The EPO and User Friendliness
August 17, 2020
Searching the EPO’s website for the terms “user-friendly” and/or “user friendliness” will result in your screen being flooded by hits describing the remarkable achievements and ongoing efforts by the EPO to be a fantastic (in the UK they would probably even call it world-beating) service provider for its users. As with other noble goals such as quality, transparency, social responsibility etc., it is certainly to be welcomed that the EPO commits itself to these values. Yet, it would be even more important and welcomed by the EPO’s users, if these objectives were also matched by reality.
This is not to make the case that the EPO would not be user-friendly; on the contrary, I think it is doing quite okay on the whole. Nonetheless, there is still room for improvement. In this spirit, let us look at two more developments where user-friendliness has somewhat suffered in the recent past.
Oral proceedings before the Boards of Appeal
I have the fullest understanding for the fact that owing to the need for physical distancing in COVID-19 times, only a limited number of suitable rooms are available on the Board of Appeal premises in Haar and therefore some oral proceedings have to be held in the Isar building in Munich instead. It is also perfectly understandable and acceptable that some oral proceedings which have already been scheduled to take place on the Haar premises will be moved to the Isar building and/or will start a little later so that the starting times of oral proceedings may be staggered. The EPO is to be commended for this prudent approach.
The only problem with this is that the EPO will not necessarily inform the parties about such changes. The following is stated on the EPO’s website
As a general rule, parties will not be sent a communication informing them of a change of venue or starting time. As such changes may take place at short notice, it is up to the parties to consult the online calendar approximately three days before their oral proceedings to check whether they will take place on the Haar premises or in the Isar building and when exactly they are scheduled to start.
This lack of user-friendly communication may result in a party or their representative, who does not regularly follow this blog or study the EPO’s website, arriving at the lovely Haar premises for a 9 am hearing as originally scheduled just to learn that their hearing has been moved to the Isar building to start at 9:30 am (for example). I would not want to be in the shoes of such representatives or parties who then have to race to the Isar building at record speed. Their adrenaline levels may well be beyond healthy levels even before the Chairperson of the Board greets them and opens the oral proceedings.
As an avid user of the EPO, I just wonder why it is not possible to inform the parties of such changes of venue or the starting time by a quick fax or courtesy email.
Unless, and until this happens, dear readers, you have at least been put on notice now: always check the Boards' online calendar before your hearing. The TBA's current practice seems to be that all oral proceedings between two parties take place in the Isar building, whereas all ex-parte appeal proceedings and all proceedings with more than two parties are being held in Haar. But please note that I can take no responsibility for this clue, so please always check yourselves.
File Download
Once upon a time, when the EPO was even more user-friendly than it is now, it was possible to download any public EPO file from register.epo.org as a zip archive. This was incredibly convenient and useful for us practitioners, particularly when we had to take over a new case, prepare an opposition etc., as it allowed us a convenient access to a bulky file in a structured form. Alas, if you try this now, and if the file you are trying to access is voluminous (1000 pages or more), which in my technical field is nothing out of the ordinary, you are no longer able to do that. Instead you receive the following message:
The page you tried to display caused an error.The data you requested cannot be retrieved at present. This could be due either to one of the databases being currently out of service for technical reasons or to network problems.
Download contains too many pages.
The maximum total number of pages allowed per download is 1 000.
You could try one of these options:
• Return to the Register home page
• Download from the Publication Server
Needless to say that none of the options that the EPO allows you to “try” will take you anywhere further. You might then consider how to game the system and limit your zip download request to only 800 or 250 pages or so, but the system is utterly merciless – there seems to be no way to obtain the individual documents from a file in the form of an organized bundle. You can either download the whole file (or parts thereof) as one complete huge pdf file and then try to cut and parcel it yourself, or you can download one document after the other, which can be quite tiresome if the file contains several hundred documents.
I really wonder why the EPO has introduced this change for the worse. If you search the EPO’s website for an answer you find the following here:
In order to make access and use of the European Patent Register fair for all users, we have recently implemented some technical measures to regulate excessive use of the system. These measures limit the number of pages that can be downloaded to 1000 pages in one go. To avoid rejection we recommend downloading documents in batches equal to or less than 1000 pages using the Selected documents download.Important note: if you use ZIP Archive to download, the complete file inspection is downloaded, irrespective of individual file selection.
If you need to download European patent applications or specifications that exceed the 1000 page limit, we recommend you use the European Publication Server (data.epo.org/publication-server)
So why is access and use of the European Patent Register ”fair for all users” now, as opposed to in the past? In my humble opinion, the opposite is the case: Now there is an arbitrary limit distinguishing applications for which a zip archive is downloadable, from others where this is impossible.
To be honest, I have no idea about who normally downloads files from the EPO register. I appreciate it is a public service and so I would not exclude that some data-crawling search engines may be eager to retrieve every page on the EPO server in real time. Yet, if this was the problem, there must be other ways to deal with it. At least a page limit of (only) 1000 pages is clearly doing the opposite of providing a “fair access for all users” – it provides easy access to a file in only some cases, i.e. for some users, while severely cutting easy accessibility for others. At the very least, the page limit of 1000 is clearly inadequate for defining a “fair” access to a zip archive of the file.
Why not limit the access to a download of a zip archive (if it has to be limited at all for whatever reason) to one archive per day per user? This is probably more than any normal EP practitioner is able to digest in a day anyway.
Finally, I would be most grateful if one of my colleagues from EPI or SACEPO were to confirm in our comments section that they have already approached the EPO in this regard - or even better, if the EPO removes or at least expands the 1000 page limit again. Not all innovations are improvements, and I don't think reversing this one would break the bank.
Tags:
EPO,
user-friendly
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Concerned observer
Thorsten, Frankly, this is as much as can be expected under the "new normal" at the EPO. You will recall, for example, that there was ZERO consultation with users before the EPO made the (seemingly unlawful) decision that all examination oral proceedings will be conducted by video conference, even if this is against the applicant's wishes. Whilst the option of video proceedings is much appreciated, experience suggests that it can be a poor substitute for in-person proceedings. It therefore seems that the EPO's new understanding of “user friendliness” amounts to giving consideration to issues of relevance to users ... but then pressing ahead with whatever decision happens to best suit the EPO's own internal needs. This is certainly a strange approach for an organisation that is 100% funded by its users. On the other hand, other than switching to filing applications at national offices, what tools do users have at their disposal to ensure that their voices are heard by the EPO's management? There is perhaps a chance that the EPO will deign to listen to users on this occasion. I do hope so ... though I will not be holding my breath!
Attentive Observer
I wonder where is the legal basis for the President deciding by “ordre de mufti” that all oral proceedings in examination are to be held in the form of video conferences. A mere reference to Art 10(2,a) and Art 116 does not seem sufficient to allow him to take such a far reaching decision. When looking at the “travaux préparatoires” I doubt that it has ever been envisaged to hold oral proceedings other than in form of a face to face meeting. At best, Art 10(2,c) allows the president to submit to the Administrative Council any proposal for amending the EPC. Oral proceedings in examination on the premises of the EPO can be requested by the applicant for serious reasons. The president’s decision (OJ 2020, A39) is silent on what those reasons could be. Some explanation can be found in the notice (OJ 2020, A40, Point 3). In case of refusal the applicant will be informed of the reasons of refusing such a request, but such a refusal is not separately appealable! The granting of a request for oral proceedings to be held on the premises of the EPO will be at the discretion of the competent division. At least the Boards will have to decide whether the discretion was correctly exercised by the division. I understand something different under user friendliness. The EPC and its Rules of Procedure allow the President to take certain actions, but certainly not to interpret the EPC in the manner it is presently done for oral proceedings in examination. At best this is the role of the Enlarged Board of Appeal. On the other hand, it might certainly be possible for the latter to give a “dynamic interpretation” of the EPC which suits the upper management of the EPO. EPI has written a letter to the president about the problems facing some representatives with oral proceedings in form of videoconferences. As any reply be recived? A “pilot” project for oral proceedings before opposition divisions in form of videoconferences has started on May 5th 2020 and should last until April 30th 2021, see OJ 2020, A41 and A42. When I read or hear the word “pilot” stemming from EPO’s management, I would like to scream. Experience shows that anything started under the term “pilot” is there to stay. Do you remember BEST? It was also a pilot! At least oral proceedings in form of videoconferences can only be held if the parties consent. I would not consent as a matter of principle until a proper legal basis is given to those decisions of the president. As far as the Boards of Appeal are concerned, they also want to be modern and hold oral proceedings in form of videoconferences. We have been gratified with new rules of procedures for the boards of appeal, but in those there are no procedural rules relating to videoconferences, beside a short reference in Art 12(1,e). My question is thus as well: where is the legal basis for such a decision? As for oral proceedings in opposition, the consent of the parties is also required. I would not consent as a matter of principle until a proper legal basis is given to those decisions by the administrative council. For oral proceedings before the boards held in Haar or in the Isar buiding, there is a further problem not mentioned in Thorsten’s blog. According to the last communiqué of the boards, see https://www.epo.org/law-practice/case-law-appeals/communications/2020/20200729.html, it has been decided that “Attendance is generally restricted to a maximum of two people per party”. I also wonder where the legal basis for limiting attendance to two people per party can be found. It is nice to add that “Parties wishing to attend with more than two people should submit a reasoned request to that effect in advance of the oral proceedings. It will be for the board to decide on their request.” That means the boards have the discretion to decide whether a party can be represented by more than two people or not. Knowing how the Enlarged Board “checks” the exercise of discretion by the boards, does not look encouraging if a request to attend with more than two people is refused. That in the present pandemic period the number of accompanying persons should be reduced might appear acceptable, but there again, where is the legal basis? When looking at T 437/17, the user friendliness of the boards is also a souvenir of better times. I am not against adapting to the situation created by the pandemic and using modern ways of communication, but this has to be done in a legal manner. This is certainly not the case here! Thanks again to Thorsten for putting the finger were it has to be put, and not let the EPO think it can decide as it thinks fit, disregarding any legal rules. As far as user friendliness is concerned it has clearly started to vanish from 2010 onwards. But the production has increased tremendously without having a negative influence on the quality. If the EPO management tells you so, you have to believe it! And if on top the perception of the independence of the boards has increased, what are you complaining about?
peter
Mr Bausch, your frustration is totally understandable and I hope the needs of the users are listened to. At least in these clear issues of "user-friendliness". I also see the point of Concerned Observer regarding compulsory video proceedings and, for what I know, EPO examiners are not much happier with it. However, it seems the Covid crisis is going to last for some time while business has to continue. Then I wonder what, in the eyes of the user community, would be a better option: keep postponing every 4-5 months, postpone all oral proceedings sine die? The experience at the opposition section is not very encouraging in this regard, I heard. If one of the parties does not agree to video conference, the oral proceedings are postponed (again). This means that hearings summoned more than a year ago are being re-scheduled for the end 2021. I wonder if this is a better option. Perhaps it is, for at least one of the parties, but not for all, I guess. And certainly, it is not good for the public, the other "user" of this system, too often forgotten.