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Euro Patent Office reforms hit another stumbling block: Reality

King Battistelli's crusade starts charging down the wrong hill

By Kieren McCarthy, 13 Apr 2017

Analysis When he's not ignoring national laws and threatening employees, the president of the European Patent Office (EPO), Benoit Battistelli, is on a crusade to make things work faster.

Against an ever-more unhappy background of EPO staff and patent examiners, Battistelli has for several years put forward the same defence: he is making things run more efficiently.

Last month, as some countries called for his ousting, Battistelli presented figures and later gave a press conference focused on one thing: the EPO has granted more patents faster than ever before. And it has done so, he claims, with rising quality.

"The first of these is a key result," he wrote in a subsequent blog post. "The number of patents granted has risen by 40 per cent, with the total reaching 96,000. It indicated that we're processing more patents, more efficiently and with the minimum of delay. This achievement is not because there has been a significant rise in the granting rate. It is the result of the consistent application of a quality and efficiency policy and the reforms that we have made."

A very similar philosophical thread was pushed by Battistelli last year as well. That time it was a pre-occupation with "early certainty" – which means an early indication to someone applying for a patent whether they are likely to have it approved or not.

Battistelli pushed the exact same points: greater speed while retaining quality. This is his overarching vision and the justification behind his campaign of intimidation against staff, as well as his rewriting of the rules of every part of the EPO that has resisted - even for a second - his reform ideas.

"Over the years the EPO has built its reputation upon quality, providing our users with legally robust intellectual property protection. But, as with any good service, good products need to be delivered on time," he argued.

"This is particularly so for our users, as innovators and investors look for certainty at an early stage in the process. Patent strategies can depend upon accurate predictions as to the strength of their applications, and what objections they might need to overcome. Timeliness is therefore a key issue not just for applicants, but also those potentially affected by pending patent rights."

Reality bites

And all of that sounds great. Except, now that the enforced changes have started taking effect, the reality of Battistelli's paper-plan has started hitting home.

In a series of three blog posts earlier this month, German patent attorney Thorsten Bausch has taken issue with the idea that faster is always better.

While he praises the idea of patents being reviewed and approved faster, Bausch notes that in many cases companies do not want patent reviews coming back at them swiftly and give a number of different examples of where Battistelli's drive is causing real problems.

For one, the drive to be faster means that timeframes are compressed. What are often complex decisions can benefit from being played out over a longer period. The result is that the stakes are higher for patent applicants and the workload is greater.

Whereas before a patent would be carefully examined, with prior examples and possible conflicting patents pulled in, and then third parties introduced and slowly filtered out, Bausch says he is seeing critical meetings happening much earlier on.

Those meetings can see a patent go down a path to being refused much faster and in a more complex environment – with lots of claims and counterclaims. Worse, he notes, the effort to speed things along, particularly thanks to Battistelli's "early certainty" doctrine, is resulting in rushed initial reports on which those critical meetings are built.

"It is my impression that the pressure exerted by the 'Early Certainty' program on the work output of examiners has considerably increased," he writes.

"Perhaps unsurprisingly, several colleagues of mine have started to observe that the quality of the reasoning and the depth of analysis of official communications at least in some technical areas has been declining to a noticeable degree. This is exactly what should not happen. Superficial examination, whatever its outcome may be, helps no one."

Hear ye! Hear ye!

Another knock-on impact of the rush to early decisions is that patent examiners who are expert in a specific field are being flooded with requests early on in the process. "Some of my colleagues have received the same number of summons by examining divisions in the last half year that they had received in the previous ten years," Bausch notes.

These summons are to oral hearings, requiring a lot of effort on everyone's parts because they require people to think of all the possible questions they may be asked, rather than a written process where they can methodically work through each issue.

The use of expert testimony so early on the patent process is also, Bausch notes, a highly inefficient way of using the EPO's resources. What's more, applicants don't like it – they have to do a lot of extra work in a high-pressure and fast-moving environment and argue against experts before they have a full understanding of all the complexities of the case.

The end result of all this is: unhappy, overworked staff; unhappy, overworked examiners; unhappy, overworked subject matter experts and – critically – unhappy, overworked applicants.

"I am afraid that the 'early certainty' program… will – needlessly – have quite significant negative consequences for most applicants," Bausch warns. "In my view, there is no need to introduce such an 'early certainty' program in examination proceedings at all, provided that the EPO continues its previous practice to accelerate examination proceedings when so requested by the applicant or a third party."

Aside from the unintended consequences of speeding everything up, the EPO also faces a significant problem – as Battistelli has repeatedly noted – in terms of quality.

Quality street

At the same time that the EPO management has relentlessly pushed to speed up processes, it has had maintained a second keen focus on quality, knowing full well that the entire Battistelli experiment could fall apart if the quality of patent examination is seen to suffer.

Ominously, however, as soon as the reforms started taking effect EPO management introduced a new approach to quality measurement that removed many of its independent aspects and put them under the control of the president and his team. In addition, an effort to speed up the process, combined with an aggressive clampdown on staff by management, has undermined the process for critical evaluation of patents.

Previously, the three-person team working on a given patent case would work together and then the chair in each case would do a quick quality check at the end of that process to confirm all was fine.

Under the new system, the chair is expected to weigh in earlier and lodge any concerns in the EPO's Conformity Assurance for Search and Examination (CASE) system before talking to the first evaluator. The subsequent conversation on those points is then also lodged in the system.

The end result of this change is any errors that were previously caught at the earliest stages become a part of the record: so either the first examiner is seen to have made a mistake or the chair is seen to have falsely flagged a problem.

The end result of that, according to internal figures that The Register has seen is that there is less critically analysis being applied to applications rather than more as examiners worry about EPO management blaming them for, ironically, bringing down quality metrics.

Prior to the change, there was a 85-88 per cent conformity rate i.e. agreement between examiners; after the change, a stunning 99 per cent conformity. Battistelli's team, convinced that their pressure tactics are simply causing people to work harder and better, view the results as validating their approach when in reality it undermines it.

But just as the EPO is increasingly unable to keep a lid on the impact of its "early certainty" program, so the knock-on impact on EPO report quality is starting to overwhelm the management's efforts to contain it.

At the last meeting of the EPO's Administrative Council, when the management team outlined their unlikely double-whammy of more patent application approvals while quality also rose, staff union representatives gently suggested that the figures were not showing the full picture.

Blinkers

The next day, two of the EPO's vice presidents, Guillaume Minnoye and Alberto Casado Cerviño sending a scathing note to all staff claiming that their union reps had bad-mouthed their efforts in front of the council.

In it they claimed the staff representatives had "publicly attacked ... the quality of the products delivered by EPO staff, without any evidence but unfounded allegations," as well as shown "a total lack of respect for the colleagues who have shown by their efforts and professionalism the capacity of the Office to improve the quality of the products and services of the Office."

And just this week, in another even more extraordinary email to all staff, the management team embarrassed themselves by distorting statistics that EPO quality in a bad light to claim the opposite result. Employees at a patent office tend to have a significantly better grasp of mathematics than the general population.

The staff representatives had highlighted a recent survey by German legal journal Juve that found 54 per cent of companies that responded said they were unhappy with the quality of recent EPO reports.

Rather than acknowledge that as a serious problem or offer to contact Juve to dig into the issue, EPO management instead gave their staff a terrifying insight into how things work under King Battistelli.

Noting that Juve said it has surveyed the patent departments of 168 international technology companies, EPO management pointed to the fact that only 24 of them had completely answered the survey – and then embarked on a statistical contortion to arrive at a completely different figure.

24 companies from a sample of 168 means 14.28 per cent, and then 54 per cent of 24 means 13 companies or 7.73 per cent of the total… which is in fact close to the result of the EPO regular user survey published on our website (4 per cent of the respondents were not satisfied with the quality of EPO search and examination in 2006). So much ado about nothing.

From 54 per cent unhappiness to 7.7 per cent by, um, deciding that everyone that didn't answer failed to do so because they were 100 per cent happy with the EPO.

And that is what happens when you create a culture that refuses to hear criticism, where information is willfully distorted to give the desired result, and the ends justify the means. Whoever takes over from King Battistelli in 2018 will have their work cut out for them. ®

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