I remember clearly that in the blog entry relating to T 866/24, some harsh criticisms had been expressed about the “negative” attitude of board 3.5.05 towards patentees: hardly any patents survive the scrutiny of board 3.5.05.
Those comments as well as my reply to these criticisms have mysteriously disappeared from the blog. No explanation could be found, even by the webmaster.
It is the first time that this has happened since I hold the present blog. Normally comments can only be deleted/amended/redacted by the author or the webmaster.
An anonymous commenter disclosed a very expressive statistic underlying this low survival rate.
I invite the anonymous commenter to reiterate his comment.
In my reply, I had explained the reasons of the negative outcome noticed by the anonymous commenter.
The reason is simple: the patent is classified in H04L, Telecom.
The directorate in charge of Telecom is well known for its very high production which is well seen by the upper management of the EPO.
The production, i.e. the number of grants is extremely high. It is so high that the domain “business methods” has been transferred to the directorate Telecom.
The original directorate dealing with business methods was considered by the higher management of the EPO as being too restrictive, as only few patents were granted. Since the transfer of business methods to the directorate Telecom, applications are barely refused, and patents are happily granted for business methods. This goes to the point that it is even envisaged to suppress the BA dealing with business methods.
I do not have this information by hearsay, but from reliable sources within the EPO.
I am also regularly consulted in telecom cases. I am myself horrified when I see which patents have been granted. It is thus not a surprise that board 3.3.05 has to deal with files of such a bad quality that revocation is often the only possible outcome of an appeal in opposition.
The way the file was dealt with in T 866/24 is a good example of the “normal” way of handling cases in the directorate Telecom, see my comments “On the procedure” in the original blog entry.
I have full sympathy with the complaint expressed by board 3.3.05. The tendency not to check the clarity of dependent claims when the independent claim is allowable is however not a recent phenomenon.
During my active time, it was an open secret that some directors gave oral instructions to skip reading the description (it’s a loss of time!) and not insist too much on clarity, especially with respect to dependent claims, as Art 84 is not a ground of opposition. I have heard this stance myself, and more than once! Later G 3/14 made clear that no clarity objection can be raised against features as granted. The door was thus even open wider for ignoring Art 84.
It is to be hoped that G 1/24 will make an end to this bad practice, but it will take time until all first instance divisions will properly abide by G 1/24.
In opposition, it is then often a nightmare to deal with such bad claims. I do also not envy post-grant courts having to deal with such patents, be it for validity or infringement.
T 866/24 has also been analysed in Le Blog du Droit Européen des Brevets.
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