners and provide feedback on quality. This was a manageable task. However, this structure has changed recently. I was told that, right now, one director oversees more than 100 examiners. Instead, smaller groups of examiners are now led by a temporary “team leader” who must spend 80% of his/her time to examine his/her own cases and thus may feel little inclination to thoroughly look after quality in his/her team’s work.
The EPO’s latest idea to generate “more flexibility” by employing more examiners on the basis of 5-year contracts rather than permanently is also completely counter-productive to quality and should be firmly rejected by the Administrative Council. There may be certain positions for which temporary contracts may make sense, e.g. in the case of a well-defined, time-limited project where little time is needed for staff to get up to speed. But the job of a patent examiner is the exact opposite. It takes a good while to get familiar with the EPC and its by-laws (for European Patent Attorneys a three-year practical education is thought indispensable), and the project of examination is never finished. Moreover, what should an examiner do after his/her five-year period? If you are an HR senior manager or an IT specialist, you may perhaps find other employers easily, but there is no real market for patent examiners. And I will refrain from commenting on the proposal, from whomever it may have originated, to change Art 53 of the Service Regulations so that employees could be sacked at any time if “the Organisation” no longer needs them. Fortunately, the EPO has a social and magnanimous President who takes the well-being of his staff to heart and has prevented such a nonsense, as he himself helpfully explained in his internal Communiqué 3/2018:
Moreover, during the December AC meeting, one delegation, supported by others, proposed to introduce in the Service Regulations the possibility of separation with an employee (appointed on fixed- term or permanent basis) at any-time and on the grounds that the post would be suppressed or the staffing level decreased (new Art 53(1) f) ServRegs). It was inspired by the model of open-ended contracts of the private sector and also implemented in some national patent offices or International Organisations, like WIPO.
One could question the real need to implement such a measure for an office that performs as we do. In any event, I understood that it caused of great deal of concerns among the staff and this is why I have convinced the B28 during its second meeting on Wednesday this week to abandon it. Therefore it will not appear anymore in the revised version of CA/3/18 which will be presented for the GCC consultation at end of February and to the Administrative Council in March for decision.
In regard to professional training, I understand that a lot of that is now done by webinars. A wonderful invention if you have staff that has the time to watch and digest them carefully. But if staff is under immense production (increase) pressure, it is predictable that the first thing they will do is to simply click on the webinar slides from time to time while using 90% of their brain capacity for simultaneously working on their cases.
Another myth is the quality allegedly provided by the fact that patents are granted by a three-membered Examining Division, rather than by one examiner. It is true that a decision to grant must be signed by three examiners, but if time is of the essence, why should the fellow examiners spend much time in correcting the first examiner who must dispose of his/her case quickly in order to make the points necessary to reach his/her annual target? One of my readers even went as far to write that
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.
Thus, in summary, it seems to me that a sustainable long-term policy to safeguard quality includes allowing motivated staff sufficient time to do their job properly. Increasing production pressure year-by-year does exactly the opposite and thus will not be a sustainable and sensible policy in view of the EPO’s own mission and vision.
_____________________________
To make sure you do not miss out on regular updates from the Kluwer Patent Blog, please subscribe here.
Kluwer IP Law
The 2022 Future Ready Lawyer survey showed that 79% of lawyers think that the importance of legal technology will increase for next year. With Kluwer IP Law you can navigate the increasingly global practice of IP law with specialized, local and cross-border information and tools from every preferred location. Are you, as an IP professional, ready for the future?
Learn how Kluwer IP Law can support you.
Another outstanding article of yours Mr Bausch. Vielen Dank
The damage done to the EPO by Battistelli and Bergot will be hard one (if not impossible) to redress.
By France Telecom when they finally get rid of the toxic top managers responsible for the debacle, it took years to the new top managerial structure to recover since middle management did not understood the change of culture (from brutal back to normal), hence had difficulties to accept and translate these changes into concrete healthy actions (they were used to follow arbitrary orders blindly and had difficulties to accept that their previous leaders had requested from them illegal, shameful, contra-productive actions).
This is likely to be the very same at EPO.
Currently on Techrights two papers illustrate the current EPO top management’s methods:
The threat letter of Principal Director HR
http://techrights.org/2018/03/01/elodie-bergot-threatens-again/
The publication of the Central Staff Committee censored by PD HR
http://techrights.org/2018/03/02/streisand-effect-bergot/
Out of fear, nearly all EPO middle-managers (no matter the departments they work in) bowed in front of Battistelli and Bergot and followed all obnoxious orders no matter how sick these were (and how damaging these were for the EPO as an organisation).
(Top) managers are recruited not because they are good and have potential to develop, but on the sole assumption that they will follow orders of their superiors without questioning them (mediocracy)
After 6 years of such regime, all is perverted at EPO.
Abnormality has become the norm, words are vergewaltigt on a daily basis and this on all kinds of subjects. EPO staff is in denial, totally exhausted, disoriented, lost. The experienced ones (read elderly ones) are leaving the EPO as soon as possible and are replaced by young, poorly trained and highly pressurized (vi time-limited contracts) new-comers.
The crucial knowledge transfer, upon which the EPO could grow up its competence to the praised level we now deplore has vanished (under Battistelli’s and Bergot), is gone.
The EPO is in real danger Mr Bausch.
One can only wish good luck to Mr Campinos who next July will have to clean the pigs’ breakfast inherited from the previous team. If he keeps some of the current top managers responsible at their positions then you can kiss goodbye to any recovery of the EPO, it will only be more of the same with a clear tendency to further decrease of competence due to the departure of the experienced staff.
Two thoughts, Thorsten:
1. Your reasonable “credit where credit’s due” tone only serves to pack more punch where you do pinpoint poor “Quality”. Read it please, AC members, and take it to heart.
2. I am reminded by the first comment (above) of that legendary announcement by the apochryphal top manager: “Hear this, employees, the beatings are going to continue, OK, for as long as it takes, until morale shows some improvement. Got that?” You know, readers, the higher the quality of staff, the more motivated they are, the more duty-bound they are, less likely they are to continue to put up with such shabby and disrespectful treatment. The managers at the EPO might not care about that. But the AC should.
Dear Thorsten,
Once again congratulations for a long and balanced paper.
At the moment, there are, not yet, hard facts showing a decrease in quality. It is more a perception than something tangible, but it is not possible to deny that the direction taken is very clear, the quality goes down. It is too easy, as Mr Ernst does, to say that problematic cases are more incidental than systematic, so there is no reason to worry.
Lowering quality can be defined more over a cluster of consistent clues than tangible figures.
For the present management of the Office, the only aspect of quality is timeliness, as this can show up immediately. But if timeliness is a key aspect, why then the felt necessity by the same management of introducing deferred examination? i do not qualify such a behaviour as a management with quality.
The quality problem is difficult to trace without any external action endangering the validity of the patent eventually granted.
It should never be forgotten that hundreds of patents never come into action, as the technology becomes obsolete or new ideas renders them obsolete. A guess is that what is patented and comes on the market is not even the top of the iceberg representing all patents granted and for which annual fees are paid. So one could think why bother with quality?
A patent is however an insurance in case of success as has been stated by a former president of the EPO. But if the patent is shoddy, what good is it? So a view from outside, i.e. away from the granting process is always to be valued more, even if the figure looks comparatively low.
As such, opposition has never been a measure of quality, as their number has barely varied over the years, and are only envisaged if there economic assets at stake. Nevertheless, when a patent is opposed, it is only one third of the patents which come out without damages. It would therefore be interesting if the reasons for which the patent was revoked or only maintained in amended form where available at the grant stage. The EPO cannot be blamed for not having known a public prior use, but well if the prior art was part of the search files of the EPO and was overlooked, or if it has left added subject-matter slip through, or granted patents which are totally unclear.
This is the type of data which could also be interesting and such data analysis should be done regularly and not once in a blue moon.
Another way to look at the quality is to look how many applications have actually been refused, and the refusal confirmed by the Boards. The vast majority of examiners have rarely written a refusal decision. How can this be? Do not tell me that the quality of the applications as filed is such that no further prior art exists, or there is nothing to query in substance. When looking at case law, there are quite a few cases in which a Board brings in new prior art, when it has received a case which was refused. One can discuss whether the Boards are there to find new prior art, but this happens.
It is also interesting to see the number of decisions which are remitted to the first instance due tare due to bad training, in that the procedure in the Guidelines are not followed, simply to get read of the case.
All those points taken in isolation might not be significant as such, but contribute to the cluster of consistent clues mentioned above.
That examiners make substantial amendments before sending out the communication under R 71(3) is nothing new. It is another form of arm twisting for the applicant, but if he agrees, the case is over and done with.
Amendments before issuance of the R 71(3) communication should be limited to clerical amendments, and in any case not comprise amendments which do affect the scope of the claims or they interpretation, see C-V, 1.1. Judging from Thorsten colleagues experience this is a problematic area, in which the quality is sub-optimal.
The rapid increase in productivity and production is not auguring well for the future.
Another aspect to be considered is that the training has been reduced and is not any longer of the responsibility of DG1, but is part of HR. Everybody can guess what it means.
In their vast majority examiners behave very professionally, but even though, the requirements in production and productivity are such, that they are forced to cut corners. As the training is now suboptimal, they might cut the wrong corners. This is the more so, since an ever increasing number of experienced examiners are leaving the office when they have reached the age for having a pension, if not before.
The atmosphere is such that they do not want to stay any longer than necessity. In the absence of those experienced examiners, the younger ones loose the possibility to refer to them in case of problems and difficulties. Another piece to the cluster of consistent clues towards a lower quality.
In the past it was forbidden to either make a telephonic discussion or to summon to oral proceedings as first action for the examiner in charge. Now they are encouraged to do so. Summoning to Oral Proceedings is another form of twisting the arm of the applicant or the representative. Examiners are aware of the costs incurred by the applicant and its representative, so the applicant might be more inclined to give in rather than to have to fork out the corresponding costs. And for them, if the Oral Proceedings does not take place, the case is dealt with very quickly.
Talking about directors and team leaders. Team leaders are in a difficult position, and beside the fact they still have to carry out 80% of the target of an experienced examiner, they now very well that their position is only temporary. Why should I get into discussions if later in time I will be returning to the corps of examiners? Should I put myself at odds with my colleagues?
It is also clear that some team leaders have reached this position, not because of the fact they have a well-accepted status amongst their colleagues, but simply because no other examiner wanted to become team leader. This is also not a guarantee of quality.
On top of this it takes away any career perspective for becoming director. I would like to remind that the Interim Committee had fixed at 12 the number of examiners in a directorate. That this figure is too low, is clear, but any director having more than 30-35 examiners cannot play the role of being counsellor and arbitrator which should be his. One really wonders what directors with 150 examiners actually do. Ok, they “manage”. But why remove a good career perspective when the EPO is making over 2,2 Millions € of surplus?
I do not want to become too long, so that I will now comment on Communiqué 3/18.
Communiqué 3/18 from the tenant of the 10th floor is a desperate attempt to transform a clear defeat into a victory and to show an apparent, not to say pseudo, care towards the staff. It is hypocrisy at its best.
The proposal came from his beloved resource manager (she does not deserve the title of human resource manager) EB which seems to be on a trail of destruction.
Whether her boss inspired her and she only did execute his wishes, or if her mind conceived it, is beside the point, it shows such a disdain for people that it is barely believable, especially toward expatriated staff. It is amazing that he has the nerve to claim he has contributed to the document being amended. The contrary is true.
What the butcher of the 10th floor does not say in his Communiqué is that the article of the Staff regulations relating to laying off in case of lower activity of the EPO will disappear. This article provided for a severance payment proportionate to the length of service, and the possibility for people laid off, to be reinstated once EPO’s activity increases again. But I take care of staff! Look how good I am. Just remove the worse, so that other things can be hidden in the wake of this apparent grandeur d’âme. It is awful that such hypocrites are in charge of staff. It makes me want to puke.
A potential application was foreseeable in the immediate future.
If one knows that the number of directors has been more or less halved and some have been affected to tasks which are not of director level, or even have no tasks at all, one can imagine that such a ruling could be easily applied to the directors having become idle. Go home, we have no job.
All this makes one sad, very sad. I have been long, may be too long, but there is such a lot to say.
Techrights: FINGERS OFF! You know what I mean
As an (EP and DE qualified) inhouse attorney I work a lot with different PTOs and I am of the opinion that the EPO works very well compared with other PTOs. Further, that grant rates get higher and higher may also be the result of more and more excellent scientists and engineers joining the ranks of patent attorneys (due to medicore job and income perspectives in R&D and industry). My thesis is that the EPO quality remains substantially similar while the applicants and attorneys invest more and more resources in prosecutuin. If you look at the letter head of a random IP law firm, you might find that 90% of the staff have a PhD. 15 years ago, this was different.
Well, I guess it depends a lot on your field of activity. In my experience, the USPTO is much better than its reputation in quite a few fields of mechanics. As far as I am concerned, I receive the most thorough office actions from the Chinese patent office. The EPO grants everything I send them, so it is difficult to say whether they do a good job or not, but I have my doubts. The times when you could rely on the search report from the EPO are long gone.
Thorsten, you mention the “difference between a car manufacturer and a Patent Office” and the difficulty that the incoming Chair of the EPO’s Governing Body has, to recognise this.
Try this on him.
For a car manufactureer, the highest levels of “Quality” are achieved when every single item coming off the end of the line is identical.
For a Patent Office, it is the exact opposite. If any two items coming off the line are even roughly the same, the Patent Office has failed to deliver “Quality” . Every item coming off the line is a licence to enjoin competitors, a right to assert 20 years of exclusivity. Every patent is (or should be) a single, unique, different, genuinely new, inventive and enabled contribution to the art.
I cannot think of anything more different from the Patent Office in Germany than a car production line in Germany. Has Dr Ernst really not yet grasped that elementary difference? How much lower can we sink?
In my daily practice, I can only confirm the views of this blog post. For me it appears that timeliness has become the only quality measure at the EPO. And the EPO is becoming really good in providing timely examination reports. It also becomes increasingly “good” in issuing premature summons to attend O.P.. In my day-to-day work I also experience that the quality, in terms of “how accurate is the analysis and how well founded are the objections” is declining (sometimes to a ridiculous extent). I do not dare speaking of 71(3) problems and IMHO this is a minor issue (it “only” requires more caution on the attorney’s end and much of the problems really seem to have a rather technical background, which I believe can be solved).
The loss in quality occurs on a deeper level and is much more detrimental.
I can assure that this is no fuzzy belly feeling of mine, because I have observed that the same Examiners that used to provide me with a sound analysis and reasonable objections more and more tend to raise superficial objections, or object to claim sets as a whole where they previously assessed claims in groups or individually. I see more faulty objections, more alleged clarity problems, no willingness to apply a problem-and-solution approach, more ex post facto argumentation and more clearly premature invitations to O.P. that put pressure on the applicant before a reasonable exchange of arguments has been finished. My own metrics is the length of the reporting letters that I have to write to the applicants and the number of times that I am forced to complement for an insufficient analysis to provide a proper advice to the applicant. It is, to me, very apparent that Examiners do no longer get the time needed to judge each case on its true merits.
As regards the term “production” as used and implemented in the EPO’s metrics, I feel that this term is entirely unsuitable in the context of patent applications. Some applications are complex, some are not, some yield many prior art hits, some may not, but all these different applications have the product count of one (1). And the time scale to handle all these different products is all the same at the EPO.
Imposing ever increasing production targets on the Examiners will only further erode the quality of examination, will result in patents that are either unjustifiably broad or unjustifiably narrow and in the end represents a disservice for the public and applicants alike. We will experience the degradation of “deep quality” in a couple of years from now.
Dear Herr Bausch,
My thank yous too for your balanced, but more importantly, accurate analysis.
If I may add one example. The EPO has sought to add quality to the granting process by giving easier and better access to the procedures before other granting bodies so that the divisions can find prior art which has been introduced by other offices’ examiners. This means that work is at least extended while documents and communications are perused and studied. If relevant, the EPO proceedings may even take a new turn – a communication in place of a grant etc. While this gives improved quality, it also requires more time. As you said, it is hard to equate greater quality with less time being spent. The time gain must come form somewhere else and you are right that this inevitably leads to cutting corners.
Another aspect is the inevitable ISO effect – quality is defined by what can be measured (easily). Metrics are formulated as synonyms for quality so that if an examiner does not add “The preamble of claim 1 is known from D1” or the like, then the examination has obviously not been performed correctly. Of course this generates the inverse conclusion that the presence of the text means high quality.
As you identified, independent quality assessment is necessary and no system which is under this or any president is independent. I wish the new President well and hope for inspiration. Or at least an interest in substantive rather than purely timeliness quality.
To complement what this poster has said. There has been a lot of progress in the office as regards certain measures promoting quality. To mention a few an automated search called pre search, which can be used at any stage of the proceedings and will often give you a meaningful overview of relevant documentation through different means including making available search results from other offices, which by no means are to be regarded as trivial. Also e-learning modules, which I have a distaste for when they are mandatory, but which i must acknowledge are often well structured and confirm, what I would regard as measures undertaken to improve quality. Job aids, patent procedure notices etc. The way third party observations should now be handled, even procedures regarding telephone calls or oral proceedings as first actions can be seen as above towards better quality, if they are not abused, but instead are used conscientiously according to the instructions and preferably to the benefit of any applicant. All this be it as it may, one stark reality springs to mind. To implement, make best use of these measures, the examiner of today needs far more time than the examiner of the past. But what incentives do we have in place to ensure enough care is taken over these quality improving measures. Time is of the essence, but none is available, without penalizing consequences. A sad reality, which if recognized, might in the long run lead to proven improvements in quality. It would make a big a difference to recognize an examiner for what he is, the expert in the services the office was founded to deliver. (Maybe this does not apply to all, but it makes no sense to wager that it does not apply to most, otherwise why recruit examiners in the first place for this type of work they are supposed to perform.)
Dear Max Drei,
I am convinced that you cannot have forgotten what the EPO logo is meant to represent: a finger print. A patent is as unique as a finger print.
The comparison with a car manufacturer is nevertheless appropriate, but only to a certain extent. Any car manufacturer has objectives, i.e. products to manufacture. But the comparison stops there.
A car manufacturer does not have a captive market, the EPO has. A car manufacturer can only survive if its products can survive on the market. The management of the EPO does not have to care about this.
It is only thank to the professionalism of the people on the production line that quality has not gone completely astray. But the pressure is such that more and more a blind eye has to be turned to what is happening on the production line, and corners have to be cut.
So for the “upper” management of the EPO the only thing that matters is to produce enough products to look good for its shareholders, not to please the customer. It has thus any latitude to decide upon quality criteria. And it is good at this.
For a car, any quality defects are immediately apparent. For a patent it takes much longer, if ever. It is only if the EPO final product is confronted with reality that its bad quality comes to light. But this is not very frequent, so that the risk to be caught is very low. An ideal situation for those in charge.
We all know what happened to car manufacturers in planned economies. They did not survive in a competitive economy. But the EPO has a monopoly so it has all the advantages of planning in a competitive economy.
This does however not authorise the management of the EPO to constantly bash on the people on the production line.
Techrigts: FINGERS OFF! I know that you do not like it, but I am not the only one who claims this. The day your blogs are less excessive and you stop your stupid crusade against software patents, I might change my position. I do not want my contributions to be misused by you. At least respect this if you want to get a beginning of respect.
Thorsten,
My congratulations: another thoughtful and thought-provoking piece from you.
I agree with many of the comments that raise concerns about quality, as they reflect my own experience. In particular, I too get the feeling that examiners are given nowhere near enough time to consider each case with the thoroughness that applicants (and third parties) deserve.
With regard to the difficulty (if not impossibility) of measuring quality, I agree with Attentive Observer that the EPO should record the reasons why patents are limited or revoked after opposition. Whilst such metrics cannot provide a complete picture, they would at least flag up when management policies might have caused significant changes (eg a marked increase in the number of patents revoked due to added subject matter, or to unpatentability over prior art considered during examination).
If “quality” is indeed important to the EPO’s management, perhaps they might want to take this idea on board?
This discussion should take place inside the EPO, but the Council confines itself to congratulate the President for his marvelous statistics, and quite often the representatives of the users (SACEPO, epi, Patentanwaltskammer asf) have done the same. A representative of the EPO stated some time ago in public: At the EPO one does not need more examiners because quality comes from quantitity. Mr. Ernst follows this philosophy with his comparison to the car producer. It is true that a car producer can produce more cars with the same or even less staff by increasing the degree of automation in the production process. In a patent office, you can provide the examiner with more and more improved tools, but you cannot rationalize the process of understanding the invention which should be the first step in the grant procedure in order to provide a meaningful search (Guidelines B-IV, 1.1), search opinion or examination report. Many examples, as mentioned in the previous discussion, show that the necessary time for a thorough analysis of the invention is lacking. This may have the consequence that the final decision is taken too quikly and on an insufficient basis. Neither a premature grant of the patent nor a premature refusal is in the interest of a well functioning patent System.
How assess quality:
It would be a great step forward to learn from the case law of the Boards of Appeal where sytematic deficiencies exist: unjustified declarations of no-search, unjustified formal objections, premature oral proceedings, incomplete searches only covering claim1 with ensuing salami objections after amendments, refusals on grounds not communicated to the applicant asf. Such decisions should not be taken as a reason to penalize the examiner concerned in the individual case but for giving proper training and instructions to the examiners.
Thank you Dr Bausch and also to both attentive and concerned observers.
To write down some clear numbers, this year my directorate was shamelessly asked to increase its production by 20% in average, with single requests of +40% (forty percent!). Unbelievable and unreachable. Especially in view of the fact that we are rapidly running out of files to search and exam.
Good luck Mr Campinos. This wreck will be all yours in just four months.
I am one of those experienced examiners.
The climate at work is depressing. The messages we get follow a pattern: whatever top management does is excellent and outstanding (see the President’s statement concerning staff well-being quoted above), while we never “produce” enough. Our meetings focus more or less exclusively on “production”, “targets” and “achievements”. Communication, as nicely worked out in the blog, seems to be purposefully misleading and dishonest.
The young colleagues are under immense pressure to “produce”. Their training, as far as I can judge, is sloppy. There is not enough time to understand things, so they are trained to rigidly follow predefined procedures. However, each application is unique and requires its own approach. It is not possible to define standardized step-by-step procedures with suffcient level of detail. That is likely a driver behind badly reasoned and formalistic objections.
Our internal process and IT quality has plummeted. Top management cannot have “bad news”, in particular with the current President leaving soon. The house must be completely in order. To give you an example, concerning the 71(3) communications including many errors, we are forced to use a software which is badly designed, cumbersome to use, squeezed on one screen (examiners have two screens), slow and prone to malfunction. Still, this project was – and still is – officially a major success. Another project is edossier for search. You will not be surprised to read that this software is also cumbersome, extremely unergonomic, squeezed on one screen and slow. I cannot say whether there was a design process, jugding from what I hear, I’d say no.
If you had to decide to buy a product/software/etc, you would consider usability. Again, as an example, nobody would buy a car with a wheel missing, even if it came at half price. It is simply not usable. Under the “efficiency paradigm”, this is no longer an issue. It has almost all features you need, and it is cheap. To stay in the example, EPO management would buy that car and force examiners to use it. At the same time, “production targets” would be increased, since we now have a new car.
I am in favour of efficiency and IT based file handling. This makes perfect sense. It is not an easy task. The German Patent Office was in shambles for about a year following introduction of its electronic file. That could have been a warning sign to EPO management, but alas.
All things considered, I venture to say the EPO is on the decline. Motivation is down, enthusiasm is down, we focus on what is measured (mostly procedural stuff) and start ignoring the content.
One of the more troubling issues of late facing examiners is the searching of files which are not in their technical area of competence. Some fields are short search files, and files are being rerouted to these fields despite the examination backlogs.
As a result, the most technically competent examiner is not the one always carrying out the search. Next time you receive a search, have a look to see what field the examiner usually works in.
How can that be done?
The reouting or checking the field?
Good question Peter. The answer to which unfortunately is more than banal. You need an expert in the field to redo the search.
Presently about 5% of the searches done in the office are sampled by the internal quality check system called CASE. Who does the check? The chairman allocated to the file. What are his qualifications? He may be a less experienced examiner, he may be a stranger to the searcher’s field? Only a fraction of the sampled searches will have someone of the right competence to carry out a meaningful check. And in those cases left, where such a check were to be feasible, no one normally has the time – to do a re-search. There are in fact very few examiners available, who are so experienced in the field in question that they could tell at a glance (i.e. smell) that there is something fishy with the search and also have the confidence to act. The skimping at the search stage; simply put, missing essential documents that one would expect the office to find is a very serious and very real issue. As you can tell it is almost impossible to be sure where the office is going with its searches, the checks in place are for all intents and purposes meaningless and it would be extremely difficult to find an effective means for securing search quality. Yet without search quality, the quality of the remaining procedure no matter how well performed, becomes nothing more than a damp squib – a non-starter.
I am certainly not condemning search quality at this stage, but no one and I mean no one has a real insight into the effects on our searches of:
the introduction of areas of competence in 2013, which forced many examiners to start up in new fields and relinquish those they were competent in,
the new promotion performance system resulting in lower rewards for fulfilling higher targets,
ever increasing targets,
a change in the general philosophy from reward those who produce a lot with no questions asked to exactly the same plus punish those who do not perform, i.e do not produce a lot regardless of how good their quality is,
the universal assumption at the EPO that no matter what, the quality of any examiner is always and automatically assumed to be top notch,
and finally the up and coming temps in examination (only permanent staff can be held to ransom).
The proof of the pudding I fear will only come if at all about 12 years later, (i.e. about 8 years from now) when the presently surmised missed documents show up in litigations and nullity proceedings.
If it came to such a scenario, it would mean nothing less than a melt down of the EPO as we know it, because if you only have the first signs of a degraded search culture only after twelve years it would mean the effects of this degraded culture would persist for the next twelve years-no matter what you do. The office is in this sense like a super massive oil tanker ploughing towards arctic seas full of icebergs.
I sincerely hope my fears remain unanswered, but as an insider I do see considerable cause for concern.
Sorry Peter. I trust I misinterpreted your question somewhat. I didn’t read the comment at the origin of your question carefully enough. Of course one can check the field of expertise of an examiner, but I don’t think with all due respect it could lead you to any conclusions regarding search quality. A number of examiners are quite flexible, and some can even achieve astounding results in fields to which they are a stranger. I myself have had t adopt new search strategies in new fields. That doesn’t of course mean an examiner is a universal choryphaeus. Searches are likely to suffer from the practice the colleague has described, but the real cause for concern is the quality of the search per se, no matter what the circumstances are that have led to any quality issue, and it is this I wanted to address.
I love this graphic:
http://www.mondaq.com/images/article_images/679406a.jpg
It comes from the article “European Patent Office Attacks Its Examination Backlog”.
http://www.mondaq.com/uk/x/679406/Patent/European+Patent+Office+Attacks+Its+Examination+Backlog
wow. In 2020 we will grant more than 200000 files! It’s such a pity we don’t have them. And that the EPO won’t exist anymore.
One recalls the grumble about the British, that they want their cake and they want to eat it too. Well, from what I read here, it’s not the UK but many of the EPO AC Member States, that want exactly that. Who wouldn’t? And the current EPO President sees it as his duty to provide it.
In the context of the EPO, “cake and eat it too” means “User Fee levels commensurate with thorough examination of patentability, a high presumption of valifdity, and issued patents that command respect and deference; yet with the staffing levels of a Registration Only patent system”.
Thus it is, that BB can offer his shareholders ever greater profit levels, even if there is a levelling off in the year on year rate of increase in patent filing numbers.. Does anybody care that, in the longer term, the EPO service is Going to the Dogs, down the toilet?
I think that the President plays one group of users off against another. SME, MechE and chem/bio expect quality patents, that command respect, while ETech has no interest in quality. It just wants a higher pile of patents than those of its competitors. Such ETech filers put me in mind of that age-old saying from the lower reaches of the bespoke tailoring sector, “Never mind the Quality; feel the Width!”
And nobody (outside these columns) calls BB out, on his disingenuity. Shame on us all!
The reouting or checking the field?
I can agree that in ETech there are much less oppositions than in other areas of technology.
In the other areas of technology the situation is different.
In thes areas, a small number of cars are called back for being seemingly defective. Remember that a third of those cars do never go back on the road, and one third are allowed to go back on the road, but on reduced speed! Only a third can go back on the road without being penalised! As such this is not satisfactory.
When you have at your disposal a whole fleet of cars, it does not really matter whether the odd one is not up to standard. For a SME, the story is different as they cannot afford a fleet of cars.
There is the difference between the big industry and SMEs for which a patent can be vital. I have seen SMEs threatened by majors, due to shoddily granted patent. If they pay for a Rolls, as this is apparently the only model available, they deserve one, and not a shodddy Mini or a fake Rolls. And their competitors should not be allowed on the road with a fake Rolls.
For SMEs the quality cannot be high enough. But who cares when the EPO delivers a shoddy Mini but asks the price of a Rolls?
For the manufacturer the only worry is to achieve a production plan. The production lines are managed in such a way that the needs of the customer are disregarded. Whether the car is customised to the needs of the user is secondary. Money is cashed in. The rest is irrelevant,
SMEs only use their car spearingly, but they will be disappointed when they realise they were sold a fake Rolls the day they need it!
I agree with Max Drei that selling fake Rolls, but at the same time, claiming they are real Rolls’ should never have been accepted. Whether you call it RAC, ADAC, or whatever you like, for instance EPI, consumer unions play along with the manufacturer, and this is a disgrace.
Let us put pressure on the manufacturer to deliver customised Rolls’, and not the fake he tries to impose on us.
Techrights: FINGERS OFF!
Everything is linked to the fundamental problem of lack of control over the EPO management. They are simply free to pretend quality is sufficient and just retired all the directors who expressed a diverging opinion. They also attacked the staff representatives who expressed the same opinion and moved the board of appeal out of the way, starving it from staff.
There is simply no-one who can oppose or even voice a criticism of the President and keep his or her job. Who is going to measure quality of the work under those conditions?
thank you for the coverage of real and current issues at the EPO. Some of the quality problems and sources that can be identified:
– shortage of time to the point that you cannot concentrate on a file as it has to be processed at light speed. If not, then you’re late on your target and – new as of this year – each of us is responsible for achieving the (un)achievable target that was set.
– loss of competence 1 : not mentioned frequently, the examiners had to undergo the project Areas of competence (AOC), at least 25% of the examiners had to change fields – not because they lack files in their own field, just for the sake of having one field on a single site (the Hague or Munich). They had to start in an unknown, frequently remote, field for which it will take years before they are trained – if they get the time and will to learn it.
– loss of competence 2 : the EPO has recruited and continues to recruit to reach overcapacity for examiners. As a consequence, many of us lack search files and have to be “flexible” read treat files from another field, for which they have no knowledge. It is to such an extent that now also examination files have to be transferred and we hear that “files do not belong to an examiner” after many years of implementing BEST project.
results : if you have a file for which you should raise objections, you are tempted not to raise them; you avoid making complete searches which could reveal powerful documents – rather have a weak X which the applicant can easily overcome; there are abuses in raising non unity objections at search stage to gain extra points, grants for applications which should get a communication etc The list would be very long.
as to the point of Peter Parker – how to know if the examiner is familiar with the field – have a look if the name comes back regularly or if it is a new name, also the content of the communication (e.g. inventive step reasoning) might give you some hints as to the technical knowledge.
Can I say, at this stage, a big, big thank you to all posters contributing to this discussion with a lot of additional and very valuable inside information and suggestions. This is how it should be, and I can only hope that your answers and comments will somehow trickle through to the EPO management and the Administrative Council so that the current situation will be improved over time. Thank you also for being (mostly) very factual and to the point and my apologies to some of you who had to wait for a day or so until your contribution went online.
In regard to this post of “examiner on the Titanic”, are there any figures on the current recruitment of examiners that substantiate the allegation that the EPO intends to reach overcapacity? I have heard this rumor more than once, but I just wonder whether there are any hard facts supporting it. If true, this would not make sense for me at all and EPO HR management might have a few serious questions to answer.
Now I’m going to be provocative. Readers, Observers, car owners and manufacturers, fasten your safety belts.
When BB mixes with the corporate masters, the international movers and shakers in Davos , he is given his orders: grant everything, and keep the fees low. He’s doing no more than faithfully following orders. At this high altitude, the needs of the SME’s “don’t count”.
But what about the start up companies, who need patents to attract investors? Not many people know this, but patents in the ETech sector are nothing more than a comfort blanket. An illusion of security.
And in chem/bio, the start up will have been acquired by Big Pharma, long before those patent applications go to issue, much less have to be asserted.
Could it be, Thorsten, that BB knows more than we do, and that the patents system as we have known it throughout our professional years has (like many old models these days) simply “had its day”?
I’d say, in your words, that BB certainly knows more than we do… However, as far as I am concerned, I do not think that the patents system is outdated. I also don’t presume that particularly the chem/bio industry would be happy with a “grant everything” policy, and if I understand the moaning about patent “trolls” from the USA correctly, it seems to me that the ETech sector would also not be particularly happy with a patent office that grants everything. Enforceable monopolies can be very disruptive and can easily be turned against your own company. Hence, and for many other reasons also, I do not think that big industry wants them to be granted en masse, nor should they be. They should be thoroughly examined.