EPO European patent applications filed


It became clear over time to applicants and patent attorneys alike that this new system had advantages, and that the EPO could be trusted, and the numbers of filings got even bigger. In 1990, 55,774 cases were filed. By 1992 the 500,000th application was published and 100,000 patents had been granted. By 2000, more than 100,000 applications were being filed every year; 100,692 in 2000 and 151,075 in 2010. Te latest figures for 2011, when 142,810 cases were filed, show the first serious slow-down in the upward graph. Tis may be because industry is now rethinking its patent filing strategy. Many now believe that going through the EPO is no longer the most appropriate filing strategy, as will be discussed further below.


Before considering the changes which have taken place at the EPO during its 34-year history, let us consider the graph showing the number of patents it grants each year.


European patents granted


Te first grants, 484 of them, occurred in 1980. Te first 100,000 patents were granted over an eight-year period when the average yearly filings were of the order of 30,000 per year. In 2010, there were 58,108 grants, and 62,112 in 2011. Little inference can be drawn from the statistics. When applications rose by 80 percent between 1990 and 2000, grants were up by only 11 percent. However, in the next decade, 2000 to 2010, while applications increased by 50 percent, grants rose 111 percent. Te numbers speak as much about the efficiency of, and the backlogs in, the EPO as they do about the ease, or otherwise, of obtaining acceptance of patent applications. Te EPO contends that roughly 40 percent of all applications are eventually granted.


Events at the EPO


Aſter an initial period, patent applications to the EPO began to increase, and continued rising steadily. Industry worldwide had confidence in the organisation, which was perceived as a patent-granting authority, and for much of industry outside Europe it became the norm to seek patents in Europe by way of the EPO. Te only decision to make was whether to proceed by way of the international (Patent Cooperation Treaty) route, or not.


Te number of filings began to rise steadily. Tere were 3,598 in the first half year, 11,284 in its first full year, and 18,596 new applications in 1980. 1988 was the first year in which more than 50,000 applications were filed and also the year in which the total number of cases which had been granted reached 100,000.


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Increasingly, entities located in European countries also favoured applications by way of the EPO instead of national filings in their own countries.


Not everything was successful, of course. Te EPO was frequently criticised because of the snail’s pace of its procedures. All practitioners have cases of venerable age, say 10 or more years,


for which prosecution has not yet commenced. Many of us have used the laughably named ‘acceleration’ procedures, only to experience gaps of two or more years between activities at the EPO. Te English judges at all levels have made extensive criticisms of the time it takes the EPO to hear oppositions and appeals. However, in the main, these were thought to be minor irritations and a sign of the EPO’s success.


In 2000, the European Patent Convention (EPC) was extensively revised, an exercise which gave more flexibility to applicants and enabled the minor mistakes to be forgiven. Te revised convention came into force at the end of 2007, and everything looked set fair for industry and its advisors.


Ten, the attitude towards patent applicants seemed to change, and the success of the EPO, as judged by ever-increasing application numbers, was perceived by the EPO to be a problem. Applicants, it was suggested, were clearly trying to take advantage of the system by late filing divisionals, by delaying narrowing their claims, and other dastardly devices. Clearly, these applicants had to be stopped. With no thought at all for the commercial needs of those using the system, ill thought-out rule changes were rushed into being, without consultation. Every April from 2009 to 2012 has brought rule changes and fee increases from the EPO. Some of the changes correct the unintended consequences of the earlier rule changes, oſten in response to howls of protest from patent professionals.


Te rule changes have arisen from an office initiative referred to as ‘raising the bar’. Tis is not about increasing the height of a bar when considering inventive step. It is about encouraging engagement between an applicant and the examiner to ensure that an application is in good order for search and then examination. Terefore, the EPO points to the requirement for an applicant to respond substantively to a search report, and to the need to select one of a multiplicity of independent claims for the search.


However, all these changes are to the detriment of the applicant. If the search report is timely, the applicant needs to determine what features to include in the claim before the invention has been tested in the market place. If the case includes more than one independent claim in the same category, the applicant generally cannot amend the claims to make a better set for search. Rather, the applicant is forced to make a straight choice of a single claim in each category. Te remaining claims are then to be deleted as they were not searched. Examiners increasingly refuse to enter amendments, and such amendments can be filed


World Intellectual Property Review Annual 2012 15


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