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European Patent Office's document churning snatches Germany's attention: 'We are concerned about quality'

Don't blame staff, blame...

By Kieren McCarthy, 12 Oct 2017

A row has broken out at the European Patent Office over the quality of its work.

The international organization's big annual meeting in Munich this week has been overshadowed by a war of words between staff and the EPO's president, Benoit Battistelli. Staff are warning that quality is falling in response to an aggressive effort by management to increase output and Battistelli is publicly disparaging his own staff in response.

In response to pointed criticism, Battistelli highlighted his team's first ever annual quality report that showed very high levels of satisfaction as evidence that all was well at the organization. But at least one government subsequently picked apart that report by noting that it relies entirely on internal evaluations.

The row kicked off when the EPO's staff representative dropped its typically diplomatic update to the EPO's Administrative Council – made up of 38 European government representatives – and provided a caustic criticism of reforms efforts at the EPO, arguing that a push for ever-faster and greater numbers of patent approvals was leading to a drop in quality.

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Battistelli was identified as the prime driver of problems and was directly associated both with low levels of morale at the EPO and, shockingly, with a number of recent suicides at the organization.

But it is the attack on quality that has stirred up the most anger. Citing the EPO's own quality report, the staff representative told the council: "The quality report does not analyze whether the search reports are complete and the patents granted meet the requirements of the EPC [European Patent Convention]."

Open and shut case

They also noted that the figures cited in the report are from the EPO's own CASE quality control system, which has frequently been criticized as providing inflated results. Talking of the CASE system, the staff rep noted: "The patent examiners themselves must register whether their own work is in order. You can imagine what is being introduced here for fear of sanctions."

The rep argued that unless the system was improved, it could cause companies to register their patents with other global patent bodies instead: "When large applicants are turning away from the European Patent Office, it is too late. The interest of the Personnel Committee is to draw your attention to problems in good time."

They noted that the number of searches and patents granted has gone up while at the same time the time spent on each had gone down. "Is this really what we want for quality?" the rep asked, noting that the staff was "ready to contribute constructively to a reasonable quality assurance mechanism and to address the existing problems."

Battistelli was, predictably, furious. He has waged a long reform battle at the EPO that has seen the organization repeatedly pulled in front of the International Labor Organization, the courts and even the European Court of Human Rights. He has, however, retained the support of the majority of the Administrative Council by arguing that he is modernizing the EPO and – critically – that the number of patents is increasing while quality has been maintained or even improved.

Any suggestion that the reforms efforts are reducing the quality of patents would risk undermining that entire organization since it raises the likelihood that approved patents are then challenged and even defeated in court: every business' worst nightmare.

Here comes the king

In response to the criticism, Battistelli came out swinging. He pushed the EPO's annual Quality Report and argued that "quality is the first priority of the Office."

He went to suggest there was a split between the examiners doing the work and their union representatives: "Unfortunately, I regularly hear untruths about the quality offered by the Office. In particular, this comes from the side of the personnel representation. Those who represent the staff dispute the quality of the products. This is normally never the case that one contests the quality of the work of his/her colleagues."

But after years of complaints about how Battistelli has handled staff complaints and union officials, and with the announcement of his successor at the same meeting, several governments expressed their dissatisfaction.

The German government representative welcomed the quality report but then noted that the EPO was effectively grading itself.

"We must distinguish between process quality and product quality. The process quality can be certified. Product quality is discussed at meetings and it is unclear how it can be assessed," he noted.

Aside from the German government being a very powerful voice within the EPO given Germany's position as the largest patent holder in Europe, the EPO's new chair is German government representative Christoph Ernst.

"We also need support processes, employee involvement," the German government spokesperson continued. "For this I read nothing in the report. They have a very high quota compared to previous years. Sometimes it is said that this is an indicator of less good quality. At a 70 per cent grant rate, we are concerned about product quality. The number of rejections has declined massively. This raises doubts. The examiners are well trained, but they also need time. The intrinsic motivation of the colleagues must be maintained."

Nope

Which may read like mild criticism but in the painfully polite world of international organizations, is equivalent to yelled abuse.

Concerns about EPO quality don't just rest with the staff or governments either. Recently the EPO's customers – European corporations – have started raising doubts about patent quality.

With Battistelli still in office until July next year, it is clear that nothing is going to be done to remedy what has become a toxic environment at the organization for the next six months (lest you forget, Battistelli has a permanent bodyguard and even had the brakes of his bike cut – quite something for a man who is very far from the public eye).

However, with a new chair and the appointment of a new president, both staff and some governments have made it plain they intend to clear up the mess that the stubborn and difficult Frenchman has created in his time in charge.

While pressing for reforms, the staff rep told the Administrative Council at the end of their update: "If not now, then hopefully together with the newly elected President. We congratulate him on his election."

The post-Battistelli era will soon be upon the EPO and everyone, it seems, can't wait. ®

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