From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 6 October 2015

EPO bids to save litigating employees from union's human rights infractions

Prior art? Wolf in sheep's clothing ...
Merpel has been taking another peep at the weird and wonderful topsy-turvy world of Eponia, in which the European Patent Office (EPO) has apparently seized the opportunity to offer some warm and tender paternalistic advice to those of its subjects (though it prefers the word "colleagues") who for some inconceivable reason might be troubled to bring legal cases against it.

"Out of its duty of care towards EPO employees", a duty which may indeed exist in theory but which many would say is sadly lacking in reality, the EPO urges its litigious colleagues to take great care to guard against the breach of its human rights by staff union SUEPO.  Both real and fictional Kats have memories that are admittedly fallible, but Merpel has this vague recollection that EPO's concern for human rights has been demonstrated more vividly by its defiance of them than by their protection. Was this organisation not called to account earlier this year by a Dutch court, in a judgment that the EPO ignored, trumpeting its immunity from national law? Yet it is the very same national law to which the EPO now, extraordinarily, turns.


Readers who are new to this weblog and who consider that the European Patent Office cares a bent penny for the human rights of its employees might like to look at the background here and here.  Readers who are familiar with this history can start reading last week's staff circular here:
Your rights


02.10.2015 
To all staff 
It has been recently brought to our attention that colleagues who turn to SUEPO for their pending legal cases against the Office are asked by SUEPO to sign a standard agreement in order to obtain financial support for the lawyer's fees. 
Out of its duty of care towards EPO employees, the Office requested an external legal advice to assess the conformity of this agreement to the applicable national law and has concluded that it does not fulfil the required standards of legality. 
Unions may be entitled to provide legal support to colleagues and to propose standard contracts to that effect. However, such contracts must comply with the applicable law and basic fundamental rights as recognised in all European countries and under general principles of law. 
More specifically, several clauses of this agreement seem to be against good faith and/or national law under which such contract is signed and are thus unlawful and void. 
For example, Article 13 of the agreement reads as follows:
‘Where an external lawyer has been retained, as defined above,
  • (a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO's Legal Advisor.
  • (b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.
  • (c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.'
This standard clause prohibiting the staff member from communicating with the administration and therefore from taking any steps without requesting the express prior permission of SUEPO or SUEPO's lawyers restricts unlawfully the staff member's freedom of self-determination of his/her own case, infringes basic principles of the Law on general terms and conditions of employment, restricts his/her freedom of communication and constitutes an infringement of basic rights of occupational freedom in a dubious way. 
In case such unlawful clauses are used to block the possibility of amicable settlement or to exercise pressure to file further unjustified or unwanted litigation, this could be considered detrimental to the general interests of justice as well as an infringement of basic human rights of the staff member.
As a result, staff may consider contesting such contracts as void. 
In view of the above, the Office recommends staff to check with independent external lawyers of their choice the specific agreements they are asked to sign before doing so. 
If staff members are already engaged under such contract, they are in the same way and to the same extent also invited to check the lawfulness of the invoicing (proportionality of invoice against services, applicable fees under national law) as cases of overcharged legal fees/ invoices came to the attention of the Office. 
The Office's services remain at the staff's disposal for confidential consultation in case colleagues have already signed such documents and are not certain about the exact legal and financial obligations they have assumed from them. In such a case please contact the Conflict Resolution Unit.
 
Željko Topić
Vice-President DG 4
 
   Raimund Lutz
   Vice-President DG 5

Merpel wonders how many employees who are litigating against the EPO, or are contemplating doing do, would wish to take up the offer of the EPO's confidential consultation services.

45 comments:

Old sad man said...

That is really topping up everything which came up to now.
When a national court issues a decision which displeases the President, then it is to be ignored, as national law is not applicable to EPO. Now, national law is good and should be respected.
Have those two VP no sense of shame, especially VP5 which is a legally qualified person (or merely thinks he is one)?
More hypocrisy is difficult to overthrow.
Poor EPO with such "leaders and managers".
Mao said it a long time ago: the fish stinks from head.....How true

A Thought at 19.13 said...

‘Where an external lawyer has been retained, as defined above,
•(a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO's Legal Advisor.
•(b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.
•(c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.'


It looks like a legal insurance. It's usual for a legal insurance to have a list of legal counsels you can address. It also seems reasonable to insure the invents that the insurance can reasonably control or predict.

Anonymous said...

Whispering sands says…

Any thoughts of guilt, any feelings of regret, has faded. BB has baked the VP’s out.

Korinthenkacker said...

Isn't it the EPO who locks up "suspects", sorry, the "guilty" for hours on end for "questioning", in a setting reminiscent of the opening scene of "Das Leben der Anderen", without any kind of assistance? And the same EPO that threatens them with unspeakable things should they either keep silent before their tormentors, or mention their ordeal to anyone?

I can't see in this text anything but a lame attempt for the EPO to create a flimsy excuse to refuse to interact with any counsel the staff member may have retained.

The paternalistic suggestion that a staff member get counseling with the EPO's very own legal department [?] that is responsible for the present mess, is astounding, but the situation is so far out that I ran out of rage and indignation.

Mort de rire said...

be nice and please DO NOT LAUGH at VP4 and VP5

We have the best one in the world (since the EPO is the best IP Office).

Please stand altogether : "Allons enfants de la Paatriiieee...."

Anonymous said...

Mr. Deeds Goes to Town says…

VP4: "Oh, I'm a hero. I was shot twice in the Sued….”
VP5:"I read where you were shot five times in the tabloids."
BB: "It's not true. He didn't come anywhere near my tabloids."

Anonymous said...

Amicus Curiae

It is astounding that the EPO extends its duty of care towards private contracts the employees do under national law with a third party, the union in the case at hand. It is possibly even more astounding that this contract shall infringe on the conditions of employment.

All the more since this Articel 13 really seems to be quite normal, as stated in the 2nd comment: In return for financial support, you hand over the procedure to a lawyer. The consequence for taking own action is simple: funding may be withdrawn. I do wonder why this should infringe on basic human rights.

Frankly speaking, this looks like a cheap attempt to blame the Union for not respecting human rights. The Office should stop wasting applicant fees on such stuff and start respecting human rights itself.

Legal advice said...

I am somewhat surprised but very happy that VP4 and VP5 apparently heard something of "applicable law and basic fundamental rights as recognised in all European countries and under general principles of law". At least the theory appears to be present.

I didn't see the contract, but it is interesting that there are apparently "several clauses" against good faith", but only one is cited; kind of suspicious to be so reserved - not really their style - so I guess this is the only article they found, or at least the other "objections" are even less founded.

Anyway, what I think is REALLY worrying is the undestanding of a legal text by two VPs (one was a judge, the other ... well) who are inter alia responsible for HR contracts, international contracts, IP5 and fot drafting EPC-Rules, Guidelines etc.

If you construe an article, which more or less says: "You are joining our mass-appeal, so please do not make any own arragements with the other party, otherwise we cannot pay for the lawyer costs" (which is only fair since for the mass-appeal you cannot finance each individual trial) as "prohibiting the staff member from communicating with the administration" and as restricting "unlawfully the staff member's freedom of self-determination of his/her own case", it cannot be that far with the ability to be suitable for evaluating any legal document.

So apparently it is quite good that they onluy stand asside, make a bow and say "Wii, messieur le prasidont."

Anonymous said...

Cynkat says:
How cynical can one get?

Anonymous said...

Amicus Curiae said: "The Office should stop wasting applicant fees on such stuff"

Don´t worry applicant fees could not be better invested. According to the recently published service regulations of the EPO, these gentlemen get gross basic monthly salaries of only 21.000 € which is extremely cheap for their incredible expertise.

Anonymous said...

VP4 and VP5 preparing their next communiqué

https://www.youtube.com/watch?v=G_Sy6oiJbEk

Anonymous said...

"Just cannot believe it" says:

I just cannot believe how ridiculous this is becoming.

It is certainly not becoming to the managers of thousands of expatriot employees, each with a level of basic intelligence, to present them with such absolute nonsense - and repeatedly. I have held my voice for several months, if not years, provokes me to say something.

The thought of issuing such a blatant insult to anyone´s intelligence is to my mind worthy of no-one.

Have they themselves lost any sense of dignity to send out such a load of rubbish. Ridiculous in the extreme.

Would VP5 dare taking the Union to court?

Dumb and dumber said...

I can only echo the above comments. That an authority can ban people from disclosing their own investigation by the EPO and refuse them of the right to silence and legal representation, and yet plead for human rights under national laws which it claims are not applicable, is beyond parody. Not sure whether to laugh or cry but still worrying that these people are in charge of the patent system of Europe. What confidence can i have in their abilities and their judgement?

Marx Brothers said...

Thanks guys, this is probably not the wisest investment of applicant's fees but at least, for a second, you have opened the sky of thousands of anxious EPO employees.

In the jungle of notarial style communiques that these bunch of funny bones are used to publish, this one may not be the smartest but this is certainly the funniest.

Anonymous said...

reading the article I have an overwelming urge to

1) scream

2) laugh at the same time

I am totally paralysed

Kangaroo Court said...

Why, does anybody believe that the legal arguments that are used against the member of the BoA, that will be used to dismiss the chairwoman of staff's representative, and that are fed to the AC to assuage their doubts are much better than these?

You wish.

On a perdu la 7ème compagnie said...


Mr Battistelli now requests to the coming Admin. Council no less than 1 Mio EUR - of applicants' money - to hire additional communication consultants...

At this stage it is still unclear if Mr. Battistelli seeks ghostwriters with experience in stand up comedy but whoever these consultants will be, it is for them surely helpful to watch the integrale of Les Charlots, Le gendarme à St Tropez to best grasp the situation in which Mr. Battistelli and his friends have now brought the EPO (mastering Les Pieds Nickeles is a clear advantage).

PATHETIC !



MaxDrei said...

"Beyond parody" just about sums it up. But until he became VP5, Herr Lutz was a judge in Germany, for goodness' sake. I ask myself, henuinely perplexed, how can he bring himself to sign such stuff?

Those with a background in science know of natural laws that have to be respected. Here in Munich, we are a rules-based society that respects the law. When the law says that you wait until the little man changes from red to green before you walk across the street, one follows the law, even on deserted side streets at 6 am on a Sunday morning.

But this obsession with obeying the Rules cuts both ways. If there ain't a Rule against it, you can do it. Whatever that is that you want to do. Basta!

Back to Herr Lutz. What Law is he subservient to? Not national laws, and not natural laws. No laws at all, in fact.

Here in Germany, law students decide whether, on graduation, they will enter a career in lawyering or in judging. I wonder whether Herr Lutz went directly into judging, straight from university, judging according to the law binding on him. Could it be that, now in the EPO, he supposes that when there is no law binding on him he can do what he likes, with impunity and a clear conscience, comfortable in the knowledge that he is breaking no rules? What power! What a buzz!

Confusious said...

Mr. Lutz has been praised in the Chinese media for his "amiableness and wisdom".
http://www.hurrymedia.com/en/news-show.asp?id=93

He was also recently reappointed by the Administrative Council for a further term of office despite the fact that he is 65.

What are you people complaining about ?
What miserable begrudgers you are !

Anonymous said...


Perhaps is this note of VP4 and VP5 just a teaser of the soon to be released Dumb and Dumber 3 ??

AttAtt said...

If it's void, it's void. Why are SUEPO making such demands?

Sauce for the goose....

MaxDrei said...

In England, you become a judge so you can have the fulfilment and satisfaction of actually shaping the law, the oh-so-frustrating law that you have had to follow obediently, through all your career up to that point.

I guess that is also why a judge in Germany finds so beguiling and alluring the position of VP5, Minister of Justice in the Free Republic of Eponia.

Rumpold said...

If - as alleged by VP4 and VP5 - the contract for financial assistance is "void", then it seems that the logical consequence of that would be that SUEPO doesn't owe any financial assistance to the person who disputes its validity.

This would seem to mean that the reward for following the "paternalistic advice" of those two venerable elder statesmen of the EPO would be that you would end up footing your own legal bills entirely.

Sounds like a "win-win" situation all round ...

The cup that cheers said...

He seems to have been drinking from the same inebriating quaich as BB:
« Je n'ai jamais été aussi libre, insiste-t-il. Je n'ai pas de ministère de tutelle, de Parlement, de gouvernement. C'est nous qui fixons les règles, les discutons, les négocions. »

http://www.usinenouvelle.com/article/le-stratege-du-brevet-europeen.N182255

superann said...

In the immortal words of another BB, instead of cleaning up their own ****, they are painting the toilets brown.

National_law said...

Nowadays EPO excludes people with a handicap or chronic disease from step increase and promotion. EPO also reduces salary of these staff members, for example if they need medical treatment during work hours.

This may well be an offence under Article 137 of the Dutch Criminal Code.

Are you sick? Do you feel discriminated against by the EPO? Do you work in The Hague?

Talk to a Dutch lawyer. Better even, inform a Member of Parliament.

under motorola said...


watch another EPO champion ....

https://www.youtube.com/watch?v=y_XhOJoquac

Guys it seems that the circus is runnig full speed. I do not know what they take at EPO but I want some !!!

Anonymous said...

https://m.youtube.com/watch?v=qyF2qa7bX18

Dancer on the titanic said...


The epo looks like a truly creative work environment...

Next on the line : PD43 tap dancing with her assistant the lieutenant-colonel?

Can this really be a surprise if this organisation - led by such a bunch of clowns - sinks ?


Anonymous said...

Anonymous2 said...
Well, anonymous@20:09, there is even better:
https://vimeo.com/47705620

Anonymous said...


no doubt that a world record has been broken in the category "i do not fear to make a fool of myself" with this last one ....

Anonymous said...



confess : as a child you dreamt to one day process a lot of paper files in a cubicle?

Now watch this one folks !: https://vimeo.com/139837073

no action, no suspense, no stunts (no sex of course cos' they are far too old for this) just an amazing team of zombie-type managers not afraid to make fools of themselves and display it the world

This is no sci-fi but EPO in 2015

Korinthenkacker said...

Folks, forget about the distractions of our Versailles courtisans, it's not as if they had a meaningful occupation to begin with.

How about the latest Bat-doodoo from the Serenissima?

Between September 24th and October 1st about 3000 incoming faxes were not received by their intended recipients. That's about half of the usual traffic.

Explanation:

A few years back the main fax numbers for the three sites were connected to central servers operated by external service providers.

Incoming messages are copied electronically to the appropriate application file, or routed to the appropriate department if the fax does't directly concern a patent application.

Urgent submissions are flagged for immediate processing, such as submissions for oral proceedings.

After quite a few recipients wondered where their faxes had gone, the following percolated:

Apparently someone forgot to pay the bills, and the provider eventually sat on the messages it had received, instead of forwarding them to the customer's servers. I supposed that this could not have happened without the provider first issuing past due reminders and a final notice.

It took almost a week before anyone noticed, or took notice, and sorted out the SNAFU. The faxes were eventually released.

It's not as our Prince had treasury problems, the word is that his blessed Republic is currently oozing about one cool million of cash every single calendar day. If the organisation can't make a "profit", how should that money be called? The loot?

Leckerbissen said...

It's not as our Prince had treasury problems, the word is that his blessed Republic is currently oozing about one cool million of cash every single calendar day. If the organisation can't make a "profit", how should that money be called? The loot?

How about delicious sweetmeats for the AC delegates ... ?

Anonymous said...

@ leckerbissen

another option : new fresh teeth for the AC delegates ?

Anonymous said...

Homo Eponicus quotes…

When BB and AC delegations conspire;
In Eponia it can only backfire;
Flags of freedom fail to flutter;
Democracy melts like hot butter;
Certainty suffers, integrity abused;
Only the Devil amused;
Hope sighs, Fraternity cries;
Immunity is an extremist stand;
Justice is buried in the sand;
Humanity stretched like rubber band;
When BB and our AC delegates conspire;
Injustice and vested interest aspire;
Our rights are flaunted and defaulted;
Truth is mocked and halted;
When BB and AC delegates conspire;
Rights of the Eponians expire.

You have the right to stay silent said...

Techrights reports about a complaint of harassment against Benoît Battistelli et al. filed by the Chairwoman of SUEPO ...

http://techrights.org/2015/10/09/plenary-probe-requested-from-ac/

Makes interesting reading ...

Anonymous said...

If the facts as set out in the letter of Ms. Hardon in the Techrights blog are correct, it shows that the employer/employee relations have deteriorated to a level barely conceivable to people not directly involved. Is this the art of man management they learn at ENA?

Wrote H. Bosch

Anonymous said...

Ms EB laughs her way to the bank says…

Next AC meeting another approx. 1000 AC decision review requests (related to the career and salary reform) from EPO staff members will be turned down by the AC, as suggested by BB and what has become an established legitimate practice according to his view. Just wondering what would happen when the Eponians start to bin everything what is coming down from the AC and BB???...they always can resort to the ILOAT to complain. Especially the latest salary reform very advantageous for the EPO management and at expense of other EPO employees needs a closer look.

disgusted of tunbridge wells said...

The EPO career and salary reform is (or should be) a major source of scandal.

Normally when any similar career and salary reform is being put in place in the public sector the proposals are drawn up by an independent commission.

In the case of the EPO, the plans were drawn up by persons in senior managerial positions who - purely coincidentally of course - received significant salary increases under the new system.

For some unexplained reason, the EPO's legislative organ, the Administrative Council failed to subject this little exercise in what can legitmately be termed "self-enrichment" by a favoured few to any critical scrutiny.

The concept of "conflict of interest" appears to be alien to EPO management.

Honi soit qui mal y pense.

Anonymous said...

Glasnost and Perestroika (co-authored)

I truly hope that the members of the administrative council (especially DE and NL) come to their senses before the EPOrg lines up in the media with police raids, seizure of evidence or maybe even custody (danger of suppression of evidence...) as did FIFA, VW, Deutsche Bank, etc. A new chapter in WikiLeaks would not be better either.

I still assume that the plan is not to bring the whole European Patent System down. Is It? Isn't the EU an "observer" to the council meetings, to all this?

Did DE (UPC), FR (UPC) and UK (UPC) abstain, but NL (The New Main) and AUT (The New Boards) vote in favour of all this? How was it and why dont'we get to know?

Why is the EU losing the support of its people and why should the European-Patent(-System) keep it this way?

Well, self-denunciation can be the first step to improvement.

Or are the golden parachutes already being packed? Has the pension fund already dissapeared? To the Caiman islands, to Cyprus, ... ?

So. Now. Cheer up and sing with me (Sinatra):

Start spreading the news
Should I be leaving today?
Do i want to be a part of this?
EP Org, EP Oooorg

I wanna wake up, from this nightmare but i don't sleep.
And find I'm king of the team, end of the scale.

This little bonüüs, it's melting away.
Can't make a single step in it, in EP Oooooooorg

If I can't make it there,
I'll be burned everywhere.
It's up to you, EP Org, EP Oooooooorg.

EP Org, EP Org.
I wanna wake up, from this nightmare but i don't sleep.
And find I'm still G13, end of the scale, king of the team, still Geee-Thirteeeeeeen...

This little bonüüüüüs, it's melting away.
Cant't make a brand new start of it,
In old EP Org, aaaaaaaaaaaaaaannnndaaaah...

If I can't make it there, I'll be burned everywhere.
It's up to you, EP Org, EP Oooooooooooooooorg!

BB's last farewell said...


And now, the end is near
And so I face the final curtain
My friends, I'll say it clear
I'll state my case, of which I'm certain

I've lived a life that's full
I've traveled each and every patent prosecution highway
But more, much more than this
I did it my way

Regrets, I've had a few
But then again, too few to mention
I did what I had to do
And saw it through without exemption

I planned each charted roadmap
Each careful step along the byway
And more, much more than this
I did it my way

Yes, there were times, I'm sure you knew
When I bit off more than I could chew
But through it all, when there was doubt
I ate up SUEPO and the Boards of Appeal and spat them out
I faced it all and I stood tall
And did it my way

I've loved, I've laughed and cried
I've had my fill my share of losing
And now, as tears subside
I find it all so amusing

To think I did all that
And may I say - not in a shy way
Oh no, oh no, not me
I did it my way

For what is an ENARQUE, what has he got
If not himself, then he has naught
To say the things he truly feels
And not the words of a VP who kneels
The record shows I took the blows
And did it my way

YES IT WAS MY WAY !

The emperor is naked said...

That letter about Ms Els Hardon's saga is the sad truth.

Worse is that several other staff representatives are pressurized this way.

No one dares to speak up, and what you have read up to now is the tip of the iceberg.

concerned observer said...

techrights.org: "Leaked: EPO Prioritises Work for Large Foreign Corporations"

cynic said...

Concerned observer,
Hardly a surprise when you see headlines from the epi such as https://www.epo.org/news-issues/news/2015/20150624.html

Any bias may be unintentional but the underlying mindset is there to see.

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