Leading German patent law firms criticize European Patent Office

I can only applaud the companies involved in writing this letter. I could not agree more with the concerns that it expresses. I can only hope that the incoming president realises that the concerns expressed cannot be easily dismissed... not least because the unprecedented nature of the letter indicates that the authors must be very concerned indeed.

MANY THANKS for this brilliant initiative. By the way the content of the letter could be taken up by SUEPO as-is! Indeed SUEPO (which represents half of EPO staff) denounced since years (so far to no avail) the dangers of Battistelli's policies (for both the quality of the patents delivered as well as on health of staff)... and the Administrative Council remain passive. It is 5 to 12. In a few weeks, Mr Campinos will arrive in an exhausted office which cannot continue on this path much longer before collapsing. Let's hope that Mr Campinos will understand the poisonous legacy he inherits from his predecessor and in particular, that he has to be very cautious with the teams in place who are directly responsible for this debacle (in particular in HR, and DG1) since something must be done asap to restore both the social atmosphere, the reputation of the EPO AND the quality of the work performed.

Printed, framed and hung in my office. THANK YOU SO MUCH!

Had they sent around this letter before, maybe le monsieur would have not dared publishing this last Monday: “Delivering High Quality Services - [...] User feedback has been gathered through a multitude of channels and has confirmed increasing levels of satisfaction with the EPO's products and services, year after year”. http://m.epo.org/news-issues/news/2018/20180611.html

My comments on the perceived "problems" a) to f): a) why "must" quality suffer, merely because of a "aim" (which President Brimelow also had) to get to a grant or refuse decision "as quickly as possible"? And as for "within specific allowed times" I never heard it argued that the UK 1949 Patents Act's hard limit on time to grant has an adverse effect on "quality" in the UK. That said, quality "must" inevitably suffer, if you impose unreasonable productivity targets on hard-working and conscientious Examiners. Worse, the imposition of such targets will generate a shoulder-shrugging "so what" mentality which is the enemy of "quality". b) the EPO is not the only Patent Office where its shareholders milk the Applicant community. That Patent Office fees are used a covert tax revenue operation is a different problem from giving Examiners enough time and resources to do a "quality" job of search and examination. c) What, for goodness's sake, is an "erroneous" scope of protection? Again, consider the UK Patents Act 1949. It required rigorous examination of clarity and novelty but no examination of obviousness. Everybody knew the Rules of the Game. Nobody complained, that the Office was issuing over-wide claims. My problem at the moment is that Examining Divisions of the EPO are setting too high a standard of clarity under Art 84 EPC. To much "quality" here, rather than not enough. Why that? Because the zealous in-house EPO Quality Police have to be seen (by Chairs of Exam Divisions) to be ferocious, and that is easier accomplished under Art 84 than under Art 54 or 56. d) What? Patent owners at risk of not succeeding with claim 1 in an infringement action? When in the history of patents was this ever not the case? Upon issue, there is a Presumption of Validity, regardless of whatever level of "quality" the EPO runs at. What more do you want, for goodness' sake? Spare a thought for the accused infringer, usually smaller than the Big Corp patent owner. Is his protestation, that the asserted claim is invalid, to be greeted with a shoulder shrug and a retort that if the EPO issued it, well then it must be valid? Of course when the Applicant is David and the accused infringer is Goliath, we need a system that delivers "Equality of Arms" to save Little David from obliteration. But merely giving an EPO Examiner unlimited time to examine David's patent application is nowhere near enough to deliver that necessary objective. e) See d) above. To nurture the patent system what is needed is a high level of confidence that, if you have an issued claim that is not invalid, you can enforce it speedily and economically, regardless how Big and Ugly the accused infringer is. Complain somewhere else if, in your country, that is not the case. It isn't the EPO's fault. f) I agree. This grotesque surplus suggests opacity and corruption on an industrial scale. But hey, with supra-national organisations that's the rule, not the exception. Nobody knows yet, how to stop it. Overall, this Open Letter strikes me as a manifestation of I) German craving for certainty ii) German deference to "authority" and iii) a yearning for the Good Old Days, when if the DPMA granted your patent you were then the proud possessor of an "examined right" which, by definition was valid. Those days are gone. Life today is too complex. There is too much prior art these days, for the Office to know it all. A public prior use somewhere in the middle of Asia is just as novelty-destroying as a patent specification of a German competitor. One last comment. I'm puzzled by the reference to "incentive systems". Is this alluding to the idea of "One point for an allowance but two for a refusal"? Is this what troubles you so much? Or is it the never ending "bar raising" of the output productivity targets being imposed on Examiners? If the latter, I agree with you: it's counter-productive, Mr Campinos. It has got to stop. Thorsten Bausch I admire your work on this blog. My remarks above are deliberately provocative, to try to whip up a vigorous discussion here. I hope you don't see my remarks as so offensive that they must be suppressed and denied publication here.