EPO queue jumping part 1 - Don't be an SME

Here’s an interesting thought experiment about how patent offices should operate. Two patent applications are pending at the European Patent Office (EPO). Imagine that one was filed several years ago by Microsoft, and the other was filed at the same time by (say) an Italian SME which files “only” 10 patent applications per annum.

Lady Justice may have to ditch her traditional 
blindfold if she wants a job at the EPO 
Photo: Tim Evanson 

Nothing much has happened on either case now for several years, but both files are allocated to the same examiner. Which case should the examiner pick up first – the one filed by the “customer” with 750 filings per year, or the one filed by the SME? 

Merpel hopes that her readers will agree that both files should be treated equally in the same queue. Indeed there is a good argument that the SME should get priority treatment, being less able to afford the annual renewal fee imposed by the EPO for each year of inaction, which is already more than €1,000 by the 5th anniversary of filing, and rises to over €1,500 per annum from the 9th anniversary onwards.

Any readers who agree with the equal treatment concept may be disturbed by certain rumours that have reached Merpel’s pointed ears. They start off innocuously enough:

Changing priorities in DG1 Earlier this year the Office issued two internal memos entitled “Closer Contacts with Major Applicants”. The reason given was to

“foster a better esprit de service, not least to ensure that we do not lose workload market share to other major Offices”.

We cite further:

“The ICT cluster has had close contact with both Canon and Microsoft recently and their experience prompted this pilot… The pilot started on 1.4 for ten major applicants.... For the 10 applicants, there will be one DG1 director in direct contact with one person in the company… The idea is that the DG1 director will be in regular contact ... with his counterpart from the applicant and that at least once in the pilot year there will be a high level visit (PD, directors, DG2 and DG5 representatives where necessary) to the company.”

Pausing here (the good stuff comes later), Merpel does not have a particular issue with the concept of the EPO or indeed any organisation providing a relationship manager for large users of any organisation. She also knows that the EPO has for many years sent examiners out into the real world to talk with applicants, so as to keep abreast of technology and of the real state of the art, as opposed to the legal fiction created by patent law.  Other patent offices, such as the UK IPO, also visit applicants and patent attorneys who are users of their services [this is something that IPKat blogmeister Jeremy has strongly advocated in talks he has given over the past decade].

However, this pilot programme seems different, both in terms of purpose and in terms of execution. There is something imbalanced in having high-ranking EPO officials make a pilgrimage to the premises of large applicants “to ensure that we do not lose workload market share”. There is an element of bending the knee involved that makes Merpel uncomfortable.

But now for the part that made Merpel cough up a larger-than-normal furball. Her correspondent comments that:

One of the early off-shoots was that directors and examiners were gently reminded that the Office had entered in a closer cooperation project with Microsoft, so could the examiners please take care of a list of [overdue] Microsoft files for which the deadline [for the examiner to issue a communication] had expired? We [i.e. Merpel's correspondent] obviously have no problems with reminders to examiners to prioritise files that are overdue. But such reminders should cover all files that are similarly overdue, not just those of a specific applicant.

The implications of this are astounding. Smaller applicants are being discriminated against because they don’t have the clout of threatening to pull their business from the EPO. But if you’re a major contributor to the EPO’s coffers, your cases will get priority at the expense of smaller applicants.

Merpel hopes this is all untrue, but it has the “stranger than fiction” quality that is characteristic of many EPO stories that have proved accurate. Anyone who knows more and who can comply with the normal rules of comment etiquette, please do tell!

Reminder for commenters: As has been true with Merpel's EPO posts for some time, and as is now the general IPKat policy, comment-posters are required to identify themselves via a pseudonym if they don't want to use their own names, since there are far too many people called "Anonymous" and it can be difficult-to-impossible to work out which Anonymous is which. Also, Merpel moderates EPO-related comments quite heavily, knowing that some readers get so exercised that they forget the normal standards of comment etiquette (or even of libel laws).