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.

Tuesday, 6 January 2015

Developments at the European Patent Office - Parliamentary oversight and lack of it

On Christmas Eve according to the Gregorian Calendar, Merpel posted a round-up and summary of what has been going on at the EPO.  Now that we have come to Christmas Eve according to the Julian Calendar, it seems appropriate to revisit the subject.  There have been a large number of developments over the last couple of weeks, and the IPKat and Merpel have received an enormous amount of correspondence.  There is actually too much for a single post, so Merpel will start with a round-up of brief news, in particular relating to the UK Parliament and the EU Parliament, together with some other snippets.  In her next post, Merpel hopes to delve into the Business Distribution Scheme of the Boards of Appeal, where some interesting facts become apparent, and she will also look a bit more into Board 28.

1) European Parliament Rejects Petition 2848/2013 as inadmissible; not competent to investigate the EPO

Back in November, Merpel reported on and asked whether the EU could investigate the EPO.  Readers may be unsurprised that the answer is "no".  Cecilia Wikström has responded to the Petition 2848/2013 stating that the issue does not clearly fall within the fields of activity for the European Union for which the Parliament is competent, and so the Petition is not being taken further.  You can view the letter here, and download it here [jpg].

Rather oddly, the response suggests that the Petitioner contact the Enlarged Board of Appeal of the EPO; yet when the Enlarged Board protested the suspension of a member of the Boards of Appeal by the President of the EPO, even when this protest was endorsed by external members who are national judges (see here and here), the result was that the Administrative Council simply de facto endorsed the Presidential action.  So it seems hardly likely that writing to the Enlarged Board will achieve anything, and, indeed, there seems no provision in the European Patent Convention that suggests otherwise.

2) More protests to the Administrative Council

The body that is supposed to have oversight of the operation of the European Patent Office is the Administrative Council, made up of delegates from the member states, usually the heads of the respective patent offices.  An ongoing mystery is why this body apparently continues to endorse the reforms and actions of the President that are causing so much controversy.  Protests to the AC continue, however.  The IPKat has received a letter to the representatives of the delegations to the Administrative Council of the EPO sent by the Board of Directors of EPLAW.  You can view the letter here and download it here [pdf].

Merpel considers that most readers will agree that the EPO should follow the provisions of the EPC, but some may quibble with paragraph 7 of the letter which goes further and suggests that the EPC itself does not go far enough to guarantee the independence of the Boards of Appeal.  EPLAW argues that Article 11(4) EPC, which give disciplinary power over members of the Boards of Appeal to the Administrative Council, falls short, and that such power should be with the judicial peers, ie the Boards themselves.  In any case, will the AC actually take any note of such interventions when they do not seem to have regarded the Enlarged Board itself?

3) Parliamentary Answer from the UK

As reported by the IPKat here, the MP for Cambridge, Dr Julian Huppert tabled a question to ask the Secretary of State for Business, Innovation and Skills:
What steps he is taking to protect the independence of the Enlarged Board of Appeal of the European Patent Office.
[Incidentally, while Merpel congratulates Dr Huppert for tabling this question, it would have been better phrased without the "Enlarged"; fortunately, the response addresses the better formulation.]

Yesterday the IPKat learnt that there has been a response 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.
Cautious Katpat to Her Majesty's Government - if there are indeed proposals to make the independence clearer then the IPKat and Merpel applaud the efforts.  Thanks to several readers who alerted the IPKat to this.

4) Christmas Present from Mr Battistelli to EPO Employees

Finally, Merpel understands that just before Christmas Mr Battistelli wrote to the Chairmen of SUEPO, the EPO Union, threatening disciplinary action should the members who wrote to various EPO representatives suggesting that they cancel oral proceedings during strike action be identified.  She is also informed that in his pre-Christmas circular, he promised that neither the direction nor the pace of reform would be altered in the coming year.  Merpel imagines that this did nothing to calm staff anxiety.  While the treatment of members of the Boards of Appeal caused international outrage, the position of the ordinary employees of the EPO still appears to raise no such widespread concern.

Coming next: What might be the proposals for reform of the Boards of Appeal, and issues concerning their current constitution, appointment, reappointment, and workload.

21 comments:

Anonymous said...

"Readers may be unsurprised that the answer is "no"."

Only those with zero understanding of the fact the EPO is not an EU organization. But don't let that stop what is clearly going to be an unbalanced article.

Anonymous said...

Anon at 11:28 - and what about the UK Government's clear statement, which is about as robust as it is possible to be without being undiplomatic?

I suppose you think that the UK Government is "unbalanced", as well?

Anonymous said...

The EPO is not an EU organisation.
That is correct.

However, the EU has entrusted patent administation tasks to the EPO in the context of the EU Unitary Patent.

The EU is obliged to secure the protection of intellectual property under the terms of Article 17(2) of the Charter of Fundamental Rights.

How can the EU claim to be complying with its duty in this regard if it has entrusted such tasks to an organisation over which it cannot exercise any oversight ?

Something doesn't quite add up there.

Anonymous said...

Old (common sense) folklore:

If a wolf finds food at your back door, the chances are high that the wolf will visit again.

Anonymous said...

At Anon @11:28
"Unbalanced"? Could you please explain what is unbalanced in this report? Or should you be signing your posts as BB?

Anonymous said...

Apart from whether the information provided by Merpel on the EPO draws an unbalanced picture or not...

It is starting to annoy me some anonymous folks (Eponians, possibly?) who utter such accusations do not bring in any balance themselves by providing further information on what the situation with the EPO really is.

I sincerely trust Merpel will not issue disciplinary measures against such commenters posting opinions (founded by facts and arguments) that are very different from her own opinion.

Moving to another sub-topic:
I am still very surprised the AC has ignored letters from highly respected magistrates specialised in IP law and has sanctioned the "house ban". Albeit it may be the AC had different intentions with the suspension than the president of the EPO had (removing a fuse from a barrel of TNT?). I hope this is the case.

Anonymous said...

"...the Administrative Council simply de facto endorsed the Presidential action"

One possibility is that the Administrative Council saw that the President was wrong to jump the gun and act unilaterally as he did. But they may nevertheless have felt that, had the decision been left to them as it should have been, then they would still have suspended the BoA member pending investigation.

That is consistent with what we know so far. But I've no idea if it's correct. Probably we never will know that.

Anonymous said...

Not sure what Anonymous at 11:28 is implying or purporting to have deduced from the quoted extract (unless he/she simply failed to spot that the word used was "unsurprised", rather than "surprised"). I was certainly unsurprised that the answer was "no", as I'd guess were most IPKat readers...

Anonymous said...

@Anon at 11:28
Why would those with "zero understanding" be "unsurprised" that the answer is "no"?

Ron said...

I just came across BB's blog of 19th December on the EPO web site. His comment that " the rule of law applies to all employees of the Office." left me metaphorically speechless. The blog has attracted "no comments" yet, or perhaps it is a case of "no publishable comments".

An earlier post in http://ipkitten.blogspot.co.uk/2014/12/what-is-eating-european-patent-office.html noted that the EPO was seeking to recruit lawyers. A notice on the EPO's web site says that they are also seeking to recruit examiners. That notice on does not give numbers, but a vacancy notice in the JOBS section of CIPA's web site that says that they want to recruit over 150 examiners in 2015. It will be interesting to see if they manage to fill the vacancies or whether the job situation in continental Europe is sufficiently dire that the EPO will still be more attractive than the alternatives. I recall reading that the UK IP0 was unable to fill all its examiner vacancies a year or so ago, although I understand a subsequent campaign was successful.

Anonymous said...

1518,
When Alison Brimelow ran am internal blog she got responses (non-anonymous too). Not always sensible but at least people did feel able to comment. Now nobody would dare.

Anonymous said...

"His comment that " the rule of law applies to all employees of the Office." left me metaphorically speechless."

Why is that, pray tell ?

The rule of the author's own personally handcrafted "law" (e.g. Investigation Guidelines etc.) does indeed apply to all employees of the Office.

For those familiar with the current situation at the EPO, the comment is rather "unsurprising" and merely characteristic of a certain person's neck which according to reliable metallurgical research is made from an alloy of copper and zinc.



Anonymous said...

I am rather puzzled as to why Edward Vaizey Minister of State for Culture and the Digital Economy responded to the MPs question, and not Baroness Neville-Rolfe, who is the Minister for Intellectual Property at present. But I also cannot figure out who is more senior, Mr Vaizey I suspect.

Whoever it was, lets hope HM Govt continues to take this seriously....

The line from Mr B in his Christmas BLOG posting .......

"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"

is disconcerting indeed, and the EPO will soon wield enormous commercial power via the UPC.

Anonymous said...

If the European parliament is of the opinion that they have no competence over the EPO, then they better see that they get some ASAP, because the EPO is the institution to which the grant of EU patents is entrusted.

Anonymous said...

I went to school with a now Baroness,she doesn't beat about the bush,as her party colleague Lady Garden can confirm.The AC is lightweight,only at a higher level can sanity be restored!!

Anonymous said...

With the DG3 affaire Battistelli has gone a step too far and now the coalition of judges will unmask his real face. Just wait and see. Soon or later he will be forced to go and his cronies at the EPO and in the Administrative Council will abandon him, big cowards as their are.

Anonymous said...

"If the European parliament is of the opinion that they have no competence over the EPO, then they better see that they get some ASAP, because the EPO is the institution to which the grant of EU patents is entrusted."

Dutch MEP Dennis de Jong seems to be getting in on the job ...

https://www.sp.nl/column/dennis-jong/2015/weeklog-onrust-bij-europees-octrooi-bureau

If it's all double Dutch to you, then Google Translate might help.

Meldrew said...

It seems that the AC is intended to fulfil the role of the 25 barons of the original Magna Carta.

That level of oversight soon got removed from subsequent versions of the Magna Carta as generally inconvenient to an absolute monarch. It took 400 years and a bloody Civil War for such safeguards to be reestablished.

Let us hope that the current level of debate will encourage the AC to take a less supine role in the affairs of the EPO. Those who do not learn from history are condemned to repeat it.

Anonymous said...

150 does not even replace those who retire... surprisingly in the last three months about 15 examiners were employed as contractors and there are quite a few comming from under-represented countries, e.g. 3 from Greece...

Anonymous said...

According to one of the commenters above, the AC is lightweight. It may be even worse. Rumour has it that the representative of an important country has been promised an important post at the EPO. And less important countries have received subsidies by the EPO, according to another rumour. It may be interesting to keep an eye on future nominations to important posts at the EPO. Yet another rumour says that even the members of the AC do not know the terms of the contract between the EPO and BB, only the chairman of the AC seems to know them. An some further rumours guess BB's income as being around € 6 million. But the salaries of the examiners, who are responisble for the good reputation of the EPO, are much too high and need urgently to be reduced, by about 30%, according to yet another rumour. If even half of all these rumours is true, the picture is worrying.

Anonymous said...

The EPO is a cash-generating cow for its members, and for some of those it is a relatively large pile of cash. No govt is interested in the patent system for the right reasons.

Calling someone a Baron or Baroness doesn't make them competent, useful or interested in the real issues.

There were no gardens or bushes at my school. We must have attended different institutions.

Je suis Charlie Hebdo

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