Date: 27 November 2017
By Hugh Dunlop and Andrew van den Bent-Kelly
In 2016, the EPO granted almost 96,000 patents, an increase of about 40% over the previous year.
Although they received nearly 160,000 applications in the same period, ony half of all applications filed proceed to grant, so we can expect about half (80,000) of the year's input to proceed to grant. By this measure, the EPO is granting patents faster than it is receiving allowable patent applications, thus reducing its examination backlog. Indeed, this is the first indication of a reduction in the backlog since 2008, when the office stopped reporting on the size or duration of its backlog. 1)
We are told 2) that the proportion of European patent applications that proceed to grant has remained fairly consistent at around the 50% mark. This allows us to present the following chart, in which the blue line represents half of patent applications received in a given year and the green line represents the number of patents granted that given year. The area between the two lines therefore represents the accumulating backlog of pending applications.
(The projection to the end of 2017 is based on our experience at Maucher Jenkins for the year 2017 to date.)
Up until 2016, the green line (output) sat below the blue line (50% of input), meaning the backlog was growing. As can be seen, the crossing of the blue line by the green represents the beginning of a decrease in the backlog.
In 2008, the EPO had a backlog of patent applications just shy of half a million 3). By 2009, the number had surpassed this milestone 4) and was seemingly on an upward trajectory. Although the figure was omitted from the 2010 Annual Report and we are not aware of official figures since then, our graph indicates that the backlog has risen every year since and peaked at an estimated 580,000 in 2015. 5)
All we can really conclude is the longer the EPO manage to keep up the attack on the backlog (the longer the green line stays above the blue line), the shorter the backlog will be and the shorter will be the residence time in the overall process.
The EPO 2016 Quality report says the median search time has been reduced to 5.1 months and the median examination pendency has been reduced to 23.3 months. When other dead times are added in (times that are largely within the control of the applicant, not the EPO), the total time to grant (median) is probably down from the last reported average time taken to grant, which was 43 months reported in 2008. 6)
The stated EPO objective for examination is to progressively reduce the total time for an examination procedure, from receipt of a request for examination to the announcement of the intention to grant a patent under Rule 71(3) EPC, to 12 months on average by 2020.
Reducing the median examination pendency to 23.3 months is a "first step" (in the words of the 2016 Quality Report).
Our Handong Ran met with EPO President Benoit Battistelli at a breakfast in Beijing on 23 November ahead of Mr. Battistelli's meeting with SIPO Commissioner Shen Changyu. Mr Battistelli emphasized that the first priority in the patent granting process remains "delivering high quality/legally solid patents". Handong Ran asked for reassurance to applicants that pressure on reducing examination time on more difficult cases will not merely lead to curtailed discussion and more need for appeals. Mr Battistelli commented that applicants should still have adequate opportunities to be heard but advises applicants not to waste opportunities presented by the established procedure. He said "12 months should be adequate in general" and on specific cases it should be possible to extend the examination period up to 36 months and still meet the Paris criteria.
Mr Battistelli prioritises the planned introduction of "User Driven Early Certainty" under which applicants can delay examination upon request. This proposal is receiving criticism from the EPI and other quarters as not being in the interests of third parties. Mr Battistelli commented that early certainty is "not only certainty for applicants" but is also "certainty for the public". This may be true for the "early certainty from search" initiative, but is a statement that is not easy to reconcile with the notion that users will be able to choose to delay examination.
Subsequent to that breakfast meeting, Mr Battistelli went on to meet with SIPO Commissioner Shen Changyu. They concluded a new open-ended agreement between their respective offices for co-operation in areas such as laws and policies, the patent granting process, user services and training.
On 11 October 2017, António Campinos was elected to be the next EPO President, to begin his term on 1 July 2018.
1) In 2008, the EPO had a backlog just shy of half a million (EPO Annual Report 2008, p22) and in 2009 this increased (EPO Annual Report 2009, p18)
2) EPO Quality Report 2016, p22
3) EPO Annual Report 2008, p22
4) EPO Annual Report 2009, p18
5) There are a number assumptions associated with our estimate, such as a steady state input and a steady 50% rate of allowance. This "allowance rate" does not mean that 50% are rejected. Many applications are abandoned after the search and many more before final rejection.
6) Of course, a population skewed to shorter times but having long tail will have a shorter median than mean, so we are not comparing like with like.
For questions about this matter or related issues, please contact our Partner Hugh Dunlop (firstname.lastname@example.org).