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Thursday, 25 July 2013

European Patent Organisation Not As Immune As We Thought!

Merpel has been prowling the corridors of the EPO again, and (being a teleporting kitty) has also been padding around some other premises – particularly the Administrative Tribunal of the International Labour Organisation (ILO-AT) in Geneva and the District Court of The Hague.

Buried in the parts of the European Patent Convention that hardly anyone ever reads are provisions giving the EPO immunity from national jurisdiction. In particular, Art 8 and the Protocol on Privileges and Immunities give the EPO broad immunity from jurisdiction and execution by national authorities. On the other hand, Art 13 provides that disputes between the EPO and employees or former employees are dealt with by the ILO-AT. ILO-AT exists specifically to deal with complaints by employees of international organisations that are immune from national jurisdiction.

The immunity of the EPO from national jurisdiction was upheld back in 2009 by the Netherlands Supreme Court in a case involving an employee who became occupationally disabled due to repetitive strain injury.

However, news has just reached the IPKat, through the prowlings of Merpel, that the District Court of The Hague has just lifted the EPO’s immunity from jurisdiction because it held that procedural delays at ILO-AT breached the right to a fair trial within reasonable time, guaranteed according to Article 6 of the European Convention on Human Rights. The Court was informed that it can take about 15 years for a case to progress through the ILO-AT.

Unfortunately the IPKat can show the decision only in a redacted Dutch version, although some parts are in English.

This case is only first instance and so presumably appealable, so the IPKat expects that this will not be the end of the matter. But if upheld it could have very significant consequences for the EPO, which has nearly 7000 employees. If the Dutch courts do not uphold the decision, is an appeal to the European Court on Human Rights perhaps on the cards, wonders Merpel.


Anonymous said...

It is well worth looking at the SUEPO website ( to see what is going on at the EPO - there is clearly some fairly major discontent with how the EPO is handling things, hence the strike earlier this month.

Re ILO-AT, it has limited the number of appeals it will handle from EPO staff to five per session of the ILO-AT.

With two sessions per year, that means that only ten appeals from EPO staff will be heard per year.

ILO-AT has (as I recall) said that there were about 150 appeals from EPO staff pending at the end of 2012. Therefore, it will take a minimum of 15 years for any new appeals to be heard.

Anonymous said...

I'm sure the EPO is a wiser and more indulgent employer than most, but every organisation needs oversight and a separate judiciary is an important part of democracy. The ILO sounds like a very sophisticated organisation, but ultimately it won't have the checks and balances of a national legal system. It's a little bit worrying that the Netherlands Supreme Court intervened in the way that they have, which does suggest something is going wrong at the EPO and ILO.

Anonymous said...

It appears that rather than furthering physics in an Einsteinian way, the modern examiner prefers to complain. The ILO website shows 616 judgements concerning the EPO followed next by 423 concerning WHO. WIPO comes in at a sunny 77 judgements. Why so miserable?

Bart van Wezenbeek said...

In response to Anonymous at 11:24:

please note that this decision is not from the Dutch Supreme Court, but from the Dutch first instance. As a matter of fact, the Examiner has brought the case before the court, and the EPO challenged the jurisdiction of the court. In the referred decision, the judge in first instance only decided on the jurisidction issue. The court has not yet decided on the main issue (i.e. whether the P\decision of the president of the EPO was justified).
Nevertheless, the EPO may ap;peal separately from this jurisdiction decision.

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