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Tuesday, 9 December 2014

The chorus swells - another entreaty to the AC about Battistelli


Last night, Merpel reported the unprecedented complaint from the EPO's Enlarged Board of Appeal to the governing Administrative Council (AC) regarding the behaviour of Benoit Battistelli, EPO President, asking the AC to impose “a clear limitation on the executive power”.

In a footnote, Merpel mentioned another letter, from Dr Tilman Müller-Stoy to Christoph Ernst. The letter's author is a well-known litigator and is a partner in the renowned German firm of Bardehle Pagenberg. The addressee is Christoph Ernst, Ministerialdirigent (Ministerial Director) in Germany's Federal Ministry of Justice, in his role as head of Germany's delegation to the AC. The letter, in English translation, can be viewed here, and was the subject of a post last night on the FOSS Patent blog.
Tilman Müller-Stoy, who's asking the
DE delegation to the AC to set the
EPO management straight

Tilman’s letter comes in advance of the AC meeting this week, and he adds his voice to the growing chorus (which includes Merpel’s catcalls) asking the AC to take control of the increasingly troubled management of that organisation.

In his letter, Tilman describes the prohibition on a Board member from entering EPO offices (a de facto suspension) by the President, as:

“a transgression of competence on the part of the Management of the EPO which causes deep concern and is likely to fundamentally question the independence of the Boards of Appeal”.

His letter explains why: under Article 23 EPC, only the AC can remove a Board Member from office, on a proposal from the Enlarged Board. In this case, the President bypassed that safeguard and imposed a “house ban” using his general disciplinary powers over all staff members. (The Enlarged Board's take is slightly different: they say that in addition to the Article 23 mechanism for removal from office, there is an alternative mechanism for suspension, but again only the appointing authority, i.e. the AC itself, can take this decision, albeit on a proposal from the President. Either way, he can't act autonomously and only the AC can remove or suspend Board members.) Tilman characterises this exercise of disciplinary power over a Board member not subject to the regular disciplinary mechanisms as follows:

"However, a transgression of competency of this kind is unacceptable under the principles of the rule of law: The exertion of the disciplinary power by the “executive” over the “judiciary” of the EPO abolishes the separation of powers and jeopardizes the judicial character of the Boards of Appeal which is substantially determined by the independence of its Members."

Then Tilman turns to a second issue which also raises serious concerns about judicial independence:

"In a second point which is less obvious to the public, the President also transgresses his powers. The Chairmen and Members of the Board of Appeal so far have been, as a matter of routine, reappointed after the lapse of an appointment period. Since the issuance of the decision R 19/12 [IPKat post here, and it's a decision to which the President reportedly reacted with fury], no members have been reappointed so far. Whereas according to Article 11(3) sentence 1 EPC the President has a right of suggestion for the appointment, he precisely does not have such a right with regard to the reappointment. In such a case, he is merely to be heard, according to sentence 2. Nevertheless, the President de facto controls the reappointments. He does not limit himself to communicate the members to be reappointed to the Board or to have them communicated to the latter and to eventually give his comments, but he withholds this information from the Administrative Council. It is obvious that Members of the Board whose appointment period is due to expire shortly consider themselves put under pressure by the President until their reappointment has been made. The personal independence, the indispensable requirement of an also critical examination of administrative decisions, cannot be
Upton Sinclair, who said:
"It is difficult to get a man to understand
something, when his salary depends
upon his not understanding it"
guaranteed under such conditions."


Merpel suspects some readers may be wondering why users of the Office should be concerned about an internal matter such as reappointment to the Boards?

Much of the work of the Boards of Appeal is concerned with deciding the rights and wrongs of appeals by applicants against decisions of EPO departments which are under the direction of the President. If one is dependent on the President for reappointment, this must throw up at least the possibility of a conflict of interest when deciding against the President on a matter which is not to the liking of the EPO management.

As one example among many, in T2534/10 a Board held that where oral proceedings have been scheduled for one day, the EPO cannot bring the parties back on the following day if the discussions drag on longer than expected, unless they have been summoned for two days. Merpel imagines that in the President’s drive for efficiency and reduced costs, this must have been a very unwelcome decision, tying up rooms and resources for longer than needed as a precaution against a two- or three-day hearing that might never happen. Would a Board member, approaching the end of his or her term and with no news as to reappointment, want to be seen as responsible for such a decision, or would career prospects be improved by giving the Office carte blanche to call attorneys back if the division in question wanted to prolong the proceedings beyond the scheduled day(s)?

Those who think that such concerns are fanciful have not been paying attention to what Tilman calls the currently prevailing “‘atmosphere of fear and terror’ which results in numerous disciplinary procedures against unwelcome staff members of the EPO.” It does not take much for a staff member to mark oneself out for disciplinary action at the EPO these days, and recent events show that Board members are no longer immune to this regime.

Merpel can do no better in summing up than to quote the final paragraph from Tilman’s letter verbatim:
With these measures of the President, a functioning and balanced system which enjoys great acceptance on the part of the users is ultimately discredited, which should cause all persons responsible for this system, in particular the representatives of the Member States in the Administrative Council to take measures which are appropriate for safeguarding the independence of the Boards.

Time is running out for readers to draw the attention of their own AC representatives to the problems at the EPO, not just as far as the current regime concerns Board members, but also in relation to how the staff generally are being managed. Merpel's said it before and will say it again: just because someone is perceived to have a good benefits package does not mean that they should lose the normal protections of employment law, fair treatment and access to independent, timely and fair dispute resolution mechanisms.

31 comments:

Anonymous said...

Related, albeit tenuously, does the seeming disregard for the rule of law in relation to the separation of powers mirror the ongoing US 101 issue in that the separation of powers (judicial branch versus legislative branch) is routinely pooh-poohed and people are exhorted to [shrug], just accept it, and move on?

Granted, in this EPO situation, it is the executive encroaching on the judicial, but should not any encroachment of one upon another deserve the same level of care and diligence?

Anonymous said...

Good for the German profession.

The UK profession is supine, as usual.

Anonymous said...

Or, until the recent blast of publicity, unaware?

Anonymous said...

I would think so. I met a bunch of French patent attorneys the other day ; they did not even know the name of the EPO president. How would they know what is going on?

Anonymous said...

That's funny or sad. To be honest, if you are busy and filing, filing, filing then you don't have time to keep track of this. If you face the divisions or boards, you're only interested in that interaction and both try to leave any strife outside the room. One poor decision generally gets a snort and an appeal but doesn't make you blame the president. Until now?

Anonymous said...

Now you know what kind of people graduate from the ENA.
They always know better than you do regardless of what you are talking about. They just know better.


Anonymous said...

Our clients want confidence that grant of a patent is not reliant upon anything except an independent judiciary, otherwise it could become a "grace and favour" regime.

If we had an alternative option to EPC, we would be looking at it now.

On that note, how easy is it to get direct grant GB, FR, DE, IT, ES? Please do post below.

Separate national filings is beginning to look attractive,
partly because of UPC uncertainty,
partly because of odd case law direction in EPO,
partly because of quite ridiculous approach to unity (stopping searching once the main claim is knocked out and asking for fees for almost EVERY dependent claim -ridiculous!)
BUT MAINLY because we do not know if the EPO's judiciary can be trusted not to do just what the president tells them to - very scary! Especially as he has diplomatic immunity.

Anonymous said...

Actually, we take that back about the judiciary, at least for today.
We are impressed by the EPO's judiciary (EPO's Enlarged Board of Appeal - EBA) and their courage today, but very sad that EBA felt need to write such a letter.

Anonymous said...

I think DG3 have shown their commitment to independence (and I'm not part of DG3) but they are determined that they are seen to be independent. The risk of being weakened is being fought hard. What that means for the rest of the EPO i don't know.

Anonymous said...

Another example where DG3 might have decided differently if they were not independent from EPO management is J9/10 (which ordered refund of the exam fee after an automatic communication was dispatched to the applicant). Here a conflict would be clear, were the boards under the authority of management.

Anonymous said...

Those who really pay for the operation of the EPO – the so-called big industry – also have a great say in its operation. Usually you hear from organisations such as BusinessEurope (once known as UNICE) when they are dissatisfied with something, and they express themselves directly and via their national member organisations. The latter also impress the mutual view (which is frequently in agreement with US views) on the local government and national agencies. They usually express themselves discreetly but probably not anonymously, and for this reason I do not believe that we have had big industry representatives among the 100 or so commenters under various threads in this sad story. As far as I know big industry is at least an observer in the AC.

Writing national representatives will not be an efficient pressure means, unless big industry does the same, and there has been a conspicuous silence from that part. Hopefully that is just because they are discrete, but we cannot distinguish that from their really being silently satisfied with things as they are. Big industry can wait, big industry has other ways of solving disputes; delays and doubtful decisions from the EPO are only to the detriment of the smaller competition. Which will thus become less of a competition.

Hence, unless big industry gets into the game and tries to tame the untameable, there will be no changes. And I have not heard any published view from EPI. Let us see what creeps out under the carpet after Thursday’s AC meeting.

Kind regards,

George Brock-Nannestad

Anonymous said...

National filing won't solve the problem cause it's the EPO who's carrying out the searches for FR, IT, BE, CH, LU, NL, GR and probably some others...
However, thanks to the "legal certainty" program, you'll get a search done in 6 months or less for national filings, while PCT searches are postponed (4 more months than usual since July).
But apparently that's what the applicants wanted... lol (http://www.epo.org/news-issues/news/2014/20140703.html)

Anonymous said...

George,

Very interesting comment. Thanks. Those in power might just realise what a liability Mr Bribe&Bully has become for the UPC with his stupid move against the Boards.

Meldrew said...

"Good for the German profession."

Or at least one attorney and one blog?

"The UK profession is supine, as usual."

Or at least not choosing to use megaphone diplomacy?

Noise is not always synonymous with action.....

Anonymous said...

I had unpleasant feelings discovering that tomorrow a New Career System is to be voted by the Administrative Council...are all these human rights speeches only aimed at avoiding :
"The creation of a new career system in the EPO is one of the HR roadmap’s major
projects. Based on various internal and external audits and studies, staff
satisfaction surveys, the new career management mainly foresees:
 Introduction of an Office-wide competencies framework with harmonised job profiles and proficiency levels as a reference for recruitment, career advancement, performance management, professional development
 Adjusted grading and step advancement structure to better reflect
competence, performance and level of responsibility
 Revised promotion and appointment rules with stronger focus on competences and performance rather than time in post
 Revised salary scales and creation of a single spine model in order to reflect the new job classification, introduce more flexibility and a better identification of the levels of responsibility.
 Diversify the incentives schemes in order to take into account the various levels of contributions at individual and collective level. "
???

Anonymous said...

Anon @1207
Indeed. Makes me wonder why he needs a speech-writer when he is clearly not going to fall for any cunning tricks by staff which might get him to describe his plans in other than abstract terms. Rats! We were all expecting that this would be the moment when he stroked his white cat, smiled mercilessly and revealed his devious plan to the world!
Whatever could the EBoA be upset about??

PS Try replacing performance with production and level of responsibility with my mates. Even the BoA members will no longer be equal - some will be higher than others. The summary of the explanation you quote would be less money, higher targets and no guarantee of reward even for exceeding the new targets. But even then staff are not striking for that, much as BB might like you to think so. He has variously blamed staff for objecting to Chinese prior art (bemusiingly) and for children studying in the US being a perk (I'm yet to find one but I'll keep looking...). Perhaps he'll explain what he and his clique earn before and after the change. Why not ask him what his salary, additions and bonuses are?

Anonymous said...

News from the AC meeting today:

http://techrights.org/2014/12/07/battistelli-audio/

B.B. does not care about national legal systems, want counts is what is good for the office!

Anonymous said...

The Techrights site also has additional information that others might have missed on IPKat and links to other interesting sites. http://techrights.org/2014/12/09/exclusive-eboa/ is a good starting point.

Anonymous said...

1439
That was from the 7th, not today.
PS Couldn't play audio...

Anonymous said...

Could anyone please post the names of EBA legal members signing the letter of complaint to the AC?

Reason is that we have a case pending of alleged partiality of the VP3 parallel to R19/12. Preliminary result of oral proceedings: The legal member is of the opinion that R19/12 is an isolated and wrong decision. So it would be interesting to see if he considers independence of BoA members to be of any value.

Anonymous said...

I didn't think that the EBA could make wrong decisions ...

p.s. anon 15:18, see anon 15:12

Anonymous said...

"Noise is not always synonymous with action....."

Oh, how terribly gauche of a couple of people to speak out publicly. Not the way things should be done in this business, old boy. A bit non-U.

The non-megaphone diplomacy really worked, didn't it? If the diplomatic and discreet people in grey suits are so effective, with all of their marvellous connections and vaunted wisdom, then how did we even get to this point, then?

Sometimes you need to make a noise, cause a bit of embarrassment, to not spare the blushes, to make sure that these things even make it onto the agenda. At least (a few more) people are paying attention now.

There are still people alive in Germany, in particular, who were eyewitnesses to certain problems that arose when judicial independence (more generally) was ignored. Perhaps that explains the readiness to speak up quickly, simply to defend the important things in life, and it's admirable.

Anonymous said...

Anon 1518
The original letter was marked Confidential. Merpel removed the letter from this site so I guess giving hints as to where to find it elsewhere is probably not approved. And would take us in to a discussion about public and disclosed in the electronic age when a document to a public body is kept confidential but is known by many...

And I won't even venture into the question of questioning R19/12!

Anonymous said...

Dear anonymous at 15:17 look in the site techrights.org which reports the original document with all signatures. You'll find out about the legal members.
R 19/12 is not an isolated and wrong decision. Be reassured that after the latest events and the poor performance of VP3 it will find confirmation in future cases.

Anonymous said...

Ofiicial strike figures indicate that added added together about 2 working days were lost in last 3 weeks. Good for the EPO - less salaries to be paid. Another consequence: patents will in average be granted a couple of days later... Bad for the National offices because these patents will be validated later and only than they get to collect the respective fees....

Anonymous said...

Anon 1755
You forgot that since July there also has been a priority on searches (to give early certainty...) and granting will take longer. Pres. only demanded lots of grants until July (actually mid-July to get numbers up) since intentions to grant only lead to grant and national fees with a 5-6 month delay.

Anonymous said...

Hot to download the audio file from:

http://techrights.org/2014/12/07/battistelli-audio/
The file ending ".ogg" is missing. Rename accordingly while downloading.
Then you should be able to listen the file.

Anonymous said...

One conclusion one may arrive at after listening to the techrights.org recording: if dissenting opinions - if not just legitimate concerns as part of a constructive dialogue - from the supervisory authority itself are found QUOTE "not acceptable" END OF QUOTE by the president, how about concerns arising from the president's subordinates, that is staff and management? Such opinions may well be followed by disciplinary measures here and there...

Anonymous said...

anon at 15:18 ; what is your case? reference and complaint?

Anonymous said...

Anon 15:17 - is your case R8/13?

https://register.epo.org/application?number=EP96102992&tab=doclist

That seems to be slightly odd in itelf, in that a hearing was fixed and then "cancelled" but apparently went ahead, not open to the public, but the EPO only advised that it had even happened when pressed by a third party (not me, by the way).

Anonymous said...

Watch now for retiring of many older judges, get out before is worse. This is message vice president give today to enlarged board. All ready two board has no chairman and no vacancy is filled. Who will do this work? Work is not suddenly less, but is fine because president saying only quality is important.

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