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Tuesday, 4 November 2014

Can the European Union investigate the European Patent Office?

For a considerable time, both the IPKat and Merpel have received a steady stream of emails seeking to bring to their attention certain allegations concerning a Vice-President of the European Patent Office.  Until recently, the nature of these allegations has been rather difficult to verify, since the sources have been invariably pseudonymous, and any corroborating information available in Croatian only. The IPKat is a site for community discussion of intellectual property law, not an investigative journalism site, and Merpel does not have the resources to undertake independent investigations.

Recently however, Merpel has been alerted to some further developments that are both newsworthy and raise some interesting legal issues.  In particular, she has been informed that a Petition has been filed with the European Parliament, asking the European Parliament to investigate the appointment of  Mr. Željko Topić as the Vice-President of Directorate-General 4 of the European Patent Office back in March 2012.  Mr Topić had previously been Director General of the State Intellectual Property Office of the Republic of Croatia since 2004.  In formation about the background to this, and a copy of the Petition itself, can be seen here (which is the same link as the first in this paragraph). The complaints about the suitability of Mr Topić for office relate to allegations about his previous position.

The petition dates back to 2013, but was originally filed with a request for confidentiality; the IPKat understands that it became public more recently.  The official reference number of the Petition in the Petitions Register of the European Parliament is 2848/2013.

The legal issue is this - does the European Parliament, or any EU institution, have competence to investigate the EPO at all?  Aspirant European Intellectual Property enthusiasts learn very early on that the EPO is not an EU institution and does not have the same member countries. Until recently, it may have been hard to argue that this is suitable subject matter for a petition at all. The Petition itself acknowledges that this is an issue, and argues as follows:

"Whereas the EPO is not an organ of the EU, the EU has a legitimate interest in the proper governance of said Organisation. This interest derives inter alia from the following considerations:
"(i) Article 17 (2) of the Charter of Fundamental Rights of the European Union (hereinafter CFR-EU) states that “Intellectual property shall be protected”. The EU thus has an acknowledged statutory responsibility for protecting the intellectual property rights of its citizens.
"(ii) In 2012, EU Member States and the European Parliament agreed on the so-called “unitary patent package” – a legislative initiative consisting of two Regulations and an international Agreement laying the foundation for the creation of unitary patent protection in the EU. In the context of this unitary patent scheme, the EPO has been entrusted with the task of granting unitary patents. It is also foreseen that the EPO will be in charge of centrally administering the unitary patent, levying the annual renewal fees and distributing them to the participating EU member states."
It seems to the IPKat that the first of these two grounds is hard to argue.  The fact that there are EU norms of intellectual property cannot give the EU competence that it does not have.  The second is more promising.  If work that is within the field of responsibility of the EU - the Unitary Patent - is to be entrusted to the EPO, then the EU must be satisfied that the EPO is a fit and proper institution that complies with EU norms.  This includes its governance, and compliance with other EU principles, such as employment rights, access to justice, and protection of personal data.  Only if the EPO fulfils EU requirements in this regard can the EU properly entrust matters relating to the Unitary Patent to the EPO.  Thus, it seems to the IPKat, the Unitary Patent has perhaps provided the nexus between the EU and the EPO that was formerly lacking.

The IPKat will be interested to see what becomes of this petition.

15 comments:

André Rebentisch said...

It is possible to empower the European Parliament to bring its questions to the attention of the EPO presidency by an inter-institutional treaty.

In any case it seems advisable to harmonise substantive patent law within the European Union to make it part of the Acquis. The EPO is not authorised by its treaties to become a legal harmoniser of national patent laws, a de-facto role it successfully pursued.

Anonymous said...

@ André Rebentisch

you mention that it's possible to empower the European Parliament to bring its questions to the attention of the EPO presidency by an inter-institutional treaty.

Does such a treaty exist and, if it doesn't, why would the EPO want to agree to sign it?

Anonymous said...

"fit and proper institution that complies with EU norms"!!!!!!!

Not the most difficult of criteria to meet. The Russian mafia probably clears the bar with ease.

Anonymous said...

It is worth noting that, in principle, any EU citizen who is interested in this matter can write to the Petitions Committee to express their support for the Petition.

The contact details for the Petitions Committee are as follows:

Postal Address:

Petitions Committee
European Parliament
60 rue Wiertz / Wiertzstraat 60
B-1047 - Bruxelles/Brussels
BELGIUM

E-mail contacts

Chairperson
Ms Cecilia WIKSTRÖM: cecilia.wikstrom@europarl.europa.eu

Vice-Chairpersons

Mr Pál CSÁKY: pal.csaky@europarl.europa.eu

Ms Rosa ESTARÀS FERRAGUT: rosa.estaras@europarl.europa.eu

Ms Roberta METSOLA: roberta.metsola@europarl.europa.eu

Ms Marlene MIZZI: marlene.mizzi@europarl.europa.eu

Secretariat of the Committee on Petitions
Mr David LOWE, Head of Unit: david.lowe@europarl.europa.eu

Anonymous said...

This would be the EU that still has not had its accounting signed off by an independent auditor for a number of years now? Fit and proper, indeed!

MaxDrei said...

Interesting comments thread. As far as I know, there is not one country in the world that in ist accountancy has progressed as far as double entry book-keeping.

Accountability is for others, but not (yet) for the politicians who run democracies. Is that it?

But perhaps things are changing? Under TTIP, those politicians will be accountable, in a fully judicial process, to supra-national corporations and their legions of cream of the cream fully adversarial trial lawyers, all no doubt extremely fit and scrupulously "proper" in everything they do.

So perhaps (!?) there's hope for us all yet.

Anonymous said...

Sure, if our taxes don't inflate to cover the legal bills needed to hire the cream of the cream to deal with those fully adversarial trial lawyers and their deep-pocketed masters!

Anonymous said...

The rumour at the EPO is that the President is having "IP kittens" after reading this article ... :-)

Anonymous said...

EPO staff to consider ‘month long’ strike

http://www.worldipreview.com/news/epo-staff-to-consider-month-long-strike-7383

Anonymous said...

it would be time for the EPO to be integrated into an EU agency, whereby the EPO governance issues would be solved once and for all. Plus, there would be substantial advantages for the EU and its member countries in doing so, especially from a financial point of view.

Anonymous said...

EPO staff may look to eponymousxmnr.wordpress.com

Anonymous said...

"EPO staff may look to eponymousxmnr.wordpress.com"

That didn't last long !

It has been shut down already !!!

Battistelli must be getting really nervous about his pet UPC project !
:-)

Anonymous said...

EPO staff reveal strike dates.

http://www.worldipreview.com/news/epo-staff-reveal-strike-dates-7402

Anonymous said...

The EPO is not yet the granting authority for the Unitary Patent.

Let's wait after all the appeals against the Unitary Patent are closed.

Anonymous said...

There is blog, has been around for long time, collecting documents and issues about EPO government. If you want to see what is EPO problem, worth looking at it. http://icsfight4yourrights.blogspot.ru/

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