The European Patent Office – steps forward, steps back?

The European Patent Office – steps forward, steps back?

The IP world has been hearing about a fairly chaotic time at the European Patent Office (EPO) and it is sometimes difficult to assess whether the overall mood is one of improvement or regression. The root cause is very much the productivity/delay issues that have set the EPO for many years. The difficulty arises because whilst solving this is in practically everyone’s interests outside the EPO, it inevitably means increasing the workload within the EPO – which is not necessarily going to be popular.

Pendency at the EPO has always been a major complaint from users. Patents can easily take over five years to grant and once they have been through the opposition or appeal procedure a patent can in fact be near the end of its 20 year life, which is unacceptable. Over time the EPO has, to its credit, recognised the problem. However, its early attempts at solving the problems mostly involved increasing the pressure on the users (eg by shortening deadlines and/or removing extension opportunities) rather than tackling the source of the problem.

We are now seeing steps in the right direction in terms of reducing pendency. The EPO has introduced a number of prioritisation strategies to try and ‘cut the tail’ of the backlog. Possibly the most attractive of these is a policy of turning round ‘live cases’ quickly (before they forgot what they said last time) and this has now matured into a suite of policies called ‘early certainty from search’, ‘early certainty from examination’ and so forth. With the speeding up also of opposition proceedings and other efficiencies, the EPO may yet meet its target of reducing pendency significantly.

However, the resultant problem now becomes evident. Although the EPO continues to hire, it is increasing its demands on its existing staff. We are not noticing any reduction in the excellent quality, which has always been a byword for EPO handling of cases, but the personnel situation at the EPO, commonly referred to as ‘social unrest’, is widely reported. These reports suggest that Examiners are being put under pressure, that the Boards of Appeal in particular are coming under attack and most importantly that the EPO employees’ rights are being eroded through targeting of their unions. The opposing school of thought contends that the employment package EPO Examiners enjoy is spectacular. Although, even EPO Examiners probably wouldn’t disagree with that, the concerns seem to be far more about the way that matters are being handled.

Politics within the EPO is not our problem – the speed and quality of the work that they do is. At the moment we would say that if anything, standards are entirely acceptable and that things are getting a little quicker, which is good. But the risk is evident and the reputational damage the EPO has been suffering in the IP world may take a little while to heal. There is no question that the EPO needed to tighten up its act, and the initial indications are good. Here’s hoping that it is not with a long term cost of losing many of the excellent staff on whom they justly rely.

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