Concerns about deteriorating patent quality at the EPO

In view of the massive criticism uttered by the IPQC, the patent quality charter of the EPO can only elicit a weary smile: https://www.epo.org/about-us/services-and-activities/quality/policy.html If everything announced in this document would correspond to the reality, the IPQC would not come with its very pointed proposals. It is manifest that the IPQC is not satisfied with the quality discussions in SACEPO. If this would be the case, their proposals would be redundant. That the quality of the work delivered by the EPO is going down does not come as a surprise. One has just to look regularly at decisions published by the BA. The number of patents revoked is higher than the number of patents maintained in amended form. The number of rejections of oppositions is much lesser than the number of patents maintained or revoked. In the early days of the EPO, the proportion was for each category 1/3, 1/3, 1/3. Nowadays it is more 40% maintenance, 45% revocation and 15% rejection. When the opponent brings novelty destroying patent literature and the search report mentions a lot of documents of the category X or A, it is difficult to claim that the search was optimal. The same applies when the opponent brings forward prior art under Art 54(3), sometimes from the patentee itself. The number of cases in which an opposition is decided on the basis of documents which were not available in the search files (public prior use, PhD dissertations, catalogues etc.) is very low. The number of cases where the opposition is rejected or the patent maintained in amended form and the patent is revoked at the end of the appeal procedure is dangerously increasing. In the early days of the EPO, the search was comprehensive and the examination as well. There was no piecemeal approach. Examiners had time to do their work properly. Nowadays quality at the EPO resumes itself to timeliness. Looking at substantial procedural violations reveals that the two other members of the division, be it examination or opposition, often simply sign what has been proposed by the first examiner. How do you want to ensure that members of the examining/opposition divisions spend sufficient time together for every application/opposition to discuss the proposal of the entrusted examiner when the examiners are discouraged to come into the buildings of the EPO? The action started by upper management called “Bring teams together” has the opposite effect in spite of the name. How do you want to have a proper training when the initial training has been reduced to two years due to the 5 years contracts offered to examiners? How do you want to ensure continuous training when examiners only get a permanent job after two 5 years periods? As the examiners can be easily be fired for incompetence, which is not achieving ludicrous ever increasing targets, why should the EPO spend money on continuous training? When you read the quality report of the EPO sent to the AC, it is full of very verbose prose which try to hide reality. The AC appears gullible, the IPQC is not. How do you want examiners to really have a common view, when OP are only held in form of ViCo and the members of the divisions can sit at different places? By the way, what is the legal basis in the EPC allowing members of the deciding bodies, divisions of first instance or boards of appeal, to sit in different places during oral proceedings? I could not find one in the EPC. The problem lies not only with the upper management of the EPO, it is also with the Administrative Council which nowadays simply rubber stamps the desiderata and wishes of the 10th floor. Just two examples: The boards of appeal have been sent at a high cost to Haar a few years ago. Now they will come back to one of the buildings next to the Main Station. If the AC would carry out his job of controlling the office such a waste of money would not be approved. The AC has accepted that examiners from national offices can come and work at the EPO. What is the legal basis for this? No delegation to the AC could give an answer. Should the trend clearly discernible with oppositions translates in revocations or limitations of patents decided by the UPC, the big industry has to worry a lot. On the other hand the fees are there to clearly advantage patent holders. It appears right to start at the source, i.e. at the EPO, and not continuously accept the soothing words about quality uttered on the 10th floor.

Maybe the IPQC would be interested to know that the pressure to reach more than 53K R71(3) communications before the end of May has gotten so high on line managers that they now routinely resort to instructing examiners not to spend more than a certain amount of hours on a search or examination action. Individual production is monitored on a bi-weekly basis at least. Time off work is discouraged. In the last weeks examiners are being put under immense pressure to grant everything they can and put non-grants on hold in order to “overachieve “ the COO’s instructions. TM's are clearly incentivised to reach these targets as their bonuses and grade and career advancements are made contingent on these being attained. In the most complex technical fields that routinely took 2.6 days per product (that’s the internal language for a final action in search or examination) in the last few years, it has been decided by management that they cannot be more than twice as slow as the fastest technical fields that currently require 1.1 days per product on average. In 2023 no team is allowed to be slower than 2.2 days per product. How an increase of 20% in speed for large swathes of the office (mainly in CII !) can lead to an increase in quality baffles the mind. Above average is the new normal. Examiners are being pressured to ignore non-important aspects such as non-essential clarity (whatever that is) or minor Art 123(2) objections (the applicant is responsible for the text) in order to further speed up the process. The internal narrative is that most applicants never litigate anyway and that the scope of granted patents will thus mostly never be put up to the test. Because the number of filed oppositions is stable enough, management is satisfied that everything is fine. As always examiners are petrified of speaking up. Most are resigned and follow whatever instructions come from above in order to be left alone, hoping that they’ll make a better chance at maintaining their already diminished career perspectives at the cost of the future of the patent office and patent system. Did I mention that sick leave is at an all-time high?

I have the strong impression (almost certainty, I would say) that more and more examiners concentrate only on very formal aspects like description, unfounded non-clarity issues or lack of a literal basis for amendments, and not on the real substance of the applications. But not all of them, so I wonder whether the statistics above apply uniformly across the whole population of examiners, and I personally think this is not the case because I see a pretty fixed pattern examiners-behaviours (and these "bad" behaviours come more often from people longer at the EPO, as far as I could meet them or notice the names). Sorry for telling this but you should also enquire your self or some of your colleagues before looking for causes somewhere else, we all have time and personnel issues but these must impact the least on our way of working, it is a matter of professionalism. And, again, I am convinced that your work conditions are surely not worse than ours, in spite of your recent changes: as an example, the flexibility after the pandemic that took some office space or the possibility to meet in person during hearings, as I understood, gives you the freedom to work at any time or day of the week from wherever you want (with some minimal limitations), this would everywhere else be considered to surpass the downsides, but apparently not for you. And don't start now with the usual expat stories, we all had to change city or country and most of you are from the country of employment or were already there before joining the EPO. Or asking why I am not applying at the EPO, because I could say the same about you if you are so unhappy there. Perhaps your management is really incompetent or pursues sometime interests other than the ones of their staff (also not to generalise though, exactly like for you examiners, and in any case I would not be so surprised in such a large semi-public organisation which on top has to balance the books at the end), but I have the impression that many examiners dont pursue the interest of the EPO either which is also quite serious, a typical attitude for me of an employee who works as a sort of permanent judge and has time to battle against any potentially negative work change. Again, some examiners (less and less, but still not so few) are, on the contrary, exemplary but I dont think that the attitude I am reading in these comments goes in the direction of reversing this trend. Seeing the incompetency of your managers or, in some cases, even their uselessness does not give you the permission to lower your commitment or the quality of your work which to my opinion would not by magic surge if you get less actions to do in the year, because I am not sure at all that this additional time would end up in working time (maybe yes for the "good" examiners whose quality is already high, but not in the case of the "problematic" examiners). What should be done at the EPO is to have people who dont see the EPO or the applicants as "enemies", but see them at least at the same level of the "public", this can be done by recruiting (I see more and more people who should soon retire) and changing the "philosophy" of many examiners, which is very difficult at the EPO and the management does not seem to be up to it.