Can patent prosecution really be handled as a “standard process” where the European Patent Office (EPO) measures “units of output” without taking into account the technology field, complexity, or language? This is a crucial question that needs addressing, especially when considering the impact of procedural language on the grant rates of patents.
The Complexity of Patent Examination
Is it fair to assume a standardized “time unit” for examining a patent application? To illustrate, consider the analogy of making pizzas: would it take the same time to make a Margherita pizza versus a Kebab pizza (yes, that’s really a thing in Sweden at least)? Of course not. The time to make a Kebab pizza is at least 5 times longer because of all the toppings afterward. If you try to force the pizzaiolo to “make each pizza within X minutes,” the quality of the end product will suffer.
So, back to patents. Is it fair to assume that examining an application in English vs. French should take the same amount of time? If a non-French native speaker examines a French patent application, would it be fair to request the same time unit for completion?
Study Findings: Language of Proceedings and Grant Rates
Interestingly enough, the grant rates at the EPO vary greatly if we analyze them by the language of proceedings. If we further break it down by technology field, the differences become even more pronounced.
Overall Grant Rates (Any IPC)
- Applications with French as the procedural language have a significantly higher grant rate (83.3%) compared to English (71.0%) and German (77.8%).
- Thus, the grant rate for French is 12.3% higher than the average grant rate for English.
Grant Rates for IPC = C07
- Similar trends are observed if we further segment by IPC (here IPC C07) with French leading in grant rates (79.6%) over English (69.3%) and German (74.8%).
Grant Rates for IPC = G06
- French procedural language also has the highest grant rate (68.5%) compared to English (53.5%) and German (60.7%) within the IPC G06.
What Does This Mean?
This analysis suggests that the choice of procedural language, particularly French, may positively influence the grant rate of European patent applications across various IPC technology fields.
Hypothesis
We hypothesize that the observed discrepancy in grant rates based on the procedural language may, at least in part, be due to the EPO’s allocation of equal examination time for each case, regardless of language. This uniform time allocation might inadvertently disadvantage applications in “less frequent languages,” such as French and German, if the EPO does not have a sufficient number of native speakers for these languages.
As a result, examiners might struggle to process applications in these languages as thoroughly as those in English, potentially impacting the quality and depth of the examination.
Is It One Size Fits All?
It begs the question, on what process does the EPO apply? Is it one size fits all? That is, is the same time allocated for examining a patent application? Should it not vary by tech field and/or language? For instance, a non-native French speaker analyzing a CRISPR biotech patent application in French cannot reasonably be expected to analyze it in the same time as a German native speaker analyzing a bicycle application in German.
Conclusion
It might very well be that the EPO has it all under control and has factored this into their process. However, if anything, the recent debate between the EPO and the IPQC has clearly shown that there is little transparency around how exactly the EPO handles its internal processes. All participants pursue the same goal of higher patent quality at reasonable cost and within a reasonable time frame. If the “end customer” (the industry, aka patent filers) is clearly stating that this goal is not being met, it is not clear why the EPO cannot collaborate to address the issues. Otherwise, we are left in the dark about even the basics… So, are examiners expected to examine each and every type of application in the same amount of time?
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