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Wednesday, 3 December 2014

Merpel revisits the EPO strike

Merpel reported yesterday on the demonstration at the European Patent Office, with some recently received photographs.  The post attracted lots of comments.  Some -- whose content appeared to suggest that they were written by disgruntled examiners -- were in English so poor that Merpel thinks that they could not possibly have been (or were they cunningly disguised?)  In the meantime, there has been further eyewitness reporting on the FOSS Patents blog, which also refers to a report of a complaint from the staff union that the EPO allegedly pays for health insurance of members of the Administrative Council.  This is the body (composed of representatives from the national patent office of each contracting state) which is supposed to exercise oversight over the EPO.  That report also suggests, strikingly, that even Board of Appeal members joined in the demonstration.

The topic bears revisiting, in particular in relation to four questions that Merpel and the IPKat have been pondering.

(1) What happened about Oral Proceedings?

When reporting the previous strike action at the EPO, Merpel noted that "Apparently EPO staff are under instruction not to impede Oral Proceedings and involved Examiners are not to strike".  This time, the issue of Oral Proceedings appears to have been highly contentious.  SUEPO, the EPO Union for members in Germany, published a notice (link here - see entry on 19 November) reporting letters that had been sent to Representatives, advising:
to save the applicants unnecessary additional costs and inconvenience, SUEPO recommends that you ask for a postponement of the Oral Proceedings if any are scheduled on one of the above mentioned strike days.
The EPO responded, in a notice that Merpel has seen, and believes was published at THIS URL, but which now appears strangely to have vanished, stating that Oral Proceedings would - well - proceed - as scheduled, and representatives were expected to turn up (unless of course they had opted for Video Conference).  Merpel recalls (but is open to correction by anyone who has a record of the deleted notice) that the EPO's response made reference to a "minority" of employees taking strike action.  But the notice clearly suggested that Examiners could be requisitioned, for example for the Oral Proceedings that the EPO was guaranteeing would proceed, in which case not everyone was free to strike.

The IPKat and Merpel would like to know this: were EPO employees all free to strike?  If not, who could be compelled not to, and for what reasons?

(2) How many EPO employees went on strike?

The actual strike numbers are disputed.  This is true in the case of every situation of industrial action that Merpel can remember.  The EPO has written as follows (Merpel takes the precaution of reproducing the entire text in case this likewise disappears, or becomes altered):
A current industrial dispute involving strike action at the European Patent Office (EPO) has been the subject of some recent public comment. 
Unlike national civil servants in some European countries, the civil servants of the EPO are free to exercise the right to strike.  
Some of them have chosen to do so on a number of days in November and December for reasons which reflect opposition to all reforms implemented in recent years and in particular to the project to create a performance-based career system.  
The strike figures are the following
20.11.14             2538 staff representing 36,7% of the workforce
25.11.14             1580 staff representing 22,8% of the workforce
26.11.14             1455 staff representing 21,07% of the workforce 
The European Patent Office regrets the unnecessary disturbance caused by these actions, but once again reassures the public that all measures to ensure the normal functioning of the Office are in place and that services to users remain unaffected.   
Note again the suggestion here that the EPO can take "measures" to ensure the normal functioning of the Office.  Does this include preventing those who wish to join the strike from doing so?

In any case, SUEPO disputes those figures and suggests the true numbers for 20 November are closer to 3,000; Merpel heard a report that the Pschorrhöfe buildings (one of the EPO sites in Munich, where most first-instance examination takes place) were nearly empty.  These figures have also been commented on in this post from WIPR.

(3) How many participated in the demonstration?

In the events organised yesterday, there were two separate demonstrations, one in Germany and one in the Netherlands.

In the Netherlands, EPO staff demonstrated in front of the French Embassy in The Hague and then marched to the Danish Embassy.  These demonstrations were in particular to support their two colleagues, respectively French and Danish, who Merpel has been informed are facing disciplinary procedures for their work as staff representatives (in pleasing symmetry, the EPO and the Administrative Council (AC), are respectively under the lead of French and Danish nationals: Mr Battistelli (EPO President) and Mr Kongstad (AC Chairman).)

In Germany, staff marched from the EPO Pschorrhöfe buildings in Munich to the local Palace of Justice.

Merpel assumes that the number of people actually demonstrating would be lower than the number on strike, since a person could refrain from work without attending the demonstrations.  WIPR reports the number demonstrating as "close to 2,000"; Merpel has heard estimates in Munich as from 1,100 (apparently the police estimate) to 1,400 (the organisers' estimate). The numbers from the Hague are apparently around 600.

(4) How did it affect EPO operations?

Merpel wonders whether Oral Proceedings did go ahead without incident, and whether there was any other impairment of the functioning that was apparent to applicants or their representatives.  Do send comments if you have any experience.

And coming up ...

More strikes are planned today, tomorrow, and as follows:

  • December 8, 9, 10, 11.
  • December 15, 16, 17, 18 and 19

Merpel understands that the EPO staff unions are planning an escalating series of events, so look out for further demonstrations and other actions in the next couple of weeks.

10 comments:

Michael Factor said...

Regardless of other issues, EPO staff are European Civil Servants and, as such, are entitled to Oral Proceedings, Orthodontics and Other Dentistry treatments.

Richard Bassett said...

I attended oral proceedings in The Hague on 26 November. Leaflets were being handed out to those entering the building, but there was no impact on the OPs themselves, which went on until 18.30.

Anonymous said...

I have recorded the notice of the EPO and it indeed mentioned a "minority" of examiners calling for a strike. The results of the strike ballot were roughly 85% in favor of a strike, with around 55% of participation (I quote these results from memory, there might be a slight error).
Of course EPO management has chosen the school holidays to organize the vote. So indeed less than 50% of the employees entitled to vote called for a strike. You can consider it as a minority.

Anonymous said...

Some comments...

(1) & (2) & (4) The strike regulations allow the administration to requisition employees to refrain from going on strike in order to ensure the basic functioning of the office (See Art. 30a(9) Service Regulations that you posted on 24.04 on this very blog). I would guess that OPs are considered minimum functioning...

(3) "Merpel assumes that the number of people actually demonstrating would be lower than the number on strike, since a person could refrain from work without attending the demonstrations" - you may equally assume that a person, depending on his or her personal circumstances, could decide to take half a day off so as not as to appear officially on strike, and still go to the demonstration.

Anonymous said...

Point 1. It has long been the case that examiners would cross the picket line for oral proceedings since it was unfair to (financially) inconvenience parties. In addition some staff are essential e.g. Formalities officers to answer (time limited) questions, security, IT support etc. in addition, contract staff and new employees on probationary periods are not expected to risk their employment. Generally management would not join strikes and now they are too frightened to do so. Suepo' comments this time reflect that some examiners are less willing to play by the office's rules since they are prevented from alternative actions and are used as pawns in a strike number game.

Anonymous said...

Indeed, quite a lot of people demonstrated without striking.

Anonymous said...

Now who thinks is good that president takes de facto control of appeal board? Decide who stay and who go? Who think is good for european patent system?

Anonymous said...

One Board of Appeal member was suspended yesterday.The locks were changed and the person was escorted from the premises by 4 security guards.

Nicholas Braddon said...

I attended EPO oral proceedings in Munich today (4 December 2014). The oral proceedings went ahead without incident and, to my eyes, there were no obvious signs of any strike action taking place.

Anonymous said...

@Nicholas Braddon: Picketing at the gates was forbidden by VP4 Mr Topic.
The strike is going on.

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