Key achievements: Goal 3
Goal 3 – Deliver high-quality products and services efficiently
- Quality, simply delivered on time
Building on the professionalism and expertise of our highly qualified staff and our world leading databases and state-of-the-art tools, the EPO in 2022 continued to focus on the substantive quality of our products and services.
For the global patent system to remain effective and sustainable in the face of rapid geopolitical, economic, and technological change, it is vital that patent offices deliver high quality, legally robust patents. The European patent system – and its reputation for quality – is a success story built on the foundation of the European Patent Convention (EPC), which was signed 50 years ago this year. This year's Quality Report, which is an annex to this Annual Review, represents the most comprehensive and broadest analysis of our metrics, targets, performance and actions taken in quality during 2022.
Achieving quality is both a shared journey and a shared responsibility with our users – but we also need to agree what we are measuring and how – what is a quality patent? One of the objectives in SP2023 was to answer that question with our users. The Patent Quality Charter is the result, it has been in development since 2019 and came into effect on 1 October 2022. It is the product of collaboration between industry, EPO member states, and our staff in fora such as the Standing Advisory Committee before the European Patent Office (SACEPO), and the Technical and Operational Support Committee (TOSC). The Charter recognises the importance of high-quality patents to industry and that users require the highest levels of legal certainty and timeliness. It sets out a set of principles that reflect how we will work with all users of the patent system to bring excellence to all areas of the patent granting process, fostering innovation, competitiveness, and economic growth to contribute to a more sustainable world.
- Assessing our quality
What do our users say about the quality of our services? – Our independent User Satisfaction Survey (USS)
Figure 18 – User Satisfaction Surveys 2022/2023 main results
Source: BERENT, EPO
In 2022 we both published the results of our previous independent USS and under this framework we also launched a new series of surveys on 1 September 2022, which ran until April 2023. This started with the interview-based USS on opposition services and ended with examination services. This survey comprised a dedicated questionnaire on oral proceedings (OP) by videoconference (VICO), according to which 77% of respondents found OP by VICO to be good or very good. In total, we had 7 000 respondents to the 2022/2023 User Satisfaction Surveys, 1 000 more than the 2020/2021 survey. The results allow us to assess areas of strength and in particular areas for improvement which will feed into our quality management process for 2023. We were able to maintain our high levels of user satisfaction and even improve in certain areas, such as examination with 78% rating the service as good or very good up from 74%. If those who rated the services as neither good nor poor are added, this rises to 93%. Our search services received a rating of 80% of good or very good and only 6% being dissatisfied with our search service. Further details of this latest survey are in the Quality Report and the full data will be published on our website.
Strengthening our independent audit processes
In 2022 our independent Directorate Quality Audit (DQA) identified further ways in which our rigorous audit procedure could be improved. In October 2022 a new digital process for sampling search files and files proposed for grant was introduced. Directly integrated into the electronic workflow of the patent workbench, the sampling allows for more efficient auditing and improved randomness across all technology communities.
2022 saw the first full year of our toughest, broadest and deepest quality checks in our searches to date. Since October 2021, search audits focus not only on completeness and correctness of the search but also include the written opinion. Despite these enhanced and stringent criteria, 82.6% of our searches had no findings, the rest mostly relating to formal issues or invalid objections which, whilst areas we want to improve, did not hinder their overall compliance with the EPC or PCT legislation. As in previous years, the percentage of cases where potentially more relevant prior art was found by the auditor remains low at 5.9%. In terms of examination we consolidated the progress made, with over 76.6% of grants showing no findings. An in-depth presentation of our audit findings is detailed in the annexed Quality Report.
To leverage the learning opportunity from our audits, we reinforced the audit dialogue. In addition to the face-to-face meetings between auditors and divisions in controversial cases, colleagues from Principal Directorate Quality and Practice Harmonisation confidentially review all the findings to inform and to prioritise quality harmonisation actions.
Opposition quality audit in 2022 was still a post-process check. Out of 100 samples randomly selected out of the EPO decisions issued in 2021, 96 were found to be correct. Eight cases presented minor reasoning deficiencies or formal inconsistencies that did not challenge the overall decision. In only four decisions did the auditors disagree with the decision taken by the opposition division, showing an improvement over the previous exercise carried out in 2018.
Stakeholder Quality Assurance Panels – Assessing quality with our users
Dialogue with our users is a very fruitful way of learning and continuously improving. In a new development in October 2022, the Stakeholder Quality Assurance Panels (SQAPs) performed the first joint panel assessment involving EPO experts and European patent attorneys from all technology areas. Focusing on grant stage, the panellists identified areas of convergence and divergence in interpretation, highlighted areas of good practice to encourage areas for learning and improvement. The findings were presented to the SACEPO working party on quality in November 2022. Overall the panellists found a high level of compliance with the EPC, areas for improvement in encouraging dialogue between the examining division and applicant during the examination stage and areas of disagreement over the practice of bringing the description in line with the claims. More information can be found in the annexed Quality Report under the section dedicated to SQAP.
Having a well-structured quality policy and corresponding processes is of utmost importance to our quality landscape. Each year, in November, the President takes stock of the Office's quality performance and endorses objectives for the coming year. This results in a Quality Action Plan, published internally to ensure a common understanding of the Office's quality priorities. In 2023 the Quality Action Plan will focus on: shared journey, substantive quality, harmonisation, and learning.
Our rigorous approach to quality was confirmed by the external ISO 9001 audit in September 2022, reinforcing our commitment to provide users of the patent system with the highest quality of products and services.
- Quality at every stage of the patent granting process
The EPO prides itself on delivering the highest standard of quality at every stage of the patent granting process (PGP).
A complete and accurate search report and written opinion
During 2022, following the unprecedented transformation to the way we work, we focused on getting the most fundamental of our products right the first time. This means, providing a complete and accurate search and comprehensive written opinion upfront in the procedure.
ANSERA has become our undisputed focal tool for search, incorporating dedicated functions for finding national prior rights, in the context of Unitary Patent protection. Additionally, it now integrates the classification functions thanks to Canopée and Classera (see Goal 2). This strengthens the convergence of our tool systems and the efficiency of the PGP.
Through ANSERA, examiners have access to continuously improving technical documentation and databases and by applying AI in pre-classification, our modernised classification tools provide AI suggestions to classifiers on relevant CPC classification. The thoroughness of our searches is evident in the ability of EPO examiners to find highly pertinent documents, and also the diversity of types of prior art used. EPO patent examiners have now access to the world's most extensive prior art collection. It comprises 82 million patent families, grouping 146 million patent publications (up from 130 million in 2020) and over one billion manual and automatic annotations and enrichments for these documents. In terms of volume, this represents over 1 000 terabytes of information, roughly equal to 500 billion A4 pages of text. In 2022, the EPO's collection of standards-related documents grew to 4.6 million, up from 4.4 million in 2021.
Citations of non-patent literature in European search reports increased by 13% from 77 000 to 87 000 between 2021 and last year. Among those, 4.8% of EPO search reports contain at least one standards document, up from 4.4% in 2021. Among a number of technology specific databases, our examiners also have access to, and cite documents from, databases related to traditional knowledge and from the Community Plant Variety Office. Furthermore, the increasing importance of Asian prior art and the ability of EPO examiners to retrieve it are reflected by the fact that approximately 48% of EPO search reports contained at least one patent citation of Asian origin. Full details of our search and citation practice can be found in the annexed Quality Report.
Further on this front, we also executed 330 bilateral harmonisation projects with the USPTO, which have led to 100 revision projects to improve the CPC and pursued the AI based classification of our backfiles. But all these measures would be of little value without a proper allocation of the searches upfront.
In 2022, the patent workbench was enhanced to incorporate the Digital File Allocation (DFA) functionality: this not only facilitates allocation in digital environment, it also looks for the most technically competent examiner and division from across our examining teams. At the same time, we fully rolled out the Digital File Repository (DFR). This ensures that all intellectual work is available end to end across the organisation, resulting in optimum access to our resources and allowing examiners to share information and work together on files strengthening our quality.
Getting the file to the right division is only part of the equation. We must also ensure that the division works together on the file bringing their vast knowledge and expertise to the task and sharing that knowledge with their colleagues. On search, one of the issues identified by the DQA audit was that in some cases examiners raised objections that were not supported by the prior art – another topic was completeness of search. To address both issues, during 2022 we piloted a strengthened engagement of the division at the search stage. In this pilot the chairperson of the division was consulted on all searches. Those who took part expect fewer errors or invalid objections than for those files where no consultation took place. This collaboration at very early stage was appreciated and increased the ownership of quality. Dialogue in the division, upfront, leads to a smoother and more efficient examination process later on and, given the success of this pilot, it will be rolled out to all teams and all searches during 2023.
The EPO aims to deliver a complete and comprehensive search reports enabling applicants to make informed decisions. In 2022, 84.5% of EPO search reports identified at least one document that was prejudicial to the novelty or inventive step of at least one of the claims. Only 14.7% of searches did not cite any document which was particularly relevant for novelty or inventive step. Positive search opinions are issued when the examiner identifies no reason, formal or substantive – not just novelty and inventive step, but also e.g. clarity – that would prevent the grant of a patent once the application has entered the examination phase before the EPO. In 2022, the rate of positive search opinions remained stable at around 7%.
A thorough and consistent examination
An effective dialogue between examining divisions and applicants/representatives is key to a smooth examination process. This dialogue takes place in several forms including telephone conversations and oral proceedings. However, a major part of the communication takes place in written format. It is therefore very important that our written communications are of the highest quality to support mutual understanding of the points raised.
To further promote consistency and completeness of our written communications, in 2022 we piloted a common format for communications issued for European patent applications. The communications were structured according to a defined set of headings arranged in an order designed to be logical and helpful. Following positive feedback from users who received these communications, the use of the common structure will be expanded in 2023 to all examination teams.
Another area of focus for us in 2022 was the topic of added subject matter. To address this a new tool was developed to assist the examining division in assessing the compliance of the application with regard to added subject-matter and integrated in the patent workbench. Furthermore, an evaluation to identify best practices to perform added matter checks was carried out. This has led to improvements in the processes and the development of new job aids, which are now available to all examiners – although it is not possible to make a direct link, we see a reduction in the findings of our DQA on this non-compliance, which is positive. We hope to further improve our compliance with this article of the EPC throughout 2023.
In addition to the checks of the amendments made by applicants, it is essential to ensure that no additional prior art has become of relevance during examination. This has become of particular importance in view of the introduction of the Unitary Patent, for which national prior rights may be relevant. To improve quality further, in 2022, ANSERA was improved to include an extended top-up search functionality to assist examiners with the identification of national prior rights. This additional service is provided free to all applicants.
Consistency and harmonisation in examination practice
In our many meetings with users and user associations in 2022 the topic of consistency of practice and internal harmonisation was raised. The meetings indicated that our quality was second to none but that consistency could be improved. In the present technology landscape, with increased multi-disciplinarity cutting across traditional areas, improving consistency and harmonisation can be challenging. To address this and to improve consistency we took several concrete measures in 2022.
As part of the response to feedback from our users requesting increased consistency of practice, we undertook the most thorough ever reorganisation of our operational units in 2022. Our unprecedented digital transformation enabled us to bring neighbouring technical fields from different sites together under one manager. This reorganisation, based on the UN Sustainable Development Goals (SDGs) resulted a new structure of eight technology communities.
Eight categories – or technology communities – were identified, as shown in the diagram below. Each of these technology communities matches one or more industrial ecosystem(s) and the SDGs.
Figure 19 – EPO Technology Communities
Source: United Nations, EPO
On 1 April 2022, our examiner teams started working within one of these technology communities. The principle is simple: bringing together teams working on the same technology from across the three EPO examining sites. This change is improving collaboration, consistency, timeliness, and quality, and will help to facilitate better usage of patents in finding solutions to societal challenges.
Giving a new home, reflecting technology development to our operational teams, has been an important step to ensure internal harmonisation and consistency across traditional areas. A new practice harmonisation dashboard, detailed in the annexed Quality Report, was introduced in parallel to our organisational improvements, in order to provide an overview of consistency of practice across units and technical areas. Such an overview of certain aspects of examination practice fosters a dialogue to address the possible reasons for a variation in practice, and whether it is appropriate. In 2023, the dashboard is to be provided anonymously to examiners to facilitate the dialogue with the line manager.
But we know that quality and consistency reach far deeper than organisational changes and tools: essentially, they depend on people. At the same time, we observe that inventions are increasingly complex and multi-disciplinary. As a knowledge based organisation we have a rich and sometimes complex network of experts and groups across our organisation. Under SP2023, we sought to bring a clearer structure to these networks and groups and we established an office-wide ecosystem of Communities of Practice (CoPs). These foster the EPO as a learning and knowledge-based organisation by connecting people. The aim of all CoPs is the efficient dissemination and embedding of knowledge. Where appropriate, CoPs encourage best practices and consistency of approach. CoPs include opposition, Asian Patent Expert Group, computer-implemented inventions (CII) network, artificial intelligence (AI)/machine learning network, additive manufacturing, formalities officer connect, internet search network, unity, standard defining organisations, and parameters.
A fair and impartial opposition procedure
Opposition proceedings are traditionally dealt with by specifically trained and experienced examiners. Considerable efforts were made in 2022 to further develop their skills, in particular those of chairpersons, with a focus on dealing effectively with the new format of oral proceedings (OP) by videoconference (VICO). As such, specific training material and guidance documents were developed to address, for example, general aspects of OP by VICO relevant to all legal or examiner opposition division members, specific procedures for chairpersons, and taking of evidence and hearing of witnesses.
In addition to our DQA audits, in oppositions, a new approach for operational quality checks has been introduced in 2022 placing a greater focus on targeted checks in specific areas by relevant experts, to detect any issues that may impact their quality. Quarterly quality round tables are now held with opposition directors and quality experts to identify learning points and follow-up actions. Furthermore, 87% of users rated the opposition services as good to very good in the most recent User Satisfaction Survey, confirming our internal findings.
As to the outcome of opposition proceedings, the proportion of patents revoked, amended, or upheld (roughly one-third each) over recent years is highly consistent, as shown in the graph below.
Figure 20 – Outcome of opposition proceedings
The fluctuation of outcome breakdown observed in 2020 and 2021 is mostly because in 2020 only a limited number of (the most straightforward) cases were finalised, due to the pandemic, which influenced the mix of cases dealt with in 2021 (and partly in 2022).
The appeal rate on opposition decisions remained stable in 2022, at about 45%. This represents only a very small proportion of grants in absolute terms and concerns files that are usually considered to be of high commercial and strategic interest.
Figure 21 – Appeals on opposition decisions
We also see a high degree of consistency in the outcomes of appeal proceedings, as shown in the graph below.
Figure 22 – Outcome of appeals on opposition proceedings
- Opposition by videoconference
Building on the successful outcome of a pilot which ran for more than two and a half years in which more than 7 400 OP by VICO were conducted, in November 2022 the EPO decided to make videoconferencing the new standard for all first instance oral proceedings including opposition, as of January 2023. Throughout the pilot, user feedback was extensively gathered via several fora and through dedicated surveys, and was taken into consideration to continuously improve platform, procedures, level of service and user experience. User feedback showed a steadily increasing positive uptake (in the survey of Q3 2022, 77% of respondents had a (very) good experience with OP by VICO, an improvement over 2021). Users also appreciated the extensive training opportunities offered by the EPO to gain proficiency with this new format, like several well-attended online events.
- Improved transparency and access to justice, with 20 times more public observers than for on-site oral proceedings and more participants per party. Flexibility, enabling us to involve the best qualified examiners independently from their location and treat files in a more timely manner, which supported a swift reduction of our stocks. Users as well gained more flexibility and better use of their resources
- Higher sustainability, through elimination of travel for all parties.
- Improved user experience, through technical advances like private breakout rooms for confidential deliberations, additional audio channels for interpretation into more languages, high-quality video feeds for improved appreciation of participants facial expressions and body language.
- Suitability for complex cases, e.g. involving many parties, or for hearing witnesses (138 witnesses in 63 OP in 2022), or for inspections (10 cases in 2022).
 Upon request, in-person proceeding are possible in case of serious reasons. Most such requests were received between end of 2020 and begin 2021, and in 2022 there were only 14. In most cases, the competent divisions decided to maintain VICO, and all those proceedings were successfully conducted. The only two cases conducted on-site involved inspection of objects whose features could not be thoroughly evaluated by a camera.
- Training and continuous learning
Following the development of a skills framework for formalities officers a similar framework was established for examiners in 2022. To make full use of these skills frameworks, the objective setting for 2023 emphasised that each staff member should have an individual development plan drafted after dialogue between staff members and line managers and regularly revised. Learning has an important place in the development journey of each staff member, and during 2022 we continued revamping our learning offer.
In 2022, the "Quality Week" was reorganised in "Quality days" under the umbrella of the iLearn days series. Addressing both formalities officers and examiners communities, three iLearn–Quality days were organised by Principal Directorate Quality and Practice Harmonisation together with the EPO Talent Academy. Over 6 000 visits were registered for sessions dealing with different aspects of PGP, ranging from search and examination to opposition and classification, including tools presentations and Boards of Appeal (BoA) lectures. To ensure that all learning resources are easily accessible, including procedural and legal texts, a new tool – Empowering Learning, Inspiration and Sharing (ELIS) – has been developed. It provides our examiners, formalities officers and other staff a unified gateway to Single Legal Source, IT support, and special advice from experts.
Figure 23 –iLearn Quality day event
Learning from BoA outcomes is also an important element to ensure consistency in our first instance practice. With the aim of monitoring the harmonisation and alignment of DG 1 practice with the decisions of the BoA and understanding how they can improve first instance practice, four BoA lectures were organised in 2022 in the framework of the iLearn day series. They covered a relevant range of topics such as added subject-matter, oral proceedings by VICO, sufficiency of disclosure and its relationship with clarity and conciseness as well as inventive step and late submissions in opposition.
- Quality of incoming applications
Well drafted applications and a transparent dialogue between applicants and examiners are key to the complete search reports and written opinions, thus ensuring a strong basis for robust patents. In the framework of SP2023, we used the latest development in AI technology and data mining to give us greater insight into the quality of incoming applications, and how it can help a more effective examination, resulting in solid patents. These developments also helped us to better understand how drafting quality of incoming applications can have a positive impact on the patenting procedure and grant rates, as detailed in the annexed Quality Report.
- Dialogue with our users
2022 saw many initiatives focusing on our users, with the aim of improving the EPO's products and services based on their feedback. A highlight was the annual User Day on 28 and 29 November, which attracted a record number of 4 500 viewers. Participants included representatives from industry, patent law firms, SMEs, research institutes, and the general public. The event included updates on a wide range of EPO topics and featured lively panel discussions on the Unitary Patent, quality and timeliness, the eight technology communities, and new approaches to environmental sustainability. During the event, EPO experts updated users on the latest developments in the Office's digital user services, including MyEPO Portfolio which was launched in June 2022 and Online Filing 2.0, described above under Goal 2. External speakers from industry, patent law firms and SMEs took part in most of the panel discussions and break-out sessions.
User meetings were also key to strengthen dialogue and mutual understanding. The EPO organised 17 meetings between senior EPO management teams and key applicants that were responsible for filing a total of 14 760 applications in 2021. These meetings are valuable fora for discussing strategic and operational topics, filing strategies, new technologies, and applicants' plans. They have also enabled detailed discussions on EPO quality, consistency, timeliness, and how to improve incoming application quality.
User consultations on EPO online services took place at the SACEPO Sub Committee Working Party on e-Patent Process (eSACEPO) which was attended by 26 external members from Europe, China, Japan, Korea, and the United States. Users provided feedback on a wide range of topics including OP by VICO, MyEPO Portfolio, Online Filing 2.0, IT co-operation, Central Fee Payment, and Patent Knowledge-related initiatives. Similar topics were discussed during the epi's Online Communication Committee meeting.
At the beginning of 2022, we rolled out a new Customer Service Management solution to handle all customer enquiries and complaints. During 2022, the EPO received about 5 400 customer enquiries each month. Almost half the enquiry cases were submitted by e-mail, followed by phone and then contact webform. In total more than 65 000 cases were closed in 2022 – 95.8% within the given time limit, up from 94.8% in 2021.
A total of 265 complaints and official feedback cases were filed in 2022, slightly down from 275 in 2021. All complaints were thoroughly analysed and received a timely reply within 20 days in 86% of cases. 57% of complaints in 2022 were partially or fully justified.
- Timeliness as an essential element of quality
Figure 24 – Timeliness achievements in 2022
Timeliness is an important aspect of quality and legal certainty: overall, 86.1% of search, examination, and opposition standard files were produced on time in 2022.
Taking stock of the growing data collection, and despite the increasing workload, search timeliness (standard cases) remained strong in 2022, with 95% of searches and written opinions (p95) being despatched within 8.6 months.
Figure 25 – Duration of search (in months)
Figure 26 – Duration of examination (in months)
Examination timeliness is also an important element of our quality policy: in standard cases, timeliness slightly deteriorated in 2022 as we focussed on the increasing search workload. 78.6% of standard cases were finalised within the 36-month target starting from the valid examination request, with a mean duration of examination of 24.3 months.
Figure 27 – Timeliness of grants production and stocks
In 2022, we managed to keep the number of old files under control, with only 14.3% of the examination stock older than 36 months compared to 19.1% in 2019.
As the result of targeted action in 2022, we finished the year with only 5 024 old examination files pending with a valid examination request from before 2017 that could be processed by examiners (i.e. not awaiting applicants' action) and there were only 1 649 actions pending in examination for more than 30 months.
Overall, our processing time from filing to grant in 2022 was 44.2 months for EP first filings.
Figure 28 – Duration of opposition (in months)
In 2022, we managed to reduce the opposition stock to 4 346 pending files, less than the pre-pandemic number of 5 000. With the shift to VICO for oral proceedings in opposition, the opposition timeliness (standard cases) is slowly improving again as we deal with the backlog caused by the pandemic. 44.1% are completed within 18 months, with an overall mean duration of 19.6 months.
- Increasing demand for our services
Figure 29 – EPO search workload and forecast
In 2022, we received 193 460 European applications (Euro-direct and PCT regional phase). This is 2.5% (about 4 600 applications) above the corresponding 2021 figure. The main drivers were China (+15%, about 2 500 applications) and the United States (+3%, +1 500 applications). Overall, the EPO search workload increased by 1% versus 2021 (2 769 more searches).
In 2022, our production was 2.3% below budget (-8 403 products): +5% versus plan for searches but -3% versus plan for oppositions, -7% versus plan for refusals and -12% versus plan for grants. The overall production gap is mostly explained by our focus on the higher search workload and our reduced activity in examination, with 7 772 withdrawals fewer than planned. Consequently, we only published 81 755 patents in 2022.
Figure 30 – EPO published patents