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Thursday, 12 March 2015

EPO crisis: what actually happened at the December Administrative Council meeting? Part II

Following on from Part I of this post, this is what is minuted with regard to the "New Career System".

The President said the new career system had been discussed intensively in the BFC, which in the end had given a unanimously favourable opinion. The proposed reform implemented the measures set out in the updated HR Roadmap, and was vitally important in that it aimed to ensure the Office's long-term viability, whilst taking account of what it needed in order to function properly, together with legitimate expectations of its staff. The current system was unsustainable because of its clear limitations, which were also a source of staff dissatisfaction. All attempts to negotiate the reform with staff through genuine social dialogue had failed because of the staff representatives' systematic refusal to engage in it. The aim of the proposed reform was to improve career prospects over the long term by basing them on competence and performance. It also sought to maintain high levels of staff motivation. In fact, despite the allegedly abysmal [Merpel wonders how the social climate can be only "allegedly" abysmal] social climate, staff turnover at the Office was extremely low. The new career system would also enable the Office to take better account of budgetary and demographic constraints, and would give it more flexible tools to reward performance. Seniority-based step advancement would be replaced by a performance-based system. The budgetary envelope available for promotions would be defined each year by the Council when adopting the budget. The rigid distinctions between categories A, B and C would disappear, replaced by a system with only 80 different levels (grades and steps), compared with 250 at present. The BFC had discussed the financial impact at length. 
Career development can
be quite a challenge ...
The Office was not trying to make huge savings: at present, promotions cost roughly 2.5% of the total wage bill, and in the new system the figure would probably be about the same. But the size of the budgetary envelope earmarked for promotions could be revised upwards or downwards by the Council each year, depending on circumstances. Consequently, career development would be slower, and not all staff would reach the highest grade, as was the case today. Naturally, if large numbers of staff delivered outstanding performances, it would be justified to make more promotions than were possible under the budgetary envelope allocated, which would then have to be increased. But better performance also meant higher income for the Office. The specific situation of members of the boards of appeal would be taken into account in the review currently underway in DG 3. The question of DG 3 member careers would therefore be decided in due course by the Council, the appointing authority in such matters. In any case, the new career system would not enter into force until 1 July 2015, and the first promotions under the new system would not take place until the end of 2015. The DG 3 issues would be resolved by then. Lastly, the proposed reform was of truly historic importance. It was driven by the desire to bring the EPO into the twenty-first century. It was needed not just for efficiency reasons, but also for justice and fairness, because under the current system there was not much difference in the careers of outstanding and average performers.
The Swiss delegation said it would certainly be voting for the reform, which to its mind should have happened long ago. The Swiss office had been operating a similar system for many years, and it produced excellent results. Another very positive aspect was that in future the Council could decide each year how to the staff's performance was to be rewarded.
The Norwegian delegation said the reform was a major step forward, bringing the Office into line with comparable organisations such as the Norwegian office. But it had reservations about paying bonuses. That might be very difficult to implement in practice, especially in the current social climate. It was thus not in favour of that aspect, but could go along with it if it were alone in taking that view.
The UK delegation was also convinced that this was an important reform and a step in the right direction. The challenge of implementing it should not be underestimated, especially in the very strained social climate at present, but that was not a reason to slow things down. In addition, the Council should receive regular updates on progress with the reform. The UK delegation had noted the clarifications provided by the President about DG 3, but wondered, given the current difficult situation there, if they should not be reflected in the text.
"Everything possible had to be
done to dispel growing doubts"
The Swedish delegation was broadly in favour of the reform; the career system had indeed needed modernising. However, it was worried about the conditions under which the new system would be implemented. The first problem involved DG 3. The documents submitted to the Council said nothing about how the boards' independence would be maintained under the new system. True, the President had given assurances to the Council, but it agreed with the UK delegation that it would be better to have them in writing. Everything possible had to be done to dispel the public's growing doubts about DG 3's independence. Beyond that, it was undeniable that the social situation at the Office was very difficult, which was bound to have an adverse effect on the new career system's acceptability to staff. They needed to be persuaded of its merits before it was introduced. The decision should therefore be postponed to give the Office time to explain the reform so that the staff understood it.
The Hungarian delegation was in favour of modernising the social framework, and thus supported the proposed career system reform. Similar reforms had been successfully undertaken elsewhere, including the Hungarian civil service, where they had gone hand in hand with the implementation of an effective quality policy. However, making such a change was never without its challenges. A good conflict management system was therefore essential.
The German delegation welcomed the proposed reform, which would be an important step in modernising the Office. It was pleased that the new career system would place greater focus on performance, and therefore fully supported it in principle. However, like earlier speakers, it thought that the new career system's possible application to DG 3 was problematic. In Germany, that would be unconstitutional. It noted that the President had said he was aware of the problem, but would not vote in favour of the new career system unless DG 3 were explicitly excluded. Otherwise it would abstain.
For the Turkish delegation, the introduction of a new career system was a milestone on the path to achieving the objectives set out in the HR Roadmap. The Office needed to continue its efforts to modernise, and to improve its efficiency. It would therefore be voting for the draft decision in Part II of CA/84/14 Rev. 1.
The Austrian delegation said it would be voting in favour of the proposed reform, just as it had done in the BFC. It had been vainly advocating such a reform for a long time, and was glad to have been heard at last. It understood the concern of some delegations that applying the new career system to members of the boards of appeal risked compromising the independence of DG 3. In Austria, too, the independence of the judiciary was enshrined in the constitution, but judges' careers depended in part on their individual performance. Lastly, the issue of pensions, currently calculated on final salary, would have to be tackled sooner or later.
The Italian delegation fully supported the aims of the proposed reform, but shared the concerns expressed by other delegations about its possible implications for DG 3. It had noted the assurances given by the President in his introduction, but would be abstaining unless the text was amended to reflect them.
The French delegation thought the proposed reform went in the right direction, but it wondered whether now was the right time to implement it, given the current social climate. It would therefore be abstaining. It ended by recalling that at the Council's 140th meeting in June it had suggested commissioning an independent external audit of social relations at the Office.
So what, then, is a "functional allowance ...?"
The Polish delegation welcomed the proposal; it agreed with both its philosophy and aims. But it would like to know what was meant by the verb "may" in the proposed new version of Article 12(2), second paragraph, ServRegs (see Article 15 of the draft decision "He may receive a functional allowance ... "). In its opinion, a functional allowance should be compulsory for staff performing additional or particularly demanding duties. Also, the staff should be represented on bodies deciding on promotions, as had been the case for the old promotion boards. It was keen to see what would happen with DG 3. Lastly, it would not be opposing the proposed reform but it expected its comments to be taken into account.
The Croatian delegation too fully supported the goals of the proposed reform, which resembled career systems already in place outside the Office. It was strongly in favour of the two career paths - managerial and technical - proposed. The DG 3 issue was, to its mind, more a question of principle than of substance. It was regrettable that the staff representatives had not taken their opportunity to take part in devising the new career system. Implementing it in practice would be a big challenge, but EPO management would no doubt do so with the necessary finesse.
The Slovenian delegation's view was the same as in the BFC. Yes, the proposed reform went in the right direction, but it would be premature to implement it now before proper communication with staff had been possible. Any reform on this scale needed a transitional period, and EPO management and staff should try to find a compromise.
The Irish delegation was not against reforming the career system, and the measures described in CA/84/14 Rev. 1 were a step in the right direction. But it was not sure about the Office's chosen approach, and whether bringing the new system in all at once- especially with the current social tension -might not jeopardise the success of the whole exercise. Like the Slovenian delegation, it thought gradual implementation would be better. It also shared the reservations expressed by several other delegations about applying the new system in DG 3. It would therefore be abstaining.
The Slovakian delegation too thought the reform was a move in the right direction, but shared the concerns expressed by the Swedish, French, German, Slovenian, Irish and UK delegations. It would therefore also be abstaining.
Replying to the various speakers, the President noted that they had all said they were in favour of reforming the career system and had expressed agreement with the principles underlying the reform now proposed. Those who wanted to postpone it in the current social climate should remember it was never "the right time" for major reforms. On that basis, it would be virtually impossible to reform anything. And he could assure those who wondered whether the reform had been properly prepared, particularly given the prevailing social tensions, that this had been done meticulously. There had been a pilot, with excellent results. No doubt even more could have been done, but he rejected any suggestion that the reform had not been adequately prepared. A third set of reservations had concerned the independence of DG 3, which however was not and never would be in jeopardy. The only open question was who would decide on promotions of board of appeal members, a power currently delegated to the President. In any case, he could assure the Council that the provisions governing appraisal, performance, step advancement, bonuses, promotions and any other aspect relevant for their careers would not apply to these Council appointees until specific provisions were set out in the documents on the organisation and functioning of DG 3 which would be submitted to the Council for approval at its next meeting, in March 2015.
Having taken note of that statement by the President and of the information in CA/84/14 Add. 1 Rev. 1, the Council approved the draft decision in Part II of CA/84/14 Rev. 1 (present: 36; for: 30- BG, BE, CZ, OK, DE, EE, GR, ES,HR, IS, CY, LV, Ll, LT, LU, HU, MK, MT, MC, NO, AT, PL, PT, RO, CH, AL,RS, Fl, TR, GB; against: 2- Sl, SE; abstentions: 4- FR, IE, IT, SK) [see CAID 1 0/14].
Merpel notes, in view of the reported visit of Baroness Neville Rolfe to the EPO next week, that the UK Delegation's comments both as recorded in this post and in Part I are very weak, but is pleased that the Irish delegation was more forceful and went so far as to abstain.

Even the EPO Union SUEPO acknowledges that some reform to the career system is needed, and Merpel has not seen anyone seriously argue otherwise.  But the reforms that are being implemented have several troubling provisions that are causing concern (as noted in the comments of some of the delagations), and are being pressed ahead with regardless of the feedback from SUEPO, from Examiners, and from other commenters. These include the focus on productivity over quality of examination leading to lower examination quality, and the suitability of paying bonuses at all. The issue of the applicability to the Boards of Appeal has been addressed to some degree in the proviions that Merpel commented on earlier this week (herehere and here), but these have their own issues.

The Administrative Council is meeting again on 25/26 March, and Merpel hopes on this occasion there will be some more signs of serious review of the issues, and not simply rubber stamping the proposals put forward by the administration.

Merpel has deliberately kept her own comments brief since she is after all no more than the fictional sidekick of an equally fictional feline, but no doubt readers will have their own comments.  Merpel begs to remind readers of the following:
Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).  The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.

61 comments:

examinethat said...

Long live our batty man !!!! We need more rules and we gonna get them . Cause we didn't do anything for the last 40 years u til the batty man came to the rescue....

brass neck said...

Croatia:

"The DG 3 issue was, to its mind, more a question of principle than of substance."

Incredible!

Roufousse T. Fairfly said...

There is an unmistakable pre-1990 quality to the AC report, I could very much imagine it being read aloud on Vremya or Aktuelle Kamera (the lady just after the introduction)...

Der Staatsratsvorsitzenden des Politbüros des Zentralkomitees des Sozialistischen Einheitspatentamtes Europas, Genosse Benoît B., gibt bekannt...

It even begins with production figures, just like Petropavlosk Kolkoz #17, and continues with greetings from the delegations.

Anonymous said...

Observer observes:
"Merpel notes that at the next AC meeting, the Administrative Council will have to decide what to do about this disciplinary case, since the below suspension is only until the end of the month."
Actually the suspended member of the boards of appeal can only be removed from office by decision of the EBA. In the absence of any such decision he shall be reintegrated.
So no further decision by the AC is called for.

Anonymous said...

frustrated says:

Interesting to read how every delegation thanks the president for the cooperation budget allocated to the national office....of course, nobody wants to risk this kind of bonus

Merpel said...

Not correct Observer. Art 23 EPC states:

The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect.

The EBA makes a proposal, the AC actually decides on the removal.

But that, or reintegration, are in any case not the only possible outcomes. Further disciplinary action can be proposed by the President under Article 10(h) in which case also the Administrative Council will need to decide under Article 11(4).

Sorry to be picky but a lot of nonsense has been talked about this and so Merpel feels that it is time that people were accurate.

Aliens in underpants said...

Speaking of the suspended BoA member is there any new information about the progess of the defamation case in front of the Munich state prosecutor?

Roufousse T. Fairfly said...

Dear Merpel,

Just one more bit.

According to Singer+Stauder, "Europäisches Patentübereinkommen", 5th edition, Art. 23, Rdn 2, if the mandate of a member of the Board isn't renewed after the five years are up, he is to be employed elsewhere in the EPO at the same salary until retirement, in the interest of his independence. A reference is made to Art. 41(3) of the staff regulation.

I can't check because I have a copy of the codex nearby (much of my "stuff" is currently warehoused). Rdn 9 states that Art. 1(4) of the regulations explicitly states that these are they only apply to members of the board inasmuch as they don't affect their independence.

Rdn 3 addresses with suspensions and states the law as you understand it, but doesn't say whether a member removed from the BoA is allowed to reintegrate service elsewhere, or if he should he be kicked out.

The book is from 2010, so it's pretty much of prehistoric interest. There is less and less of a career to go back to anyway...

Thank You Dear Comrade Stalin said...

"The Netherlands delegation [stated that] it was vital for the President to stay the course, showing the same determination and courage as hitherto."

Never mind what the (counter-revolutionary)judges of the Court of Appeal in the Netherland decided ...

Anonymous said...

Pseudononimouse says

Looking at part 1 and Part 2, re UK delegation.

Not proud of UK delegation to read their comments (of course they did not write the minutes so what was actually said may have been re-cast in a different light. Neverthless....

Firstly, ISO9001 does not a quality system make, what makes it work is the people. Much else is box ticking to a process (be careful what you measure)

Secondly, as staff relations are acknowledged to be poor, surely it follows that something is up with the wonderful story of success that the EPO is being congratulated on.

Col. Nathan R. Jesup said...

Alas, for with "Sorry to be picky but a lot of nonsense has been talked about this and so Merpel feels that it is time that people were accurate." such is a never ending and thankless task.

Sadly, some want those less-than-accurate statements; some need those less-than-accurate statements.

Do you want the truth?

IsYetHope said...

Actually, it's quite comforting that some delegations are more concerned about the situation than they are often given credit for on these threads.

L'angelo Misterioso said...

One interesting point that has just come up is that Battistelli is actually seconded from the French civil service and in 2013 was apparently promoted from one grade (administrateur civil hors classe) to a higher grade (administrateur general), automatically (i.e. as a result of seniority) as at that time he was already president of the EPO (see http://www.legifrance.gouv.fr/affichTexteArticle.do?idArticle=JORFARTI000027822850&cidTexte=JORFTE
XT000027822849&dateTexte=&categorieLien=id&fastPos=5&fastReqId=1315378920&oldAction=rechExp
TexteJorf).

If you take a look at the pay scales of the relevant post, you will also note that step advancement within the scales is apparently annual (except for the first step) and automatic.

Perhaps this is why the French delegation kept so quiet about the amendments to our pay scales, which abolish any step-wise advancement based on seniority.

Hypocrisy? Who mentioned hypocrisy?

Old Man said...

That the career system had to be reformed is nothing to discuss about. There were proposals for over 20 years. The quasi automatic step increase was something which could not be sustained, but other means could have been used to achieve this effect, to start with a more finely divided marking system, not just 5 grades of which the lowest was hardly ever used, and the one just above barely more. The vast majority of examiners were good, which meant going from barely good or missing very good from a hair, as an upper limit of very goods was set by the higher management.
What is disheartening is the way this is done as it leaves much room for critic.
By putting the emphasis on quantity, which is nothing new, and at the same time raising targets by 20+%, what is to be expected? In any case it is more or less the end of the 3 man division. Nobody will say anything about the work of colleagues for fear of retaliation. Blocking a file from a colleague is much too dangerous, because then he might do the same to me. On top of it since my salary depends directly on my quantitative performance, I would be stupid to endanger it. A quick and dirty search with only A documents, and my grant is at the end of the road. A few opinions with X documents(true or false) and the applicant replies something, and I can grant. I do not say that all examiners will behave like this, but the temptation will be great. On this scheme any target is attainable, but at what cost for the quality? ISO 9001 is nothing more than a fig leaf.
The Office should publish the so called individual quality rules to be applied. This is an old discussion, and never anybody could decide how to measure quality.
ISO 9001 is no more than a fig leave. The office should publish the number of CASE actions under ISO 9001. VP1 has written to directors complaining that an error rate of 0% could not be true, as in the past the error rate was about 15% for searches and 20% for grants. Some cluster have always had a very high production, but at the same time the highest error rate. No wonder.
Examiners are not mercenaries who left their home country with all disagreements which go on a par, and they only have the EPO as support. But this support is vanishing. That's the problem.
By the time the bad quality will show in infringement, it will be too late.

Robespierre said...

L osing my head after the Terror
E xclaimed my wife 'That was an error'
G ot a metro station named after me
A statue though was not to be
C ould I suggest Benny to save the day
Y ou return quietly to Saint- Germaine-en-Laye

L'angelo Misterioso said...

With the greatest respect to my colleague Old Man, "The quasi automatic step increase was something which could not be sustained" is absolute balls. The EPO has used this as an excuse to introduce the new system just to save money, not because it is 'unsustainable'. The remark by BB that the reforms will not save any money is just mendacious. Of course the intention is to save money. The question is why, exactly: if any applicant out there is expecting fees to fall, I wouldn't hold your breath, my friend. The savings will undoubtedly benefit the member states.

The EPO is swimming in money, as evidenced by the fact that the administration is able regularly to pump more cash into our pension scheme (and why? - to avoid the scenario that - horror of horrors - if everything went tits-up financially, the member states might have to cough up some pension cash under their obligations enshrined in Art. 37(c) EPC, which indicates that in the case that the EPO cannot meet its liabilities, the members states must top up the coffers.

No, the present moves to degrade our working environment are based upon a combination of greed and envy. The whole thing began with Roland Grossenbacher, former AC chair and great pal of BB and Kongstad (Roland stood against BB for EPO president in 2010 - but they are still pals: BB generally refers to Grossenbacher in meetings fondly as 'Roland'), who, being Swiss, I guess, has always thought that EPO staff were coddled, lazy wasters and has been pushing for performance-related pay for donkey's years.

The rest of the dog and pony show which purports to be the Administrative Council of the EPO is clearly a dead letter: what we are seeing here is just another example of neoliberal economics: the masters of the EPO universe have decided that hoi polloi can do it cheaper and better.

The result: management salary scales go up, everyone else gets screwed.

Unhappy said...

The president recognized that the new carrier system was not negotiated with the staff representatives: “All attempts to negotiate the reform with staff through genuine social dialogue had failed because of the staff representatives' systematic refusal to engage in it”. (Actually, the president wanted to impose an unfair carrier system to the staff and refused to negotiate one word of the text).
Also, the president didn´t negotiate with the trade union, in violation of fundamental right. (See the judgement of the Dutch court of appeal).
During that period, the right to strike was limited (another violation of fundamental right).

It can be concluded that this new carrier system was imposed to the staff without any negotiation and during a process which violates fundamental rights.
The EPO staff will never accept this new carrier system and will continue to fight for their fundamental rights.

L'angelo Misterioso said...

Unhappy, it took me a while to work it out, but the word is "career". If you are an EPO employee, you are not exactly a poster child for our linguistic excellence.

And, while am happy to see that you are so optimistic about the courageous EPO staff fighting on forever, I am less sanguine: perhaps a rump will battle on forever, but when your opponent holds all the cards, this is mostly just whistling in the dark.

concerned attorney said...

Further to Merpel's comment above, Articles 11(4) and 23(1) EPC provide two separate ways for the AC to impose disciplinary measures on BOA members, however A23 refers specifically to BOA members while A11 refers to AC appointees in general. A23 is therefore Lex specialis for A11 and has precedence.

As A23 explicitly prohibits removal of BOA members without proposal from the EBOA, it follows that the A11 procedure cannot be used in order to remove a BOA member from office (A11 can however be used in order to impose other disciplinary measures which are not mentioned in A23, like reprimands).

The December AC imposed the suspension apparently based on A11 and on the theory that a suspension or temporary removal from office is not covered by "removed from office" in A23. IMO this theory is highly questionable, in fact it would allow to easily circumvent the prohibition in A23 by simply suspending a BOA member until the end of his/her 5 year term, which clearly cannot have been the intention of the A23 legislator.

The March AC will have the choice to either do nothing (which means that the suspension will expire), to extend the suspension or to permanently remove the BOA member from office. IMO for the above reasons the second and third options would be contrary to the EPC in the absence of a proposal from the EBOA.

Methusalea said...

Which country is OK????
And what did NL vote??
Is NL OK??
If they approved they are NOT okay.

Old man of EPO said...

Methuselah,
I think we see the danger of polite diplomacy and soft tactics whereby delegates convey to their questioners that more can be achieved by subtle nods and winks rather than outright dissent. In this case many countries seem to be troubled but try to give a wink while still being one of his friends. They vote yes and that's all he hears. He didn't even have France's support but who cares, the vast majority are on his side. He got his way, he can deal with the trouble makers!

blender said...

Old Man said:
"VP1 has written to directors complaining that an error rate of 0% could not be true, as in the past the error rate was about 15% for searches and 20% for grants."

The quality of the grants is verified and reported to a central reporting tool by the chairman of the division, which is also taking the decision to grant. As a consequence, the first member consults the chairman during examination and the conflict of interest is perfect.

No wonder the 99,99991% compliance.

The ISO auditors were perfectly fine with the implementation and congratulated the Office...

Why should Battistelli behave with quality matters differently than with everything else? It is, just as the independence of justice, only a matter of the right public perception!

A Novel Daniel said...


Dear Concerned attorney,

do you know if the suspended member of the BoA has the right to a defense and/or to provide his own arguments in front of the AC?

And exactly, who is the (independent) judge and/or jury here? Who decides what constitutes defamation?

Is there any chance to appeal the decision, internally or externally?

Thank you.

Dilbert said...

the EPO was created by a group of people who knew what they were doing, as demonstrated by the 35 year success story. Amazingly, early EPO was an almost manager-free zone. The most experienced examiners became directors of the technical area of their expertise. The employment conditions were excellent and tailored to attract and keep high quality staff permanently. And with that setup the EPO grew to be a large, successful organisation.
Then homo manager discovered the EPO. Though there is actually relatively little that needs to be managed in an organisation that has highly skilled staff doing their highly specialised work, homo manager started their take-over, which has at long last resulted in managers getting a higher salary than their corresponding non-manager colleagues.
Well done, homo manager.
P.S. I should know, after all my boss is the pointy haired manager.

Unhappy said...

To L'angelo Misterioso
The EPO president doesn´t hold all the cards.

1) BB cannot pretend anymore that he respects the fundamental rights. (In Europe, the violation of fundamental rights is not a small detail).

2) You will remember that the EPO president didn´t respect the independence of the BoA (another scandal).

3) There is suspicion of corruption at the top of the EPO.
http://techrights.org/2014/12/28/frederic-angermann-et-al/

4) Hundreds of internal appeals were lodged by staff against the BB reforms. Those pending internal appeals are a financial risk for the EPO (after the judgment of the Dutch Court of Appeal, this risk became higher).

5) This is only the tip of the iceberg. If an independent audit is done, you will discover other scandals.

L'angelo Misterioso said...

Unhappy: yes, all those things are true...

But, apparently, nobody important out there gives a shit.

For the most convincing evidence, look at the behaviour of the AC, the only body which really matters: forget the blogs, forget the national courts and politicians. All very amusing as a diversion, but unless the AC starts to get really nervous, they will keep voting in favour of BB's reforms and nobody can do a thing about it.

You make the mistake of thinking that BB's behaviour makes the national pols on the AC nervous - it doesn't: most of them probably admire him and wish they could ride roughshod over the rules like he does!

Old man of EPO said...

Blender,
ISO only means that a structure of a quality management system is in place since achieving quality is difficult without one. It doesn't mean that quality is achieved by having one though. The audit doesn't check the quality of decisions of the QMS, as shown by your valid example. Examiners now seek to avoid making visible errors by consulting chairmen before rather than after proposing a grant. It's a bit like giving a marker a test paper before handing in a completed exam and asking if it will be a pass or not and if not, why not.

MaxDrei said...

I agree with Misterioso at 08:09 this morning, in his statement that the attitude of the pliant civil servant members of the AC towards the EPO's President is:

"..most of them probably admire him and wish they could ride roughshod over the rules like he does!"

For me, the important question is: what (if anything) would goad the AC into action? What could possibly cause their political masters to intervene?

For me there are only two things that could do it.

One is voter interest. Forget it.

The other is interest, at CEO level, amongst the power users of the EPO. Now that is a possibility, I would say, remote but not completely out of the question. Recent research has revealed that these CEO's move in a world where psychopathic behaviour is ubiquitous, nothing unusual. So these people might actually enjoy giving the bullying BB his come-uppance. No matter how big a gorilla you think you are, there is always a bigger one.

In other words, set a thief to catch a thief.

Just one small snag though: how does one catch and hold the attention of these very busy and very high-flying CEO's? Money? The thrill of the chase, as in fox-hunting, from a view to a kill?

What might inspire them to get involved? I don't know. Does anybody?

Disappointed Brit said...

Given the volume and quality of commentary on this issue which has emanated from the UK - not least from the Kats - it is very disheartening that the comments of the UK delegation are so truly pathetic (assuming that the reported comments are reflective of their actual content). The UK delegation must surely be aware of the deep concern amongst British attorneys. We deserve better representation, or at least some engagement to explain why they seem to disagree with our concerns.

L'angelo Misterioso said...

In my remarks on the fundamentally supine nature of the AC, I forgot to give an honourable mention to the Slovenian delegation, which has been the only one to consistently oppose the BB reforms, much to BB's irritation.

However, just as one swallow doth not a summer make, one delegation of 38 is 37 too few...

Ye olde person... said...

Disappointed Brit,
It depends on how you determine 'serving you'. They may feel they see the bigger picture. Or that the benefits to the IPO are good for the UK. In the end, they can plead separation from any suspect practices (see no evil etc), particularly with safety in numbers (well nobody else raised concerns. ..). There may also be confusion about what their role really is - I'm afraid protecting Brits abroad may not rate highly if at all and an organisation running according to the applicable rules (they're not legal experts etc)is not for them to question.

Jonah said...

"But the size of the budgetary envelope earmarked for promotions could be revised [upwards or] downwards by the Council each year, depending on circumstances."

Surely no one will pretend there is any chance of the promotion budget being revised upwards?

Zlatorog said...

"In my remarks on the fundamentally supine nature of the AC, I forgot to give an honourable mention to the Slovenian delegation, which has been the only one to consistently oppose the BB reforms, much to BB's irritation."

Well said! That Slovenian woman appears to have the only pair of balls in the whole of the AC.

video said...

http://www.efdgroup.eu/medias/videos/item/european-patent-office-breaches-human-rights-and-claims-immunity?category_id=140

Meldrew said...

Anonymous video said...

http://www.efdgroup.eu/medias/videos/item/european-patent-office-breaches-human-rights-and-claims-immunity?category_id=140

SUPERB! Now we are reliant on UKIP MEPs to make the case for European Human Rights. The world is not only stranger than we believe: it is stranger than we can believe.

Truffaut said...

Dear video,

if you put the link within and it becomes clickable:


http://m.youtube.com/watch?v=E79MpC1bR2c

P.S. I have linked it to the original video at Youtube.

Merpel said...

Dear Novel Daniel

You will see in the part I post: "Council discussed the disciplinary arrangements applicable to senior employees appointed by the Council under Article 11(1 ), (2) and (3) EPC and, noting its obligations under Article 11(4) EPC, agreed to set up a Disciplinary Committee"

This suggests to the Kat that such a Disciplinary Committee has never existed before so the procedure can be made up from scratch. The judge and jury is clearly the AC itself. But who is the prosecutor and what right of defence the accused has - I don't think anyone knows. There may be something in the Codex, but the Kats have not seen that.

To Concerned Attorney - you may believe that "suspension" requires A23 procedure and a proposal from the EBA, but many commenters, with whom at least some of the Kats agree, believe that "removal" in A23 means only permanent removal from office, and that suspension can be lawfully carried out under Article 11.

Best wishes

Merpel

Anonymous said...

Suspension is not mentioned in the EPC. Moreover, in the present case, the suspension is manifestly associated with interference in the independents of the member of the Boards. Thus, the present took an action which is not foreseen in the EPC and which is manifestly contrary to the requirement of the independence of the Board Members, which is found in the EPC. Thus there may be little reasonable doubt that the action taken by the President is not in agreement with the EPC or is simply illegal.
For the fans of the view that the suspension is equal to removal it is also apparent that the action of the Ppresident is illegal. So which ever way it is being twisted and turned it comes to that the acction of the President is contrary to the EPC.
Only after one has had acknowledged this, one can ask the next qestion whther the anorthodox and illegal action of the President is outweight by the benefit of it to the Society.
These are two different qestion which should not be confused.
Moreover, only when the Board Member did something illegal and the illegal action taken by the President prevented harmful consequences of the illegal Action by the Board memeber it may be considered that benefit from the action by the President compensates for the fact that it was illegal per se and therefore it should be tolerated.
If the Board memeber did nothing illegal, however, and only something that some peaple did not like than the illegal action by the president would find no justificatoin what-so-ever.

Barbi.

identity said...

But who is the prosecutor and what right of defence the accused has - I don't think anyone knows.

I don't know either, but it seems to me he should at least get a hearing before the disciplinary committee. If the council imposes a disciplinary sanction, the person concerned will be able to file an appeal at the ILOAT (after exhausting any internal legal remedies that might exist).

Regarding the question whether "removal from office" covers suspension, it seems very possible that the ILOAT will have the final say on it. The ILOAT as the final interpreter of the EPC, interesting!

Merpel said...

Merpel has received news relevant to this question and is about to do another post (Friday evening).

Hypocritus said...

"Disappointingly, the new strike regulations had been applied several times, showing there was still room for improvement in staff-management relations at the Office. "
The improvement meaning that the strike regulations can be optimized so that they are applied less often.

"The Council ... congratulated ... all EPO staff on the Office's outstanding performance."
... and in respect therefore voted for the "new career system" (further congratulating the staff by voting for the strike regulations, the investigation guidelines, and the sickness and invalidity reforms).


"The current system was unsustainable because of its clear limitations, which were also a source of staff dissatisfaction. All attempts to negotiate the reform with staff through genuine social dialogue had failed because of the staff representatives' systematic refusal to engage in it"
Muahahahahaahaaaaaaaaa ... I don't know, but somehow this sounds like a contradiction in two sentences ...

"In fact, despite the allegedly abysmal social climate, staff turnover at the Office was extremely low."
This shows the deep and thorough knowledge of BB and his crew about job-prospects of an examiner outside the office.

"[Merpel wonders how the social climate can be only "allegedly" abysmal]"
"allegedly" because BB has apparently absolutely no clue about the social climate and can rely only on hear-say (if anybody in his vicinity dares to note something like this) ... perhaps it is also an "allegedly" as meaning that the staff representation with which he cannot avoid contact is lying to him about the social climate... the wording is therefore well correct.
If somebody of top managment would be interested, a staff survey could be organized (as until BBs crowing was regularily done).

"The new career system would also give [the office] more flexible tools to reward performance."
eg by abolishing an office wide promotion board; it is now much easier to promote the friends of top management.

"at present, promotions cost roughly 2.5% of the total wage bill, and in the new system the figure would probably be about the same."
... but at least top management will profit more from tis

"But better performance also meant higher income for the Office."
This in particular important as the office already has a nice surplus and is meant to be a non-profit organization.

"It was driven by the desire to bring the EPO into the twenty-first century."
... by using management strategies of the 19th and 20th century, which by now are well known to be failure.

"The aim of the proposed reform was to improve career prospects over the long term by basing them on competence and performance. ... Consequently, career development would be slower, and not all staff would reach the highest grade, as was the case today."
A very interesting approach to "maintain high levels of staff motivation".

kibbitz said...

@jonah
"Surely no one will pretend there is any chance of the promotion budget being revised upwards? "

You were so close.

"I dare someone to pretend the promotion budget may be divided upwards."

Garfield said...

"But better performance also meant higher income for the Office."

Rubbish. Better performance would mean fewer applications that remain pending for 6, 8, 10 years, or even longer. (And no more need for the EPO to pretend that the resulting uncertainty for third parties is all the applicants' fault.)

But have you seen the size of the renewal fees payable on applications that pend for 6, 8 or 10 years? Far from a higher income, the EPO will actually be losing a significant part of its income.

Roufousse T. Fairfly said...

I'm quite sure that Mundipharma (a.k.a. Purdue) and Barokes will duly note the statement by the German delegation.

The wise red robes in Karlsruhe will probably find them interesting, eventually.

Roughly translated, the Austrian delegation's jab at their mammoth neighbour very much sounds like "it goes against our law too, but we did it anyway". As if the country's judiciary didn't already have enough to worry about their independence...

Anonymous said...

The EPOrg as it is established at this moment has a serious governance problem.
Over the years interaction between the AC members had gotten so intense that they cannot execute
their function properly any more.
The problematic interactions are:
- Cooperation programmes between EPO and National Patent Offices. A number of offices actually depend
on these programmes. The current President uses this dependency to make sure AC delegations comply. The
funding of the cooperation activities is critical, since one might ask whether the tax excemption of the
PPI does apply. This excemption like the recently judged immunity was granted just for the tasks of the
EPO as defined in the EPC. Certainly a number of cooperation activities go beyond this.
- Allowances for AC members for participation in meetings. These allowances are at a level which
represents for a number of member states a significant additional income.
- Additional benefits for the AC members (like health care insurance, a matter discussed in December)
- Most importantly posts at the EPO. It has increasingly become a habit to fill EPO's management level
posts with former and present AC delegation members, the President, VP2, VP3, VP4, and VP5 are past
members of the AC. Several Principal Directors and Directors have been involved ad NPO staff in the AC. It
is thus no surprise that the 'new career' has as one of its main elements an increas in income for these
high level management jobs (by double digit %).

MaxDrei asked what can be done.

1st step would be to establish a code of conduct for the AC including as important points:
1) No past or present AC member can enter a top EPO management function.
2) AC delegations are supported for their work by their memberstate only.
3) Cooperation must benefit the EPO- not just be an EPO financed service to NPO's like about 50% of the
Patent Academy work. If NPOs need support this should be paid by them.

Anonymous said...

"2) AC delegations are supported for their work by their memberstate only."

Some memberstates may have difficulties controlling the cash flow from one box to the other: remember a few years back, when for a couple of years there were no maintenance fees to be paid in Italy for Italian patents obtained as validations? The reason seemed to be that the internal administrative burden of sending on 50% to the EPO was not worth it.

It is a tangled mess!

Kind regards,


George Brock-Nannestad

Anonymous said...

>> (present: 36; for: 30- BG, BE, CZ, OK, DE, EE, GR, ES,HR, IS, CY, LV, Ll, LT, LU, HU, MK, MT, MC, NO, AT, PL, PT, RO, CH, AL,RS, Fl, TR, GB; against: 2- Sl, SE; abstentions: 4- FR, IE, IT, SK)

It would be very interesting to look at this voting outcome with weighted votes, where a number of votes per Contracting State depends from a number of patent applications filed by this State.

It sounds quite reasonable that the more active use of the patent system should transform into the more weighted voice with respect to the governance of the system.

(The weighted voting system is used, for example, in some EU institutions.)

It seems that under the system "one country one vote", small patenting jurisdictions undergo too heavy pressure with respect to their voices.

Belling the Cat said...


MaxDrei asked what can be done.

1st step would be to establish a code of conduct for the AC including as important points:
1) No past or present AC member can enter a top EPO management function.
2) AC delegations are supported for their work by their member state only.
3) Cooperation must benefit the EPO - not just be an EPO financed service to NPO's like about 50% of the Patent Academy work. If NPOs need support this should be paid by them.


I believe that in the "real world" this is generally known as the "Belling the Cat" problem ...

http://en.wikipedia.org/wiki/Belling_the_cat

I beg your pardon said...

It seems that under the system "one country one vote", small patenting jurisdictions undergo too heavy pressure with respect to their voices.

Oh does it now ?

Against: 2- SI, SE; abstentions: 4- FR, IE, IT, SK)

Of the six "dissenting voices" (2 Nos and 4 abstentions), how many would count as big patenting jurisdictions ?

A weighting along the lines that you are suggesting would hardly have changed the outcome.

Anonymous said...

> A weighting along the lines that you are suggesting would hardly have changed the outcome.

I mean a (very well known) degressive proportionality voting.

A country has a number of votes, which is proportional to a number of filed applications by this country limited by:

the fixed maximum of votes per country;
and
the fixed minimum of votes per country.

In such system, for example, Germany would have the biggest amount of votes, which would be limited from above by the fixed maximum of votes per country.

The smallest jurisdiction would have the fixed minimum of votes per country.

MaxDrei said...

I had never heard of the "Belling the Cat" fable but does it not fit perfectly the current situation with the Administrative Council and President of the EPO. Thank you so much, the contributer with that name, at 21:05 today.

And isn't Wikipedia wonderful. And free. Can I urge readers here to give financial support to the Wikipedia Foundation, to keep it alive. In the real world there is of course no such thing as an everlasting free lunch.

MaxDrei said...

4 out of 5 EPO vice-Presidents were members of the AC? So it's worse than a fox in charge of the hen house. Turns out that a nest of foxes is in charge of the hen farm. Fox children who behave themselves specially well in the nest get to be given charge over one of the hen houses. Thanks to anon (Sunday 15:15) for drawing this shocking fact to our attention. I quote:

"VP2, VP3, VP4, and VP5 are past
members of the AC."

Anonymous said...

If members of a Board of Appeal are not allowed to represent before the EPO for a period of three years after they have left in view of a perceived conflict of interests, then why should members of the AC be allowed to become employees of the EPO without a suitable period of "gardening leave"?

Wrote H. Bosch

This little piggy said...

"If members of a Board of Appeal are not allowed to represent before the EPO for a period of three years after they have left in view of a perceived conflict of interests, then why should members of the AC be allowed to become employees of the EPO without a suitable period of "gardening leave"?"

An excellent question.

And the answer is because it would represent an intolerable and impermissible interference with their ability to get the snout into the trough.

MaxDrei said...

Last Friday at 11:51, somebody was commenting on voting Patterns amongst the AC members, and observed:

"That Slovenian woman appears to have the only pair of balls in the whole of the AC"

because the good lady from SL was one of only two AC members to vote against the EPO President.

Well, the thought which now springs to my mind is that either SL-superwoman is indeed worth all the rest of them put together or else (unworthy thought) Hell hath no Fury like a Woman (or a country) spurned. Spurned for a nice cushy job within the gift of the EPO President.

Fancy being one of my Vice-Presidents? I don't need to spell out what's expected of you, do I?

Old man of EPO said...

Actually, not quite that bad. VP3 came from inside the office (DG5) where, if i remember correctly, he was acting VP for a while. If he did come from the AC, that was a long time ago

All the President's Men said...

"Well, the thought which now springs to my mind is that either SL-superwoman is indeed worth all the rest of them put together or else (unworthy thought) Hell hath no Fury like a Woman (or a country) spurned. Spurned for a nice cushy job within the gift of the EPO President."

Well spotted Dry Max old chap.

The other AC delegate to vote against old Batty was the Swedish one (another woman).

By a curious coincidence she was a rival (unsuccessful) candidate for the Presidency back in 2010.

Make of that what you will ...

MaxDrei said...

A jaw-dropping comment immediately above, from "All the President's Men" yesterday at 16:31.

One of only two AC members with enough spine to take issue with President Battistelli was the member for Sweden. What we should take into account, when wondering where she got the idea from, to stick her head above the parapet, and what President's Men now points out, is that the AC spurned her back in 2010 when she was a rival to M. Battistelli in offering to serve the AC in the office of EPO President. As we all know though, the AC members decided that M. Battistelli would make a better servant.

Anonymous said...

The question which all this raises though is to what extent are the votes of the members of the AC determined by the individuals rather than the offices they represent.

Wrote H. Bosch

MaxDrei said...

Good comment from H Bosch. The members of the EPO's Administrative Council are not voting on a whim, or out of pique or purely in their own personal financial self-interest are they?

But "offices"? I thought the members of the AC were there to represent Member States, not some or other "office".

Piccolo Macchiastelli said...

"The question which all this raises though is to what extent are the votes of the members of the AC determined by the individuals rather than the offices they represent."

The answer to that may in turn depend on the extent to which they are practitioners of the noble Battistellian precept of "L'Office, c'est moi!"

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