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.