For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Thursday, 14 June 2012

DQMS: when complaining sometimes doesn't work ...

With quality, it can be the little things that
make all the difference -- like the gap between
"in" and "action" in the text above ...
Over the past few months, IPKat team members David and Darren have posted comments concerning the Handbook of Quality Procedures of the European Patent Office (see for example here and here) -- and the Handbook has been closely reviewed by Gwilym Roberts (here).  One of the features of this exciting and important publication is the fact that it sets out the EPO complaints procedure, which uses Directorate Quality Management Support (DQMS). This, being so, a number of Kats and feline friends have recently been discussing whether the EPO complaints procedure actually works.

It is not a criticism of the EPO to suggest that an effective complaints procedure is necessary. No organisation works effectively 100% of the time. The IPKat does not think it controversial to suggest that, particularly in a large organisation such as the EPO, a formal and effective procedure is required to ensure consistent quality and handling, processing and examination of applications.

Even the best of us
have to live with
complaint procedures
Anecdotally, the ears and whiskers of certain IPKat team members have led them to hear of situations where, regrettably, it appears that EPO complaint procedure is less effective than had been hoped. These experiences suggest that, if the issue is in any way substantive, for example the failure of an examiner to engage genuinely with arguments put forward by a party, then the complaints procedure does not really assist. Other complaints concern the lack of any facility to contact the examiner (telephone not answered; no voicemail; voicemail messages not returned [perhaps they're all on Twitter here, wonders Merpel]), and lack of clarity as to how to reach a more senior examiner or supervisor. However, since the sample size for these anecdotes is rather low, the IPKat would like to conduct a poll.  He also wonders whether there are situations (perhaps, for example, where there have been procedural rather than substantive problems) where the complaints procedure has been effective.

Office cats have long
complained about the
absence of quality mice ...*
The poll questions are on the sidebar [readers who never see the sidebar because they just read the email alerts can find the sidebar by clicking here]. However, readers are strongly encouraged to share any specific experience of the EPO complaints procedure, positive as well as negative, in the comments to this post. Comments on any other manner in which an issue has been successfully addressed, other than the complaints procedure, are also welcomed (the IPKat does not mean the ultimate means, namely a formal appeal of an appealable decision).

The poll closes on Sunday night, 24 June.

It goes without saying that the IPKat will share the results with all his readers in order to offer guidance on the most effective approach to dealing with difficult situations, examination or procedural.

* Ennio and Stella belong to Anne Pigeon (Manager, Policy Development, Canadian Intellectual Property Office).

6 comments:

Anonymous said...

Last thing I knew, DQMS had been downsized from a fairly fully-functional unit operating independently to something that gave lip service to the President, but perhaps things have perked up a bit in recent years ?

Let's face it DQMS, like any internal audit/investigational unit, is not very popular amongst either the Examination Directors or the Examiners themselves, and as for the Boards of Appeal, well, just who does the DQMS think it is to stick its nose into the affairs of an independent and review-less body such as the BA ?

The advice I was given by someone who used to work in the DQMS was - if you feel you are not getting anywhere with your issue, write directly to the President of the EPO.


As to the possibility of reaching :

- an Examiner : even if he/she does not pick up the phone, one _can_ usually leave a voicemail message ;

- a Chief Examiner : they are Chief only in name and pay grade, they have no sway over what another Examiner does or doesn't do, unless they happen to be that Examiner's tutor during the initial training period - of course, as part of the 3-person Examining Division, they can attempt to impose their will if they have a different opinion to that of the primary examiner. The problem is that Joe Public doesn't know the composition of the Examining Division until the case is granted or refused or there are oral proceedings;

- an Examination Group Director : difficult to reach, unless one knows specifically the name of the person heading up the group responsible for the case, especially since they seem to spend a great deal of time in management meetings...even if one were successful, they would probably be loathe to discuss any particular case/Examiner on the phone.

Anonymous said...

I tried the route (with an Examiner who refused to return calls, had no voicemail set up, etc.) of calling his Director.

My complaint was that the Examiner had flatly ignored all arguments presented and after a delay of over a year, written a meaningless exam report that never even pretended to respond to arguments on patentability.

I simply wanted someone to ensure that he respond to our arguments in some way, and that we would get a meaningful exam report addressing the issues.

The Director said he could request and insist that the examiner write an exam report but that he had no power to ask him to ensure this was in any way meaningful or that it even addressed the arguments. The examining division, he said, was completely in control of the examination procedure and he could not interfere in any way. Not much help, then. And the examiner did write a further exam report and it entirely ignored all of the issues which we had pleaded with him to address.

There's plenty of diligent, helpful and conscientious examiners in the EPO. But there seems to be little or no sanction for those who are not. The practice of many examiners not even bothering to switch on voicemail, changing the info on the exam reports to remove their extension number and instead give the main EPO telephone number etc. is indicative of the problems with EPO. If they could hide their name, they would. And of course the end result is unnecessary appeals and companies paying thousands of euro more than they should have to. But those examiners don't need to worry about the cost of the process...

Anonymous said...

I complained about an examiner issuing a Decision to Refuse in a situation where I had clearly not understood that there were substantive as well as formal objections outstanding. I did get through to the examiner. He found it very amusing that I had omitted to request Oral Proceedings and admitted this. He talked to his director and came back to me to confirm that the Decision to Refuse could not be retracted and I would have to lodge an Appeal.

I wrote to the President who simply passed on my letter to DQMS who responded in what I understand is the usual manner by defending the examiner.

Result: waste of time complaining.

Anonymous said...

You mean that the EPO has a complaints system! All right, I did know, but I only found out by accident.

If you search the EPO website for "complaint" you get a few irrelevant hits and no reference to DQMS. If you search for "DQMS", you get one hit only, which is the Handbook of Quality Procedures, a book that did not exist until March this year. So, the EPO website still does not admit that a complaints procedure exists, and until March 2012 the website provided no way to find out about it even if you knew it existed and knew what it was called.

It is not enough for an organisation to have a complaints procedure, the organisation needs to publicise it rather than trying to keep it a secret.

Anonymous said...

I always ask for Oral Proceedings in the case of an adverse decision, a form paragraph I attach to all letters I send to the EPO.

Having attended a few presentations made by senior EP staff I was left with an uncomfortable feeling that they understood very little about the situation of applicants and patent attorneys and that they could not care less. All the talk of "abuse of process" suggests they regard patent attorneys in the same way as vermin and that their own straw reaching exercises in justifying the 2 year limit on filing divisional applications demonstrates lack of introspection.

I do not draft an application with preparations for divisional applications for fun; I do it to serve my clients' interests, clients who frequently lack the financial resources to file 10 applications simultaneously. EPO, in changing rules, end up making life for applicants hard and much more expensive.

Also in the interest of expediency and keeping expenses down I have called Examiners for discussions, the results are rather depressing.

The results so far with regards to complaints matches my experiences very closely. I was beginning to wonder if I was just really unlucky, particularly in view of some very agitated clients. I suggests adding a vote box asking if many have had to attend Oral Proceedings that never should have been necessary in the first place.

I would also like to bring your attention to a recent issue of WIPR having the title "Should applicants now avoid the EPO?"

Anonymous said...

I recently received an examination report which argued that claim 1 lacked an inventive step but did not identify which features of the claim were in the closest prior art and which were not.

I spoke to the Chairman of the Examining Division who said that the Primary Examiner is entirely responsible up to the point of summoning oral proceedings and he refused to intervene. Not very helpful.

If you do want to contact the Director of a directorate then I am told his extension is the same as the four digit directorate number, but I have never tried that.

The other problem that I find is that there is a lack of consistency in the way oral proceedings are run before the ED. On one occasion the ED have refused to enter into any discussion whatsoever, merely listened to my arguments, pronounced there decision without any explanation and then moved on to the next request.

Having made these negative comments I should add that there are some very helpful Examiners. The best experience that I had was filing written submissions for an ED oral proceedings on a Wednesday for the ED to review on the Thursday before the oral proceedings the following Monday, which was consequently cancelled!

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