The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Tuesday, 26 June 2012

Something to complain about? First poll yields fascinating results

Merpel, joined on this occasion by a selection of her fellow kats, would like to thank everyone who voted in their sidebar poll [for which the full results will remain at the top of the IPKat's sidebar for the rest of today] about the EPO complaints procedure. They would particularly like to thank the institutions that prodded their members to respond.  This definitely includes the Chartered Institute of Patent Attorneys (CIPA), and the IPKat has been informed that others did as well.

Now it comes to the difficult part: how to interpret the results. Unfortunately, this is not quite so easy, but Merpel will valiantly try.

Question 1 received the most answers, with 27 respondents out of 162 (16%) having filed a complaint at the EPO using the DQMS department [for background information click here and follow the links to your heart's content], and 135 respondents reporting that they have not. On its own, this suggests that the rate of complaints is rather low, especially since would one expect people to be more likely to enter the poll if they have such experience. On the other hand, it could simply be that people have not wished to use the DQMS procedure -- or were not aware of it.

Question 4 was intended to act as a control to question 1, asking whether redress of a grievance had been attempted by any other means. 42 out of 77 (54%) reported yes, and 35 no. But because the total number of respondents is so much less than for question 1, it is not clear what this means: did the people who did not respond do so because the answer was no, or for some other reason? So although it is clear that the “any other” route for complaints is more common than the DQMS route, it is not clear how much more common.  Ot is not accordingly clear whether the low positive response to question 1 is because of a low rate of complaints, or a lack of desire/knowledge to use the DQMS procedure. It is thus uncertain as to how great is the incidence of dissatisfaction, which would have be given by the cumulative answers to questions 1 and 4 if the response rates to each were comparable (although some people could have used both DQMS and other procedures, resulting in some double counting).

One of the comments to the original post reported that the official complaints procedure was not well publicised, and the IPKat noted that only the Handbook of Quality Procedures set out the procedure in detail for the first time, and this would explain the larger use of a non-DQMS procedure.

Whichever way the figures for questions 1 and 4 are construed, they seem to suggest that dissatisfaction rates are rather low.  A great many people have never filed a complaint or sought redress of a grievance at all. This is what Merpel has heard anecdotally – users of the EPO are generally satisfied but, on the few occasions where they are not, many have found it difficult to get the situation addressed. The written comments appear to reflect these perhaps rare situations of intransigence.

Turning now to the outcome questions, these again are a little difficult to interpret, and again Merpel wonders, with hindsight, whether in fact the questions needed to be clearer, and apologises if this is the case. The number of responses to the outcome questions 2 and 3, relating to the DQMS procedure, is higher than the number of “yes” responses to question 1, so presumably some people responded “no” to these questions if they had never used the DQMS procedure, while others simply passed the questions over.

13 out of 37 respondents reported in question 2 that they had a procedural issue redressed by a complaint using the DQMS complaints procedure. On the other hand, a mere 3 out of 30 respondents reported in question 3 to have had a substantive issue redressed by a complaint using the DQMS complaints procedure. This confirms what Merpel heard anecdotally, that -- if the issue is substantive -- it is difficult to get anything done.

Questions 5 and 6 asked the same questions as 2 and 3, but in relation to obtaining redress by means other than the formal DQMS procedure. Bearing in mind that 42 respondents reporting having sought redress using other means, 11 out of 33 respondents reported in question 5 having had a procedural issue redressed by other means, while 14 out of 37 respondents reported in question 6 having had a substantive issue redressed by other means. Although there is again the difficulty of interpretation in that the respondent numbers to questions 5 and 6 are higher than the “yes” respondents to question 4, it seems that in a reasonable number of cases redress of a grievance by other means has been possible, and that this has been relatively insensitive as to whether the nature of the issue was procedural or substantive.

By subtracting the “Yes” responses to questions 2 and 3 from those to question 1, we get the result that at least 11 respondents did not get a grievance redressed by DQMS procedures and, analogously using questions 4 to 6, we find that at least 17 respondents did not get a grievance redressed by any other means (the real numbers may be higher if the same respondents replied yes to each of questions 2 and 3; or each of questions 5 and 6). Even though there may be a positive reporting bias, this does suggest that there is a real issue, albeit perhaps small, that in some cases users are left with no effective avenue to pursue.

Turning now to length of time to resolve the situation, the results were as follows:
Less than one month - 9 (20%) 
1-2 months - 6 (13%) 
2-3 months - 9 (20%) 
More than 3 months - 21 (46%) 
Total 45
So, in nearly half the cases, the resolution took more than 3 months. In other words redress, even when obtained, was not often rapid.

The IPKat has found this very interesting, and thanks everyone who took the time to respond. Clearly this straw poll is only an initial step in looking at the situation. Merpel thinks that the question should be pursued further, and urges the European Patent Institute (epi), and/or national patent attorney associations in contracting states, to take this up with their members.


Anonymous said...

Not so much a comment as a piece of related news. Today (26th) and tomorrow the issue of whether the UK courts have jurisdiction over administrative mistakes by the EPO is the subject of a two day hearing in the High Court (Rolls Buildings, Court 15) in the context of the Virgin v Contour & others litigation. Pushpinder Saini QC, esteemed Public Law expert, will address Floyd J on behalf of Contour and Air Canada in the so called "non-designation" issue of the Virgin case.

Anonymous said...

How are patent office complaints dealt with outside Europe? I imagine that a litigious and quarrelsome place like the U.S. must have some fairly spiky provisions in place. I'd also guess that China has nothing. Does anyone know?

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