For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 25 March 2014

Quis custodiet ipsos custodes: news and review of comments on EPO strike

Last week Merpel posted a piece concerning news that the EPO employees were going on strike.  Because of the difficulties in finding reliable information from authenticated sources, Merpel posted only the basic and apparently incontrovertible details as to what was going to happen.  The piece attracted an astonishing 70 comments to date.  The IPKat has therefore pressed Merpel into service again to post an update and report some of the threads of the comments.  Both felines hope that this may be of particular interest to our dear readers who read mainly the email version of the blog, and therefore miss out on the comments.


Merpel diligently reviews the many comments
First however Merpel looked for news of how the strike is going.  This is apparently the second day, but she has found no reports of demonstrations, picket lines, or the like crossing the Isar.  In fact, looking at the "News" section of the SUEPO [Staff Union of the European Patent Office (EPO)]website, Merpel was highly tickled to find that the main news is her own piece.  There has also been a report, before the strike, on IP Watch website.

She did however find on the SUEPO website some more useful information that was not available at the time of previous posting.  A posting on 20 March sets out clearly and cogently the reasons for EPO staff dissatisfaction in a document labelled "What do the EPO staff want?"  This document complains about the current governance of the EPO, particular in the person of the current president Mr Benoît Battistelli.  This is said to be problematic because 'the EPO very much a "state within a state" without, however, the separation of powers that is the norm in modern democracies' so that the president is 'prosecutor, party and judge'.  The specific complaints seem worth reproducing verbatim as they are more concise than any other source:
  • Staff of the EPO no longer has timely access to justice. It now takes almost 4 years to get an opinion from the Internal Appeals Committee. Further, most of the time Mr Battistelli disregards the Committee's opinion if it is in favour of the employee. That then forces the claimant to file a complaint in front of the ILO-AT, the only Tribunal accessible for EPO staff. The total duration of the procedure may be up to 10 years. Justice is de facto denied in the EPO. [The problem with such delays at the ILO- AT was discussed last year by the IPKat here]
  • The President has created his own internal police and introduced so-called “Investigation Guidelines” that encourage staff to report on each other and that deny staff fundamental rights such as the right to remain silent, the right to be represented by a legal counsel of one's choice, and the right to refuse access to one's home without a search warrant.  
  • Mr Battistelli strongly curtailed the communication means of the Staff Union of the EPO  (SUEPO) and of the Staff Committee. Incoming emails sent from the SUEPO domain are blocked, the sending of emails to more than 50 colleagues is forbidden and punished with disciplinary measures. Documents submitted for the Administrative Council are blocked by the President.  
  • Mr Battistelli introduced strike regulations that give him the power to decide for what issues staff may strike and for what they may not. Strike ballots may no longer be organized by the Staff Union but only by the administration. All other actions than strike (e.g. work-by-rule) have been declared illegal.  
  • Next, Mr Battistelli plans to dissolve the democratically elected Staff Committee. Elections are to be called in June. The new election rules set by the President seem carefully designed to make the future Staff Committee unworkable. The elections will be organized and controlled by the administration, not by staff. The President will also decide on the admissibility of the candidatures and on the validity of the election results.  
  • In the meantime more than half of the elected staff representatives have been subjected to, or are threatened with, disciplinary measures in an apparent attempt to quash the opposition. Critical managers are simply transferred to empty posts.
 Another document complains about the number of former INPI colleagues of Mr Battistelli currently at the EPO.

In the comments section of the previous blogpost, the following topics were addressed.

1. Bonus
A commentator referred to the Examiners "handing back bonuses".  This apparently refers to a proposal to give EPO examiners a bonus in 2013 reported by the IPKat here.  This proposal did not however apparently happen in the end - it was said to have been withdrawn because Examiners did not want it in the form offered.

2. Examiner pay
Many commenters referred to the high pay and good ancillary benefits of EPO Examiners (the argument appearing to be that if you are paid well then you don't get to complain about other matters).  On the other hand it was pointed out that those who can fulfil the technical and language requirements are rather rare.  Epithets like "cushy" and "golden cage" catch the general tone of the adverse comments.  Merpel does not see that high pay need be accompanied by reduced employment rights.

3. Examination quality
The post attracted a number of negative comments about examination quality at the EPO.  Although this is an interesting discussion in its own right, Merpel feels it is little churlish of the IPKat's readers to bring this into the present topic.

4. Reasons for the strike
There were surprisingly few comments on this point, ie that actual reasons for the industrial action, but they largely reflected the reasons cited above.  Some commentators who apparently were aware of the reasons were not sympathetic that these represented valid reasons for industrial action under the circumstances. 

5. Oral proceedings
There was concern that Oral Proceedings might be affected.  Apparently EPO staff are under instruction not to impede Oral Proceedings and involved Examiners are not to strike.

6. And finally
The latest comment at the time of writing revealed the perhaps surprising fact that EPO employees are required to submit details of spousal income to the EPO.

Overall, not many commenters who were not Examiners appeared to support the position of the striking EPO employees, either because of the pay issue, or the examination quality issue.  The post was however never intended to be a referendum.

Merpel recalls that before Mr Battistelli, Alison Brimelow was hailed as the apparent saviour of the EPO, who would deal with the examination backlog and all of the internal issues.  She was responsible for the hated 2-year divisional deadline rule that was recently repealed, and her tenure is not generally considered to have achieved any significant reform.  No doubt Mr Battistelli felt that he could do better.  Merpel awaits with interest the response to the current unrest.

In the nearer future, Merpel would be very interested to hear how the strike itself is going.  She can't be in Munich in the near future, so invited informed comments below in the usual manner.

32 comments:

Anonymous said...

A slightly skewed summary of the comments posted.

Commentators who referred to the good benefits of EPO staff did not (all) state that this meant they had no rights of complaint. Most simply believed that the reasons for complaint were minor. Commentators believed a more balanced view of conditions at the EPO should be taken by staff. EPO commentators, on the other hand, believe they are treated worse than slaves. I refer you in particular to the comment:

"This guy is a nightmare descended from medieval nightmare. This Palpatine character has managed to sink EPO in the last year to Syrian / Krimeean / Iranian / Turkish conditions.

Bati, go to Vladimir, he might have a need for you."

The comment on the bonus was not that it ws rejected in the "form offered". Does this mean cash or cheque? The rejection was apparently due to the bonus being linked to a working practice, or change therein. Clearly EPO staff weren't so desparate for the extra few K that they would accept the conditions offered. Isn't this simply an issue of free choice?

The quality issue is hardly churlish. The EPO receive huge fees for providing a service. In fact, I understand that is their reason for being, but I'm happy to be corrected. As such, the service provided in return for such fees, which provide the exceptional benefits to staff, must be questioned, especially in the present circumstances.

"And finally" - an incomplete summary of the final comment, which leaves out an important point for the e-mail readers of this blog. But maybe it was your intention to skew the facts.

Anonymous said...

If the comments are accurate then I can understand why EPO examiners may go on strike, but given the pace of events at the EPO I am not sure anyone will notice for the first year or so.

Anonymous said...

An interesting aspect in the current dispute is that, despite his tenure at the EPO, Mr. Battistelli somehow managed to be re-elected last Sunday to the town council of leafy Saint-Germain-en-Laye, which, as far as I know, is almost 900 km away from Munich.

One may argue about the management style (or lack thereof) of Mr. Battistelli, but the EPO staff is clearly wrong in dismissing a president with the gift of ubiquity...

Anonymous said...

"Merpel does not see that high pay need be accompanied by reduced employment rights."

And indeed, it is not. The EPO employees have complte freedom of choice as to how they derive their personal income, same as that of any EU citizen, and often more than most. The EPO is mostly located, and their employees mostly live, in one of the highest-technology, highest quality of life, highest productivity and most stable economies in Europe. EPO employees are exceptionally well qualified, exceptionally technically skilled, and exceptionally linguistically adept. These skills are highly transferrable to other industries. EPO employees thus have their pick of employment in the growth sectors in Europe, thanks to the freedoms that all EU citizens enjoy.

No-one is forcing EPO employees to work at the EPO. No-one is indentuned or bound to servitude. No-one is concealing from EPO employees the existence of alternative career paths or opportunities. Despite all this, the EPO still has willing employees. Being rational creatures, they therefore must still prefer a life at the EPO than a life working in the private sector or in some other national public body, otherwise the EPO would have seen a mass exodus of hard-to-replace personnel.

Unless, of course, there is some aspect to EPO employment of which I am not aware, which prevents EPO staff seeking alternative employment in one of the Member States? If EPO employment contracts are indeed written in blood and cover the employee's immprotal soul, then perhaps there is more to M. Batistelli than meets the eye...

There is one freedom that EU citizens cannot have taken away, and that is the freedom of choice. And that freedom is the freedom not enjoyed by citizens of Syria, Crimea, Iran, and the like, and why the comparison is so deplorable.

Anonymous said...

Indeed. All we need now is for it to be shown that Mr Batistelli is omniscient and omnipotent, and then we can forget about appealing to a higher authority...

Merpel said...

Merpel is very excited to have heard from a correspondent in the EPO Isar building itself that there is no visible sign that a strike is taking place. Thank you, you know who you are. It seems to be a very low key event then.

Anonymous said...

Merpel: since the Isar building houses DG3 and the higher-ups in the EPO scheme of things, it is the wrong site for fathoming the feelings of the examining hoi polloi. I'd rather go to the sites along Bayerstrasse to get a true picture, even though, from experience in my former life as examining gnome, I can say that EPO strikes tend to be extremely subdued affairs anyway.

Roufousse T. Fairfly said...

Dearest Merpel,

The Isar building currently houses DG3 (Boards of Appeals), DG0 (the President's office), and a number of Administrative Council related functions.

I don't have access to a phone book anymore, but AFAIK the last grunts in "production" (examination) or "support" (e.g.: FO, IT) related services were transferred to other buildings during the asbestos removal operations a few years ago, and never returned.

I can't imagine a BoA member (who is of equal rank to a national judge) going out on a picket line, even though I have it on good authority that many at DG3 are deeply concerned by the current developments at the EPO.

(And someone in the immediate entourage of Monsieur B. walking out that would be tantamount to suicide...)

A board member is named directly by the AC rather than the president, and his function requires absolute independence and neutrality.

I have no idea how their work contract look like, but it must have quite a few common elements with the other staff (e.g.: health insurance). The question of the organic independence between DG3 and the EPO is occasionally mentioned. I find it a bit ironical that the two EPO departments that should on be the farthest apart (DG0 and DG3) are among the closest physically.

Anonymous said...

Anonymous @10:44 : In principle, EPO employees can indeed choose to get "on their bikes" and leave the Office, if they feel like it. I should know it, since I took that step myself a few years back.

On the other hand, I don't think that is an efficient or desirable manner of solving labour disputes, and, as the "revolving door" at the USPTO shows, such a "mass exodus" would hardly be beneficial to the quality of examination.

Above all, I think that we should all worry about the defective governance at the EPO, and about a management so much at odds with the rank-and-file that it never bothered to consult the examiners, never mind outside stakeholders, before suddenly introducing such hare-brained schemes as the ban on handwritten amendments in Oral Proceedings...

Anonymous said...

I am amazed that some people insist that the EPO examiner staff is free to "take it or leave it".
Effectively, some of the actions taken by Mr. President would be contrary to e.g. the German (or French, or Dutch) employment law.
Hence, those people that suggest that employees are free to leave if they are not fine with the conditions at the EPO effectively suggest that measures that would strictly go against national employment law are OK if the pay is good enough.
Doesn't applying this way of thinking then leads to denying top managers human rights?
Is there any accepted correlation between salary and humiliation?
For sure, if the salary wouldn't be over average, many examiners would just vote with their feet. And who is going to fill the gaps? Let's talk about examination quality after two or three years of bleeding-out ...
Best regards,
he-who-once-married-a-patent-examiner

Anonymous said...

If everyone left the EPO the quality of patents gratned would not change. Why would they? They aren't being examined today.

I don't see any EPO staff campaigning to pay Dutch and German taxes, yet you believe comparing all employment rights.

My heart bleeds for you all. Send in the Red Cross.

I look forward to seeing Steve McQueen's new movie: "12 years an EPO employee"

Anonymous said...

To those saying that EPO staff are free to leave if they don't like it -

I may be wrong, but I seem to recall that the pension scheme only kicks in after 10 years service - if you leave before then, your contributions are just handed back to you.

As a result there are going to be plenty of people who've worked, say, 3-9 years at the EPO who are effectively stuck there unless they want to screw their pensions.

Yes they do have nice buildings and good pay. But that's no reason to treat them like criminals, which seems to be happening under the current regime. And since they seem to be considerate enough to not disrupt essential client-facing services, I say let them send a message to the president!

/No, I'm not an examiner wearing a false moustache

Anonymous said...

Anon at 15:21: the EPO is in its nature a supranational organisation not bound by a significant proportion of national laws. The EPO staff, looking, would find that employment law differs in terms of rights and obligations even across the EU, for example comparing France and the UK. To take only one point, the UK is opted-out of the Working Time directive, whereas France is not so. If a UK individual is disliking like the fact that UK employees can be asked to work long hours, they instead seek employment in, for example, France, where they will have greater labor rights guaranteed by the state. So too with the EPO, but the jobs are available already in Germany and Holland and require not even packing up of the apartment.

The EPO is a very special case of an employer, and the EPO staff know this from the one day they join. It's not really different from taking a job in the US, another major power and global economy which places little of obligations on employers beyond those to which the employer and the employee are mutually consenting. No-one would suggest that an employee of a US corporation should be entitled to rights comparable to those enjoyed by employees in Germany, even if the US corporation is doing a great deal of business in Germany. So too with the EPO. Legally, it is really another country.

Anonymous said...

I should perhaps not be surprised but I am, that people with a legal background should think the answer to anything is 'well, if you don't like it then find another employer'. Perhaps the commenters could explain at what level of misbehaviour it is acceptable to say 'this is wrong' rather than running away?
Salaries at the EPO are clearly a problem for some but I don't see why people should be expected to condone bullying and harassment of staff representatives.

Anonymous said...

Anon 1703. Indeed, but the problem is that the law is set by the prosecutor and judge at the EPO. Previously, Presidents had acted with caution and after taking independent advice. The current President prefers to be a dictator who accepts no counter argument. He listens to advice but ignores it if it is not his advice - and those closest to him know not to give the wrong advice since those that have are moved on and out. You would be surprised at the fear in the sub-top level who are not close enough to know what he wants and scared to be caught not being supportive. Nobody dares to voice disagreement. The staff are acting to protect those who dare to speak or act. As you say there is no law except the Codex which the President wishes to change to weaken staff's already weak rights.
I'm sorry that so many people here are unsupportive. Staff did not ask for bonuses in a any form and turned them down in all forms. Staff do have respect for their work and do not wish to grant junk patents in order to satisfy the numbers promised by mgt to NPOs.

Anonymous said...

FYI, the official data on participation to the EPO strike was about 1500 people for friday 21 and 800 each monday and today.
Yes. I am an EPO examiner. Shoot now.

Anonymous said...

With all due respect to Anon 15:39:00 GMT, the (unsubstantiated) claim that patents at the EPO are not examined at all and that the quality of the EPO is non-existent does not hold foot with annual benchmarks conducted by the EPO and IAM magazine. In said comparisons the EPO consistently ranks as the highest quality office in the world. It is quite easy in such a big organization to find an outrageous case, however such a case is statistically irrelevant.

The quality of patents is of paramount importance to the examiners at the EPO. However, quality policy as well as the ressources assigned to it are decided at the highest level. If you believe that a lowering of quality is due to sudden lazyness of the examiners, you are mistaken.

And lastly, please refrain from asking examiners to make public statements on EPO policy. According to the CODEX of the EPO, examiners making public comments which may bring the EPO into disrepute are liable to disciplinary action by the administration.

Anonymous said...

I think Anonymous @ 21:21 comment on "don't ask us to say anything, less we be fired" about says it all.

Anonymous said...

21:21:00 Last comment first. Welcome to the real world. Most employees who makes a comment about their company that is not welcomed will be sacked on the spot, so be grateful you at least have a disciplinary procedural hoop to jump through first.

I provided the example in the earlier blog post of an important patent that was not subject to examination prior to grant. This is not a one-off, and even if it was, which it isn't, but if it was, it is inexplicable how such an application could get though unchecked. Is it possible for a 3-person examination board to accidentally grant a patent? Could they fall of the desk into the grant bin, rather than be dumped in the waste-bin where it belongs? You can win as many awards as you want, it will not change the fact that quality has plummeted very quickly.

I'm fine with EPO employees striking over these issues even though they appear minor to me, I understand they are of importance to those concerned. However, EPO employees are off their rockers if they believe they are being treated so badly that the comparisons made in this blog are fair. This is a sign that they are living on another planet.

I would still very much appreciate an explanation as how a patent, such as the Bohringer EP referred to, could be granted in an appropriately functioning organisation.

Anonymous said...

@ Anonymous 22:08
Patent number, please.

Anonymous said...

@Anonymous 22:21

Starting from the beginning of your comment, I think you are missing the point that the EPO is not a private company, it is an institution. Employees of company X may be fired on the spot for negative comments on company X because i) company X is supposed to make profits and ii) negative publicity may lead potential customers to competitor company Y. The EPO exists to provide a service to the public as a whole, and no one else is authorised to issue European patents.

The question of quality at the EPO is not really linked to this blog post and would probably deserve a blog post on its own, but I'll draw your attention on some facts.

The Administrative Council of the EPO is formed mainly by the heads of the national patent offices, which get funding from the number of patents that the EPO grants. Asking them to take any initiative that could impact the number of granted patents is - as the saying goes - like asking turkeys to vote for Thanksgiving.

For examiners, production figures have a disproportionate weight on their personal reports, so they have quite some incentive to grant a lot and grant fast. Incidentally, in such evaluation no weight is given to the tasks carried out by an examiner acting as second member or chairman of a division, so if an examiner spends a lot of time on those tasks he/she will have less time to do the tasks that count in the eyes of EPO management. This means that in case of a grant at most the other two members can check clarity and amendments - faulty searches cannot be reviewed.

In summary, quality depends almost entirely on the professional integrity of individual examiners and line managers. The more production pressure increases, the less individuals can do. Discussions have been going on since forever to introduce more effective checks, but so far no major change has happened.

Anonymous said...

EP1651270

Anonymous said...

Anonymous@16:02 : I look at that file and I don't see anything scandalous or that would indicate that examination wasn't performed. The Search Report didn't find anything particularly significant, so there was a direct grant. Then, in Opposition, the Opponent brought forward more relevant prior art, in particular two conference posters, and the Opposition Division (which, BTW, included the search and primary examiner from the Examination Division) decided that, in view of those conference posters, the subject-matter lacked an inventive step. The patentee filed an appeal and then withdrew it (there was, presumably, some kind of behind-the-scenes agreement between the parties).

Finding non-patent literature like those two conference posters isn't straightforward (and there's a good argument that the EPO could do a better job in training its examiners to do so). Nor is it straightforward to adjudicate on inventive step.

To be quite honest, I've seen much worse cases. But examiners are human and, as any human, occasionally do fuck up. The EPO processes tens of thousands of patent applications every year. With such turnover, having the occasional howler is unavoidable. I ignore if you've done any prior art searches yourself, but I have done my share, and I can tell you that it is quite a dark art...

Anonymous said...

No demos/pickets were organised for the last three strike days, but tomorrow (Thursday) there is planned a demonstration in the Isar building at 12H.

Anonymous said...

So it is ok to sack people in private businesses. Good one.

"Asking them to take any initiative that could impact the number of granted patents is - as the saying goes - like asking turkeys to vote for Thanksgiving."

No, the EPO examiners only have to follow the EPC as is.

16:47 poster clearly doesn't understand how the EPC (including case law and guidelines) apply to such invention, otherwise they wouldn't say there was no issue based on the search.

Anonymous said...

A recent blog posting on phantom menaces above refers to an actavis case: EP01948214

For thos who believe the bohringer case was examined well, they should take a quick look at this EP and note the narrow claim and the mass of data. A basic prerequsite provided.

Anonymous said...

Union Syndicale in Bruxelles has sent letters about oeb, available on their web site. Interesting to read.

Anonymous said...

Anonymous@12:36 :
OK, I am giving up. Could you explain me using very very easy words what went wrong in the search of EP1651270 ?

Anonymous said...

Anonymous@15:45 : I think that what Anonymous@12:36 is trying to say is that, novelty and inventive step notwithstanding, an objection of insufficient disclosure should have been raised in examination. Looking at the file, I see that the issue was raised by the Opponent, but given very short shrift by the OD. Moreover, the Patentee's representative was quite scathing in his response, which may explain why somebody is still quite sore about this case, even though the patent was ultimately revoked...

Anonymous said...

Why the Examiners don’t want the local tax treatment?

Following the presentation on the Dutch tax system, I have made a calculation comparing a married engineer (PhD and 4 years industrial experience or 7 years experinece) at the age of 30 without children moving to the Netherlands and joining the EPO in grade A2.

His gross wage (with all allowances) is 104.000 and after deduction of internal tax and social contributions he is left with 84.000 and total (internal) burden of 20.000. (Calculation from public info).

Let us assume that his spouse moved with him, neither of them spoke Dutch but they both take once weekly intensive course. I assume the spouse does not want to be bored at home and decided to study at one of Dutch institutions (such as LOI). The spouse also seeks sporadic work (e.g. teaching language) and earns 100/week = 5.000 yearly). This small amount is not taxed, but they also do not enjoy any tax rebates.

I cannot judge for Germany, however The Netherlands has a generous tax regime for expats (starting with 30% levy rebate for expats), and the gross salary of 100.000 (as above) for an engineer with experience is not unusual in Shell of Philips.

What happens if instead of the EPO internal tax regime, such couple would be taxed for income in The Netherlands?

The taxable income would not be lowered only for 31.000 expat rebate, but also for the general and employment levy rebates, travel costs, exemption for cash, .... amounting for both 13.000. Also the Dutch language courses and the spouse’s study costs are deductible (assumed 10.000). Until last year, also the health care insurance was deductible (2.000). Creative bookkeeping can find other tax deductions This lowers the combined taxable income of both to 53.000, which is in the third tax bracket and the total tax burden under Dutch tax regime for such couple is 23.000, leaving them with 86.000 net (compare with above 89.000 under EPO regime).

Under the Dutch tax law, they are treated even better when they buy a house, because the full amount of interest decreases the taxable income. Assuming a semidetached house at the outskirts, they may fall into the second bracket and the total income tax is only 15.000. Such couple would be better off outside of the EPO.

A typical examiner in The Hague is financially necessarily better off. The situation reverses only when both partners are employed and the spouse has an income substantially above average. That way the Dutch 42% effective tax catches the EPO internal tax and contributions.

Anonymous said...

To Anonymous@15:45 : My Ans = NO.

But, I see someone else has clarified the point for you. It's a very simple one.

Use Google to find out just how much trouble this patent caused.

Try filing a claim to "A wheel". Don't bother with a description. If you are 'lucky' like Boehringer you may get it granted. If I was a conspiracy theorist I would say there was underhand activity at the EPO to this firm's benefit, but I am simply aware that EPO examiners are not interested in doing a good job at the expense of ticking boxes.

Anonymous said...

I've followed the story about EP1651270 from the sidelines, while feeling dumb as I could not identify any scandalous issues either.

So this all turns out to be about a supposed insufficiency of disclosure.

I'm sorry to say it, but the patentee was absolutely right in stating that the opponent was confusing Art. 83 with Art. 56.

Art. 83 is complied with if the skilled person can carry out the invention as claimed. Whether he succeeds in achieving a particular effect mentioned in the description is irrelevant (but maybe become important for Art. 56). Only if the effect is part of the claim does it become important for Art. 83. This was all explained in G 1/03 many years ago:
"(...) If this is not the case and there is lack of reproducibility of the claimed invention, this may become relevant under the requirements of inventive step or sufficiency of disclosure. If an effect is expressed in a claim, there is lack of sufficient disclosure. Otherwise, ie if the effect is not expressed in a claim but is part of the problem to be solved, there is a problem of inventive step (T 939/92, OJ EPO 1996, 309)."

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