Since December, I've been following the labor and human rights conflict at the European Patent Office and the debate over judicial independence. I'm less concerned about particular people holding certain positions (TechRights' Dr. Roy Schestowitz covers those issues in detail) than fundamental, structural deficiencies that have allowed judicial independence at the EPO to wither. And when patent examiners warn that patent quality is in jeopardy, I tend to listen carefully.
The Staff Union of the European Patent Office (SUEPO) has announced another demonstration. It will take place in Munich next Wednesday. EPO staff will march to the British consulate (on January 24 they went to the Danish consulate) and hope to meet the British Consul-General in Munich. It makes sense that SUEPO talks to the national governments that are ultimately responsible for what's going on at the EPO. The British government has also just received a letter from the UK's Chartered Institute of Patent Attorneys (CIPA) that IPKat reported on. That's definitely an awareness-raiser.
Here's SUEPO's flyer announcing the next demonstration (this post continues below the document):
SUEPO Demo 15-02-25 by Florian Mueller
The parts of the flyer that particularly caught my interest are at the beginning and at the end. The question of how many patents Europe needs is a good starting point for the EPO reform discussion. In some contexts, less is more. SUEPO's concern is that EPO president Benoît Battistelli's emphasis on "efficiency" reflects a lack of focus on patent quality:
"According to staff, efficiency is not an aim by itself: it is subordinated to the Office's duty, as a public service, to examine patent applications thoroughly and to refuse any 'bad' patents that would otherwise be a nuisance, in particular for the many European small and medium-sized enterprises that cannot afford expensive litigation. Mr Battistelli's single-minded focus on 'efficiency' and cost cutting is not in the interest of Europe!"
What I don't know is whether there are areas (and in large organizations there often are some) in which costs could be reduced without any negative impact on examiners' ability to decline to grant "bad" patents. However, SUEPO's concern is understandable in light of an official document (minutes of May 2009 board meeting), cited at the end of the flyer shown above, which says that Mr. Battistelli as well as EPOrg Administrative Council chairman Jesper Kongstad shared the following philosophy:
"Priority on increased output should be the leading consideration."
To be fair, not everyone who calls for increased output is necessarily against quality. However, the leadership of a patent office should, as a matter of principle, always view patent quality as the number one priority, with efficiency being a close second if there are objective indications of inefficiencies and a distant second if benchmarking and other types of analysis suggest that any further efficiency gains would be limited or, if overreaching, come at the expense of patent quality.
I have the impression that the EPO staff is genuinely concerned about patent quality. It appears to me that these people really want to be able to do a good job (that they can be proud of), and their perspective on their job is that they have to serve the public interest by rejecting bad patent applications. I'm not saying that this is the only reason they oppose Mr. Battistelli's reform agenda, but at the very least it's a significant and credible part of the consideration, not just a pretext.
One of the structural problems (which in turn is the root cause of other structural deficiencies) is that the EPO basically mints money for national patent offices by putting out many patents, and only by granting (not by rejecting) applications -- otherwise there's no money to be made for national patent offices. In business terms, the EPO generates, by granting patents, income for national patent offices through local registration and renewal fees that are almost entirely a gross contribution to the bottom line. It's all too tempting for national government representatives to go for short-term income rather than the long-term policy interest in patent quality. Like all analogies, this one isn't perfect, but imagine a situation in which a body deciding on fishing quotas would be controlled by the industry that supplies ships and specialized devices to the fishing industry. The ones in charge would then want more, not less, fishing because it serves their interests. It's in the public interest, however, to avoid overfishing -- and in the long run, that's also in the interest of the suppliers controlling the agency.
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