A recent letter by the EPO’s Central Staff Committee (CSC) about Rewarding quality in the core business is too important and far too well-written to remain unnoticed.
Perhaps unsurprisingly, it confirms the reality of the problems addressed in my earlier posts, e.g. (1), (2) and elsewhere.
Despite its uplifting title “50 years EPC – Rewarding quality in the core business”, even the very first sentence of the CSC’s letter reveals that this reward is, alas, more wishful thinking that current reality.
«Production is the only thing that guarantees our payslip on the 26th of every month» DG1 director
Very unfortunately, I am afraid that this will not exactly be news to avid readers of this blog.
Let me just add to this one observation of my own. A somehow frustrated European Patent Attorney of my firm recently alerted us to the following:
Dear All,
I have a file where the EPO Examining Division issued a Rule 71(3) Communication based on an incorrect text; specifically they based the text on the translated PCT text and not the amended description which was filed at the time of EPO regional phase entry.
This, I think, is the third time that I have encountered this same error.
In a telephone conversation, the Primary Examiner blamed an EPO “system error”.
Because of this EPO “system error”, it is important when checking a 71(3) Communication to ensure that the proposed text incorporates any amendments filed on EPO regional phase entry and not just the amendments made in response to the EESR and Office Actions.
Regards,
Perhaps you have made similar experiences? I am looking forward to your comments.
Nonetheless, let me end this brief post on a lighter note with another quote from the CSC letter:
When meeting with staff, managers talk turkey. When the unofficial management mantra encounters staff resistance, managers cannot limit their instructions to oral ones and lay them down in written form (1).
After some web searching, I found out that the appropriate German equivalent of “to talk turkey” seems to be “Tacheles reden“. Tacheles in turn seems to be derived from the western Jiddish word Takhles (purpose), so that to talk Tacheles means speak freely of the cuff / don’t mince words.
But since I read this, I can’t get the EPO’s line managers talking turkey out of my head.
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To tell the truth, such kind of errors are due in part to the tools; since the paper file disappeared there is no real handy way to keep the overview of the file history. This kind of poorly designed software is a killer in the context of high production pressure, because no one feels responsible or has the time to perform a thorough check.
Actually, I think this is not only caused by the tools, but also a question of how the documents are submitted.
As a team leader at the German Office, I can say that there is practically no examiner who has not at least once used the wrong documents and – hopefully – learned from it.
Most representatives submit all documents on the same date, so you sometimes have to cope with quite a lot documents. Additionally, while it is usual to mark the changed documents (“Geänderte Ansprüche für die nationale Phase”) sometimes this is omitted and it is necessary to infer from the change version which document should be used for examination.
I have had cases, in which I actually had to request that the representative clarify which document should be used, as I was not able to determine this with certainty.
So, any representative or patent-attorney reading this: Please, clearly mark your documents when entering the national phase, to make life easier for everyone!
Summary: bad tool design, sloppiness and/or pressure (on all sides) quite often result in errors when entering the national phase.
In the past, mainly Formalities Officers were penalised by not properly working IT tools.
Nowadays it is the turn of examiners.
But all those marvellous IT tools allow to save on FOs and to allegedly increase the production/productivity of DG1. Results have to be shown to the AC for the hamster wheel of bonuses for the upper management and rewards for staff to continue turning
Quality of work is only a disturbing parameter which has to be spoken about, but not taken too seriously as it could slow down the hamster wheel.
Thorsten I have to say that I found much of the text in the CSC doc less than clear. In particular, I have difficulty with the sentence immediately following the one that says “When meeting with staff, managers talk turkey”. One dictionary gives as an example of the use of “talk turkey” the negotiator who mails his counterpart “Don’t bother phoning me until you are ready to talk turkey”. Nothing clearer than that. What is unclear is what managers do next, after they have finished talking turkey with staff, face-to-face, strictly off the written record.
The final sentence of the CSC doc asserts that what has made the EPO is a success is its staff and the quality of their work. So if EPO management indulges in ever more severe beating of the staff, to flog out of them supposed improvements in “quality”, does that mean that the EPO will be less of a “success” in future? Or is “success” guaranteed regardless of management heavy-handedness because of the product which the EPO sells to its customers will always be unique regardless of its quality?
Dear Max Drei,
Whilst I was myself first taken aback by the comment on managers talking turkey, I quickly realised that it was a more delicate, positive, etc. way to express discontentment, and avoid using much more drastic words like they take us for cretins or it is a load of b…..
In the past, instructions not to abide too strictly by the EPC were given orally by certain directors. Now some directors are not hesitating to put pen to paper and issue in writing instructions which have nothing to do with work of quality. They know that they do not risk anything but being congratulated by the upper management for their active contribution to the output of the office.
The problem at the EPO is that the members of the upper management and examiners are all holders of academic degrees. It is therefore difficult to take them for a ride or pull their leg as they dispose of the same intellectual capacities as their superiors. This is dilemma which has never been resolved. The final sentence of the CSC doc is right in asserting that what has made the EPO a success is its staff and the quality of their work. Presently staff earn no more than lip service by the upper management.
Quality is, as such, difficult to measure, and hence pure production measurement is an instrument which can show (or not) results. Reading the EPO Quality Charter of a year ago, can only elicit an awkward smile. Nothing in this document corresponds to a tangible reality.
I am not sure that all users of the system are happy with the output of the EPO being unique regardless of its quality.
It might be interesting for large applicants with their large portfolio of patents: my pile of useless patents is higher than yours, so that I want royalties from you.
On the other hand, it can have a devastating effect for SMEs and non-profit organisations if a patent is revoked or null and void.
When looking at the number of patents maimed in opposition, it is difficult to claim that the patent granted by the EPO are of high quality. They have great difficulties in surviving oppositions. Oppositions are not a direct measure of quality as not all patents are opposed, but are nevertheless revealing of the underlying problems of quality at the EPO.
Even large applicants are slowly getting fed-up with the assertions of the EPO that quality is perfect and there is nothing to change. See the IPQC which has put the finger in the wound.
In the long run, I fear that the present upper management of the EPO and the present delegates to the AC are heavily sawing at the branch they are sitting on. The day they will realise it, it will be too late. .
Hallo “Quality Problem”. You prompt an interesting debate as to how important it is, that patents issued by the EPO should withstand opposition. My suspicion is that EPO management rates “quality” differently, depending on which ground of opposition succeeds. I suspect that when an Opponent wins under Art 100(c) EPC, that is rated as a lapse of “quality” within the EPO. Conversely, if an Opponent wins on Art 100(a) or 100(b), that in itself is no indication of any lapse of “quality” at the EPO, prior to grant.
Management functions be measuring things. It is not easy, in the event of success under Art 100(a) or (b), to ascribe a number to the degree of deficiency of “quality” in the examination prio to grant.
But, apart from that, there is surely a balance to be struck, between cheap and prohibitively expensive, that is, between i) issuing everything that Applicant files and leaving it to Opponents to do the work and ii) examining before grant so exhaustively that no competitor can find any ground of opposition whatsoever.
nice to have somebody on this side amplifying internal debates and questions among various staff at the EPO, but if all this discussion brings up just a couple of unamended (and most probably useless) sentences in the description which I have first experienced already at least fifteen years ago, I dont see the purpose of all this: of course, I wonder how this can happen with six eyes (the examining division, or not?) looking at it, but human mistakes happen and these ones have in particular always happened, with or without paper, and without any tragedy from the applicant‘s side, at least so far
“Alright, move on, nothing to see here.”
https://youtu.be/NuAKnbIr6TE?si=geu6UmSy0KOd6x1t
@ law sniffer,
Up to now, I have never seen a comment of yours which positively contributed to the debate.
Either the examiners are to blame or there is nothing to worry about. Here we have both.
What has happened, has happened due to the increasing production pressure exerted by the management of the EPO. In theory, six eyes are looking at a case, but it does not mean that examination is carried out three times.
The roles in the ED are clearly distributed, but with the production pressure and the actual dislocation of the divisions of first instance, under the heading “Bringing teams together” (sic), it is manifest that the two other members of the division simply sign what has been proposed by the examiner in charge.
It would be nice if you could understand what is going on at the EPO and not come up with comments about useless amendments to description.
It would be nice if you could show some empathy with examiners and not constantly bash them.
EPO management, and ultimately the Administrative Committee to which it is (in theory) accountable, appear to have forgotten that patent examination is in the public interest.
The public is harmed when an overbroad or otherwise invalid patent is issued. The public is harmed when a search report fails to identify highly relevant prior art. The public is harmed when examination does not consist in carefully assessing patentability, but instead consists in raising a blizzard of “clarity” objections and/or raising novelty objections that do not withstand even a minimum of scrutiny.
In my experience, all of this is happening a lot more frequently than before. EPO examination practice has become a lot more like USPTO examination practice in the last ten years. But I am afraid that the former has the potential to become even more harmful than the latter. USPTO examiners, at least, seem to be incentivized to err on the side of rejecting claims rather than on the side of allowing every claim under the sun.
In any case, I do not blame examiners for the overall situation. They do not set policy. Their management and their management’s management does.
I just said that these errors used to happen also fifteen years ago and are completely unimportant, so I dont understand what you want to prove with this empty discussion, you are saying I am not constructive, for sure they are not such those of you who are using this forum and pseudo-legal reasons just for internal and personal goals, do you see somebody else doing it?