Take Five

The latest poll has shown that most readers (57%) want five posts per week, followed at some distance by three posts per week (almost 14%) and six posts per week (13%).

So let’s keep the five post rhythm. 

Bring it on, Dave

A Polleriori

I wanted to thank all of you who have taken part in the recent poll concerning the professional profile of the readers of this blog.

240 persons have participated this time, which is less than in May 2012, where I had almost 300 answers. This notwithstanding, I do not have the impression that the number of readers has diminished; the number of pageviews (whatever that is) is still increasing. I would estimate that the blog has about 300 regular readers, which is quite considerable for such a niche site (NB: not to be confounded with nice shite). There are almost 500 e-mail subscribers, but I would not be surprised if quite a few of them did not actually read what they receive.

Here is the outcome of the poll, together with the results of the 2012 poll:

as well as a (condensed) pie chart:

The overall situation is similar to what we had in 2012. Private practice, industry and the EPO have slightly increased their share. The most noteworthy difference appears to be the fact that there are less trainees on the blog. Is this because the EQE has higher pass rates now and the number of trainees decreases? Anyway, I always tell trainees that they should study the law rather than case law niceties, the knowledge of which will not help them in the exam.

I have recently met several colleagues who told me they were readers of the blog. A few of them made me understand that there were too many posts. I have, therefore, launched another poll in order to know what the general feeling is. Please let me know how many posts you would like to have every week. Thanks.

Publish Or Perish (ctd.)

Want to know how active DG3 has been during the first three quarters of 2013? Well, here are the updated figures:

What is shown here is the number of decisions published on the DG3 web page during the first three quarters of the year, for the period 2008 to 2013. You can see that in 2013 the number of decisions was almost identical to what we had in 2012. The situation appears to be pretty stable.

The rate at which the decisions have been published has become very smooth, as can be seen from the following graph, which shows the number of decisions published per day between January 2012 and now.

The publication rate has become so smooth that you can see periods that might correspond to days when the person in charge has taken a day off. I think I will not bother my readers with these figures in the future.

By the way, I have launched a poll regarding the professional profile of the readers of this blog. It would be great if you could take part.

Publish Or Perish (ctd.)

At the end of each quarter, I have a look at the number of decisions that have been published on the DG3 website. Of course, it is way too early to assert anything, but there might be a slight upward trend in the number of decisions:

Number of decisions published on the DG3 website 
during the first quarter, for the years 2008 to 2013

The rhythm of publication was more smooth in 2013:

Number of decisions published per day 
between January 1 and March 31, 2013

than it was in 2012:

Number of decisions published per day 
between January 1 and March 31, 2012

Apropos rhythm of publication, you might be aware that there was a poll on whether this blog should have weekend (i.e. Saturday evening) posts. The number of participants was small, which probably means that most of my readers do not really care. About two thirds of those who participated thought that five posts per week were more than enough, about one third liked the weekend posts.

As you might have realized, the weekend posts were somewhat different from the rest, because I never published ‘important’ decisions on weekends; I rather presented decisions dealing with interpretative issues (“Interpretative Spotlight”), reviews of old decisions (“Oldies But Goldies”) and decisions that I found to be unspectacular but still interesting.

I sort of liked these posts but I understand that some readers, especially those having an e-mail subscription, were annoyed by them. In view of the outcome of the poll, I will, as a rule, not publish weekend posts any more. A reduction of the overall number of posts also allows me to take account of the (admittedly subjective) finding that, for whatever reason, there appear to be less “interesting” decisions as the overall number of decisions increases. (As a physicist, I would believe this has something to do with the law of conservation of energy.)

Posts of more statistical character (such as the present one) will still be published on weekends.

A last point perhaps. This week was special because there was the famous April fool’s post on fee reductions for applications filed in Latin. Very unexpectedly (to me), this post was an enormous success and immediately became the second most popular post ever. The fact that two fellow bloggers referred to it on their blogs certainly contributed to this hype. I have to admit that I am somewhat embarrassed by the craze because what was intended to be a joke for case law freaks (if I may say so) has reached people well beyond that sphere, who may or may not be able to appreciate it, which leaves me with mixed feelings. I hope that nobody was offended and, to end on a Latin note, that I have not become a persona non grata in the Isar Building. In which case I might as well pursue my career ... in Latin America.

Valete! 

Publish Or Perish (ctd.)

Number of decisions published on the DG3 case law webpage.

It is time to have a look at the DG3 activity in 2012. As you can see, the Boards have published  almost 1500 decisions, which is more than in the previous years (except 2009, that is).

That being said, it was not an easy year for K’s Law, because the number of noteworthy (i.e. somewhat surprising, illuminating or simply very pedagogical) decisions was not greater (and perhaps even smaller) than the years before. So I had a hard time filling my schedule. Obviously, if this trend continues, I will reduce my posting rate.

There was no big surprise in the release rhythm during the fourth quarter, except perhaps the big isolated bunch in November and a certain fébrilité in December:

Publish Or Perish (ctd.)

Here are the updated quarterly figures on the publishing activity of DG3.

As you can see, the activity was quite intense during the third quarter (with respect to what we have seen in recent years). As a consequence, I have to increase my estimate for the overall number in 2012 from 1300 to almost 1500 decisions.

The decisions still arrive in rather big bunches, as the following graph shows:

Publish Or Perish (ctd.)

Here is my quarterly update of the numbers of decisions published on the DG3 webpage.

So far, the 2012 numbers are in line with what we have seen in 2008 or 2010, and one may expect an overall number of about 1300 decisions in 2012 – unless we see a sharp increase in Q3, as in 2009, that is.

The DG3 webpage is said to check for new decisions daily and update the list accordingly. Still, the publication of decisions is not very smooth, as can be seen from the following graph (number of decisions published per day, between 1/1/12 and 30/6/12). But regularity has improved in June.

Some Statistics

If, like me, you were a little disappointed by the information regarding the Boards of appeal offered in the latest annual report of the EPO, you might be interested in some more statistics. In what follows, I present some statistical data regarding the 443 decisions published on the DG3 webpage during the first four months of 2012. These decisions were taken between October 28, 2010, and April 11, 2012.

1. Nature

Let us first have a look at the nature of these decisions:

60 per cent of the cases were opposition appeal cases, compared to 37 per cent of examination appeal cases. “PETREV” refers to petitions for review. Note that there were still two PCT cases left.

2. Boards involved

The following Table shows the numbers of decisions per Board of appeal (click to enlarge):

3. Language of proceedings

Unsurprisingly, the three official languages of the EPO were very unevenly represented:

English took the lion’s share (68 per cent) whereas French was very little used (6 per cent).

What is more surprising is that the situation depends on whether examination or opposition appeals are considered.

In examination appeal proceedings, English was even more preponderant (81 per cent, more than twenty times the share of French (4 per cent):

In opposition appeal proceedings, however, German was relatively more often the language of the proceedings:

English was used in 61 per cent, German in 32 per cent of the cases. Might it be that German language patents attract more oppositions? That would be weird.

Obviously, the discrepancy between examination and opposition appeals may have very complex reasons that are beyond the reach of so simple a study; it might also express the fact that English is gaining momentum – because opposition proceedings, generally speaking, deal with patents based on applications that were filed well before the applications dealt with in examination appeal proceedings. (In other words, when examining opposition appeal cases, one looks further back in the past than when studying examination appeal cases.)

4. Examination appeals

Considering the examination appeal proceedings, what was the outcome?

In almost 60 per cent of the cases, the appeal was dismissed, the first instance refusal becoming final. In a quarter of the cases, the Boards ordered the Examining Division to grant a patent. In 16 per cent of the cases, the case was remitted to the first instance for further prosecution. As far as the remittals are concerned, I have not been able to go any further and examine the subsequent fate of the applications, all the more as many of these cases may not have been settled yet.

NB: The “OTHER” cases are cases where the first instance granted interlocutory revision and the Board had to decide on reimbursement of the appeal fee etc.

5. Opposition appeals

Let us now consider the opposition appeal proceedings, which are more complex to analyse.

It turns out that the three possible reasons for an appeal against a decision of the Opposition Division (rejection of the opposition(s), maintenance of the opposed patent, revocation) all had about the same weight.

What was the overall outcome?

As the following graph shows, the most likely outcome of opposition appeal proceedings was the revocation of the patent (46 per cent), followed by maintenance of the patent in amended form (30 per cent). The opposition was rejected in only 14 per cent of the cases, and in another 8 per cent of the cases the case was remitted to the Opposition Division for further processing (again, I have not studied the subsequent fate of the patent). In two cases the proceedings were terminated by the lapse of the patent in all Contracting States.

Let us now have a closer look at these data.

5.1 Appeals subsequent to a rejection of the opposition

For appeals filed by the opponent(s) after their opposition(s) had been rejected (78 cases), the most likely outcome was … the revocation of the patent (44 per cent), closely followed by a confirmation of the rejection (42 per cent). The maintenance of the patent in amended form was quite unlikely an outcome (12 per cent).

I found this result quite surprising; I would have expected to find maintenance in amended form more often. A possible reason could be that many patents do not have strong fall-back positions: when the claims as granted fall, the patent falls.

5.2 Appeals against the maintenance of the opposed patent in amended form

First of all, I was interested to see who filed the appeal: was it predominantly the patent proprietor or the opponent, or did both parties file appeals?

In the 98 cases published in 2012, it was mostly the opponent(s) alone who filed the appeal (68 per cent of the cases), whereas appeals by the patent proprietor alone were pretty rare (5 per cent):

I understand this to mean that the proprietors mostly were happy with the outcome, which confirms my (admittedly, subjective) impression that the first instance is quite proprietor-friendly in opposition proceedings.

The most likely outcome was the maintenance of the patent in amended form (62 per cent, which encompasses both a dismissal of the appeal and amendments made before the Board of appeal), followed by the revocation of the patent (32 per cent). A rejection of the opposition at this stage was relatively rare (3 per cent).

This view is, however, oversimplified because it blurs the distinction between cases where the principle of prohibition of reformatio in peius applies and cases where it does not. Therefore, it is necessary to have an even closer look.

 5.2.1 Cases where the patent proprietor was the sole appellant

Obviously, the patent cannot be revoked in this situation. As a matter of fact, in all cases but one (where the case was remitted for further prosecution) the outcome of the appeal was the maintenance in amended form:

Note, however, that there were only five cases in total, which means that the results may not be significant, statistically speaking.

 5.2.2 Cases where the opponent was the sole appellant

In such cases (67 in total) the Board could not reject the opposition. It turns out that the patent was maintained in amended form in about two thirds of the cases (64 per cent) and revoked in the remaining cases:

5.2.2 Cases where the proprietor and the opponent filed appeals

In these cases (26 so far), the principle of prohibition of reformatio in peius does not find application and all options are open to the Boards. The outcome was as follows:

In 54 per cent of the cases, the patent was finally maintained in amended form; in about 27 percent of the cases it was revoked. The rejection of the opposition was less frequent but not nonexistent (12 per cent). “FURTHER” refers to remittals for further prosecution.

5.3 Appeals against the revocation of the opposed patent

When the patent had been revoked by the Opposition Division (91 cases), there was little hope even before the Board of appeal: in two thirds of the cases (65 per cent), the Board dismissed the appeal:

I find this quite logical because, according to what I have seen in my practice, Opposition Divisions are reluctant to revoke patents, in particular in the (frequent) case where the first examiner is the one who delivered the patent. If even the Opposition Division comes to the conclusion that the patent is to be revoked, the Board is likely to agree.

6. Outlook

In case DG3 will publish further decisions in 2012 - I have not given up hope yet - I shall try to pursue these statistics. Perhaps at the end of the year it will even be possible to compare the most prolific Boards and see whether there are significant differences.

NB: My reservoir is now empty. This blog will be back as soon as fresh decisions are available.

Some Stats

We have not had any new decisions on the DG3 webpage for more than one month. If Laurent had not found the recent “test case” decisions, this blog would already have shut down by now. There is only one who creates ex nihilo, and I am not Him.

So I will content myself with giving you feed-back on the recent polls on who the readers of this blog are.

The first poll concerned the professional context of my readers.

292 readers participated in the poll. Here is the outcome, sorted in decreasing order.

and a (condensed) pie chart:

What I find interesting is that private practice is much stronger than industry. Of course, one has to take into account that there are more EP attorneys working in private practice than in industry. I have not been able to find precise figures, but I have heard that in the epi, there are twice as much private practice attorneys than industry attorneys. If this is true, industry is still under-represented.

I am happy and honoured to see that EPO employees are interested in this blog, too. I knew that two or three Board members were regular visitors, but that there were not less than 16 members of the Boards is a pleasant surprise.

Even more surprisingly, there are a few foreign attorneys among the readers of this blog.

***

The second poll concerned the “technical field of predilection” of my readers.

256 readers participated in the poll.

Obviously, it was possible to give more than one answer, and most people did: on average, there were 1.9 fields cited per participant.

Here is the outcome:

 

The poll confirmed my impression that the biotech community was quite well represented. But the biggest surprise to me was the great number of chemists among the readers of this blog. The other fields are more or less evenly distributed.

Publish Or Perish (ctd.)

Here is the quarterly update of my graph presenting the number of decisions published on the DG3 page.

Although we have not had a single decision published during the last three weeks (except two decisions on petitions for review), the overall output during the first quarter was slightly above average. There is not much more to be said for the time being.

Publish Or Perish (ctd.)

At the end of each quarter, I have a look at the number of decisions that DG3 has published on its website. This year I found what I had expected: in 2011, the EPO has published significantly less decisions than in the years before. It is the small number of decisions published in quarter 2 that made the difference; this might correspond to a small number of decisions taken in quarter 1. As a matter of fact, the numbers of decisions published during quarters 3 and 4 hardly differ over the years (quarter 3 of 2009 being a notable exception).

As a consequence of the reduced production, I almost had to stop posting on two occasions during the year, and my reservoir is empty so to speak. Obviously, life is easier for case law bloggers when decisions abound.

Bets are open as to what 2012 will bring. It would be great if the DG3 website came back to normal, after a troublesome year.

Publish Or Perish (ctd.)

At the end of each quarter, I have a look at the number of decisions published on the DG3 site so far. Here are the updated figures:

Click to enlarge

As you can see, the number of decisions published during the last quarter is quite normal but overall we are still significantly behind what had been published during the last years. 2009 appears to have been an exceptional vintage.

On a different note, I have made a curious observation regarding the geographical origin of the readers of this blog. As already mentioned some time ago, in the beginning the blog was mostly read by the French, for historical reasons. Over the last months, Germany was more and more strongly represented and finally overtook France, but recently, the number of German readers has sharply decreased whereas now the French come back and the Dutch skyrocket. 

Click to enlarge

I wonder what the reason could be. The overall number of readers per month appears to have increased, but not dramatically. Has the EPO recently made a change in its proxies so that my readers from the Office would be identified as Dutch whereas they were identified as German before? Difficult to say. Perhaps these Google data are simply not reliable.

Publish or perish (ctd.)

I just had a look at the number of decisions published on the DG3 site this year. It confirmed my impression: we are way behind the figures for the preceding years. Now it is true that the DG3 site has undergone some face-lifting and this may well have perturbed the publication process, but the facts are there. Typically, something like 800 decisions are published during the first two quarters, but this year there were only about 550.

For the case law blogger that I am, this has direct consequences. Less decisions means less noteworthy decisions. As I try to have one decision per day – because I find it is a good and feasible daily exercise to consider one decision – I face supply difficulties. This week I almost had to stop posting as not a single decision had been published in almost three weeks. A year ago, I had a reservoir of more than forty decisions, which allows you to face such low activity periods – this year I have a stock of one or two. So if during the weeks to come you find that K’s law remains silent, it is just this: I will have run out of decisions.

Well, enough with the whining. There are more important things in life than EPC case law, n’est-ce pas?

I wish you all happy summer holidays.

Publish Or Perish (ctd.)

At the end of each quarter I usually dedicate a post to the number of decisions published on the DG3 site. As the site has undergone some facelift recently, which has seriously perturbed the publishing of decisions, I am not sure whether the comparison with the previous years is meaningful. Anyway, here are the numbers:

(click to enlarge)

It is definitely too early to say whether 2011 will bring a good harvest or not; for the time being, the number of decisions made public is close to the average of the previous years.

As I am into statistics, let me mention a noteworthy change concerning the readers of this blog. When looking at the overall pageviews by countries since the beginning of this blog, about one and a half year ago, you obtain the following ranking:

The lion’s share goes to France, for historical reasons, but this share has been decreasing ever since. If you look at the figures for last month, Germany has taken over leadership:

I have no particular explanation for this relatively recent trend; maybe it is due to word-of-mouth.

There is some irony in the fact that an Austrian would have a blog in English (and sometimes translate German decisions into English) when German readers are the largest reader group ...

Publish Or Perish (ctd.)

Cumulative plot of the number of decisions published by DG3 in 2008, 2009 and 2010

As can be seen from the above graph, the 2010 harvest was not so good for case law bloggers: the Boards have published much less decisions than in 2009, and hardly more than in 2008. After a good start, the activity was particularly low during the second half of 2010. 

As a consequence, my reservoir is almost empty: if the Boards do not publish new decisions in the near future, this blog might experience the first “delivering problems” in its history.

Publish Or Perish (ctd.)

Cumulative plot of the number of decisions published by DG3 in 2008, 2009 and 2010

As can be seen from the above graph, 2010 most likely will not beat the records in terms of decisions published on the DG3 site. After a strong start, we are now very close to the 2008 numbers, but hopefully (from a caselaw blogger’s point of view) there will be a little more activity towards the end of the year. Otherwise the blogslave might face difficulties in providing your daily jurisbreadence.

Publish Or Perish (ctd.)

Some time ago, we have seen that the Board of appeals have published a lot more decisions in 2009 than in 2008. What are the tendencies for 2010 ? Here is a first status report (click to enlarge):

During the first half of 2010, the number of publications was generally higher than in 2008 and 2009. However, things appear to have slowed down a bit by now. Will we go beyond 2000 published decisions in 2010 ? I guess not, but bets are still being accepted.

NB: The numbers are not precise to the last digit as the Boards sometimes publish decisions twice and also publish translations (for the decisions published in the Official Journal) separately.

Please note that what is counted here is the number of decisions made available on the DG3 site and not the number of decisions taken by the Boards.

Publish Or Perish (ctd.)

Some time ago, I made a graphic comparison of the publishing activity of DG3 in 2008 and 2009. Now we have the definitive figures for 2009, which are quite impressive, indeed.

In 2009, the EPO published 1751 decisions of Boards of appeal, which is about one third more than in 2008 (1325 decisions). One may expect that case law bloggers will not be redundant in 2010.

Seasons in the Life of DG3

A week ago, I have mentioned the findings of a colleague who had a look at the dates of 2200+ decisions of the Boards of Appeal. Today’s weekend special concerns another aspect of these dates : what is the seasonality of the decisions ? Here is the answer:

I have to say that I was quite surprised to see how evenly the decisions are distributed over the year. There is a significant reduction of the Board activity in August, but there is still quite some activity left. A member of the Boards explained that in several Nordic countries, people avoid working at the end of June and in July (when days are long) but are willing to come to Munich in August to attend oral proceedings.

I am not sure whether the comparison is meaningful, but here is what is found for the fourth chamber of the Paris Court of appeals, which is most renowned French court dealing with IP litigation. The statistics are based on a lower number of decisions (about 320 patent cases, taken over the same period of time as for the Boards of appeal: 1979-2009) and, therefore, less precise.

It appears that the distribution is much less smooth than for the Boards of appeal of the EPO. One may also note that there is very little activity in July and August. This is above all due to the fact that there are six weeks of judicial holidays in France whereas the Boards of appeal do not have such holidays.

Behold the Day of Judgement

A colleague recently analysed a bunch of 2200+ decisions of the Boards of Appeal (including the Enlarged Board of Appeal) as to their dates. Here is what he found with respect to the days of the week on which the Boards take their decisions. In almost all cases these dates correspond to the dates of oral proceedings (OPs) before the respective Boards.

Normally the OPs of each Board are held twice a week, i.e. on Tuesday and on Thursday, which explains the two ‘peaks’. On the day before, the members of the Boards often finish their preparation for the OPs. If the OPs were held on Mondays, the final preparation would have to take place on Sunday. Fridays have the drawback that the OPs have to come to an end in the evening. As a consequence, there have been OPs on Fridays ending at 8 p.m. (which is an almost unbearable thought for EPO staff).

As far as Saturdays and Sundays are concerned, no decisions are taken on these days. A Board member explained that he knew only one exception to weekend rest : the Enlarged Board sometimes deliberates on Saturdays. You will have noted that nevertheless 0.3 and 0.2 per cent of the decisions, respectively, were found to have been taken on Saturdays and Sundays. In fact, these are cases where there must be an error in the date.