From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 24 December 2014

What is eating the European Patent Office? Merpel summarises

Seasonal summary of EPO news: not to
everyone's taste and may be hard to swallow
Over the past month, this weblog has hosted news and developments of reports of unrest among the workers at the European Patent Office (EPO).  These have been some of the most commented-upon posts in this history of the blog.  The unrest is not, as might have been supposed, only at the level of the Examiners and regular employees, but even within the exalted ranks of the Boards of Appeal and Enlarged Board.  Since news does not develop in a neat and tidy manner, the IPKat has asked Merpel to review the recent events, to write a brief summary of the events themselves and to outline the issues now facing the EPO.  Merpel emphasises the word "brief"; with hundreds of comments, it is not going to be possible to reflect them all in detail.

So here is a brief timeline:

23 October - results announced of a further strike ballot,  overwhelmingly in favour of a strike (readers may recall that industrial action previously took place in March and April 2014, as reported here, here and here).

18 November - strikes begin, a plan of escalating action being the stated intention.

19 November - staff union SUEPO suggests to European patent attorneys that they request postponement of Oral Proceedings during the strike period

2 December - in addition to the strikes, demonstrations (see here and here) are held in Munich and the Hague.  Staff were protesting at, among other things, the treatment of two colleagues who were said to be facing disciplinary procedures for their work as staff representatives.

The IPKat thinks it fair to say that, up until this point, only a relatively small amount of sympathy was evident for the lot of the Examiners.  This remained so until matters spread so far as to involve a member of the Board of Appeal.

3 December - it is announced within the EPO that a "member of staff", understood to be actually a member of the Board of Appeal, has been placed under "house ban" (which many saw as effectively a suspension) by the President of the EPO for alleged dissemination of material which was, as was also alleged, defamatory.  The allegedly defamatory material is understood to relate to a senior member of the EPO at vice president level.

The suspension releases a flood of protests to the Administrative Council (AC), since under the terms of the EPC only the AC has the power to discipline a member of the Boards of Appeal. The protests come from at least the following sources:

8 December - from (most of) the internal members of Enlarged Board of Appeal

9 December -  from a number of European patent attorneys

10 December - from two external members (from the UK and Netherlands respectively) of the Enlarged Board of Appeal (EBA)

11 December - from further external members of the Enlarged Board of Appeal.

11 December - the Administrative Council of the EPO, which has been meeting on 10 and 11 December, announces that it has confirmed the suspension of the member concerned and asked an investigation to continue to allow it to consider next steps (presumably at its next meeting).  Although "the Council took this opportunity to reiterate its full endorsement of and support for the principle of independence of the members of the Boards of Appeal", the result is considered in effect simply to validate the action taken by the President.

So what are the concerns?

(1) Are the Boards of Appeal independent?
It is reported that the President of the EPO plans to reorder the internal structure of the EPO, to bring the Boards of Appeal more under the management of the Office.  This is termed "Alicantisierung"or, as Merpel has rendered it "Alicantation".  Such a reform would presuppose a further level of appeal, perhaps to the Court of Justice of the European Union, despite the obvious constitutional issue since the European Patent Convention includes many non-EU contracting states.  As discussed here, suspension of a Board of Appeal member really compromises the independence of the Boards of Appeal.  How are they going to take decisions criticising a practice of the Office, and perhaps finding a substantial procedural violation, if they are subject to discipline by the same management?

The AC resolved at its last meeting to set up a disciplinary committee, presumably to consider the case of the Board of Appeal member.  It will be very interesting to see who is the investigator, prosecutor, and decision-maker in respect of this, and what rights are given to the accused person.

Relevant in this regard is Case R19/12, which found that an objection to the participation of the Chairman of the EBA on the basis of suspicion of partiality, because of his dual role as vice president of DG3 (the Boards of Appeal), was justified.  The role of the Chairman of the EBA continues to be questioned in other cases, and the passing of some of his management roles to the President is seem by many to make the situation worse, not better, in terms of the separation of the administrative and judicial functions within the EPO.

(2) Are the principles of natural justice being ignored by EPO management?
This topic seems hugely controversial.  It is reported from within the EPO that there is an investigation unit with draconian powers, where basic human rights and principles of legal legitimacy are not recognised:  we are informed that an investigated person has no right to silence but must actively cooperate (since non-cooperation is itself a disciplinary offence); that there is no right to legal representation; and that an investigated person must keep the fact of the investigation secret, which denies them support.  The internal appeal process is only advisory, which means that an opinion in favour of the employee can be ignored by the President [which the IPKat finds extraordinary].  the only external recourse is to the International Labour Organization's Administrative Tribunal (ILO-AT), which is so slow that effective justice is denied.

Indeed, Merpel has noticed a palpable sense of fear and intimidation in both comments on the blogposts and other correspondence that she has seen and received from EPO employees.  Correspondents seem afraid of losing their jobs simply for saying what is apparently well known within the EPO anyway.  There must surely be concern that such an atmosphere cannot contribute to the effective working of the Office…

… which brings us to:

(3) Promotion of efficiency within the Office
Users of the system obviously are concerned about how this directly affects the processing and examination of applications.  Perhaps they are not concerned with the human rights of examiners (and there remains a substantial view within the comments received by the IPKat that Examiners are in fact fairly treated and are complaining without cause).  Clearly there is a pressure within the office to reward the processing of applications in the minimum number of actions and at a greater rate.  The EPO is not alone in this - the same has happened at the USPTO and at the UK IPO, for example. EPO Examiners consider that the current pressure on productivity within the EPO is at the expense of quality of examination: some have even gone so far as to say that now is a good time to file dubious cases as they stand a better chance of being waved through.  Merpel sees that it is easier for managers to measure numbers than quality of examination, and has yet to see plausible systems in place to continue the tradition of high quality examination if the productivity is to be increased.

(4) Should the EU be involved?
If the Unitary Patent becomes a reality, then for the first time the EPO will be in part an organ of the European Union.  Should the EU therefore be investigating the EPO to see if it is fit for purpose? There is currently a petition before the European Parliament asking for an investigation.  There is also a question before the UK Parliament asking what the UK government is doing to guarantee the independence of the [Enlarged] Board of Appeal.

(5) Is there even need for increased efficiency?
Merpel wondered a little while ago whether there was even a need for increased efficiency at the EPO and had a glance at the finances:  are they really in need of improvement?

(6) The response of the President and the Chairman of the Administrative Council
Messrs Battistelli and Kongstad responded to criticism in an interview with MIP.  This attracted angry rebuttals in the IPKat comments.  They are too long to reproduce here, but are worth a visit.  In particular, the comments supporting transparency and openness ring rather hollow since, as Merpel is given to understand, the staff representatives have been excluded from the two previous Administrative Council meetings; the introduction of a new system of election of staff representatives by the really-not-very-democratic single transferable [correction at 20:20 - should be non-transferrable] vote; the reference to the "codex of staff regulations" which is 1,200 pages long (no, really, that is what he said) but is actually not available publicly.

The comments of M Battistelli on his blog caused yet more anger, in particular "I would also urge all commentators, especially those having a legal background, to be mindful in their public expression on a case which is still under investigation, in order to protect the rights of the defence and to guarantee the impartiality of the investigation under the supervision of the Administrative Council which is the decision making body."  Many have seen this as a threat, and an unwelcome one.

So there you have it.  Merpel has attempted to condense the outstanding issues into one post.  As ever, the floor is open to our readers.

52 comments:

MaxDrei said...

Very useful summary from Merpel. Many thanks. My only instant comment is in relation to the quoted statement:

"I would also urge all commentators, especially those having a legal background, to be mindful in their public expression on a case which is still under investigation, in order to protect the rights of the defence and to guarantee the impartiality of the investigation under the supervision of the Administrative Council which is the decision making body."

ostensibly from the EPO's beleaguered President. To me it reveals the thinking of someone who has no respect for the law, manifestly an outrageous hypocrite, and a bully to boot.

The thought depresses me, that President Battistelli did not himself write it, that it was in fact written by one of the young bully boys and girls that now surround him, zealous in their actions to execute his will.

MaxDrei said...

Another thought: Readers, recall that the President currently lacks a spokesperson. Just suppose that the author of the sentence quoted by Merpel was the very same senior person at the heart of the row. You know, the one the subject of the alleged adverse comment from the DG3 member, that resulted in that DG3 member being marched off the premises.

If one can perceive a note of vindictiveness in the sentence, that might explain it. Can one also detect in it a hint of apprehensiveness?

Anonymous said...

Fair summary!
Point 2 could also have added that the Disciplinary, Medical and Appeals Committees are all advisory in that the president can (and has) made decisions that go diametrically against the advice. Additionally, the staff and/or unions must ask him to agree that he organises a strike ballot. Again, he can and has refused such a request, which of course could be appealed by appeal to...

Merry Christmas Merpel! You offer one of the few means for staff to express their feelings, even to each other. Internally, the corridors are silenced and the staff representatives have been successfully isolated from staff.

Anonymous said...

Re point (3) about the corpus of views that Examiners are in fact fairly treated: the majority of the readers of this blog are likely to be lawyers. However bad the examiners think their employment conditions are, they are unlikely to be any worse than those for the people who are posting. Lawyers don't have a union looking out for their interests. EPO examiners don't have psychotic partners deciding their promotion prospects. Thus sympathy on that front is likely to be in short supply!

Anonymous said...

Der Merpel, thank you for your short summary. Though I appreciate your shortness as well as its necessity, I think you should have added two points right at the beginning. Those were the basis for the strike and the whole recent escalation: the suspension of two examiners who had defended the position of staff members in the internal appeals committee, which deals with appeals against decisions of the president.

And now that the investigation guidelines have unintentionally become public, attached to the letter of the enlarged board, the (il)legal situation of persons subject to such an investigation has also become public: no legal support allowed, no right to remain silent. How is that for democracy?

That said, I wish you a very good 2015 and please do keep going!

Meldrew said...

Whether or not three ghosts visit Scrooge tonight, I am awfully worried about Tiny Tim.

Will he be able to lead an independent life?

Anonymous said...

Anon 0924,
The investigation guidelines have 'unintentionally' become public? Why would anyone want to keep them secret?

Anon 0914,
Yes, I see your point. But EPO examiners don't have courts or national laws to refer to. And promotion prospects are in the hands of one man. Neither world is perfect but I would happily trade immunity for the president for oversight from the courts.
Have a Merry Christmas, may all your cases be judged sensibly and efficiently!

Anonymous said...

> But EPO examiners don't have courts or national laws to refer to.

Everyone has right to art. 6 ECHR that applies not only to criminal but also to civil and administrative procedures.

Europeans have also respective art. 47 of the EU Charter on Fundamental Rights.

The most important, we all have art. 1 of this Charter:
Human dignity is inviolable. It must be respected and protected.

Merry Christmas!

Anonymous said...

"Everyone has right to art. 6 ECHR that applies not only to criminal but also to civil and administrative procedures. Europeans have also respective art. 47 of the EU Charter on Fundamental Rights"

Good point.

So all that's needed is for the EPO to waive its immunity from jurisdiction under Article 3(1) of the EPC Protocol on Privileges and Immunities.

And then to sign up to the ECHR and join the EU.

What could possibly go wrong?

Anonymous said...

Anon 1232,
Not everyone. The EPO seeks to use its immunity against all interference with operational matters, which can be very broadly defined. The president often is quoted (and I paraphrase - apologies) that the EPO follows these requirements but does not state they are applied as is. The office is thus able to deviate from them and, for example, health and safety at work cannot be checked by local authorities although the president will assure you that the EPO applies the highest standards. But if I disagree I cannot have that verified.
Art. 1 that you cite is admirable and I'm sure BB would state that he does. But nobody is allowed to test that it is since they will not get access.
Note, however, that the EPO did allow ISO9001 auditors to gain access. But they were invited and BB had something to gain.

Anonymous said...

Anon 1011, the investigation guidelines were not public before, so far as I know. They were attached to the enlarged board's letter which was confidential and not meant for publication. With its publication in spite of that, the investigation guidelines have also become public. As to the question why anyone would want to keep them secret, that seems obvious to me. Someone with a deep respect for law and democratic procedure ( just being sarcastic).

Anonymous said...

The president is almighty. Rumour has it that he declared an employee fit for work who had gone through the whole invalidity procedure, which involves scrutiny by a commission of three physicians who unanimously found the employee unfit for work. But of course the president, with his extensive medical knowledge and excellent managerial skills, knew better. The guy was just lazy and should go back to his nice job.

Anonymous said...

Thank you Merpel, for undertaking the task of digesting the material that is publicly available!

Regarding Merpel's (2) above I have found some items that seem not to have been discussed yet.

The EPC has considered working conditions so important that Article 13 relates specifically to this (no need to quote it here - everybody concerned knows the EPC by heart).

The versions in EPC1973 and EPC2000 are virtually identical, except that the former has the sentence ", as the case may be" after the last word in (2), "employment".

The Rules of Procedure (RoP) of the AC according to the decision 7 December 2006 [the earliest I seem to have access to] has an article 18 that covers this in greater detail:

http://documents.epo.org/projects/babylon/eponet.nsf/0/69665AAE88C7677AC125729C00585128/$File/CAD06008_en.pdf

Strangely, this article 18 has been twice amended. The juxtaposition of the 3 versions would be interesting to show here, but the character count would exceed 2 comments - hence too long and unreasonable to blog followers:

On 26 October 2012 it was decided, it seems, to put in further steps in the appeal procedure:

http://documents.epo.org/projects/babylon/eponet.nsf/0/F44EA2A833862CD9C1257B1A00322E35/$File/CAD12010_en.pdf

and on 12 December 2013 it seems that stricter reporting was specified:

http://documents.epo.org/projects/babylon/eponet.nsf/0/965D77B4CCEE775DC1257CEE004FF9D7/$File/ed13020.pdf

The two latest decisions were signed by the AC chairman, Mr. Kongstad and were obviously taken with 3/4 majority. I may not read the texts properly, because a lot of context is missing.

Without knowing the "Service Regulations for Permanent Employees of the European Patent Office" and their various versions (also decided by the AC, by the way - Art. 33(2)(b)EPC2000) [would I at all be entitled to know them?] it seems to me that the revised Article 18 of the AC RoP aims at introducing further administrative and appeal steps before a matter can be referred to the ILO's Administrative Tribunal. This might mean a considerable delay before such referral, because Art. 13(2) EPC says that all avenues of appeal under the Service Regulations have to be exhausted before referral. Instead of Art. 13 EPC being a safeguard it becomes a millstone around the neck of the permanent staff. This to me appears as a unilateral reduction in the quality of the conditions of employment at the EPO.

Now remains to study the Travaux Préparatoires before the 1973 creation of the EPC and EPC2000 in order to see what was the intention of Art. 13 EPC:

http://www.epo.org/law-practice/legal-texts/archive/epc-1973/traveaux.html

I notice the following fresh job openings at the EPO:

"Several lawyers with focus on international employment law (MULTIPLE/5755)
EPO in Munich is seeking several lawyers with focus on international employment law
Deadline for applications: 27.1.2015
[http://www.epo.org/about-us/jobs/vacancies/other/5755.html]"

In a way it seems to confirm my impression above, "keep it indoors for as long as possible, wear them down". On the other hand, I may just be biased due to the many comments in these last months, and that the active pursuit of international employment law by the EPO administration is simply a way to fill a long-felt need for more professionalism, all for the common good. But it would seem that employees would do good to obtain professional advice themselves.

Best wishes,


George Brock-Nannestad

P.S. I have left out the active links, because I do not understand how Blogger handles them. G.

Anonymous said...

> EPO … and then to sign up to the ECHR and join the EU.

EPO cannot function as a Contracting Party within the ECHR, there is no basis for that in the EPC or anywhere else.

Besides, the EPO is subject to the ECHR as a "joint activity" of the ECHR Contracting States. The Administrative Council of the EPO, as representatives of the ECHR Contracting States, participate on behalf of their States in all decisions regarding the EPO.

> Article 3(1) of the EPC Protocol on Privileges and Immunities

This article says explicitly that it goes only about functional immunity: "Within the scope of its official activities the Organisation".

Do you try to tell us that the wording official activities shall include violations of fundamental rights generally accepted in Europe?

Besides. The EU Charter on Fundamental Rights is the highest EU law. Of the same level as the EU Treaties. Therefore it prevails over the EPC …. and all wherein included immunities.

Meldrew said...

ECHR does apply to the EPO and the relevance of Article 6 has been ackowledged in several cases decided by the Boards of Appeal (including the Enlarged Board of Appeal).

Article 10 ECHR was also applied in D12/88, although not in a way that prevented the Commission getting EPI to change its code of conduct, effectively overruling the Board of Appeal.

As for the EU Charter on Fundamental Rights, I am not sure that the EPO is that bothered about Article 47, or indeed Article 17(2) “Intellectual property shall be protected”.

It is an interesting question however: do the non-EU Member States of the EPC find anything objectionable in the Charter?

Anonymous said...

The view from this particular overseas vantage point is that you have a naked power play in progress.

The would be Emperor is streaking about without a stitch of cover, and his group of tailors are running around trying to convince the town folk that the His raiment is the finest in the land.

With child-like wonder, I ask myself, how long will you people (the proverbial Royal You) allow yourself to suffer the obvious oppressive tactics?

Anonymous said...

> It is an interesting question however: do the non-EU Member States of the EPC find anything objectionable in the Charter?

OR: whether the EU Member States can participate in activities/organisations in breach with the EU Charter.

Anonymous said...

Decision D 11/91, Reasons, 3.3:
"With regard to the [European Convention for the Protection of Human Rights], the board is of the opinion that it cannot be applied directly to the EPO because the EPO is not a signatory state. However, to the extent that the Convention contains rules which express general principles of law, these rules must be considered as forming part of the legal system of the EPO and must therefore be observed by all its departments."

That applies the legal principles of the ECHR within the EPO's own internal legal system. But it only does so in parallel with the ECHR, while not actually being subject to it.

So all departments of the EPO should apply the principles of the ECHR. If they don't, and if you are able to appeal to a judicial body such as the EPO Disciplinary Board of Appeal, then it should apply the ECHR principles too. So far, this mirrors what happens in the courts of the ECHR member states.

But unlike cases in the ECHR member states, you don't have a right to appeal further to the European Court of Human Rights if you think they've got it wrong. The ECHR "cannot be applied directly to the EPO because the EPO is not a signatory state."

Thus, all possibilities of appeal stop within the EPO.

If they stop with the Boards of Appeal, they are supposed to have judicial independence from the President and the administration. If it looks as if that is being violated, senior judges from the EPC contracting states get concerned and write letters. Questions are asked in the UK Houses of Parliament. People ask what Germany's Constitutional Court would make of it.

But what happens if you're a staff member who doesn't have a right of appeal to a Board of Appeal? How do you benefit from your rights under the ECHR?

Well you can appeal to the Internal Appeals Committee. A body which is administrative, not judicially independent. A body which appears to be controlled by the President, who can suspend committee members he doesn't like.

So if your appeal is to the effect that the President and his administration have violated your human rights under the principles of the ECHR....?

By the way, I'm not an EPO staff member, but a concerned patent attorney. The Administrative Council likes Battistelli because he is driving efficiency reforms. I agree that's much needed, but there is a right way and a wrong way to go about it.

Anonymous said...

Anon 1351,
I was 1011 and I totally agree with you. Your sarcasm was better expressed than mine.

Anon 1356,
Yes, true. Not saying that he didn't have a point but he did put his own judgement above that of the unanimous medical committee including non-EPO medical expert.

Anon 1625,
Thanks for identifying the case law - although that was only one board. Nevertheless you are right that the committees are ultimately controlled by BB. It should be noted that both Dutch and German courts have decided that they are not competent to hear anything internal to the EPO since a) the office has immunity and b) the national court cannot interfere with transnational bodies since the EPO is located in at least NL and DE. THe German court suggested arbitration/mediation but the EPO has not yet taken up the suggestion, apparently so as not to put 'the other side' on a par with the office e.g. the unions.

Anonymous said...

> they are not competent to hear anything internal to the EPO

could you please provide links to these judgments or reference numbers?

Anonymous said...

> The ECHR "cannot be applied directly to the EPO because the EPO is not a signatory state."

Well. This is also not the way the ECHR is applied.

For example, if a national patent office of the country ZZ has made a decision that is believed to be in breach with the ECHR. An injured party can file a complaint against the country ZZ, and not against the patent office of this country, since the country ZZ manages its patent office.

As far as I can see, the same would apply for the EPO as a common patent office for a number of the ECHR Contracting States.

Anonymous said...

On point 2
There are indeed numerous instances, since Mr Battistelli's accession to the throne, where a unanimous opinion of the Internal Appeals Board in favour of an employee has been summarily dismissed.
The EPO then tried systematically various subterfuges so the employee would miss the deadline for filing at the Administrative Tribunal (ILOAT) in Geneva.
Fortunately, a few of these cases are now pending in Geneva.
Unfortunately, ILOAT being so slow, Mr. Battistelli will be long gone before his chickens come home to roost.

Anonymous said...

> Unfortunately, ILOAT being so slow, Mr. Battistelli will be long gone before his chickens come home to roost.

It is an established case law of the ECHR that art. 6 ECHR implies not a theoretical possibility of a fair trial but a practical and effective access to justice, wherein unjustified delays might create a liability for a state (Capuano/Italy, Airey/Ireland).

Anonymous said...

Anon 1709,
Haven't got them to hand and they were back in 2012 or 2013 if my memory is good. They were significant for staff since it was clear that going toa national court would not prove viable. SUEPO were involved although I don't know if they filed the papers or whether they merely supported individuals.
Will try to find cases but probably not until new year as everything has closed down for now.
Me too.
Best wishes to one and all for 2015!

Anonymous said...

Actually, I just found one of them - OK, I used a well known search tool...
http://suepo.org/public/court_judgement.pdf

Anonymous said...

Might
http://icsfight4yourrights.blogspot.co.uk/2014/06/international-civil-servants-fight-for_8022.html
Send you in the right detection for Germany?

Anonymous said...

I am just wondering what the President told the Administrative Council about the case and how the the rights of the defense were guaranteed, when the AC decided not only to condone the illegal actions of the president but also apparently to extend the suspension. Was the accused there to defend himself? I guess not. Since all the computer data can be saved within a few days, that long suspension has all the elements of a punishment. So apparently, at the EPO the principle of "guilty until proven innocent" is applied. Or just plain "guilty upon accusation by the president". Great. In such an atmosphere, can we expect to have our patent applications examined correctly and without bias?

Anonymous said...

Anonymous @ 18:48,

Even if for argument's sake we accept your creation of liability, please tell me which state it is exactly that incurs that liability for the state-less EP actions?

Anonymous said...

> http://suepo.org/public/court_judgement.pdf

it is a few first notes, all the music still to be written.
it seems to be a very positive judgment for the suepo.

another thing, it is an interim relief. the interim relief does not have res judicata.

Anonymous said...

I don't understand why is an STV voting system (preferential voting) is thought to be not very democratic? Some countries use it for general election, Australia for example.

Please explain.

Merpel said...

Merpel can explain - it was a typo for "non-transferrable". Apologies. Thank you for pointing it out and the post is now corrected.

Anonymous said...

Single Non-Transferable vote? Heavens, that is used in Afghanistan, right? Well well.

Meldrew said...

Of course things might not be made more simple by this http://ukhumanrightsblog.com/2014/12/22/eu-judges-oppose-accession-of-eu-to-echr/.

Do human rights exist in Europe or is it all a con?



Anonymous said...

Well, what can you expect from an employer who considers his staff a liability, not an asset? In a field where expertise is of the essence, it shows that EPO management, although responsible for the examination of patent applications, does not have a clue about what examiners actually DO. Rumour even has it that some of the managers think that examination is just ticking boxes. And that for that low level work examiners are being grossly overpaid. It provokes the question what those managers are doing and if their salaries are not a bit exaggerated in view of their lack of competence?

Anonymous said...

Thank you Merpel, for undertaking the task of digesting the material that is publicly available!

Regarding Merpel's (2) above I have found some items that seem not to have been discussed yet.

The EPC has considered working conditions so important that Article 13 relates specifically to this (no need to quote it here - everybody concerned knows the EPC by heart).

The versions in EPC1973 and EPC2000 are virtually identical, except that the former has the sentence ", as the case may be" after the last word in (2), "employment".

The Rules of Procedure (RoP) of the AC according to the decision 7 December 2006 [the earliest I seem to have access to] has an article 18 that covers this in greater detail:

http://documents.epo.org/projects/babylon/eponet.nsf/0/69665AAE88C7677AC125729C00585128/$File/CAD06008_en.pdf

Strangely, this article 18 has been twice amended. The juxtaposition of the 3 versions would be interesting to show here, but the character count would exceed 2 comments - hence too long and unreasonable to blog followers:

On 26 October 2012 it was decided, it seems, to put in further steps in the appeal procedure:

http://documents.epo.org/projects/babylon/eponet.nsf/0/F44EA2A833862CD9C1257B1A00322E35/$File/CAD12010_en.pdf

and on 12 December 2013 it seems that stricter reporting was specified:

http://documents.epo.org/projects/babylon/eponet.nsf/0/965D77B4CCEE775DC1257CEE004FF9D7/$File/ed13020.pdf

The two latest decisions were signed by the AC chairman, Mr. Kongstad and were obviously taken with 3/4 majority. I may not read the texts properly, because a lot of context is missing.

Without knowing the "Service Regulations for Permanent Employees of the European Patent Office" and their various versions (also decided by the AC, by the way - Art. 33(2)(b)EPC2000) [would I at all be entitled to know them?] it seems to me that the revised Article 18 of the AC RoP aims at introducing further administrative and appeal steps before a matter can be referred to the ILO's Administrative Tribunal . This might mean a considerable delay before such referral, because Art. 13(2) EPC says that all avenues of appeal under the Service Regulations have to be exhausted before referral. Instead of Art. 13 EPC being a safeguard it becomes a millstone around the neck of the permanent staff. This to me appears as a unilateral reduction in the quality of the conditions of employment at the EPO.

Now remains to study the Travaux Préparatoires before the 1973 creation of the EPC and EPC2000 in order to see what was the intention of Art. 13 EPC:

http://www.epo.org/law-practice/legal-texts/archive/epc-1973/traveaux.html

I notice the following fresh job openings at the EPO:

"Several lawyers with focus on international employment law (MULTIPLE/5755)
EPO in Munich is seeking several lawyers with focus on international employment law
Deadline for applications: 27.1.2015
[http://www.epo.org/about-us/jobs/vacancies/other/5755.html]"

In a way it seems to confirm my impression above, "keep it indoors for as long as possible, wear them down". On the other hand, I may just be biased due to the many comments in these last months, and that the active pursuit of international employment law by the EPO administration is simply a way to fill a long-felt need for more professionalism, all for the common good. But it would seem that employees would do good to obtain professional advice themselves.

Best wishes,


George Brock-Nannestad

P.S. I have left out the active links, because I do not understand how Blogger handles them. G.



Anonymous said...

> But it would seem that employees would do good to obtain professional advice themselves.

It is one very good advice.

Anonymous said...

> http://suepo.org/public/court_judgement.pdf

there is a passage in the judgment that I was surprised to read:

It is
not in dispute between the parties that the activities of the Patent Organisation associated with
the dispute currently at hand, are official activities of the Patent Organisation within the sense
of Article 3 PPI.

Anonymous said...

> http://suepo.org/public/court_judgement.pdf

There is an interesting aspect probably worthwhile mentioning (in a most neutral way possible):

(1) According to art.3 of the Protocol on Privileges and Immunities:
Within the scope of its official activities the Organisation shall have immunity from jurisdiction …

(2) According to art. 10 (2)(h) EPC:
[...] the President shall have in particular the following functions and powers: [...] and may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11, paragraphs 2 and 3

(3) As far as it was reported in media a member of BoA has been placed under "house ban" on December 3.

(4) From public information, it does not appear that, on December 3, there was a proposal/decision on the disciplinary action with respect to the BoA member, according to art. 10 (2)(h) EPC.

It seems that activities on December 3 do not have a basis in the EPC or any implementing provisions and, therefore, they are not official activities of the EPO.

If the reasoning is correct, the activities on December 3 are not covered by the immunities of the Protocol on Privileges and Immunities.

Anonymous said...

GBN,
Re the recruitment of lawyers, it is symptomatic of the division within the EPO. The impression is that there is a managerial cohort and an inferior scientific staff. While the president et al exhort the EPO's immunity from external law, the office now seeks (plural) external employment lawyers and it is hard to imagine that such a move is for the benefit of staff rather than to oppose any moves by staff to obtain any rights via national courts.
As background it is worth remembering that the president gave one ground for reviewing the career system as being the promotion of examiners to grade A4(2) before age 50 and one such promotion even coming at 43. Age however does not seem to be a barrier to recruitment at higher grades if that job is in the administration. The status of engineers and scientists in the EPO is being rolled back. Admin good, technology bad?

Anonymous said...

The examiner in questiob pronoted to A4(2) at 43 is higly respected who almost alone drafted most of the Guidelines...

MaxDrei said...

I wonder whether British and American readers are giving enough thought to the absence, in mainland Europe, of centuries-old English Law concepts of "due process" and "fairness". I suspect they have no idea what it means, to live in a society in which that thinking is not yet embedded. Germans talk about "The Fairness Principle" as if they have no word for it in their own language. Curious, eh?The German road traffic authorities put up hoardings exclaiming "Fahr Fair!" ("Fahr" means "drive"). How does one drive "fairly" I wonder. With due consideration for others? Is that what they mean? Is that why they use an English word?

In civil litigation in mainland Europe, with no discovery or x-exam, the complacent attitude is "That, my son, is for me to know and you to find out!" Nobody can grasp wghy anybody in their right mind would disclose to the other side anything that might have an adverse effect on their own case.

Now, go back to my Comment #1 in this thread, and read again that the President wants no discussion about "the investigation" and recall that this is an investigation that he himself is going to run, under his own thumb.

When the police dislike disclosure, do you really think that their concern is that it might prejudice the jury? Or do you suspect other reasons?

He who seeks equitable justice in England must come to the court with clean hands. Why do we have disclosure? Isn't it to reveal when hands are not clean. What keeps litigants honest is the possibility of disclosure and x-exam. When there's no such possibility or threat of disclosure, the temptation not to be honest is ever-present.

Where would we be in patent litigation, for example, if litigants could be sure there cae will never be litigated in England or the USA?

Be thankful for The Rule of English Law. Don't knock it, nurture it. It's very precious. The whole world needs it.

Anonymous said...

0932 - agreed. He got what he merited if it's who I think it is.
My point was that the objection to examiners becoming A4(2) at under 50 was based on age rather than merit I.e. nobody that age should be A4(2), while those of the administrative area can be A5 far younger because they merit it. Hence there is a separate path which belittles scientific and legal staff as they are not as important as the administrators.

ipfrog said...

on 29/12, EPLAW sent a letter to the representatives of the AC condemning Battistelli's behavior, the investigation guidelines and, incidentally, Art 11(4) EPC for failing to guarantee judicial independence...
see eplawpatentblog.com

Anonymous said...

It is a very nice initiative and a very good summing up. However, unless the letter enters via the authorised channels, it will never get on the agenda of the AC. Article 9 of CA/D 8/06, Rules of Procedure, specifies quite clearly what and how something may be brought on the agenda.

The letter needs to have the attention of governments instructing the delegations to the AC, which are bound by these rules.

I simply do not believe that the letter is receivable by the present addressees.

The system was built for extreme stability.

Patent law is such a specialised field that many politicians simply give up and repeat the standard phrases while being quite unable to consider consequences. That was very apparent during the debate before the premature Danish ratification of the UPC/UP system.

Kind regards and wishes for a new year of reflection,


George Brock-Nannestad

Anonymous said...

The ignorance of the basics of those who can do something positive is sometimes (?) amazing.
http://techrights.org/2014/12/28/complaint-about-epo/

So the solution to all the EPO's problems is to be resolved by complaining to the EBoA? I'm speechless, although given the AC's actions why should I expect the EU to be any more competent in legal matters...

Anonymous said...

Apologies. The first comment of 2015 should be a wish for a Happy New Year and, above all, good health to one and all. Happiness and wealth can follow...

Anonymous said...

Welcome to the new efficiency of the EPO:

http://www.epo.org/about-us/jobs/vacancies/other.html

Mr. Battistelli is recruiting 8 (eight!!) lawyers with focus on employment law. Apparently He thinks that the fees should not be used for granting patents but rather to finance litigation with the staff.

Anonymous said...

Now I'm confused. Numerous comments complaining about the lack of employment rights, but now a comment complaining about the recruitment of employment lawyers by a huge organisation. If the hard-done by EPO staff have no rights to suppress, why the new lawyers?

Where the comments simply more lies? The previous comment has the tone of the previously-complained of liar who has been making many stories up and failed to back them up with evidence.

Shame we can't make up facts to get our patents granted. Although we could, but some of us have morals and integrity.

Tim Jackson said...

Merpel notes "There is also a question before the UK Parliament asking what the UK government is doing to guarantee the independence of the [Enlarged] Board of Appeal."

The Government has now answered this question as follows:

Officials in the UK Intellectual Property Office are closely and actively involved in discussions relating to the Boards of Appeal of the European Patent Office (EPO), including the Enlarged Board. It is the UK Government position that the Boards of Appeal should be independent of the executive of the EPO, and be seen to be so. This view is shared by other EPO member states and we expect proposals to make this clearer to be considered by the Administrative Council, the Office’s supervisory body, in March 2015.

Anonymous said...

Anon 0052.
DG3 i.e. Boards of appeal to be sent into exile? B28 to announce the conclusion of their consultation to AC that they're off to Berlin?

Anonymous said...

Anon 0052

For the time being their decisions seem to go in an opposite direction.

Here is the decision taken at the December´s Council:

http://www.epo.org/modules/epoweb/acdocument/epoweb2/159/en/CA-D_10-14_en.pdf

It introduces performance-based advancement in the same grade, boni and probationary period after promotion not only for the rest of staff but also for BoA members. To me these measures seem means to exert pressure, i.e. reduce independence. Should we expect in the future the BoA to decide as the President wants or to take the quickest instead of the fairest decision?

Anonymous said...

A probationary period for newly appointed BoA members - judged by whom? The other BoA members or the president?
If the president, this seems at odds with the independence of the BoA.

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