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Wednesday, 21 January 2015

Judicial Independence - the EPO Responds to Sir Robin Jacob's Letter

Merpel posted a copy of Sir Robin Jacob's letter to the Administrative Council of the European Patent Office earlier in January, on his request.  The letter protested the treatment of a member of the Boards of Appeal of the EPO, and reiterated the importance of the judicial independence of the Boards of Appeal.

Merpel has now learned that the EPO has responded, in the form of an email by Mr Guillaume Minnoye, Vice-President of Directorate General 1 (DG 1) to the members of the DG1, namely the Examiners of the Office.  The email reads in its relevant entirety:

Dear all,

In relation to the letter sent by Professor Sir Robin Jacob to Mr. Kongstad, VP1 asked to share with you the following remarks:

Sir Jacob         1) is not aware of all facts
                        2) is not aware of what the decision of the president was (office ban)
                        3) does not understand that the AC took the decision based on facts!
                        4) does not understand that this case has nothing to do with the independence of the Boards!
                        5) and nevertheless writes this letter!

Best regards,

It seems to Merpel that the letter speaks for itself, and therefore she will refrain from further comment.  Doubtless her readers will find something to say.


Jeremy Nicholls said...

"Sir Jacob"?

You'd think he could get the name right.

Anonymous said...

Pants on fire!

Anonymous said...

What did you expect from a "French Connection" :-) But jokes aside: I do not expect any office to deal seriously with external critics.

Anonymous said...

This email clearly demonstrates the high level of eloquent literary abilities of this honourable person who from that respect without any doubt stands out as a great example of what Belgium has to offer to the international community.

MaxDrei said...

I wonder whether "Sir Jacob" yet had any reply from anybody at the EPO?

But perhaps I am too cynical. I suppose the AC could have delegated to BB the job of replying to Sir Jacob, whereupon BB delegated it further, and Sir Jacob has now been copied in on this "Round Robin" email to all Examiners.

Anonymous said...

Wow! Just wow!

Anonymous said...

Audacity (?) (!)

Anonymous said...

Well, it's about as well-reasoned, and shows about as much regard for the content of previously-submitted detailed arguments, as most of the examination reports I've seen emanating from DG1... so at least VP1 is consistent with his underlings.

Anonymous said...

Oh dear. Multiple exclamation marks: the sure sign of someone who wears his underpants on his head.

Anonymous said...

I am speechless

Anonymous said...

Oh my giddy aunt, I can't stop laughing.

Anonymous said...

In other, even simpler, words: STFU.

And! What! Dreadful! Punctuation!

Anonymous said...

I am surprised this has been leaked and posted. It suggests office bans may be appropriate, at least, for the person who leaked it.

It seems to me from the letter that the following is the case:

Sir Jacob 1) is not aware of all facts
2) is not aware of what the decision of the president was (office ban)
3) does not understand that the AC took the decision based on facts!
4) does not understand that this case has nothing to do with the independence of the Boards!
5) and nevertheless writes this letter!

Anonymous said...

I'll have to remember this next time I'm responding to an examination report!

"Please be advised that the examiner:

1) has not understood the claims
2) has not understood the law
3) does not understand that the claims were drafted in light of the prior art
4) does not understand that the prior art has nothing to do with the claimed invention
5) and nevertheless raises objections!

Anonymous said...

As an examiner I have not seen this email. Reading it, I suspect that it is a missive from an underling (director or principal director) repeating what he had been told and directed to a section of DG1. The email refers to GM saying this rather than the writer saying it. Nevertheless...

Anonymous said...

As an EPO examiner I cannot confirm that this letter was sent to all examiners of the office.
I am just back from a well-attended demo (of the EPO staff, in front of Danish consulate in Munich, to protest against Mr Kongstad, the Danish head of our Administrative Council) and I do not see such an impressive email in my mailbox.
Should this email really come from VP1, it would do nothing more than demonstrating to the outside world what kind of upper managers we are 'enjoying' at the EPO.

Anonymous said...

Can there be any member of DG1 who doesn't understand the fundamental point of Sir Robin's letter, which Mr Minnoye has missed?

It doesn't matter how serious the allegations were against the BoA member.

It doesn't matter how justified the house ban was.

It doesn't matter how urgent it was that action be taken immediately, without waiting for the AC to confirm it.

None of these things matter.

The fundamental point - the only thing that matters - is that the President should have had no part in the process. That's the point which threatens the independence of the Boards of Appeal.

Perhaps what is needed is a mechanism by which someone completely independent of the President can take action when required. And can do so on an urgent basis if necessary. This would actually be to the benefit of the President, since it would remove any suspicion that he was contravening the independence of the Boards.

Anonymous said...

I am an EPO Examiner and can confirm that this email was sent by VP1 to Directors of DG1.

My Director showed it to me on his screen but he did not forward it to the rest of the Directorate. It is no the kind of emails that we like to see from management.

Anonymous said...

It appears the letter at point here was written by an individual following the book "How to throw kerosene on a fire."

Well done.

Anonymous said...

Blessed those that can work with such enlightened management

Anonymous said...

It is sad that we are made to appear to be laughing stocks by those who interpret their position as being in fallible and that their word is right by the reason that they said it. Gradually the outside world is seeing what staff face when trying to have any reasonable dialogue. The top management have no sense of any other opinion since any other opinion is by definition wrong.
I would laugh but i am past that stage. I can barely feel embarrassed any longer.

MaxDrei said...

I am just not quite clear where the email came from. The presence of the word "asked" suggests to me that it came not direct from the desk of Mr Minnoye but from a minion.

If so, I'm not perfectly convinced that the minion's loyalty to Mr Minnoye is unequivocal. Somebody above mentioned pouring petrol on the flames, but does not this email tip a bucket of the liquid brown stuff all over Mr Minnoye's head?

Question is, did Mr Minnoye see and approve the text of the email before it was sent out in his name. Yes or No? If No, perhaps he was too busy with more weighty matters to think through its likely consequences.

Anonymous said...

Presumably, now that VP1 has stated that the disciplinary action was not an act which infringed the independence of the Boards, for employees to state the opposite a disciplinary offence would be committed.

Anonymous said...

2) .....the decision of the president
3) .....the AC took the decision .....

Well, who DID take the decision?

And perhaps Mr Minnow should learn how to address a Knight before any further incidents of lese-majeste?

Anonymous said...

Oh, dear, it is difficult to keep up with what is said about the EPO and in particular about the BoA’s. I try to follow the 17 threads [yes, spelled correctly] created by IPKat’s commendable tenacity in reporting the most recent developments in the tragedy that we see developing in front of us. Since the post 2 December 2014 I have assembled 228 Word pages from IPKat. Official documents is the only really reliable information, but a view to what is conspicuously NOT forthcoming as well as the rumours in the form of “anonymous” comments will permit us to dig in the right places.

I take the liberty of quoting in full comment 32 from the thread containing Sir Robin’s original letter, because it is of utmost importance that the reference is brought out into the open. It relates to an official document, but it is only visible on a different thread.

“Anonymous said...
How justified the concerns regarding the independence of the Boards of Appeal are, is shown by the latest decision of the Administrative Council, with which they confirm the supervising role of the executive over the BoA:

I read:

A complete integration of the boards of appeal in the career system of the EPO [on p. 19/28; GBN note inserted here],

Board members have a probationary period, contrary to their 5-year appointment (Art.23(1)EPC),

The performance of board members and chairmen and therefore their renomination (or not) after 5 years is determined by the management aka executive.

How can the AC decide that, especially after all the recent letters had made it abundantly clear that the independence of the BoA is at stake and should be protected? Please, someone tell me I misunderstood this?
Saturday, 17 January 2015 at 17:47:00 GMT”

Kind regards,

George Brock-Nannestad

Anonymous said...

Well done Kat for waking up the EPO staff after their long quiet non-blogging Christmas. They only post while at work, clearly.

Anonymous said...

Flow of communication in the EPO:

VP1 > VP1 Office > Principal Directors > DIrectors of DG1.

This is one such message, sent at the request of VP1 to "educate" directors. No minions acting on their own. (The leak is a different story).

Anonymous said...

BREATHTAKING, just breathtaking.

Anonymous said...

Anon 1711,
Trust me, nobody posts a comment from work!

Anonymous said...

If Sir Robin can be held in such disdain, what chance the rest of us?

Anonymous said...

This must be a hoax. Why address a comment to examiners, at least half of whom have never even heard of Sir Robin? This is not helpful in solving the EPO's problems.

Anonymous said...

This further occurence has brought to surface the climate in DG1, the production line. There the Belgian bully, a servant of the President tries to squeeze to most from the examiners, more and more every year. Forget quality! Iso certification is just a figue leave. Numbers are manipulated, people intimidated and the methods are those of the President. Unpleasant messages are communicated orally to the few servant PDs left who have to trasmit them to the directors, most of which have become servants. This time the information has leaked out and surely Sir Robin will be most impressed by the of respect shown for his authority. Now the picture of what the EPO has become under Battistelli and his servants is clear. Those who have contributed to make the EPO a success in the past are very worried but hopeful that the last wrong moves will soon contribute to the fall of the dictator and to the return of the EPO to its origin. A difficult task after the mess which has been and is beibg done. Sir Robin, please, intervene with the weight of your immense authority!

Anonymous said...

You would be amazed how often in the recent past the EPO examiners have thought "this must be a hoax". They don't do it any more because the unbelievable has come too frequently. As to the question why comment to examiners, it's because a small minority - amounting to at least half the workforce - have heard of Sir Robin, do respect his authority, do understand the consequences (note examiners should decide freely too) and were stood in front of a Danish embassy today in an effort to bring such actions to the attention of someone - anyone - influential enough to at least make the administration think what they're doing.

Anonymous said...

The writer might've appreciated that Sir Robin was not writing in a personal capacity so it isn't his view but rather that of the Intellectual Property Judges' Association. Of course at the EPO, the President's view is the EPO's view so it's an easy distinction to forget. And that letter had near unanimous support of all the judges and no opposition. Thus VP1 is insulting all of the IP judges of Europe - unless the email was a mistake?

Anonymous said...

Sorry for the many typos in my previous contribution at 19:55.
Hereinafter a cleaner version:
"This further occurence has brought to surface the real climate in DG1, the production line. There the Belgian bully, a servant of the President, tries to squeeze the most from the examiners, more and more every year. Forget quality! ISO certification is just a fig-leaf to cover the shame. Numbers are manipulated, people intimidated and the methods are those of the President. Unpleasant messages are communicated orally to the few servant PDs left who have to trasmit them to the directors, most of which have become servants. This time the information has leaked out and surely Sir Robin will be most impressed by the lack of respect shown for his authority. The picture of what the EPO has become under Battistelli and his servants is clear. Those who have contributed to make the EPO a success in the past are horrified and very worried but hopeful that the last wrong moves will soon contribute to the fall of the dictator and to the return of the EPO to its origin. A difficult task, almost impossible, after the mess which has been and is being done. Sir Robin, European judges, please, intervene with the weight of your immense authority!"

Anonymous said...

If it's any consolation, VP1 and the EPO management team have experience of insulting anyone with knowledge of patents. Since experienced examiners in the EPO have now had their salaries frozen for the rest of their careers, their production targets raised often over 50%, and the time budget for training younger examiners removed, it would seem it has been decided that knowledge is a dangerous thing, to be discouraged at all costs.

Anonymous said...

This sad story is an indication of the quality of arguments that the EPO’s leaders use to convince the Administrative Council. It gives further credence to the staff’s grievances about breaches of human rights within the Office, and the lack of dialog.

It is unbelievable, but the Council delegations are in cahoots with the President in large numbers, so who is going to stop him causing further longterm damage to the European patent system?

The Office’s supervisory body (ie the Council) has manifestly failed to do its duty. Only the external people, like the readers of IPKat and other blogs have the influence to make a difference now.

Mark Summerfield said...

Unlike journalists, fictional cats are not bound by any code of ethics that would require them to obtain independent corroboration before posting a message such as this.

There are various disgruntled factions within the EPO trying to manipulate publicity to suit their own agendas. I have yet to receive anything that I consider to be an outright fabrication, but I have received correspondence that I am unwilling to report because it is plainly partisan, and I cannot verify or corroborate its accuracy.

It concerns me that the respected IPKat would allow itself to become an instrument of unknown persons' agendas. If this email was ever sent by, or with the authority of, a person as senior as a VP of a DG, I would be immensely astonished. The phrasing, the format, the punctuation, and the error in application of Sir Robin's title all strongly suggest otherwise.

I wonder if Merpel is aware that the word 'gullible' does not appear in the OED?

Anonymous said...

If this e-mail is a hoax Mr. Minnoye will soon distance himself from it. So let's wait and see.

Anonymous said...

Be reassured: the Belgian bully will not be able to distance himself from the e-mail because it is not a hoax but a true fact. As an earlier contributor observed, it is the way communication works between high/middle management and "workers" at the EPO. The President will be very angry and will accuse VP1 of being unable to control his people. Like usual, VP1 will tremble like all VPs do and fear for his post. An investigation will start controlling all computers to find the one responsible for the leak. The farse continues. A lot of fun ahead!

Anonymous said...

"If this e-mail is a hoax Mr. Minnoye will soon distance himself from it. So let's wait and see."

It will be very easy for Mr. Minnow to distance himself from the e-mail.

This has all the hallmarks of a "deniable operation".

From the text of the e-mail, it does not appear to have come directly from VP1 but rather seems to be a case of some unidentified third party attempting to "share VP1'a thoughts" with the target audience (presumably examiners).

So the e-mail is more likely to be from a Principal Director or Director.

VP1 - who may well have "delegated" the job - can easily deny that he said any such thing and that he has been misrepresented.

Meanwhile the person who sent the e-mail can be subject to an "investigation" and disciplinary proceedings for attempting to defame VP1.

Thereby killing two birds with one stone ... :-)

Ashley Roughton said...

On the constitutional principle I keep banging on about (this is my second comment on the subject) about quis custodet ipsos custodies (who guards the guards? - please I've heard ALL the custard jokes) interested readers might want to have a shufty at the Lenzing case [1997] R.P.C. 245, (Sir) Jacob J.


PS why don't all you anons come out and tell us who you are - it colours the debate, for the good!

Anonymous said...

Look here:

The French press is full of this kind of stories. I remember a few years ago similar stories from the French telecom. Apparently French management is doing seriously wrong things, destroying any goodwill and motivation as well as expertise of staff. It would be interesting to see if the managers resposible for this disaster all come from the same"elite" school of management where M. Batistelli learned his trade.

Anonymous said...

CEO of Air France is Alexandre de Juniac is a graduate of ENA in 1988.CEO of Affiné is a graduate of... ENA etc. Check the members of the Board of Directors and you'll find a common theme...

Anonymous said...

Anonymous at 14.26 yesterday wrote:

'The fundamental point - the only thing that matters - is that the President should have had no part in the process. That's the point which threatens the independence of the Boards of Appeal'

Fine, I agree with you in principle.

But just to make people see the other side:

Suppose that the BoA member did indeed do something that by anybody's standards meant that he had to be removed from the premeises (not office) immediately. What should BB have done instead? Wait for the next AC

Anonymous said...

Now in this whole saga occasionally the question is implied: how can the AC accept this?

Would it be insulting to assume that a factor might be that it is populated with representatives from countries with a less deeply engrained culture of judicial independence than the Anglo-German axis, who really wonder what all the fuss is about?

Anonymous said...

Mr Minnoye is fortunate that the Crime and Courts Act 2013 abolished the offense of scandalising the judiciary. Could have been a life sentence.

Anonymous said...

Anon 14:26:

This is idle speculation, but since you ask what BB should have done instead:


It would have been a matter of, after the "reason for the cause of non compliance with the staff regulations" becoming apparent:

-Telephoning or delivering urgent memos to a few of the senior people on the Enlarged Board (obviously difficult if many were chairing hearings, but since the alleged bad behaviour, and the president, and the EBA, are all based in the SAME building, surely not impossible as an urgent measure, with judicious use of notes/messengers/brief pauses in those ongoing hearings?)

-Having the President explain the matter, prima facie over the telephone or in the urgent said memo, or in a huddle in his office, and asking the EBoA members to consider urgent removal of the individual, in line with the provisions of the EPC.

-Having the Enlarged Board people (or subset of them) issue a brief signed minute (maybe even handwritten?) to the President and the AC chairman assenting to the proposed emergency measure, in line with the provisions of the EPC, and asking the AC to begin an investigation.

-Then offending BoA member could have been temporarily removed, in line with the provisions of the EPC, with non of the following controversy, possibly within 30-45 minutes maximum.

Although what is outlined hypothetically above is sketchy, an attempt at achieving due process, necessary when considering such weighty matters as Judicial Independence, would have been made, and there would have been no fuss. The president would have been covered.

-It's only hypothetical, but what were the possible reasons the above procedure wasn't tried?

-Were the relevant staff simply ignorant of the unequivocal Board of Appeal independence-safeguarding provisions of the EPC?

This is not so outlandish a suggestion - there is somewhere an interview in one of the IP magazines which has a very senior member of the EPO stating the need for the Boards of Appeal to "issue their search reports" more quickly, or some such - an eye-opening mistake for a person running an organisation charged with implementing the EPC.

Perhaps such fundamental lack of familiarity with the EPC provisions among the senior staff could be to blame for an accidental breach of A.23, which then had to be explained away.

-Perhaps the infraction was a genuine force majeure situation, implying imminent risk of serious injury, or actual injury, to staff members, and no time even to follow the informal procedure involving the EBoA described above. Even so, could the decision to remove not have been rubber-stamped by the EBoA post-facto?

-Perhaps there was no point in consulting the EBoA, because the alleged infraction was perceived as so slight that the EBoA would never agree to instant removal from the building.

-Perhaps somebody was consulted, and didn't agree with the instant removal.

-Perhaps whoever ordered the removal did so in a synthetic, or actual, fit of pique, leaving underlings scurrying around to limit the damage.

Just a few hypothetical thoughts. We will know the truth quite soon, anyway.

Anonymous said...

Anon 12:30

Maybe there is something in that.

Any future revision of the EPC needs to reassign voting weights in the AC in such a way that the big patenting jurisdictions have a blocking majority. This isn't so unusual - the upper house of the German constitution assigns more votes to Bayern and BW, based on net economic contribution.

The second reform would be:

Article 4a EPC
"Candidates for the position of President of the EPO shall not have served on the Administrative Council during the previous five years to the date the election for that position".

Anonymous said...

"What should BB have done instead? Wait for the next AC"

I already answered that in my post at 14:26 yesterday.

There needs to be someone completely independent of the President who has the responsibility and the power to act. Including taking immediate action if necessary.

This would actually benefit the President, by removing any suspicion that he was threatening the independence of the Boards.

However, it would mean amending at least the Implementing Regulations, and quite likely the EPC itself.

One possible amendment was proposed in 2004, but never implemented. It would have made the Boards into an autonomous organisation, with its own head responsible directly to the AC. Probably there would have been problems, e.g. how to finance it. However, I'm sure there could be other ways forward.

Who knows what proposals the AC's Board 28 will present at the March meeting of the AC? It is extremely unsatisfactory that it is all being kept secret, and they are not consulting anyone. They could come up with something very good. But I fear it will be something very bad.

Anonymous said...

Anon at 13:01,
I agree with youthat apparently 9some of) the upper managment is, or at least has acted unaware of the provisions of the EPC.

Would it be a good idea if one could only get a job in upper managment if one would have passed the EQE (or at least part D of it). This would seem almost obligatory for VP1 and its directors.

Anonymous said...

Anon 13:01:00

Ok, so you say: BB should have involved the EBoA. You have a point.

I presume that due to the need for urgent action felt by him he did not consider this.

An honest mistake is my best guess.

But why then not just own up?

Anonymous said...

Need for urgent action? It's an allegation of defamation according to what the pres wrote to staff. Unless he was hiding a different , more serious allegation which hasn't leaked out yet, I'm not sure there was a huge amount of urgency.

Anonymous said...

The remarks of VP1 seem to be besides the point.

1) from Sir Robin Jacob's letter: "We do not know what it is that the Member is alleged to have done wrong. Nor does it matter."
2) Sir Jacob seems to be quite aware: " As we understand it the Member was, on the orders of the President acting on his own initiative, physically removed from his office and possession was taken of his computer.
3) Sir Jacob does not suggest otherwise.
4) Sir Jacob: "The present events seriously threaten the judicial independence of the Boards of Appeal and by doing that call in question the guarantee of an independent and impartial review of the European Office's decisions by a judicial body." When the Presidents personally takes such actions against members of the BoA, it is not very surprising that the independence is at least 'called in question'.
5) true

MaxDrei said...

At 09:46 today Ashley Roughton asks us, who watches the watchers. I see it like this:

The EPO President is under the thumb of the AC. Each member of the AC is under the thumb of the duly elected Government of an EPC Member State. Each such Government is under the thumb of the electors, including you and me Ashley.

If the electors can't be bothered, to think, to concentrate, and then to vote, the entire system fails.

But in theory, the control mechanism is in place. Oder?

Anonymous said...

MaxDrei at 16:32 is right - although EPO matters are a bit niche for general purpose voters.

People can lobby MP's, MEP's, the IPO. Industrial associations can come out and complain, if individual corporations don't want to go over the top.

BB's behaviour seems to have had a chilling effect on CIPA, EPI, and other IP associations - see for example the craven statement issued before Christmas about the BoA issue.

That depressing statement treated grown adults with an interest in the health of the IP system as children, unable to tell the difference between matters of high principle, and sub-judice.

What are they all worried about? That BB will start to snub invitations to speak at their boring, expensive, rubber-chicken dinners? He's a sad individual who should be laughed at.

Anonymous said...

To this foreign observer, you all have one massive Charley Foxtrot on your hands with no resolution in sight.

Clients asking about obtaining patent coverage in the EP... I'm at a loss for words of advice.

Anonymous said...

To 18:58:

Once BB goes his cabal will follow, and hopefully cooler heads will prevail. Who knows what the long-term effect will be of the changes, on quality.

Anonymous said...

MaxDrei sums up the situation perfectly! However, there is one element that may have an influence: the means of communication between the different stages in the line of command. For instance, if electors or specific groups of electors (say, industrialists) want to express themselves concerning patent matters, they make use of interpreters, patent professionals, to do the talking and writing for them. Some are in-house in the industries, some are external consultants. But when industrialists and their associations approach the authorities, they do not go via the professionals. In other words, the public servants and the ministers with their short lifespan can easily phrase suitably soothing words that placate the industrialists. Professional litigators and patent consultants would not let go so easily.

The comments from those who pay for the system are few and far between, and the legal uncertainty created Europe-wide will obviously benefit those with the deepest pockets. That is not what the patent system was created for. The problem is that those who try to express their worries in the respective countries will be reassured by the public servants who are dependent on the EPO system because neither understand the fundmental principles properly. In modern politics it is the short-term gain that reigns.

It is hence only proper that the specialists do the asking and prodding. As it is, it is a much more fundamental and worthwhile occupation to ensure legal certainty in the European system than e.g to participate in the training of further EPAs. The latter has been pro bono for years, and so should our attempts be to preserve a system that has functioned well for 150 years: independence of organs that perform a judicial function. But how?

Just to give an indication of where the focus of the industry lies, this is the brief report of the meeting between the BusinessEurope Director General and the EPO president on 4 December 2014:

“Beyrer underlines importance of close cooperation with the European Patent Office
Meeting the president of the European Patent Office, Benoit Battistelli on December 4th, BUSINESSEUROPE Director General Markus J. Beyrer underlined the importance of close cooperation between BUSINESSEUROPE and the European Patent Office, also at global level. He also stressed the need for setting the fees for the unitary patent at a level that meets the expectations of business in terms of costs as key to its success and uptake. BUSINESSEUROPE will continue voicing the need for fees attractive to innovative businesses. In addition, the issue of patent law harmonisation in the context of TTIP was discussed and the need for a multilateral approach voiced.”

Food for thought!

Kind regards,

George Brock-Nannestad

Anonymous said...

I'm sorry, but I can't agree with Maxdrei, I see no evidence that control is in place and I see no evidence that "The EPO President is under the thumb of the AC", in I suspect that quite the contrary is in fact the case. I can, however wholeheartedly agree with Anons at 14:22 and 13:01, since I also see no evidence to suggest that VP level and above have any knowledge of, or interest in, the EPC, how the EPC is honoured in the examination process, or the consequences for society as a whole of the EPC not being honoured as it should. In view of this, one cannot help but wonder what influences the decision making process. When it was first set up the EPC/EPO system was a masterpiece, which has proved itself so until recently, but is inevitably weakening under the current onslaught. Back then the mantra was "high probability of validity", now it's "higher production" - of what?

Anonymous said...

The President warned his staff not to publish defamatory information. The staff member did not obey, and even used a computer inside the office.

Clearly, this is a sign of non obedience and of challenging the President's wisdom.

His options were to go via the EBoA then he would have to respect the verdict of people which are not under his control. Obviously this is not something to the gout of the President. There was a risk that this body would not take the defamation so serious, which would have been a signal for other DG3 staff to do the same.

Or he could wait for the AC. Here he has much more control, but this way would still be outside the EPC.

Or he takes some bold action. This way he intimidates critical voices and gets information about the person's network. Presumably he underestimated that this behaviour could create such big waves outside his "supervising" body. As long as he is protected by the AC headed by his interview assistant, there is not much that can happen to him.

So, looking at it from a power and political perspective, he might deliberately have taken the option: Je m'en fous.

Anonymous said...

He's an embarrassment to France.

Anonymous said...

I'm an examiner. To those who question the formulation "...VP1 asked to share..." - it's standard in the EPO that anyone above director level has one or more secretaries.

Each and every email I've received from "higher management" (not many during my career, high management tends to minimize any interaction with the unwashed masses) have been written via secretaries.

So you tend to get emails formulated like:

Dear XX,

important person YY would like to meet you at AA:BB to discuss matter ZZ. Person YY asked me to tell you that yada yada.

CC on behalf of YY

Note: I have no idea if the quoted message is legit.

Anonymous said...

And now for something completely different ...

"The Collapse of European Patent Office Management Culminates With Resignations"

Anonymous said...

As an examiner, I recognise in that email the level of omnipotence and savoir faire that the current management is providing nowadays. They might think all directors blindly believe their theories, which only comes to show how much empathy they lack: the leak doesn't surprise me. That email is a fine piece of art.

I am however surprised that, the important decisions for the future of the EPO, such as those relating to areas of competence, relying on the uspto for classifying high amounts of documents despite low compliance levels, cutting down/suppressing time budgets for trainers and trainees, fabricating priorities, increasing production at the expense of quality, etc. hardly have the same impact on the public as an email that simply shows the true colours of the current management. Once again.

Anonymous said...

Anon 2225,
Additionally there is no native English speaker in the VP's office who could check the English and the correct title of Sir Robin Jacob.

Anonymous said...

To be honest Examiner 23:09, is there any surprise that the public is more interested in scurrilous emails as opposed to the practical changes going on?

The EPO is a black-box to the public. Fees go in, patents come out. Who cares what goes on inside. That is why the changes can be made with impunity.

The staff union needs, quickly, to stop sounding like Arthur Scargill's retirement project, and instead needs very quickly to educate and engage the [interested] public about what goes on inside, and about why the changes matter. Could the Union place a corporately written article in the CIPA Journal, or Managing IP. for example? To educate the attorneys about the very real issues that you are facing? I'm sure the reception would be positive, if it was objective and not whingy.

Anonymous said...

Anonymous 2354,
In fairness the union tries but that would be signing a suicide note for the committee members involved. Already disciplinary action is threatened for, basically, being not loyal to Battistelli. He decides on that and has outlawed any industrial action other than strikes (which he has to organise...). Without repeating previous articles here, any such article would be required to provide facts which would immediately open up the union signatories to attack on many grounds. We have seen that already and are currently protesting about the proceedings against 2 staff representatives.

Anonymous said...

In this sad story one thing must be made clear:
The very bad reputation the EPO enjoys at present among public, judges, attorney etc. is exclusive responsibility of the President and of this cronies (VPs and friends he brought from France), not of the staff. In the years, the staff has contributed, and stlll contributes, with hard work and competence to the success of the Office and to making the dream of those who had written the Convention (including the first President Bob van Benthem) a reality. Then these sharks arrived, thirsty of power and money, without scruples, moral values and knowledge. They are about to ruin everything.
If the EPO continues to function despite them is because most of the staff still believe in this dream. Their voices should be heard and something must be done before it is too late.

Anonymous said...

Maxdrei is quite wrong that the president is under the thumb of the AC. The EPO is effectively run now by a collaboration between Battistelli, who was chairman, Kongstad, who is chairman, and former chair, honorary life chair and general éminence grise Roland Grossenbacher.

Nobody else is really important.

Anonymous said...

"Each and every email I've received from "higher management" (not many during my career, high management tends to minimize any interaction with the unwashed masses) have been written via secretaries."

Indeed. Upper EPO management, like most political appointees, would struggle to find the "ON" button on their computers, never mind doing something so sophisticated as sending an e-mail without exposing themselves to unintended (and presumably hilarious) consequences.

"As an examiner, I recognise in that email the level of omnipotence and savoir faire that the current management is providing nowadays."

Actually, as a former examiner who left the office quite some time ago, I recognise in that email the tact and intelligence that Mr. Minnoye has been providing for many, many years.

Anonymous said...

As to whether the President is under the thumb of the AC, in that audio recording leaked some time ago the President already made very clear that he will not accept any questioning of his actions from the part of the delegations.

And it does not seem as if the delegations were shocked by such statement, which according to some amounts to a denial of their supervisory role and to their power and sovereignty being usurped. It's definitely an interesting view to consider.

Anonymous said...

Under the thumb...?

That was not a maxim, that was a MaxDreism: throw some silly, banal, and obviously wrong thing at the wall and see what it stirs up.

Anonymous said...

Of course BB will support the separation of the Boards of Appeal and the EPO. Moreover, he probably banned a BoA member in order to accelerate this separation.

Thus, BB will probably reach the goal of substantially reducing EPO costs (by cutting off the costs for DG3 - the appeal staff members) within his appointment period. Hence, he will be in the position to collect his 20 million € bonus.

Thus, all individuals (e.g. Sir Jacob et al.) and organisations (cf. all the letters mentioned on this website) appealing against BB’s house ban on a BoA member become his accomplices.

Anonymous said...

Anon 12:24 - ok, but separation (if it was indeed real) would be a worthy achievement in itself.

If BBs contract terms were drawn in such an irresponsible way (and we can't know that), then that would be the fault of the AC.

To call those sticking up for fundamental principles "accomplices" is beside the point. If what you say is true, then he is certainly wily, but the accomplices are the AC, not supporters of fundamental rights.

Anonymous said...

I am not sure if I want to cry or laugh.

Was attending Oral Proceedings yesterday and, at the end, started some small talk on the condition of the office.

The Examiners refused to comment mentioning they are not allowed to comment the ongoing case.


Anonymous said...

Separation of the Boards from the EPO is not an issue at present. A Diplomatic Conference is needed for such a change to the EPC and none is in sight.
The most the AC can do are some administrative (separating VP3 duties from the Chair of the EBoA) and cosmetic changes as moving the boards to another location.

Anonymous said...

Anon 1418,
Not surprising. If you are a UK attorney it marrows down which OP was concerned and hence which 3 examiners. The investigation unit doesn't tell you when you're being investigated so you never know what danger you may be giving yourself. And no, this isn't an exaggeration!

Anonymous said...

Well, moving them together with the central division of the UPC may be a sensible move, as I guess that a number of BoA members will be working part-time for the UPC

Anonymous said...

Moving the BoA to another location under the President´s control won´t improve independence (possibly even reduce it if the move is perceived as a punishment). But moving it together with the UPC central division, i.e. an independent institution, may be a sensible idea not least because I guess that several BoA members will be working part-time a judges of the UPC.

Anonymous said...

Anon Friday 13:05

If someone receives a 20 million € bonus, then he will probably be able he make some kick-back payments to those who promised him that bonus.

20 million could easily be split up in two 10 million parts, one part for the bonus recipient and the other part is spread over some influential members of those who promised that bonus.

Then, you could be right with your assumption that “the accomplices are the AC”.

Anonymous said...

@Anon 1639: I don't think that will happen in view of the statement of Preparatory Commitee:
"Finally, an issue specifically in relation to applications received from current members of the Boards of Appeal of the EPO. According to the rules of the UPC Agreement it is clear that these applicants would have to resign from their posts as members of the Boards of Appeal of the EPO before they could take up a duty as a legally qualified judge or as a full time technically qualified judge of the UPC. The situation is however not as clear when it comes to applications to become a technically qualified part-time judge and a final decision on this is yet to be made by the Preparatory Committee. The Advisory Panel has however, in its advice to the Committee, deemed that it may be inappropriate for members of the granting authority (even of the Boards of Appeal) also to sit in judgment on what the EPO has done."

Anonymous said...

Whether the mail to the directors came from VP1 and was or was not addressed to examiners or not, is not so relevant. It just reveals the mind-set of upper management.
VP1 has taken as assistants people of the kind shown in "yes, Mr prime minister", exactly as BB did.
By the way, the "Belgian" connection works quite well, just see how Mr Bodard had a very quick career, and Mr Chris de Neef (VP1's personal assistant) is on the verge of doing the same. What other do you expect from people like that other than to be "His Master's Voice" (C)? A director, buddy of VP1 has also seen his contract extended over the age of 65, allegedly for a very important task, which was refused to all other directors…According to VP1 there are too many directors anyway, and they are in their vast majority not managers as he wished they were. According to VP1, examiners should “deserve” their salaries, implying that they are just lazy. And he will show them how things ought to be done!! He has the knowledge and competence for this…..
One thing should not be forgotten: when it comes to patent procedure, VP1 has only ever done searches, and this in his is early professional life, when searches were carried out in paper documents. He does not have the faintest clue of what the work of a substantive examiner consist of, be it in examination, and even less in opposition. He sees DG1 only with those glasses, hence his ideas of areas of competence, mega directorates etc...
VP1 has always considered examination as something minor, and actually just playing with words. He is also known as considering DG3 to be a hindrance to production.
In this respect he blows in the same horn as BB who even went as far to declare that DG3 deals with a lot less cases than the Bundespatentgericht. If you add trade mark cases with patent cases this might be true, but not when you compare just patent cases…..
As one post says, ISO 9000 is nothing more than a fig leaf. Internal quality checks during production have been abolished by the present VP1 (Operational Quality Control installed by his predecessor), as the chairman can do this work. What to expect from a chairman who also has to deliver his own production? Even if there are problems, he will sign. Who can blame him?
What can you expect from an upper management who is only interested in its own career and could not give a damn about the organisation?
BB is the EPO personified, VP1 has no idea of the work, VP2 is absent, although he should say something about quality control, VP4 needs the support of BB in view of his personal problems, and VP5 as a lawyer should know better, but only abides in BB's sense. VP3 is on a lost post especially after R 19/12 which BB has taken as a pretext to decide what is going on in DG3. Internal audit is more occupied with applying the Guidelines on Investigation as anything else. What do you expect?
Quality is deteriorating, and will deteriorate even more, but when it will come out, the people presently ruining the EPO will benefit of what they consider a well-earned pension. Is this right? Should this happen?
We all know where planning production for the sake of it has led Eastern Europe to. Do want the same for the EPO?
It is time for the outside world, applicants and representatives to act.

Anonymous said...

@Anon 2021 I find the statement of the Preparatory Committee that you cited very interesting. It appears to me from this statement that even the members of this Committee do not consider the BoA as truly independent (“… it may be inappropriate for members of the granting authority (even of the Boards of Appeal) also to sit in judgment on what the EPO has done.”).

Now it would be interesting to know whether the Preparatory Committee comprises also members of the EPO management.
Thank you for the information!

Anonymous said...

@Anonymous 11:20:00

Well said.

And let us not forget an important anniversary approaching in June 2015:

MaxDrei said...

Well said, that anon at 11:20 this Sunday morning. You make it very clear, how "quality" is quietly being flushed down the toilet, and nobody sees any need to intervene.

But who can be bothered to interevene? Nobody. Those running big industry? No. They lack any feel for what "patent quality" really means. They lack the insight of the patent judges, how important it is to innovation and the economy to filter patentability competently before issue. Look at the USA, to see what grotesque damage to the economy ensues, when Patent Office examination standards fall.

After 40 years of building a superb body of patent law, the foundation of patent validity all over the world, the EPO is now cast side, sold down the river because those in power haven't a clue. It's all very sad.

Anonymous said...

"VP3 is on a lost post especially after R 19/12 which BB has taken as a pretext to decide what is going on in DG3."

The Enlarged Board of Appeal could accelerate the process by passing a proposal to have him removed from office under Article 23(1) EPC due to his ignominious failure to defend the independence of the members of the Boards of Appeal in his role as Chairman of the Enlarged Board.

That would really set the Kat among the pigeons !

Anonymous said...

"The Enlarged Board of Appeal could accelerate the process by passing a proposal to have him removed from office under Article 23(1) EPC due to his ignominious failure to defend the independence of the members of the Boards of Appeal in his role as Chairman of the Enlarged Board."

To which the only possible response is:

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