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Tuesday, 16 June 2015

Given up on following the EPO posts? Here's a recap of the year to date

Merpel has had a busy year to date, writing primarily about the governance crisis at the European Patent Office (EPO). This is a recap post, intended to bring new readers up to speed, as well as to assist regular readers who may have skipped past those posts and who want a synopsis of what exactly is rotten in the state of Eponia.

Merpel ended 2014 with an attempt to summarise the various developments occurring in the last three months of that year, which is as good a place as any to start reading.

How things looked on 1 January 2015

When 2015 dawned, EPO President Mr Battistelli and the Staff Union (SUEPO) were engaged in running hostilities over controversial “social reform” plans to alter career and promotion structures, and to change the health care and invalidity plans. In addition, several commentators had noted the atmosphere of fear pervading the EPO due to the draconian Investigation Unit operating under Mr Battistelli’s regime and the perceived ineffectiveness of safeguards for those investigated or disciplined.

There was a “constitutional crisis” concerning the Boards of Appeal. This crisis had two elements: the narrower issue of the “House Ban” affair, i.e. the President suspending a Board of Appeal member in apparent breach of both his powers and the principle of judicial independence; and the broader issue of whether judicial independence could be said to exist in any event given the structure of the Boards of Appeal within the European Patent Organisation.

The AC: a current hope for some direct intervention?
The other main player in the dramatis personae is the Administrative Council (AC), which is the board which oversees the entire running of the office. It is composed of delegates from each member state, usually the head of the national patent office or someone from the relevant ministry. The AC is chaired by Jesper Kongstad who is perceived as being very close to the President.

While the President is answerable to the AC, in January 2015 the tail often seemed to be wagging the dog, at least to outsiders. The most controversial of the social reform plans were voted through without a whimper of dissent -- usually accompanied by expressions of strong support for the President, notwithstanding attempts by SUEPO to convince AC delegates to see their side of the story.

So against that background, here’s what Merpel found to write about since then (with one or two contributions from the IPKat when needed for the sake of coherence).

Merpel’s posts since 1 January 2015, as they happened

Several developments from the Christmas and New Year period are reported: (1) the EU Parliament rejects a petition to investigate the EPO; (2) EPLAW writes a letter of protest to the AC delegates on the House Ban affair; (3) the UK government answers a parliamentary question assuring the MP that it stands over the independence of the Boards of Appeal; and (4) Mr Battistelli sends SUEPO a cheery Christmas message threatening dismissal of any employee who is found to have encouraged attorneys to cancel oral proceedings during their strike action, and takes the opportunity to emphasise that nothing has changed on the social reforms, which will continue apace. 6 January 2015

It emerged that the President had not taken the necessary action to replace retired Board of Appeal members, or to reappoint members whose term was nearing its end. This has left 8 out of 28 Boards under-strength, and several very nervous BoA members. Merpel wonders if this is a deliberate strategy to exert pressure on Board members whose term is almost up. 7 January 2015

The IPKat reports that Sir Robin Jacob has written to Mr Kongstad on behalf of patent judges across Europe, expressing their collective disquiet at the actions of the President in the “House Ban” affair. 7 January 2015

A summary on what we do and don’t know about the proposed reform of the Boards of Appeal. 8 January 2015

EPO Vice-President Minnoye writes a stinging (eh, not really) rebuttal of Robin Jacob’s  letter in an email to his cadre of examiners. With lots of exclamation marks! Sir Jacob doesn’t understand the facts or the law! And nevertheless he writes this letter! It's crazy! Worth a read if you’re feeling down. 21 January 2015               

Catarina Holtz, a former Board of Appeal member, writes a legal analysis of the “House Ban” situation. 27 January 2015

The New Scientist publishes an interview with a patent examiner, which it appears was paid for by the EPO as a promotional or recruiting tool. 27 January 2015

The IPKat posts a clarification and apology for having allowed readers to post comments on the “Life as a Patent Examiner” post, in which those readers wrongly stated that the subject of the piece was not a patent examiner. 3 February 2015

The composition of “Board 28”, a powerful sub-committee of the Administrative Council, is disclosed, along with news that they are ready to consider a proposal to reform the structure of the Boards of Appeal. The post also includes an analysis of the new career structure for employees, including Board members. 5 February 2015

Merpel posts a round-up of various minor developments at the EPO, including a first glimpse of the proposals to reform the Boards. 13 February 2015

CIPA shows some leadership by proposing an interim solution, penned by Jim Boff, to guarantee independence of the Boards of Appeal. 18 February 2015

The Appeal Court of the Hague finds the EPO to have breached fundamental rights of employees and orders the EPO at the Hague to stop blocking union emails, to stop dictating the terms under which strikes may take place, and to enter into collective bargaining [an order which the EPO President blithely ignored, with the support of the Dutch government, as it turned out]. 19 February 2015

In the lead-up to a demonstration by SUEPO at the British consulate, Merpel called on Baroness Neville-Rolfe to issue a statement demonstrating that the UK was aware of and was taking the lead within the AC on resolving the unhappiness at the EPO. 23 February 2015

Mr Battistelli explains why it’s not just a question of immunity ... it would actually be wrong for the EPO to obey the court order imposed by the Appeal Court of the Hague. 24 February 2015

The UK IPO responds to the Merpel’s post, assuring readers that the UK takes its responsibilities on the AC seriously, that it is monitoring the social unrest, and that it is willing to respond to particular concerns that users of the Office might want to raise [posted by the IPKat, but it’s a response to a Merpel post]. 24 February 2015

Showing governments everywhere how the executive branch of a country’s government can most effectively interfere with its judiciary, the Dutch Minister for Justice, Ivo Opstelten, instructs bailiffs not to execute the Hague Appeal Court's order against the EPO. 26 February 2015

The Enlarged Board of Appeal uses decision R 2/14 as an opportunity to tell its own chairman to disobey the EPO President when any instruction given to him in his management role would conflict with the perception of independence of the Boards. 2 March 2015

Management representatives write an open letter to staff about the “outrageous” behaviour of staff representatives at the meeting where the health care reforms were voted through. 5 March 2015

The IPKat and Merpel set out some ground rules for the increasingly vitriolic comments on EPO matters. 8 March 2015

The Central Staff Committee responds to the March 5 letter from management. It turns out that their numbers have been deliberately kept under-strength by the President. His refusal to sanction a replacement staff member has engineered a built-in majority for the management (10 - 9) when voting through the health care reforms, a point which Vice-President Topic, chairing the meeting, refused to acknowledge. The rules of the committee mandate equal numbers. 9 March 2015

The plans for reform of the Boards of Appeal, part I (the proposal). 9 March 2015

The plans for reform of the Boards of Appeal, part II (the annexes). 9 March 2015

The plans for reform of the Boards of Appeal, part III (Merpel’s comments). 9 March 2015

The EPO reveals its proposals for renewal fees for the Unitary Patent. 9 March 2015

What really happened at the December Administrative Council meeting, part I. 12 March 2015

What really happened at the December Administrative Council meeting, part II. 12 March 2015

The EPO reacts publicly to the Dutch decision, denying that it is violating human rights and insisting on its immunity from such court decisions. 18 March 2015

An open letter from Merpel to the delegates who are about to attend the Administrative Council meeting, imploring them to deal decisively and with true independence on the major topics facing the organisation - BoA reform, healthcare, strike regulations, staff representation, and so on. 23 March 2015

AMBA, the Association of Members of the [EPO] Boards of Appeal, launches a website to give itself a clearer voice on the reform proposals for the Boards. 25 March 2015

The Administrative Council announces, following the March AC meeting, a renewed “social dialogue” with the staff union, aiming to secure industrial peace and win formal union recognition. 26 March 2015

Merpel calls on all involved in the renewed social dialogue to grasp the opportunity to set matters right. 27 March 2015

French newspaper Le Monde runs an article reporting on several suicides among EPO employees, and on the conflict between the President and the staff. 17 April 2015

A demonstration is organised by the staff union at the Dutch Consulate, in protest at the Netherlands having voted in favour of reforms to the health care package at the EPO (which the union believes to infringe fundamental rights), despite the Dutch courts having held that the EPO was already violating such rights. 28 April 2015

An online consultation is launched on the proposals for the reform of the administration and structure of the Boards of Appeal. 30 April 2015

The EPO’s sick leave policy is compared to those of comparable international bodies, and this reveals a level of mistrust and a punitive regime for staff taking sick leave. 30 April 2015

At the same time that the EPO President is engaging in social dialogue with a view to recognising the staff union, it emerges that an outside investigative agency, Control Risks, has been engaged to investigate staff representatives. 22 May 2015

Merpel calls for financial transparency, without which the renewal fee levels cannot be properly set (by law they must be just enough to provide a balanced budget, but the EPO is running surpluses of several hundred million euro per annum). 26 May 2015

The EPO confirms that it has appointed an outside firm, Control Risks, to beef up its investigations unit,, but insists that it has simply been done to make up for a shortage of staff in that unit. 27 May 2015

Two associations of lawyers -- EPLAW and CCBE -- suggest that revision of the EPC may be inevitable to secure the independence of the Boards of Appeal, and comment critically on the current reform proposals. 5 June 2015

The EPO is reported to have installed spyware on computers made available to members of the Administrative Council and visiting attorneys. 9 June 2015

More than five months into the year, where do things stand?

The House Ban affair drags on. There is still no word on the outcome of the investigation into the suspended Board member, though it has emerged through the course of the year that the reason he was frogmarched from the office and his computer confiscated was that he was alleged to have distributed defamatory material.

The proposals for reform of the Boards of Appeal are problematic, and progress is much slower than originally announced. It is clear to every neutral observer that the correct solution is to amend the EPC and set the Boards up as a third branch of the Organisation, distinct from the Office and the AC. It seems unlikely that the AC has the stomach for such a revision which would necessitate a diplomatic conference.

The social reform programme is being pushed through, just as Mr Battistelli announced at the end of  2014. However, given that Mr Battistelli has refused to authorise a full complement of staff representatives on the committee that oversees such proposals, it’s hardly surprising that the 10 loyal managers voted his proposals through over the heads of the 9 staff members and an empty seat.

The AC has not yet stepped up to the mark in terms of governing the EPO, but Merpel is eternally hopeful. The AC has shown some signs of independent thought, but there's a lot more to do if it is to bring the EPO into line with the standards of the national patent offices whose heads make up the AC. The delegates know full well that if they tried to subject their own staff at home to the same regime as in the EPO (i.e. the investigations, the unilateral changes to promotion structures and invalidity benefits), they would find themselves in court and probably out of a job due to the revolt of civil servants. But when they board the plane to Munich, somehow the standards slip. The AC continues to approve proposals for social reforms when it knows that the staff’s input into these proposals have been deliberately silenced. They are aware of the atmosphere of fear pervading the office, and now they know that someone in the EPO is spying on attorneys and potentially on themselves. Will this be enough for someone to cry “halt”?  Merpel is, as she said, eternally hopeful.

As ever, Merpel welcomes comments, but 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 of the comment itself (for example, start your comment with "Descartes says: You forgot one point ..."). 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.

18 comments:

Anonymous said...

Yes, a long time ago.

Old man of EPO said...

Thanks for that. Minor factual point for 2nd lat paragraph. The General Consultative Committee doesn't actually count i.e. even if all 19 (or 20) voted against, the vote is not binding in any way. A 10-10 tie means nothing either. Of course, if one or two management representatives voted against, that would presumably have a personal consequence - or so is the assumption.

Tuppence Worth said...

" The House Ban affair drags on. There is still no word on the outcome of the investigation into the suspended Board member, though it has emerged through the course of the year that the reason he was frogmarched from the office and his computer confiscated was that he was alleged to have distributed defamatory material."

This is indeed the official narrative pursuant to the traditional Corsican recipe à la sauce Battistelli.

However, a recent publication in the German press has raised the daring proposition that the person in question may simply have been giving expression to the truth:
"Indessen ist unklar, ob sich der suspendierte Epa-Mitarbeiter wirklich der
Diffamierung schuldig gemacht oder nur die Wahrheit ausgesprochen hat. Seine
Äußerungen beziehen sich dem Vernehmen nach auf den Epa-Vize Zeljko Topic und
beinhalten Korruptionsvorwürfe aus seiner Zeit am kroatischen Patentamt. Solche
Vorwürfe kursieren seit 2012 auch in kroatischen Medien."


The question here may well be how much truth can El Presidente handle ?

Tuppence Worth said...

Erratum!

Due to an oversight the second link above was not properly edited.
Here is the correct version:
You can't handle the truth

Old man of EPO said...

Tuppence worth,
How about allegedly distributed allegedly defamatory material?

Old warrior from the EPO said...

It shows an extremely high sensitivity of the higher management of EPO to resort to measures like camera surveillance and key loggers on public or semi-public computer stations.
In any "normal" country, but not in Eponia, such means are only to be used when life is endangered or when severe crimes are committed or on the verge to be committed. I do not remember that libel, even if proven, falls into this list. A sense of proportionality is missing here, but who can be surprised? It is to be hoped that, whatever they are, the charges brought against the suspended member of the Boards will be dropped, as they have been acquired unlawfully.

BB considered the Boards of Appeal to be less productive than the German Federal Patent Court (BPatG), as they take less decisions than the BPatG. This might be true if one counts together patent cases with trademark cases, which BB happily did. When one looks at patent cases the balance is in favour of the Boards of Appeal. Any amendment to the working of the Boards which leaves the President of the EPO with power over the budget of the Boards is not acceptable in that he can have a direct influence on their independence.

It seems as well, that the Inventor of the Year was the occasion of a ruffle to BB. The member of the French government giving a speech, declared that the French government was aware of the social unrest at the EPO, and reminded BB that what is being done at the EPO should only be done with due respect of the rights of the staff.... Rumors has it that BB nearly chocked.

Dear Merpel, there is thus hope, and I am curious to see what will happen at the next AC.

Korinthenkacker said...

Merpel wrote "he was alleged to have distributed defamatory material".

She should meditate on what is meant by "distributed".

Defamation implies publication.

As depressing things are, we haven't quite reached the bottom of the barrel.

Sir Prance-a-lot said...

"In any "normal" country, but not in Eponia, such means are only to be used when life is endangered or when severe crimes are committed or on the verge to be committed. I do not remember that libel, even if proven, falls into this list.

Have you never heard of the felony of Lèse-majesté ?

"Future republics that emerged as great powers generally still classified as a crime any offence against the highest representatives of the state, and any actions that offend modern totalitarian dictators are still very likely to result in prosecution."

Wishful Thinking said...


"... I am curious to see what will happen at the next AC."

For all those who are curious, here's a sneak preview of the next AC meeting.

Anonymous said...

The Night Circus quotes…

BB: “My eyes are vague blue, like the sky, and change all the time; they are indiscriminate but fleeting, entirely specific and disloyal, so that no one trusts me. I am always looking away. Or again at something after it has given me up.”

AC: “Sometimes it is said that man cannot be trusted with the government of himself. Can he, then be trusted with the government of others? Or have we found angels in the form of kings to govern him? Who can answer this question?”

TU: “What have I always told you? Never trust anything that can think for itself if you can't see where it keeps its brain?”

Roufousse T. Fairfly said...

BB: “My eyes are vague blue, like the sky, and change all the time; they are indiscriminate but fleeting, entirely specific and disloyal, so that no one trusts me. I am always looking away. Or again at something after it has given me up.”

Beautiful!

If you take away the two-dollar words, what's left is "I am a swivel eyed loon".

Feldmarschall Bluecher said...

1815-2015

Don't forget to claim your free campaign medal.

Meanwhile back at EPO Headquarters:
Dramatic scenes unfolding ...

hopeless said...

I have been wondering all along about something: the judicial independence of the Boeards of Appeal is of course of paramount importance, nobody argues with that (except maye BB and his goons).
What I don't undertand is why nobody is voicing the same thoughts about patent examiners. Why is it acceptable that examining divisions report to the president? Shouldn't they be accountable only to the public and the applicants/patentees?
After all, examiners are the first instance of the same judicial institution of which the Boards are the second instance and should as well be immune to presidential moods and instructions.

Old man of EPO said...

Examiners are not a fimal instance i.e. anything they do can be appealed and corrected. The BoAs can kill an application by refusing it or revoking a granted patent (or maintaining such refusals and revocations).

MaxDrei said...

Isn't the short answer to hopeless that the Examiners are not a "judicial" instance but only an "administrative" one. Nobody would argue that civil servants are out of line when they report to a Minister. After all, a Minister in a democratically elected government can be booted out by the electorate. There's the control process.

hopeless said...

@Old man
Of course, but only refused applications are appealable (and I've heard of micromanagement where a director forced an examining division to retract a refusal and send a communcation instead). So this in unlikely to happen.
A hastly granted application (e.g. to reach production targets) can instead only be opposed, which costs the public and industry money.
And a second procedure, be it appeal or opposition, is always costly, especially when it could have been avoided.

It was just a thought. Of course the Boards as final instance are the first ones to need their indipendence.

THE US anon said...

I think that the Old Warrior has not heard of Edward Snowden....

A sign of hope ? said...

It seems that another contoversial Patent Office "President" has recently been "retired" ... :-)

Perhaps there are reasons to be hopeful ...

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