To promote innovation, the patent system needs to provide certainty for both patent proprietors and third parties. That is why quality is so important for the work we do. The EPO has developed numerous internal quality checks and measures, and also takes into consideration various external inputs to enhance patent quality.
The EPO conducts regular surveys of its applicants, seeking their feedback through a variety of channels. The resulting quality indicators are published on our website, keeping the Office transparent and accountable. Bodies representing the applicant community and the patent profession are in regular meetings with EPO managers to discuss a wide range of issues of mutual concern. Their opinions on the quality of our services are expressed frankly and passed back to the departments concerned.
Third parties also do benchmarking work between patent offices, which provides feedback on our services even though users were not responding to us directly. One example is the survey run on a regular basis by IAM Magazine among patent attorneys from around the world. The 2016 edition of this survey shows that the EPO is rated best for quality out of the IP5.
An indirect but still persuasive indicator of user's confidence in our quality is that they keep on returning in ever greater numbers to file patent applications at the EPO (up 3.1% in 2014) . Despite growing competition in the PCT market, the EPO maintains a healthy share of the work (nearly 40% of the requests for international searches, and over 50% for IPERs).
The EPO looks very carefully at invalidation rates in post-grant proceedings involving European patents. Although they can provide some interesting information, the data alone cannot be the basis for an accurate reflection of patent quality. Indeed, as stated in the Economic and Scientific Advisory Board's report on Patent Quality (May 2012), "...while information on opposition and invalidity proceedings is potentially insightful with regard to patent quality, such information has to be interpreted with caution. Patents that reach opposition or validity proceedings are already a highly selected group."
Over the years it has been observed that the opposition rate is rather stable (around 4-5% of granted patents) while the number of technical appeals has decreased (down 12% since 2011). The outcome of opposition and appeal proceedings in general is such that in 2/3rds of decisions the patent is maintained fully or in amended form and in only about 30% of decisions is it revoked (i.e. barely 1,5% of all granted patents).
Regarding national court proceedings, and without calling into question the decisions of the courts per se, the interpretation of the data is even more difficult for the following reasons:
The small number of cases going to national courts needs to be set in the context of the large number of patents in force. For example, there are only a few dozen revocation actions in the UK each year, where over 300 000 patents are on the register; in Germany about 200 patents are involved in nullity actions annually compared to the 450 000 patents in force there. This is clearly reflected by the vastly differing invalidation rates of the national courts within Europe. All in all, only a very few of the many granted European patents will be subject to court proceedings
Furthermore, it should be noted that many court proceedings do not reach the decision stage, i.e. the cases which reach a final decision in court make up only a few of the already very limited number of patent disputes in which validity is at stake.
Lack of uniformity between court practices in Europe
In the current absence of a unified litigation system in Europe, and because a European patent is transformed into a bundle of national patents after grant, the same European patent can lead to different national court proceedings whose outcomes could be the maintenance of the patent in one EPO member state and it cancellation in another. This is precisely the key deficiency the future Unified Patent Court aims to correct. In the present absence of uniformity the interpretation of court data is quite problematic. Moreover, patents of different ages can be the subject of disputes. Case law evolves, and might diverge from one country to another over time. Therefore a patent might have been examined and granted according to the prevailing criteria, but challenged in court many years later when the case law or criteria have changed.