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Tuesday, 17 November 2015

Plunging off the abyss -- or merely grinding to a halt? More bad news from Eponia

"Once upon a time, in the beautiful
but sadly troubled land of Eponia ..."
This moggy promised in her earlier post today on the European Patent Office (EPO), addressing the legal basis -- or rather the lack of it -- on which the EPO has lately been acting, that she would be following up on other matters very soon.  While licking her pencil and preparing to write, she was distracted by an incoming email from a friend. While all her friends are special to her, this one happened to be senior patent counsel with a company that does a lot of patenting. To be fair, this company is not Microsoft [which may or may not enjoy a special relationship with the EPO: see the IPKat here and Techrights here, here and here; to the contrary effect, see WIPR here and IAM here].   However, this moggy's friend is an officer of a company that cherishes a portfolio of well over 10,000 patents and a market capitalisation that is healthily in excess of US$ 120 billion. The email reads thus:
We have a patent application which has been sitting untouched on an examiner’s desk in the EPO for over 10 years [this is ten; t-e-n. Not a typo] prior to the initiation of examination – we just received the first office action. The glaring conflict of interest is astounding.

Has the EPO ever considered term-extensions, as in the US, for (significant) delays caused directly by the patent office? [No. Only national patent systems can extend patents, and that's not for delays in the course of the application-to-grant process] I would ask if they ever considered refunding annuities, or at least freezing them – but I am pretty sure I know the answer to that [You do indeed. It's another "no". ].


To add some irony I would point out that we had requested accelerated examination for this case. Sigh …[Sorry, friend. You have to understand. there are some things that money just can't buy].
While musing on this sad epistle, this moggy happened upon a pseudonymous reader's comment, posted in response to her first post today under the name "Concerned" at 8.46 am. She has since received the full document, this being a Communication of the Registry that reads as follows:
"The present case is classified according to the International Patent Classification in the technical field of [a specific subject matter] which is attributed by the Business Distribution Scheme to Board of Appeal [No. XYZ]. 
The Board's specialist-rapporteurs in this field are [Person A] and [Person B]. 
[Person A] is retiring from [this Board] by [date]. Since the Boards of Appeal are confronted with a complete stop on the recruitment of new members, it is not foreseeable if and when a new member will take the place of [Person A]. 
Other specialists in this field are presently not available in the Boards of Appeal or are, due to the aforementioned circumstances, also in Boards with a limited capacity. 
The result of the above is that for the time being the pendency times of the cases in this technical field will increase".
The bold text, by way of emphasis, was added by Concerned.  The names of Persons A and B have been withheld in case its mention sparks off any repercussions or retribution from Eponia. 

This moggy is an old-fashioned Kat, who believes that most people are good, most of the time, and that patent offices are places where patents should be examined.  She is acutely depressed by the two items of correspondence which appear above and reiterates, for the benefit of any members and alternative members of the Administrative Council of the European Patent Organisation who may be reading, the following message:

The institution for the governance of which you are legally responsible is teetering between malfunction and dysfunction.  From being a highly praised and much-admired organisation it has become a hotbed of suspicion, rumour, allegations of corruption and insurgency, accusation and counter-accusation.  It has lost the respect of a substantial number of users, employees and officers.  Its public relations policy -- if indeed it has one -- has failed to engage with the issues that concern the intellectual property community and which form a large part of its current agenda.  Its apparent inability to stem the exponential surge in staff disputes has all but brought the International Labour Organisation's mechanisms for dispute resolution to a grinding halt.  Its integrity has been increasingly questioned and its image has become a laughing stock and a byword for a dictatorial management style that has no place in an open, democratic Europe.  
You, as members of the Administrative Council, are responsible both for the approval and formation of EPO policy and for its execution.  How many of you have sought and been given advice from your respective governments with regard to current events in Eponia? How many of you, in the light of your other commitments, have the time, the resources and the information to enable you to play an effective role within the Administrative Council?  How many of you can honestly say that you are happy with the present state of affairs? And how many of you are simply too scared to be able to stand up to the EPO's management?
If you agree with this, please feel free to cut and paste the two paragraphs above and email them to your country's Administrative Council representatives, whose identities are listed here.
Reminder for commenters: As has been true with Merpel's EPO posts for some time, and as is now the general IPKat policy, comment-posters are required to identify themselves via a pseudonym if they don't want to use their own names, since there are far too many people called "Anonymous" and it can be difficult-to-impossible to work out which Anonymous is which [if any anonymous posts get through, it's by accident -- not a change of policy]. Also, Merpel moderates EPO-related comments quite heavily, knowing that some readers get so exercised that they forget the normal standards of comment etiquette (or even of libel laws).  
There will be at least two further posts from Merpel this week, one of which will deal with staff suspensions and another of which will address health and welfare issues.

21 comments:

Hugo'sBoot said...

On the subject of slow moving applications, I have a regional phase entry (EPO the ISA) and three divisionals filed from it, all in March 2010. They were quite long applications and, if I recall correctly, we paid excess claims fees for each application. The total EPO fees came to over €20K. We have yet to receive the examination report on the parent or a search report for any of the three divisionals and of course, since then have paid a substantial amount in renewal fees. The applicant is considering abandoning a couple of them. One might think that since the excess pages and claims fees allegedly required to compensate the EPO for the extra work required when an application is longer than 35 pages or has large numbers of claims and, therefore, when that work isn't even attempted, they would be refundable. Of course we know this is not the case and, according to some on here, the problem is that the applicant hasn't filed a PACE request!

Anonymous said...

Wise guy says:
That is what you get when the computer, fed by management rules, decides the order of the cases the examiners have to deal with.

EPO Examiner said...

Dear Merpel,

posting the above paragraph to a member of the AC under an identifiable name will put the sender under risk of dismissal at the European Patent Office.

But thanks anyway for saying what many of us thinks

Frank Lees-Peaking said...

On the second matter (recruitment stop for BoAs), the Registry is to be applauded for its straight talking. This kind of honest transparency should shurely be encouraged and publicised. We know that Mr Blattistelli is in favour of transparency, because he said so.

Anonymous said...

Dealing with opinions that diverge from his own is not one of Mr
Battistelli's main strengths. During the BFC meeting a critical comment from the Norwegian delegation concerning the inappropriate lack of information provided to the BFC for making informed decisions, and the voting pattern of the French delegation (abstention on the 2016 EPO budget, vote against the President's proposal on the tax adjustment for pensioners) triggered instant and brusque responses from the President.

But Mr Battistelli went even further. After the meeting had concluded he went in turn to the French and Norwegian delegations whom he fiercely rebuked for their respective actions and in such an overbearing manner that it caused visible emotional distress to a member of the French delegation. These incidents took place in full view of the other (speechless) delegations.

Anonymous said...

Mr Kongstadt recently paid a visit to DG3 to threaten them in case they fail to obey the order to dismiss the DG3 member ....so much for independence.

It is time for a general strike of all EPO staff.

EPstop said...

What the above-mentioned communication from a Board of Appeal actually means is that Part VI of the Convention / Appeals Procedure no longer applies to certain technical fields, with more to follow soon.

Crazystory said...

http://www.fosspatents.com/2015/11/epo-labor-dispute-getting-completely.html

Anonymous said...

I was tijd that the pharmacy board has no pharmacists any longer.
Worried person

Ron said...

I just tried to access the fosspatents link and got the response "this link does not exist".

Rhubarb in Custody said...

Ron: This link works for me (and can also be found by googling "EPO labor dispute getting completely out of hand"):
http://www.fosspatents.com/2015/11/epo-labor-dispute-getting-completely.html

Here's a link to the SUEPO flyer itself:
http://www.scribd.com/doc/290132202/15-11-16-SUEPO-Flyer

Meldrew said...

Wise guy said:
"That is what you get when the computer, fed by management rules, decides the order of the cases the examiners have to deal with."

Don't give me that crap. Cases were buried by some examiners in the past. At least a computer driven prioritisation moves away from "examiner's whim" as a guide to priorities.

Of course, if the management priorities were totally transparent that would be useful. And what would be really useful would be for the register to show the priority of a given case, so that applicants and third parties could tell where a case was in the queue, and whether the case was moving backwards.

MaxDrei said...

Listen up, all you non-politicians.

The highest political imperative is that the UPC is popular from the get go. So any threat to that imperative must be disappeared forthwith.

The best way to push business in the direction of the UPC is to turn the EPO into an authority for granting patents on the nod, with no functioning channel at the EPO for correcting erroneous grants. BB is well on his way to reaching those objectives.

The seat of the UPC is in Paris. Having as President of the EPO for the time being a politician from France is rather fortuitous then isn't it? Any criticism of BB from the representative of France on the EPO AC is explained by the fact that BB is on the other side of the political divide from Hollande.

Why no sound at AC Level from DE or GB?

Germany is just as peeved as France, that patent litigation takes place at the EPO rather than in the German Federal Patents Court. They want their ball back please.

The UK is obsessed with "efficiency" and that is BB's Big Thing too, so it does not lie in the mouth of the UK at AC level to utter even a murmur of protest.

And what about the Rule of Law? What's that then? Come on, be sensible. We live in difficult times. Something has to give, when there are higher priorities to meet.

Anonymous said...

Aghast said...

As a former patent attorney who once had a lot of respect for the EPO, this is pretty appalling.

THE US anon said...

One wonders if MaxDrei is a politician, or even why his view on what suffices for political machinations warrants attention...

I can make no sense other than a rather US analogy: the Mad man Alfred E Neuman, "What, me worry?"

Anonymous said...

@Mildrew:
I can understand your frustration. There are - and have always been - bad apples among the examiners. However, consider that under the new system it is a GENERAL RULE that first actions in examination ALWAYS have a lower priority than almost every other type of action. This is enforced through an automated system under which examiners must robotically follow the order dictated by the computer. Deviations from this prescribed order are automatically recorded and taken into account as underperformance in the new "performance-based" career system. This means that if an examiner wants to be nice and reasonable now and touch your old pending examination file for a first communication - or your old search filed before mid-2014 - (s)he may ultimately PAY FOR IT FINANCIALLY BY HAVING THEIR SALARY INCREASE OR PROMOTION POSTPONED due to "underperformance". As with all the other great and "overdue" "reforms" of recent years, no coherent explanation has ever been provided for this change. Ultimately, the office is moving towards an institution focused on two things only: 1) very rapid searches of all recently filed (post-mid-2014) applications and 2) direct grants whenever possible. EVERYTHING ELSE is apparently supposed to be taken care at some undetermined point of time in the future of when the examiners have spare time left (i.e. never)...

Anonymous said...

BB’s Masterpiece quotes...

I am your canvas
Splash upon me your guilt
Spread thickly pain and fear
And quickly every drop spilled
On my blank face, dries to stay here
I try to make clear
Your thoughts, panics, worries
Your tongue the brush
Dipped in buckets of angst, hurried
To hold up and across me smear
Your ideals once crushed
To soft powder wetted by tears
Makes a dark black blush
To add to my paper skin
Wafer-thin.

Realist turned cynic said...

Actually, Maxdrei is quite right.

What can you expect from an administrative council and president who cannot be bothered to follow their own EPC. Ever read Article 4a? When was the last conference?

Do you really think that people, who think so little of this article, will have respect for any other article or rule in the EPC or any other law?

Money is all that matters. EPC, applicants, staff are secondary at best.

Anonymous said...

Examiners have a target to reach by the end of the year. I.e. a certain number of final action, which are only searches and grants. Intermediate actions, like oral proceedings or communications do not count. The targets can only be reached with high working pressure and short and easy files. If the target is not reached for 2 or 3 years, the examiner can, thanks to the new system of Mr. B., be dismissed. The fees for long files are with the office, but for the examiners there is no time deduction or the like. In short: as every file, long or short, complicated or easy, is 2 points, examiners will proceed with short and easy ones to reach their target number

Dusty Cupboard said...

@ Anonymous 01:38 and Meldrew
Since ages, the reward an examiner receives for a search is higher than for a grant. And reward means promotion. In consequence and also due to the work pressure induced by the high amount of search files arriving at the EPO, many examiners essentially concentrated their efforts on search. Examination was postponed to the Greek calends under the complacent eyes of managers at all levels. This way, some examiners accumulated hundreds of these pending applications, aware that their high productivity would give them the expected promotion. Once promoted, these files had to be redistributed to examiners, always reluctant to clean the rubbish their new manager abandoned. Unless the applicant asked for examination, the file remained asleep in a dusty cupboard. Who asks nothing gets nothing.
The new trend is to rank search and examination files on a quite similar manner : urgent files must now be processed urgently. The dusty ones may rest in peace in the cupboards, in the mean hope of a withdrawal. Priority is given to examination files for which examination started.
Having more than 10 years of experience working with the EPO, the gentleman who faced this sad situation should know the rules of the game. He should have send a letter asking when examination would start. And a second one if necessary.
Finally, never forget that examiners are human beings having a phone on their desk, and that a friendly phone call can unlock many dusty cabinets.
Despite the horrible current climate, we are and remain a public service, keen to provide the best service to the applicants.
When our internal rules make it possible.

Henri le Sage said...

Some anonymous said:
"Mr Kongstadt recently paid a visit to DG3 to threaten them in case they fail to obey the order to dismiss the DG3 member ....so much for independence."

That is a serious allegation. Any proof?

But I would not surprised if this were to be true. We have seen more examples Mr. Kongstadt acts as Mr. Battistelli's sidekick - rather than the AC president who is to ensure Mr. Battistelli is doing his work properly: secret one-on-one deals on remuneration, contacting the EBoA on his own rather than on behalf of the AC.

Could this be part of Mr. Kongstadt's personal agenda to succeed Mr. Battistelli?

Yet, I do not draw conclusions until I have more proof.

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