Former EPO Official Agrees With the Staff Representatives and Explains How We Know Patent Quality and Validity Have Collapsed
Current EPO management refused or intentionally failed to even reply to him. Unable or unwilling to defend their lies, unlawful actions (EPC violations) and so much more, António Campinos et al turned a once-respectable EPO into a rogue institution, condemned by its own alumni (even Jacques Michel, a former EPO VP1).
Some days ago we linked to this article, which was later (about one day later; maybe a little longer) got highlighted by the union. There are several good comments in there, but this one comes from Daniel X. Thomas, a former Director at the European Patent Office (EPO) who has also been very vocal against the empty assertion of legality and constitutionality of the kangaroo court of the EPO, at several levels [1, 2].
We're reproducing his comment below:
DXThomas January 29, 2024 at 6:36 pmI can only concur with the conclusions of the CSC.
On another blog, I published the results of the analysis of 1171 published decisions in 2023 of the boards of appeal following an appeal after opposition.
As the boards of appeal are deciding in last instance on the validity of a granted patent, published decisions of the boards are the only benchmark available, unless one considers that decisions of the boards cannot be trusted.
From those 1171 published decisions, 1051 where final decisions. Among those 1051 final decisions, 46.4% were revocations, 33,3 % maintenance in amended form and 20,3% rejections of the opposition.
In 60% of the 1171 published decisions, the OD’s decision was set aside.
Some figures stick out In 32,3% of the cases, the decision of maintenance of the OD was changed into revocation. In 16,7% of the cases, the decision of maintenance of the OD was confirmed but in a different form, in general more restricted, rarely broader. In 16,0% of the cases, the decision of rejection of the opposition of the OD was changed in revocation. In 7,5% of the cases, the decision of rejection of the opposition of the OD was changed in maintenance in amended form, i.e. more limited. In 7,5% of the cases, the decision of rejection of the opposition of the OD was changed in remittal for further prosecution.
In 120 cases the board decided to remit for further prosecution. By doing so it also set aside the decision of the OD.
Another interesting figure is that in 2023, only in 6% of the 1171 cases, opponents came with documents which were truly not available in the search files of the EPO. Those concern public prior uses, catalogues, oral disclosures at conferences, minutes of conferences or PhD dissertations. For the preceding years, the proportion was higher, 10%, but not fundamentally different.
On the blog, there are some anonymous comments which can manifestly only emanate from the EPO.
It has been alleged that, contrary to my figures, 60% of decisions of ODs are upheld. To come to this figure, any decision of an OD which is not appealed is considered upheld. As the EPO does not know the reasons why there was no appeal, this conclusion is quite daring, to say the least.
In a system with two instances, when the second instance sets aside 60% of the decisions of the first instance, some conclusions have to be drawn. That boards can have a different position on a given topic is not at stake. A proportion of divergences of 20%, even 30%, appears acceptable, but not 60%.
It was also claimed that 40% of appeals do not lead to a published decision, because the appeal was not validly filed (essentially no arguments, no fee paid). This as well cannot be true. In the absence of a statement of grounds of appeal, the board decides that the appeal is not admissible and publishes a corresponding decision. If no appeal fee is paid within the 9 months, then the appeal is not deemed filed and the appeal fee is to be reimbursed. Here again, the boards takes and publishes a decision. Decisions in which the appeal is not admissible or not deemed filed have not been taken into account in the 1171.
It was also claimed that the number of cases I have studied (1171) might be “almost infinitesimal compared with the number of grants published (around 1%)”. On the other hand, if a granted patent does not resist a serious scrutiny when it appears important for parties, then it does not bode well for all the patents which are not scrutinised.
As oppositions are not evenly distributed over all technical domains, they do not allow to make a direct assessment of the overall quality of the work delivered by the EPO, but represents nevertheless a good indicator.
The technical areas in which oppositions occur has also changed over the years. Oppositions occur in competitive areas, either due to new emerging technologies or in which competitors want to keep or increase their slice of the market. In those areas, or for instance for SMEs, it is important to obtain patents with a very high presumption of validity.
If patents which appear important for parties are not resisting oppositions very well, it allows to have doubts about the validity of patents which are not opposed.
The above conclusions were communicated to the President and to VP1 before publication. No reaction came from the EPO before publication. After publication, only some anonymous comments have manifestly come from the EPO.
The author of this comment does not agree with us on software patents, but then again he's not a coder and probably does not understand that profession. █