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Wednesday, 10 December 2014

Leading European IP Judges join the chorus of condemnation

The chorus of condemnation: a true
example of harmonisation in Europe?
Just when Merpel thought her week could not get any more exciting, she’s proved wrong. She has learnt that two of the best-known and most highly renowned members of Europe’s IP judiciary have now thrown their weight into the debate over the "house ban" of a member of the Boards of Appeal.  If you’ve been following the developments in this week-long saga, you can probably skip below the bullet points (hint: this is not about the strikes, the pay and promotions reform, or the generally abysmal staff relations, though they are not unrelated topics). Since not everyone reads every IPKat post, here is the shortest potted history of the "house ban" controversy that Merpel can manage.
  • A week ago today, a member of one of the EPO’s Boards of Appeal was escorted out of the building, and banned from the premises pending an investigation of alleged misconduct.
  • It is believed that the reason for the “house ban” or suspension was the alleged dissemination of defamatory material.
  • Widespread criticism ensued immediately both inside and outside the office, both on the grounds that this directly breached guarantees of judicial independence (Art. 23 EPC), and that this was a further instance (among many) of heavy-handed suppression of criticism, dissension and debate within the EPO.
  • The ultimate governing body of the EPO, the Adminstrative Council (AC), meets this week. It is this body alone that would be empowered to impose sanctions such as suspension or dismissal on a Board member.
  • On Monday, members of the Enlarged Board of Appeal (EBA), which is the highest judicial authority in the European Patent system took the unprecedented step of complaining about the conduct of the President, and of his interference in their judicial independence, directly to the AC delegates arriving for their meeting.
  • Simultaneously, another letter emerged from a Partner in Bardehle Pagenberg, exhorting the head of the German delegation to the AC to take the lead in rectifying the President's actions.
Merpel understands that a further letter has been sent to the AC by two highly respected IP judges -- Sir Christopher Floyd (Court of Appeal, England and Wales) and Robert van Peursem (Advocate General, Supreme Court of the Netherlands).  This letter references the earlier letter from the EBA members and expresses support for the position taken. They argue that the Board of Appeal members are judges and that interference by the President infringes basic principles of judicial independence, which the EPO cannot disregard.

"Come on, AC! Carpe diem"
Merpel believes the onus really is on the AC now to step up to their responsibilities. With the intervention first of the internal EBA members and now of two senior patent judges from large contracting states, it is not credible for the AC to go along with Mr. Battistelli's dismissal of widespread EPO unrest as being simply a symptom of resistance to the changes and reform programmes which he has been pursuing (with, it must be noted, the wholehearted support of the AC to date).

It may also be tempting to dismiss the oft-repeated cliché that a culture of fear now exists within the EPO, as being the product of hyperactive imaginations or of hyperbole, but Merpel suggests that the AC delegates should make it their business to look beyond the cliché. In recent weeks, each day has provided Merpel with ample evidence that extremely conscientious, loyal (to the organisation, if not its current President) and in many cases quite senior EPO staff share a real concern that they may be identified as engaging in any dissent, disloyalty or resistance This is not good for the Office, the staff, or the users of the European Patent system.

35 comments:

Anonymous said...

I feel a wind whispering through the corridors of my fellow patent attorneys in my country and multiple organisations they are united with, from private practice and from big industry, together with magistrates and lawyers, standing united against this interference in judicial independence.

It is not the wind of change. It is a united force of many voices whispering univocally condemnations, turning to a storm calling for justice.

Another cat lover indicated in a comment to another related topic big industry does not care. They do care, they are awake and are preparing action.

This is information from only one Member State. And as we are not that different in Europe, I expect not very different situation in other Member States.

Anonymous said...

Should that be alleged dissemination of allegedly defamatory material?
Since the EPO claims immunity from national law with regard to operational matters, it is not clear to me what definition of defamation is applicable, particularly as the EPC does not appear to define the answer.

Anonymous said...

I wonder why Russia and Qatar did not yet ask to be part of the EPC.
Maybe even move the headquarters there.

Anonymous said...

While (E)BoA members are equivalent to judges, it may also need pointing out that examiners are legislators since by granting they are enacting, each time, a piece of law. It is a cautionary advice given to examiners in order to remind them of the relevance and importance of their work. There too, interference in the work of examiners should not be made lightly.

Anonymous said...

Anonymous @ 23:06,

Interesting that you view each patent as "a law."

Here in the states, we view them as property.

I must admit, I do not understand what you mean by "law" - especially in complicated items, in which patents may exist at portions for different owners, each one singly not sufficient in order to do anything but say "don't touch MY property."

Does law work like that...?

Anonymous said...

Anon @ 21:31 - if big industry cares and is preparing action, then they should be doing so today. The AC is meeting tomorrow and should be told that users, including big users, see a problem and want it fixed. The normal lobby channels might be slow, but Merpel seems to be able to get info out quickly, in a forum where AC delegates will see it.

Anonymous said...

It is the AC that appoints board members, and it is the AC that has the power ultimately to rescind that appointment. It is the AC that appoints the President of the Office ... (the remainder is left as an excercise for the reader)

Anonymous said...

The interference in the work of examiners is much bigger than the public knows. Attorneys are alerted. It is only a matter of time that the whole scandal becomes public.

MaxDrei said...

I have been representing large corporate at the EPO since 1978. Until now, the EPO has performed very well, mainly because of the determination of its top quality staff to do a good job. Attitude is key. I am shocked to see the EPO President in cavalier fashion wilfully destroying that excellent attitude within their Office.

As the saying goes, you (looking in) only know what you've lost when its gone. Well, at the EPO, it's going fast.

But which single AC Member is brave enough to raise their head above the parapet, on behalf of the users (applicants AND opponents)? If there is one, there ought by now (thanks to disseminators like the IPKat) to be others who know enough to decide to support that single initiator. Somebody was brave enough to initiate the DG3 letter. Is there somebody on the AC brave enough to do something serious and effective in response, to restore the all-important positive attitude to work, inside the EPO? I don't want all the best EPO people to leave (as they are doing, in droves, at the moment). Is this what the President wants? Seriously, I fear it is.

Anonymous said...

Anon at 231800,
It can be seen as a law since each patent defines a temporary (20 years) exclusion zone which can be defended in court i.e. illegal activity is being defined. It is a property in that only one party is the beneficiary (potential court defined financial punishment) and the benefit can be transferred but, in general, the effect of a patent is to place a legal burden on everyone else.

Anonymous said...

Yes, sadly, the attorneys do not realise the manipulations which are taking place lately: statistics are manipulated, quality figures and parameters are manipulated, decisions are induced, legal provisions are bent, DG3 decisions are seen as obstacles, ISO certification has been literly bought, resources are diverted etc The list is long. Examiners and members are intimidatd and self-glorification of high managers is the daily music. The office should go back to the origin: good quality examination of patents according to the EPC which is a well-written convention. Eliminate academy, inventor if the year events, big ads bei CNN, luxury travel for few elected and oppressive measures for those who have made great the office.

Anonymous said...

@anon 00:19:
tell me more...
Is the interference in a general way, say on patentability of certain computer implemented inventions, or does it relate to specific applications or applicants?

Anonymous said...

While I agree that there might be some merit in discussing whether or not examiners are law makers, this is, I fear, not the time to count the number of angels on the point of a needle. Let's please return to the burning problem which merpel addresses, and discuss the rest later!

Anonymous said...

Might there not be a possibility that the ban was entirely justified? Of course, if later on it turns out to be so justified, Mr President will be able to crown himself King, declare himself infallible and all those detractors will have to eat humble pie.

Anonymous said...

It is unlikely that the mambers of the AC will feel empowered to do anything about the system in the short term. They are representing their respective governments and accordingly must seek guidance from their respective ministers via other more senior civil servants. It is simply unrealistic to expect them to be "brave".

Anonymous said...

It would be extremely hypocritical of "big industry", or even "little industry", to join the marches against the president as industry works the way the president is being accused of doing.

As one of many examples I can think of, an ongoing case is the decision by one man to order the employees of the company he runs to uproot their families and move from Alderley to Cambridge. I, for one, will not be joining them.

Anonymous said...

Just to clarify to our US colleague: In Europe, a patent is also property, not law.

Anonymous said...

"Might there not be a possibility that the ban was entirely justified?"

The president has explained his position to the world - or at least the world of IP:
http://www.managingip.com/Article/3408714/Is-the-EPO-in-crisis.html

Anonymous said...

If you have concerns, I suggest you write to both to the AC and the AC's boss in your respective country, i.e. the local minister (elected representative) responsible.

The meeting is today. Its not too late, still time to get an email to the minister, and I believe the minister can make phone calls, again quite rapid.

You are right we need to help ACs be brave.

Anonymous said...

It is far too late for any interventions.
The rumour in Munich is that the members of the AC were invited to an expensive restaurant for a tasty pre-Christmas repast on Tuesday evening.

THEY WILL NEVER BITE THE HAND THAT FEEDS THEM !

Anonymous said...

Does the rumour also say that the gravy will be provide by the EPO, because they have lots to go round?

Anonymous said...

Mr B in Managing IP mag couple of days ago, does make a reasonable case for reform. But as an outsider, for 36-37% of EPO staff to strike even on one day, does indicate something is going on. Scientists and engineers as the Examiner's are not known for their reputation for industrial action.

Victor Hugo describes in Les Miserables, the evolving of, and in the end the inevitability of, a revolution amongst the people, like a tidal wave that cannot be stopped.

So yes there is something that can be done to help ACs be brave, whether today or next week. If you want the situation looked at by elected Ministers, then we have to contact elected Ministers

Anonymous said...

There has been some discussion about the EPO being exempt from recognised law, e.g. human rights, employment legislation etc

This raise the question, when we as attorneys go into or send our staff into the EPO buildings are they protected by the rule of law as we would expect e.g. public liability, health and safety etc, protection from physical and mental harm?

Anonymous said...

Anon 10:05 - doe Art. 9(2) EPC answer your question?

Anonymous said...

Anon@10.45, Thank you.

But I am not sure it does answer.
A9(3) leads me to A8 EPC. which leads to the protocol on Privileges and Immunities, A1 (inviolable premises) A2 (inviolable documents).

So imagine one of our employees trips at the EPO due to failure to maintain a floor , or is physically attacked in the building (a bit extreme), we cannot enter, the police cannot enter, documents cannot be asked for.... please let me be wrong!

Anonymous said...

"or is physically attacked in the building (a bit extreme)"

Actually, I think there is wome precedent: if my recollection is right, when a former President was accused of assaulting a staff delegate in the Rijswijk premises the Dutch police was stopped from entering the premises...it was ages ago, though.

Anonymous said...

I'm surprised people such as Julian Assange don't take refuge at the EPO. Much cosier than a cramped West London embassy.

Plenty of gravy to dip his chips in too.

Anonymous said...

"There has been some discussion about the EPO being exempt from recognised law, e.g. human rights, employment legislation etc"

So look on the bright side - if the President is kicked out the AC need not provide him with a "golden parachute", just escort him from the building....

Anonymous said...

Isn't Assange alleged to have dipped his wick rather than his chips?

Anonymous said...

Do you know why BB is called "Putin"?
Because he is excellent at lying and manipulating.

Never believe him blindly... Always question what needs to be questioned.

Anonymous said...

I hereby plant my flag and lay claim to the EPO on behalf of Argentina. We shall confiscate all gravy for use on our corned beef.

Anonymous said...

The dutch police has just recently denied entry when they wanted to find out about the details of a EPO colleague who jumped out of the window out of dispair. not long time ago

Anonymous said...

Is my understanding correct that an EPO staff member died by falling from the window at the EPO in NL and as the dutch police arrived the EPO denied entry to the EPO???

This sounds unbelievable...

Anonymous said...

That is very sad, and, no disrespect intended whatsoever, if true appears very wrong.

Anonymous said...

Foxcon style?

The building where the suicide happened in TH was the only one with the possibility to open totally the windows.

This freedom was highly appreciated by the users.

All the windows of this building have been recently locked under the pretext to "harmonise with the others buildings of the EPO.

From a well informed source, this total lock has been unilaterally decided at high level to impede future suicides.

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