The issue of falling patent quality at the European Patent Office (EPO) has again reared its head, this time thanks to German intellectual property lawyers.
Following a testy exchange last week at an official meeting of the EPO's Administrative Council where staff aired their grievances and were attacked by EPO president Benoit Battistelli in response, companies are now raising their concerns.
According to German newspaper Heise, a meeting at the Max Planck Institute in Munich grew heated when a group of patent lawyers used a presentation by new EPO chairman Christoph Ernst to make their views known about the "System Battistelli".
For several years Battistelli has been aggressively pushing changes at the EPO aimed at increasing the number of patents that are reviewed and approved. The result of that drive has been a complete breakdown in communications between EPO staff and management – but that is something many consider a price worth paying in order to "modernise" the EPO and keep it in line with other competing patent authorities in the US and Japan.
The problem, as the patent attorneys told Ernst, is that despite official EPO claims stating the opposite, quality is starting to fall as a result of the changes.
Ernst gave an optimistic presentation to the group about the future of the European patent system in which he painted the rising patent numbers as a positive development and noted that advances in a common European patent system was going to benefit everyone. (Although the Unitary Patent Court is currently on hold in part because of structural changes forced through by Battistelli.)
Attendees were less enamoured and noted that greater patent numbers were coming as a result of overworking examiners. A representative of the Grünecker law firm, Gero Maatz-Jansen, warned that the heavy workload combined with pressure by management to hit performance targets was having perverse knock-on impacts.
Patent filings were being approved or rejected much faster but patent lawyers have noticed that more mistakes were being made, the room heard. That could end up undermining the entire system, Maatz-Jansen warned – and his comments were reportedly met with a round of applause. Others made broadly the same point using their own recent experiences as evidence.
In order to turnaround filings much faster, examiners were rejecting applications for minor procedural errors, another lawyer claimed. Others said that EPO reports and comments on their patent applications were not as considered or in-depth, and research into prior art was slammed as being "superficial". Efficiency was taking priority over quality.
That point was also made last week by a Reg commenter who complained that even though his patent application had been noted as valid by the EPO, "the brief comments given provide just one reference to another document – and that one has very little to do with the subject of my invention. Seems that a poor soul under heavy pressure to close as many open cases as quickly as possible just did that."
A further warning was relayed by another German IP lawyer who was present at the meeting. Thorsten Bausch warned in a blog post that there is also a "catastrophic backlog of EPO appeal cases" and argued – in all caps – that "URGENT ACTION IS REQUIRED HERE! This matter should not be allowed to wait until the next EPO President takes over."
Although Ernst has been a frequent critic of some of Battistelli's reforms in recent years (and the German government's representative on the EPO for longer), he pushed back on the idea that quality was deteriorating.
There is no solid evidence of a fall in quality, he countered, and pointed out that the number of appeals had actually fallen. "The mere fact that more patents are granted does not mean that the quality suffers," he argued.
However, Elizabeth Hardon, an EPO staffer who was controversially fired by Battistelli for resisting his reforms, was also present at the meeting and said that it is going to take a few years for a decline in quality to be officially recognised as poor patents are challenged in nullity actions. ®