The EPO management has been under increasing criticism for its perceived lack of attention for the deteriorating quality of EPO patents. The subject was put on the agenda prominently last year in October by the Industry Patent Quality Charter (IPQC), a group representing a series of major and smaller international corporations, and endorsed by the staff union SUEPO. Apparently it was also brought forward during the meeting of the EPO’s Administrative Council late June by various member states. But in a letter sent two days ago, the EPO refutes most of the IPQC’s quality concerns.
The AC meeting coincided with the publication of the EPO’s Annual Review 2022 and a video ‘featuring highlights from the past 18 months. Together they tell a story of a commitment to provide innovators with the highest quality products and services, as the race for sustainable inventions intensifies’, according to a press release.
However, it is clear not everyone agrees with the positive message. In meetings last February and May, the IPQC had already expressed its concerns about quality at the EPO and made suggestions for change. And on 22 June, Beat Weibel, driving force behind the IPQC, wrote a letter to EPO president António Campinos, vice-president for the patent granting process Steve Rowan and the members of the Administrative Council, in which he criticized the lack of response to the industry’s quality concerns: ‘We sincerely regret that the EPO did neither accept an invitation to a roundtable in December 2022 nor to the panel discussion in May 2023 in Osnabrück. We even more regret that our request for processual data expressed in our letter of February 8, 2023, has not been answered.’
The letter is interesting as it shows in detail what was discussed in Osnabrück and why the IPQC thinks things are heading in a wrong direction. For example, it pointed out that whereas the industry needs ever more time for drafting patents due to their increased complexity (at Siemens, for instance, 35% more time is invested), time spent for granting a patent application by EPO examiners has decreased by 50%. Beat Weibel summarized some of the concerns on LinkedIn:
- There is a gap between increased investments in careful patent drafting by industry and decreasing time for search and examination at the European Patent Office.
- The patent system needs complete searches and substantive examination for functioning well. German Courts are decreasingly relying on the grant quality of the EPO.
- Complete searches and examination leading to reliable patents are crucial for industry.
- In certain fields, the granting rate is highly depending on the experience of the examiners and three pair of eye quality control isn´t working properly anymore.
- Nearly 90% of all Board of Appeal of the EPO decisions either completely or partly revoke the patent in question. Most of the decisions being based on prior art that could and should have been found in first instance!
- Incentives and working conditions of the examiners are favoring granting a patent over rejecting it because a rejection needs more time and effort and eventually an oral hearing.
As Kluwer IP Law was informed, the quality issue was brought up during the recent meeting of the Administrative Council – likely as a result of the IPQC letter, with several states complaining about the lack of relevant information and the apparent gap between the companies’ and the EPO’s view on quality.
The EPO and its staff are fully focused on substantive quality
However, the EPO doesn’t seem impressed. Two days ago, on 3 July 2023, Beat Weibel received an annotated version of his own letter back from EPO vice-president Steve Rowan, refuting and/or denying almost all of the issues brought forward by the IPQC: ‘The EPO and its staff are fully focused on substantive quality. We are proud to be ranked number one for quality by independent IAM surveys for 10 years in a row and strong results from our independent User Satisfaction Surveys. The careful and diligent assessment of patentability requirements is the backbone of the work of the search, examination, and opposition divisions’, was the first comment.
The IPQC letter plus the EPO reaction are available here. In reaction to the IPQC’s invitation to enter into a constructive and continuous dialogue, the EPO wrote: ‘The EPO publishes the most complete data sets of any Office. Full information on quality, technical improvements, social aspects etc can be found in our Annual Report and the complete set of Annexes thereto.’ A remarkable way to address the concerns of an important group of clients.
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(only) two striking data are provided against the quality of the EPO: the 50% time reduction on a single file which I wonder how was determined, I can impossibly judge this from my (not large) law firm point of view, they must have really reliable insider sources within the EPO to be able to state that. And the 90% of patents revoked or amended at the Board of Appeal: how is this possible? In Opposition the first instance relies on the same arguments and documents (provided by the parties) as the Board of Appeal does, it is not a matter of complete search or examination, is a matter of non uniform application of the EPC within the EPO, so I fear that the figure had been like that also many years ago
The time available per file can be estimated from official EPO data (published in the EPO reports):
average number of files per examiner = (applications processed to a conclusion) / (number of examiners)
You can find a summary of the number of applications processed to a conclusion and the number of examiners in the article “The European Patent Office – The Story in Numbers – Part 2” by James Ward and Frances Wilding.
That article shows the data from 1978 to 2020. Based on that data, you can estimate how many files every examiner processed per year.
examiners are now and then involved in many other activities which can fluctuate a lot, I know that for sure, finalized procedures depend also on these extra activities, on the number of searches done, on how many examiners work part time, etc. so that figure cannot be considered quality relevant. What I would like to see are real procedural cases that prove the degradation, and not generic data or irrelevant Board of Appeal statistics. In our law firm we log any kind of data but apart from issues with few specific examiners we cannot confirm any trend over time, but I would be happy to see cases that show a generally negative tendency: without a deep analysis of these specific cases it is all politics with an unclear (to me) hidden agenda
Dear law sniffer,
Either you are part of the upper management of the EPO or you have very good contacts with the latter. In any case, you seem to have gripes with some examiners, but this is not a reason to generalise your negative impression of them.
Nowadays, examiners are primarily at the office to deal with files, sorry “products”, and no time should be spent on “extra-curricular” activities. Examiners can indulge in activities outside their normal duties, but in principle the production figures are not changed and the time for those activities have to be taken from their annual leave.
Your argument is thus beside the point, and a rough estimate of the time spent per file can be given. Furthermore the objectives to be fulfilled are regularly increased under the pretext of better IT tools, streamlining of the procedures and the like.
furthermore, why should Board of Appeal statistics be irrelevant? As the boards of appeal are the last instance, it is possible to see on the basis of which documents an OD has taken its decision, and whether or not a board has confirmed the OD’s decision.
The number of cases in which a board has set aside the decision of an OD is way beyond anything reasonable. It is 40%+ from all OD’s decision for 2022. The number of cases an opponent comes with documents available in the search files, but not found during the original search is astounding=90%+. It is only in a very limited number of cases in which the opponents come with documents truly not available in the search files.
When for instance, an opponent comes with a prior art under Art 54(3), sometimes from the proprietor itself, something must have gone wrong. When the search report established by the EPO mentions lots of A or X documents and the opponent comes with a true novelty killer or a combination of documents allowing to deny IS, and those documents are in the classes searched or even in the same class as the patent, something must manifestly have gone wrong.
I can agree that the results found after an appeal in opposition cannot be generalised, as there are some areas in which there are no oppositions and other laden with them. Nowadays oppositions are not filed for fun, but the granted patent hinders the presence on the market of some products or future products, patents opposed are those which manifestly have an economic interest. If those patents do not sustain scrutiny, there is manifestly a problem ahead of the opposition procedure. When roughly 85% of the patents come out maimed from the opposition procedure, the results cannot be said to be insignificant and show a clear tendency towards less quality of the patents granted.
If the Quality Charter of the EPO published in the autumn of 2022 would apply in full, the IPQC would have no reason to complain. Besides beautifully phrased sentences, there is not substance in this document. The EPO keeps claiming that user satisfaction surveys are still very positive, but the actual questions are never published. What matters is not the result of a user satisfaction survey but the result of the judicial review of the decisions taken by first instance divisions. This result is anything but in favour of the EPO and its upper management.
dont worry I dont generalize at all, I appreciate most of the examiners, especially some less experienced, they do a fantastic job and are enthusiastic, and their quality and comprehension of patent matters have improved over the last years, I dont know anyone of the EPO managers and I would like to have access to files that show the meant degradation because I havent seen any so far, I am not saying that all files are treated correctly, the quality is maybe low if you prefer so, but I cannot absolutely see any degradation over the last 15 years, at least from my small perspective
I beg to disagree with your view.
The figures might not be as dramatic as you quote, but they are large enough to be concerned.
If you want to have an idea, just have a look at a few published decisions of the OD.
If you are willing to spend some time and effort, you will easily arrive to the conclusion that there is a problem with the quality of granted patents and that IPQC has a point
The reason patent quality is affected because patent office allows it to be so.
* If “obviously novel ” status is clear from the independent claims and examples and not from any other part of a patent, it’s easier to search whether one is infringing , without wasting time.
* This way the innovator can not fool arround too.
* It is easier for both innovator as well as patent attorneys
Regards
The IPQC letter and EPO reaction are not available through the link – it takes me to a Google page saying that I need to request access (which I did, to no avail).
Can somebody please share the documents in a more accessible way?
The document is now available.
The EPO reaction is very interesting and revealing. I understand that EPO management cannot and will not publicly acknowledge a lack of quality. However, I would have appreciated a more relaxed, cooperative and friendly way to respond to industry concerns.
The IPQC is supported by a number of well-companies: Procter & Gamble, Ericcson, Syngenta, Siemens, HP, Volvo, Roche, Qualcomm, Vodafone, ATOs, Bayer and Deutsche Telekom. The persons representing those companies have ample experience and, given their position and seniority, I am convinced they did consider very carefully whether to join. They deserve to be taken seriously even without providing detailed numbers or facts.
The EPO comments are nice example of pretending to address concerns raised while not addressing them at all. Starting with point 1, bullet points 1 & 2, the IPQC did not raise concerns about a low percentage of search reports without X, Y or E documents. For bullet point 3, the relevant aspect for the IPQC is not whether an opposition or nullity is a prerequisite for an injunction. And so on.
The EPO is also somewhat intransparent with its numbers: point 6, gives one single number covering search, examination, opposition, refusals (should that not be part of examination?), PCT chapter II and withdrawals. I wonder whether this includes also the „deemed withdrawn“ applications, e.g. due to non-payment of renewal fees.
Point 7, bullet point 3: I am not aware of anybody in the EPO who is allowed to spend 230% of the effort for a grant compared to earlier years – unless „effort … for a grant“ means the time needed to fill out some EPO internal forms instead of examination on the merits.
And I cannot help having the feeling that the IPQC concerns are mostly focused on what is called „digital field“. No search declarations and non-technical features are standard dicussions in this area and rare in other areas. Countering these area specific concerns with overall EPO statistics and arguments is missing the point. It should have been possible to identify the concrete areas of concern and to focus on the major issues in these areas.
Best of luck to the IPQC.
Whether we like or not, the production objective set by the President is consistent with the EPO’s task as it is officially defined, instilled in the examiners and (judging from personal contacts with examiners) internalized to a surprising extent by examiners : the EPO’s task is to grant patents.
This task clearly trumps the EPO’s task to examine patent applications. The quality issue does not boil down to a discussion of the time allocated per file. I think this definition of the « EPO’s task » should be challenged by industry and representatives organisations because of its tension with the task of examining patent applications and the objective of a thorough examination.
Note that this definition is consistent with the vision of the EPO as expressed by its management : a commercial organisation delivering “products” and “services” to its customers.
Those of us who have had the misfortune of trying to persuade current EPO management that something they are doing, or planning to do, is not the best idea in the world will recognise the tactic of “pretending to address concerns raised while not addressing them at all”.
Really, it is a politician’s trick: mischaracterise the point being made by the other side so that you can then present something irrelevant (or meaningless) as being responsive to the concerns raised.
And do not get me started on surveys run by the EPO! They are another pick from the politician’s bag of dirty tricks: never ask a question to which you do not already know the answer … or at least never give the people to whom the questions are posed the option of providing the “wrong” answer.
It is perhaps not a surprise that the EPO has been overrun by political types. The problem with this, however, is that they have a tendency to believe their own hype, and therefore cannot detect obvious signs of a significant decrease in quality (accompanied by a significant increase in user disquiet).
With so many user complaints being supported by ample evidence, a strategy of providing only evasive, irrelevant or meaningless responses to those complaints is going to achieve nothing more than antagonising users even further. But so long as the EPO’s services remain popular, it is hard to see the EPO’s management having any incentive to do anything different.
I concur with Concerned Observer, but would however add that being popular has limits. We do not yet know whether the UPC wiki be a saving patents institution like the German Federal court is, but should a large number of patents confirm the trend discernable with oppositions, the picture might change, The sooner would be better!
The EPO might deny or belittle, but hard facts are on tape table. The quality is going down, whether the upper management likes it or not.
The problem at the EPO is that since 2013, the tail is wagging the dog. The “modulation” of the cooperation budget, allows the president to get every decision he takes pass the AC. This is the real scandal.
Quality was discussed at the last AC meeting, and the EPO denied any problems, although delegates from larger or important countries reported the dissatisfaction of their domestic industry. There are however enough other countries to vote “properly”.
The AC should take its duty at heat: controlling the management and not rubber stamping anything coming from the 10th floor. In the past it even happened that a new building in The Hague was crushed by the AC or that at first reading the financial report president was not approved.
Had the AC done its job properly, we would not have had the boards exiled to Haar, and now coming back into town in the next future. What a waste of money! But the AC acquiesced!
The EPO has become political, but in the worse meaning of the word.
Thinking of developments at the EPO, has anyone had the misfortune of trying to search for Board of Appeal case law on the new EPO site? This seems to have been rolled out as the default without any prior warning and it is terrible, simply terrible. What’s worse, it seems that the old interface for carrying out an advanced search of Board of Appeal decisions has been removed.
The whole new appearance of the EPO home page is a unique failure, and not just the page for searching decisions of the BA!
Before you search, the system tells you it has found 10 000 answers to your query.
Depending on when you look, the old interface comes up from time to time.
Like for amendments to the RPBA, you can voice an opinion.
Like every “consultation” at the EPO, it has an alibi function.
It will allow the management of the EPO to tell the AC that users have been consulted.
The espacenet search mask still does not allow to insert document numbers written with a gap. For EP 2 222 222 you get 1572 results. It is only with EP2222222 that you get a correct result.
Rather than messing around with home page, and the other search masks, it would help to correct such absurdities
For this year, the President set a “publication objective” meaning that a certain number of patents is expected to be granted this year. One can only wonder where this will lead to.
The most important figure for the management is the “production”, which is normally below objective. “Quality”? Often talked about, but there is no time to be spent on it. Tick box culture at its best.
The steps taken by the EPO to ensure quality are reassuring. Newcomers no longer get permanent contracts and are no longer considered to be civil servants. Instead, they get 5 years contracts, renewable if the EPO still needs them and is satisfied by their performance. The question is, how performance is defined here. Moreover, in many national states, patent applications are examined by civil servants, whose independence is assured by the fact that they are appointed permanent officials. The AC had no problem with this change of the employment conditions. Perhaps this issue will pop up one day, when the validity of a patent is questioned.
Hi, old EPO examiner here. Thanks for the post, this is probably the last remaining place where the unbelievable situation of the office is still discussed.
The IPQC document is well written and is clearly focused on where the problem actually is: we have NO TIME left to actually do our job.
The “EPO reaction” is what shocks me the most. It is the very proof that our management does not have the faintest idea of what the work of an examiner consist(ed) of. Instead of giving us more time to actually carry out search and examination tasks they reduced it by adding their pointless bureaucracy, so they can boast a bunch of numbers and percentages at you.
One example for all: “the time devoted to the preparation for grant increased from 100 to 230%” in the EPO reaction is a masterpiece. This sentence is true because nowadays to propose a grant we are forced to fill a great number of forms and double-check the adaptation of description (stuff that can be easily “checked for quality” but that anyone with a functioning mind understands as having no value whatsoever) and write lengthy explanations on the votum – mostly copypasted from your letters of reply – that the division members simply have zero time to read. And we are already hearing rumors from the top that “collaboration among examiners” will be compulsory. More meetings, more checks, more forms. Even less time left to actually search for novelty and assess inventive step. The apotheosis of clueless managers.
So, no worries, more layers of uselessness will be introduced in reply to your justified inquiries, in order to clearly and unambiguously demonstrate that EPO quality is and remains forever the best of the universe, no matter what.
It is over. EPO is now just another institution governed by incompetent politicians. You should have helped us when we attempted to warn you at the beginning of Battistelli’s nightmare.