CASELAW-EPO - reviews of EPO Boards of Appeal decisions

EPO Quality Dashboard and corresponding KPI

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On 08.03.2024, the EPO has published a Quality Dashboard.

The results are the following:

1 KPIs Examination

1.a Grants: Incorrect assessment of novelty or inventive step

Result 2023: 7.9%*
Goal 2024: < 5%*              Sample size: 1 050 grants

1.b Grants: Findings on added subject-matter

Result 2023: 5%*

Goal 2024: < 5%                *Sample size: 1 050 grants

1.c Users satisfaction survey = rating our examination products as good or very good:

Achievement 2022/23: 78%

​Goal 2024/25: ≥ 80%

The 2022/2023 survey involved interviews with 7 000 users.

2 KPI Digitalisation

User Satisfaction Survey = our online services as good or very good

Achievement 2022/23: 91%        

Goal 2024/25: ≥ 91%

The 2022/2023 survey involved interviews with 7 000 users.

3 Future KPI on examination

Boards of Appeal decisions on ex parte refusals:

New KPI to be developed by end of 2024

4 Future KPI on opposition

Boards of Appeal decisions on opposition:

New KPI to be developed by end of 2024


Difficulty in comparing past and present figures for grant

The last Quality Report to be found on the home page of the EPO goes back to 2020. I did not find one for 2022. The present figures are now for 2023.

The previous Quality Report did not mention any KPI. It will thus be difficult to compare the present figures with previous ones.

For grants, the sample size is given. It should however be interesting to compare the sample size with the actual number of grants or at least to give a confidence interval.

By the EPO’s own admission in the 2020 quality report, the compliance rate at grant fell from 84.3% in 2016 to 74.6% in 2019, rising to 78.5% in 2020.

The figures in the new KPI look much better for N and IS, i.e. 92,1% and added matter 95%.

The non-compliances at grant involved many more parameters as merely N, IS and added subject-matter. Clarity and support of the claims by the description are also important factors. Why is there no KPI on these aspects?

Why is there not a KPI for grants comparable to the global compliance rate in the Quality Report 2020.

KPI on search and classification?

The presently published KPI do not give any information about search and classification. Why not?

User satisfaction surveys

When it is indicated that the 2022/2023 survey “involved” interviews with 7 000 users, it would be interesting to have the return rate of the survey as well as a breakdown of the number of applications per interviewee.

A user with a few tens of applications cannot have the same weight as a user with a few thousand applications.

Boards of appeal

Interest seems growing in evaluating decisions of the boards of appeal. This appears a good move, as the data is freely available. Being the last instance, decisions of he boards are the only benchmark really available.

It will be interesting to see in the future the number of decisions of first instance divisions set aside by the boards. This should be part of the KPI. A decision of a first instance division which is not appealed should however not be counted among the decisions confirmed, but given separately.

The requests in appeal might possibly be different, but what matters is whether the decision of the first instance is confirmed or not.

The result of nullity actions before national courts or the UPC would also be interesting and should also be taken into account when developing the corresponding KPI.

A patent is as good as it is able to resist scrutiny by third parties. In this respect, the corresponding KPI should take into account whether the prior art cited by third parties was available in the search files of the EPO or not. That an opponent might make more efforts to find relevant prior art against a patent which is disturbing him is not to be denied, but does not allow to say that the search and examination was OK.

Figures for 2023

When looking in the present blog at published decisions of the boards in 2023 the figures are the following

  • In only 6% of the cases did the opponent come with documents truly not available in the EPO’s search files.
  • In 60% of the cases, the decision of an OD was set aside by a board 
  • The patent was revoked in 46,4% of the cases
  • The patent was maintained in amended form in 33,3% of the cases
  • Only 20,3% of granted patents survived untouched an opposition after appeal
  • In 32,3% of the cases, the decision of maintenance of the OD was changed into revocation.
  • In 16,7% of the cases, the decision of maintenance of the OD was confirmed but in a different form, in general more restricted, rarely broader.
  • In 16,0% of the cases, the decision of rejection of the opposition of the OD was changed in revocation.
  • In 7,5% of the cases, the decision of rejection of the opposition of the OD was changed in maintenance in amended form, i.e. more limited.
  • In 7,5% of the cases, the decision of rejection of the opposition of the OD was changed in remittal for further prosecution. This occurs when the decision on sufficiency, added matter or lack of N is set aside by a board. In very few cases, but all avoidable, the OD committed a SPV.
  • Those changes represent 80%% of the 60% of cases in which the decision of a DO has been set aside by a board.

Even if decisions published in 2023 do not exactly correspond to decisions actually taken in 2023, the exact figures will not be fundamentally different. The orders of magnitude in the previous years were comparable.

It will be interesting to see what the figures for 2024 will look like. As patents granted in 2023 will for a large part be opposed in 2024, the figures resulting from decisions published in 2024 will be highly interesting when it comes to assess the evolution of the result of oppositions.

Figures for 2024

Up to today, I had a look at 255 files published in 2024.

80 patents were maintained in amended form, whereby in 4 cases (5,0%) prior art not available at the EPO was cited by the opponents, i.e. 33,8%.of final actions

118 patents were revoked, whereby in 12 cases (10,2%) prior art not available at the EPO was cited by the opponents, i.e. 49,8% of final actions.

39 oppositions were rejected, i.e. 16,5% of final actions. What is interesting is that in 11 cases the OD had decided either revocation or maintenance in amended form, i.e. in 28,2% of the cases, the decision preceding revocation was incorrect. This seems a new trend, as for 2023, they were only 20 cases in which maintenance (15) or revocation (5) was changed by the board in rejection of the opposition.   

18 cases were remitted to the OD for further prosecution, whereby in 2 cases (11,1%) prior art not available at the EPO was cited by the opponents. Among the remitted cases there were 2 substantial procedural violations.

From the 255 decisions of the boards published in 2024, the board set aside the decision of the OD in 168 cases, i.e. in 65,9%.

The trend visible for 2023, seems to continue for 2024. As we are near the end of the first quarter of 2024, the above figures can be considered representative for said quarter.  

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