Transparency in the quality of European patents: the EPO’s new Quality Dashboard and KPIs

The European Patent Office (EPO) has launched a new Quality Dashboard designed to present key performance indicators (KPIs) on the quality of the patent granting process.  

The EPO is already widely regarded as a high-quality patent office. Its opinions carry weight in patent offices worldwide, through both formal frameworks such as the Patent Prosecution Highway (PPH) and informal strategies of proprietors, such as aligning claims with those of a granted European family member. Efforts by the EPO to track and increase the quality of the search and examination procedures will only continue to bolster this reputation, which is good news for both practitioners and proprietors.  

Of particular interest are KPIs presenting results of the EPO’s audits of search and examination procedures last year. The findings of these audits include: 

• In 7.9% of European patents, the examiner incorrectly assessed novelty or inventive step because they either i) assessed the claimed invention or the prior art incorrectly, or ii) missed more relevant prior art; 
• In 5% of European patents, new information had been added after filing that impacted the scope of the independent claims (i.e. there was added matter); 
• 6% of search opinions contain an incorrect assessment of novelty or inventive step; and 
• 4% of searches failed to identify more relevant prior art.  

Even if the first two statistics above were seen as indicative of invalid patents, this is far lower than one might expect given approximately a quarter of European patents that are opposed end up being revoked (see the table below from the EPO’s Quality Report 2022, the 2023 report is awaited). This might be partially explained by the fact these statistics are determined by the EPO auditing its own work, arguably without the same motivation and resources to prove invalidity that opponents have.  

Nevertheless, the development of these metrics should be applauded for their transparency, and they will only become more useful as these metrics are tracked in future years – indicating how quality is improving at the EPO (rather than providing raw statistics on what proportion of patents might be invalid).  

Another interesting KPI under development (and expected by the end of 2024) relates to Boards of Appeal decisions on opposition. It is hoped that this will include statistics on the number of patents that are upheld/revoked/maintained in amended form, and the proportion of first-instance decisions that are upheld. 

One thing that the EPO will need to balance in coming years is their aim to speed up various procedures whilst still maintaining, and hopefully improving, levels of quality.  

The EPO Boards of Appeal conducted a consultation last year on proposed amendments to their Rules of Procedure that aimed to shorten the timeline of the appeals procedure. In particular, proposed amendments to Article 12(1)(c) and Article 15(1) RPBA faced significant backlash from stakeholders. According to these proposals, a party would have only two months to file a reply to the grounds of appeal (rather than four months) and only one month for parties to file any reply to the replies of others. Stakeholders argued that this would in fact reduce the efficiency of the appeals procedure, as when a party feels badly treated, the number of referrals to the Enlarged Board may increase and/or the consistency of decisions of the Boards may be lowered, due to the poorer quality of submissions delivered under unnecessary time pressure. Similarly, allowing examiners more time to search and examine each application might make a noticeable positive impact on the KPIs of the new Quality Dashboard.