How long should proceedings before EPO ideally take? Admitted this is a tricky question because various stakeholders’ will usually have different interests and thoughts so as to what the “right” or ideal “speed” is. Let us tackle this question by beginning with a simple distinction. In ex-parte proceedings, the main stakeholder is the applicant and the patent office. Most but not all patent applications do not bother the public much. The view that the “ideal speech” of such cases is the one that confirms to the applicants’ interest and wishes, i.e. , it should match the speed desired by the applicant as closely as possible.
The ideal speed is not constant
The ideal speed is not constant and largely depends upon technical field of application. When the application is in rapidly changing technical field with short product cycles, the applicant will generally have a strong interest in fast grant of its application. Conversely , in the field of pharmaceuticals and biological where where product development and approval times are on the order of 12-14 years, applicants will generally be happier with a a much slower speed. This is because it does not make much sense to begin the costly national validation process at a time when it is still unclear where the subject matter of patent application is approvable from a regulatory standpoint.
EPO rightly considered PACE
EPOs past practice with the so called PACE – request came very close to this ideal, and EPO should be commended for having introduced it. The EPO rightly considered PACE as “it’s popular free programmed”. However, it has been my experience that PACE requests are still filled for 5-10% of all application. Thus, it seems that the remaining 90-95% of applicants is generally happy with EPO’s normal speed in examination proceedings. The caveat should be made. There is ofcourse, a fraction of EP applications that do concern competitors or the public. Those competitors can and usually do make their voices heard by filling third party observation under article 115EPC. The EPO’s practice of dealing with such observations has much improved over last couple of years’. Generally such observation are taken seriously and considered thoroughly, which obviously does not mean that they are always followed by examiners’. Moreover they generally result in an acceleration of examination proceedings, as they should. This is obviously desirable, since if there is a commercial or legal dispute between two parties, the EPO should decide such a dispute as soon possible.
Therefore, is everything now in order with the EPO’s speed of handling cases?? the latest initiatives by EPO management seem to be focused on working on problems , that most applicant do not really have , while not doing much, if anything, about the EPO’s real problem.
