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, 13 October 2015

Ignore the Enlarged Board, EPO President tells Administrative Council

File under 'F'
for 'Fiction'
In the lead-up to this week's European Patent Office EPO) Administrative Council (AC) meeting, the AC delegates have received an extraordinary communication from the EPO President, Benoit Battistelli. In it, he asks the AC to disregard a key provision of the European Patent Convention, and to bypass the Enlarged Board of Appeal (EBA) which he accuses of not properly carrying out its duty. The background to this is the "House Ban" saga (summarised here: briefly it concerns a Board member who was accused late last year of disseminating defamatory materials and subsequently suspended; readers may recall that the AC called in December 2014 for an investigation of this matter to be completed "as soon as possible"). In June of this year the Enlarged Board was asked by Mr Kongstad, Chairman of the AC, to propose dismissal of the Board of Appeal member. As judicial figures, EPO Board members are given special protection in the European Patent Convention. Article 23 contains a dual safeguard, in that removal from office can only be decided on by the AC -- and even then only when this dismissal has been proposed by the EBA:

Article 23
Independence of the members of the Boards

(1) 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. Notwithstanding sentence 1, the term of office of members of the Boards shall end if they resign or are retired in accordance with the Service Regulations for permanent employees of the European Patent Office.

This dual safeguard is not accidental. The involvement of the EBA was deliberately inserted into the procedure by the drafters of the EPC to prevent “arbitrary compulsory dismissal by the Administrative Council”. For this reason the EBA was deemed a necessary safeguard to protect judicial independence and to prevent dismissal except when the EBA and the AC were of one mind.

So, if the AC were to dismiss a Board member without having received a proposal from the EBA, this would plainly fall foul of both the letter and the spirit of Article 23. This is why it is so extraordinary that Mr Battistelli is urging the AC to do just that at this week's meeting. His memo exhorts the AC to ignore the Enlarged Board, to bypass Article 23, and to fire the Board member without the EBA's further involvement or consent.

The final straw, which drove Mr Battistelli over the edge (constitutionally speaking, you understand), is that on September 17 the EBA rejected as inadmissible the request put to it by Mr Kongstad to make a proposal for dismissal. The EBA has not yet communicated its reasons for finding the request inadmissible, but Mr Battistelli does not need to wait for the reasons to conclude that the EBA has failed in its duty and rendered itself superfluous to the process. 

By not complying immediately with a "simple and obvious request", says Mr Battistelli, the EBA has failed to “fulfil its institutional and administrative role”. He writes further that rejecting a request as inadmissible was not a course of action open to the EBA (how the Enlarged Board members must wish Mr Battistelli was present at their deliberations so he could have set them straight on their duties and powers there and then). He helpfully if inaccurately tells the AC that the EBA was “set up to review decisions relating to the patent granting process and not as judiciary authority over the Council. The decisions of the Council in personal [sic] matters can be reviewed exclusively by the ILOAT in Geneva.”

File under 'L'
for 'Law'
These arguments are remarkable on two fronts. The first is that they are so clearly wrong. For example, taking his contention that the EBA is only competent to "review decisions relating to the patent granting process", clearly the Enlarged Board's mandate is broader than this narrow description. In Article 23, the drafters of the EPC explicitly granted the EBA a role outside the narrow patent granting process, and even more specifically as a bulwark against incorrect dismissals of Board members being made by the AC. The second reason that the arguments are remarkable is that the President of the EPO has set himself in direct opposition to the EBA's judicial independence, and wants to lead the AC into the same polarised position, hoping that the AC will sideline the EBA. But what would the consequences be if the EBA were to be undermined, in line with the President's wishes? Might this not render untenable the position of EBA members if their authority is explicitly challenged by both the President and the AC?

The net result of the EBA finding the request inadmissible, Mr Battistelli says, is that it reveals a “dilemma between Article 23(1) EPC, Article 11(3 and 4) EPC as well as Article 10 EPC”. Is there really a dilemma here? Mr Battistelli appears to be using the term dilemma to mean a conflict between provisions of the EPC. But there's no conflict. It's merely the case that the EBA is independently examining a request submitted to it, as the drafters of the EPC envisaged, and this independence is not to the President's liking (note: he is not actually a party to this procedure at all.) 

Should everyone concerned take a collective breath, examine the legal provisions, wait to hear from the EBA, and see if the dilemma exists and/or can be resolved? Hell, no, says Mr Battistelli, there's no time for any of that. I've spotted a hitherto unknown dilemma and we have to fire this Board member right away. We can't wait for due process with so much at stake.

Memo to Mr B:
Merpel is watching you
Of course Merpel is paraphrasing somewhat for dramatic effect, but Mr Battistelli's position is that the AC must act, and act swiftly. The dilemma he identifies must be resolved "by recourse to general principles of law, in particular good administration of justice, due process for all parties concerned, protection of the integrity of the institution and the individuals as well as the good functioning of the Organisation and of the Office." Taking all those factors into account, he identifies a surprisingly simple solution: “the Council should take a decision on the employee in its quality as sole appointing and disciplinary authority according to Article 11(3 and 4) EPC.” A less politically acceptable way of saying exactly the same thing is: the Council should refuse to follow the procedure envisaged under Article 23 EPC, and take a decision without the co-operation of the Enlarged Board of Appeal.

The decision which Mr Battistelli believes the AC should take, needless to say, includes dismissal. But Mr Battistelli is of the "firing is too good for 'em" school of thought. He suggests that the disciplinary committee were far too indulgent in recommending mere dismissal. The AC, he advises, should also reduce the pension of the soon-to-be-ex-Board member by one-third. Pour encourager les autres, and all that.


Merpel wonders how the Organisation can survive undamaged if the AC sides with the President and against the EBA on such a black-and-white legal issue. She wonders how the Administrative Council can survive undamaged if it contravenes the EPC, merely to show support for its embattled appointee as President.

More fundamentally, the President's proposal urges the AC to assume powers which the drafters of the EPC explicitly did not entrust to the AC alone. The AC only exists by virtue of the EPC; that document is the constitution under which the Administrative Council, President and Boards all must function. Once the AC decides to ignore or bypass inconvenient provisions of the EPC, they send a signal that the law is subservient to the internal politics of the Office.

Quite apart from the question of Mr Battistelli’s legal credentials versus those of the EBA members, Merpel wonders if the AC ought to be taking legal advice from someone who has a dog in the fight, so to speak. 

She hears that Mr Battistelli’s memo caused grave disquiet to at least some AC delegates. The course of action urged on them by Mr Battistelli was so unsettling that the AC reportedly commissioned an eminent professor of law to provide an independent opinion on the legality of Mr Battistelli's proposal. This expert's advice is rumoured to be unequivocal: dismissing a Board member without a proposal from the EBA is not legally permissible. Where the AC goes from here is anyone's guess.

Stepping back for a moment (never a bad idea when one is on the brink of a momentous decision), Merpel wants to put this crisis in context. What's at stake here is the relationship between the institutions of the European Patent Organisation and the credibility of the AC to work within the EPC. And why is the Organisation and its reputation being put at such grave risk? Is the Office facing an existential fight for existence that justifies throwing caution to the wind? No, this is all being proposed simply so that a single employee can be fired, to remove an irritant from under Mr Battistelli's skin. From that perspective, the actions urged, namely contravention of the EPC and undermining of the EBA, seem entirely disproportionate and bizarre.

Merpel suggests the AC ought to politely thank the President for his memorandum and place it to one side, perhaps weighing it down and covering it with a copy of the EPC for emphasis. Then the AC should await the Enlarged Board's written reasons, and if it wishes to refer the matter again it can do so, avoiding whatever defects caused the inadmissibility of the initial request. If the EBA ultimately proposes dismissal, then the Board member will go; if not, then that's the outcome of the due process and so be it. In the meantime, Mr Battistelli might usefully be urged to return to the Office with a directive to spend more time building bridges and less time wiring them with dynamite.


Old sad man said...

What is Louis XIV meant to have said: l'État c'est moi....
Some ENA graduates seem to think the same....

If this goes through, then the EPO has lost any credibility.
On the one hand a VP1 which favours collusion and preferential treatment for big applicants, and on the other side a P which abolishes the separation of powers between the executive and the judicative.

Is this really a model organisation? Serious doubts are authorised.....

Anonymous said...

Blowing in the wind
Reading this and other information about dirty tricks played at EPO´s highest level as very recently leaked to the public, one can only be reminded of the recent VW scandal. How incomparably better off this company would be today, had courageous employees dared to blow the whistle when the software manipulations started.
Which brings us back to the case at issue.

Lulubelle H. MacTavish said...

He's clearly Enarque of the Covenant. We can only hope that the Promised Land lives up to expectations...

Anonymous said...

The one that should not be named

All the legitimacy of the EPO (office and organization) rests on the EPC. I hope the AC understands that following the proposed course denies this legitimation. There are two complaints before the Bundesverfassungsgericht on the alleged independence of the boards. How will the judges there see this proposal?

What if.... said...

As I said only last Friday:

"Such conflicts highlight the point made by CIPA and many others. While an interim short term solution is essential, in the long term the only way to remove these conflicts and ensure the independence of the Boards of Appeal is to amend the EPC."

Henri le Sage said...

Still wondering what is the background of all this...

An Enarque on steroids? If so, fighting a personal war for his ego only or a ministerial position under the next UMP president?

Another supranational body pushing matter in favour of big corporates? (Like Cecilia Malmström, involved in TTIP negotiations, said it so obviously: "I do not take my mandate from the European people")

My take is the first one of the first option. Because the big circus of the inventor of the year award also falls in the first of the first category.

So why is the AC so quiet? Because Kongstad - who secretly inked the secret terms and conditions on the last appointment of BB - does not want to lose backing of BB to become the next president. And because the rest of the AC is too tame (lame?) to talk back.

And, again, where are the indepedent voices from national judiciaries that we have heard before?
And why is the EPI so quiet? Some whisper it is silent diplomacy. I have no reason not to believe those relatively close to me, but I find it all too quiet...

This all leaves me deeply concerned about the quality of the European Patent Office. Above all in view of the independency of the Boards that is at stake so obviously. But also because this casts a very dark shadow over the EPO in general. And this may be one reasone why the EPO is so desperately in need of new examiners. Why so I see fresh personel adds every day at Linkedin lately - as opposed to none three to five years ago? Why are deadlines for applications extended? With less people in the EPO doing the grunt work and BB (and Minnoye) whipping the examiners day in, day out, more will leave the office. And applicants, small and large, will be out worse.

Which bring me back at the first question. Because big corporations want rest at the EPO and some quality to prevent lousy patents granted for trolling. And fast processing of their applications.

Which leaves only one conclusion: Benoît Battistelli is fighting a personal war, at the expense of each and every other stakeholder. With Minnoye and Kongstad as his minions.

Fafnir said...

The AC may be prevented by law from dismissing the Board member concerned, but no such legal obstacle appears to prevent them sacking the President. The reason for his dismissal has just been delivered by him to the AC, being an exhortation to break the law. Dismissing the President would legantly get the AC of a tricky situation (and any threats the President may have made to keep them in line would evaporate the moment he's been dismissed).

Anonymous said...

I think he AC should fire someone.

Any proposals from the public ?

Macavity said...

They should fire Battistelli.

The Convention watchdog said...

The Convention watchdog

The future of the Boards,
they will work in Vienna for the purpose of information and liaison,
see Art. 7 EPC,
they will operate under the direction of the branch at the Hague,
see Protocol on Centralisation Section I(3)(a),
but in any case
they will decide following the wishes of the President,
otherwise their decisions will be ignored.

Korinthenkacker said...

Someone seems to be playing va-banque, and in view of the large number of outstanding IOUs, may well win.

Mrs. Merkel is too busy juggling with other crises from Moscow to Damascus to Athens to Munich to Wolfsburg to Fort Meade, while Cameron looks daft rattling his Brexit wooden sabre, and Hollande preparing a face saving [rather than a planet saving one] posture for the upcoming failed climate conference.

There is no one of any stature to instruct the bunch of minor bureaucrats staffing the AC to stand up to our little Caligula.

Dobrindt is already counting the extra Autobahn toll fees the move to Vienna will bring in, and his beloved Vollhorst boss will also be happy to be rid of those bloody freeloading foreigners.

The Cat that Walks by Himself said...

Any submissions by the President of the European Patent Office to the Administrative Council without grounds in the European Patent Convention are non-official activities and exceeding the powers. Those activities are not covered by the Protocol on Immunities.

Any decision of the the Administrative Council without a ground in the European Patent Convention is a non-official activity and exceeding the powers. Such activity is not covered by the Protocol on Immunities.

ILOAT is not a responsible forum because activities are non-official activities. National courts of Member States would be responsible judicial bodies for non-official activities of the President and/or the Administrative Council.

Anonymous said...

No doubt, the President will win, as usual. Free medical and dental care may not suffice this time to convince the delegates, indeed. But there are plenty of cheap car models available in Germany these days, conveniently producing thick and dark smoke screens and ideally suitable as exclusive Office cars.
Blowing in the wind.

Patent user said...

I must say that I am puzzled by the Enlarged Board's decision to declare the Administrative Council's chairman's request inadmissible. If the Enlarged Board felt that this member of the boards of appeal should be fired, the Enlarged Board should have said so, and if the Enlarged Board felt that the allegations brought against this member of the boards of appeal do not justify firing him, the Enlarged Board should just have said so. By declaring the request inadmissible, they are ducking the question.
From the fact that the Administrative Council has suspended this member of the boards of appeal, it seems that Mr. Battistelli's problems with this member were not completely without merit. In such a case, the Enlarged Board should have brought clarity by saying yes or no. Declaring a request to say yes or no inadmissible is not very helpful.

None dare call it "comspiracy" said...

Perhaps the deeds of BB would fall under the "conspiracy" provisions of Section 30 of the German Criminal Law ?

Arguably he is attempting to induce the AC delegates to commit a felony (i.e. perversion of the course of justice - "Rechtsbeugung").

Of course the discussion is purely academic because he will hide behind his "Tarnkappe" of diplomatic immunity ... but nevertheless interesting ... :-)

MaxDrei said...

When there's perceived to be an over-riding UPC objective to achieve, a political imperative bearing down on all AC Members, and when each of the 38 EPC Member States can credibly shrug off any taint of blame, the mere Rule of Law is no more than roadkill.

Consider FIFA, another international organisation. Everybody shouts about reform but when the hubbub has died down how much reform will there have been. Every country shrugs, and moves on, and FIFA carries on as before. Because that's actually what most FIFA Members want. They are not capable of imagining a system of doing business without grease for the wheels.

Both FIFA and the EPO, and most other international organisations will continue indefinitely in this way because there isn't any body able of calling out errant Member States, reminding them of their duties to uphold the Rule of Law, and sanctioning them when they are in dereliction of their duty.

If the AC spinelessly goes along with the EPO President, because any other path forward is so irksome, who will call the EPC Member States to account? Merpel and whose army?

Mr. Moot said...

From the fact that the Administrative Council has suspended this member of the boards of appeal, it seems that Mr. Battistelli's problems with this member were not completely without merit.

Given that the decision to suspend was based entirely on Mr. B's version of events that may be a moot point.

Anonymous said...

I´m looking forward to seing all VP´s and top managers of the EPO publish a common declaration to the effect that the President's proposition to overrule the EBA is conform to the law.

Curiosity said...

Where is the EBA decision of 17th September? That one would be interesting to read.

old man of epo said...

Patent user,
Not in DG3 myself but I'm not surprised the request was, seemingly but unconfirmed, considered to be inadmissible. For example, Article 23 does not suggest a right to twist such a decision. Secondly, the correct procedure was not followed from the start so to consider such a request would give legitimacy to an already faulty procedure. Thirdly, since the EPO does not recognise national laws and does not have in itself a definition of defamation or slander, on what basis could a case be prosecuted?
No, the EBA can only operate, in my opinion, independently and apply its own procedures. A twist - or order - from outside is not necessity one they jabber to agree to and, arguably, is something they shouldn't agree to.

Point of Order said...

@Patent user: you don't seem to understand much about admissibility. The reasons why a request may be deemed inadmissible will be many and variable, but they are not taken lightly. They may comprise, among other things, the following:

a lack of clarity as to what exactly is being requested
a prima facie conflict with the framework of law within which the request is made
a factual inaccuracy in submissions made within the framework of the request

and so on.

The impact will be to throw into doubt the validity of the request and thus require its clarification or amendment.

So, in ruling the request inadmissible, the EBA has merely indicated that there is a formal problem with its dealing with the request at all. It is not 'ducking the question', but asking that the question be rephrased in an acceptable manner.

As the EBA, in any case, has yet to disclose its reasons for ruling the request inadmissible, your remarks are somewhat premature.

old man of epo said...

Apologies for errors in that last post. Twist should have been request and jabber should have been, simply, have.
Post in haste, repent at leisure?

Anonymous said...

Who would be taking the AC to task if the affirmation is carried out and contravenes the EPC? Only a member government that can be shamed publicly into taking the matter in hand.

We are soon getting to the point where the pain of having a new diplomatic conference for revision of the EPC is smaller than the pain of having to accept the EPO administration’s bull-in-a-china-shop behaviour. At least in some circles, the EPO system was considered as precious china, a model for all, but it is now all being smashed up.

But actually, the development could seem to mesh nicely with the wishes of the transnational industry, because we have not heard a single public statement from its representatives, such as BusinessEurope. Neither against nor for the present situation. In my view this can only mean quiet satisfaction with it all.

I like the reflections of MaxDrei, both on the present posting and before, because they make sense. The transnational European patent system is undergoing dramatic changes, but in reality nobody cares. The politicians have never understood the idea behind the patent system, and they are open to any lobbying that makes at least some sense in their heads. One good way to make some politicians behave is to stress the importance something has to the EU and exports to e.g. the US. The small businesses are much too busy with their day-to-day work, and their investors have a horizon of 3 years. The big businesses do not see any problem with the changes; if anything they have the means to survive any changes in this field. Avoiding taxation (in their words “undue taxation”, because they do not at all mind paying their just share) weighs much more importantly.

Now to the latest “sensible” idea: to have a “real court” (the UPC) adjudicate on patent matters coming out of the EPO. I might welcome that if at the same time it were possible to take a rejection of an application to court – the infamous asymmetry of the EPC.

George Brock-Nannestad

Anonymous said...

@Patent User,
Contrary to batistelli and the AC, the boards follow the law. In that system the first thing one does is to see if there is legal basis for the filing of the appeal, request, whatever. If that legal basis is lacking, the substance of the case cannot be dealt with. That is not ducking, that is a principle common to all democratic legal systems. What you are suggesting is that the substance of the case should be dealt with first, and depending on its outcome, any lack of legal basis may be put aside. So you would for instance accept that someone who has not filed an opposition against your patent, but did file an appeal pointing out a clear lack of novelty, would destroy your patent? Although he had no legal basis for filing the appeal since he was not a party to the opposition procedure? Just because there was a clear lack of novelty? I think not.
Also, pronouncing someone guilty just because he is accused is right against common democratic principles. It seems there is something wrong with your understanding of law.

Sad lawful person

Anonymous said...

Of course the EBA did not have any other choice than to judge the request as inadmissible, because there is simply no legal basis in the EPC for the chairman of the AC requesting a proposal under Article 23(1) EPC from the EBA. While of course anybody can write an informal letter to the EBA, only in very specific situations can formal requests to the EBA be made in an admissible way, in particular referrals of points of law by a Board of Appeal or the President under Article 112 EPC or petitions for review by affected parties under Article 112a EPC. The chairman of the AC is of course not authorized by these provisions to file an admissible request.

Still it can be assumed that the EBA has considered the disciplinary dossier transmitted by the chairman of the AC, and has apparently not seen any need to make a proposal under Article 23(1) EPC of its own volition. This would indicate that the case is not as clear-cut or severe as alleged by the president.

It could also be asked why the request was made to the EBA at all if the DG3 member is to be fired regardless of what the EBA would decide. And why is the AC now requested to overrule the EBA, as if the AC does not dismiss the DG3 member the president could simply do so himself? After all the AC would have failed to “fulfil its institutional and administrative role” and such a decision would of course be based on "general principles of law" and "good administration of justice".


Thought experimenter said...

Suppose that the AC actually suddenly experienced a miraculous stiffening of the spine.

What could prevent the President to instruct the accounting department to stop paying the condemned person's salary, IT to deny him any equipment or support, and any other department under his thumb to have anything to do with him?

While at the same time maintaining a formal employment link!

After all, the porters already keep an eye to prevent him access to the premises...

Anything goes.

Anonymous said...

Art 12a RPEBA:

Article 12a

Proceedings under Article 23, paragraph 1, first sentence, EPC

(1) A request that the Enlarged Board of Appeal make a proposal for the removal from office of a member under Article 23, paragraph 1, first sentence, EPC may be made to the Enlarged Board either by the Administrative Council of the European Patent Organisation or by the Vice-President of the European Patent Office in charge of the Boards of Appeal.

(2) In the case of such a request being made by the Administrative Council, the Administrative Council shall be represented in the proceedings. The Vice-President of the European Patent Office in charge of the Boards of Appeal shall also be entitled to be heard in such proceedings.

(3) In the case of such a request being made by the Vice-President in charge of the Boards of Appeal, he shall be a party to the proceedings.

(4) The member who is the subject of a request to make a proposal for their removal from office under Article 23, paragraph 1, first sentence, EPC shall be a party to the proceedings as respondent.

(5) The request referred to in paragraph 1 shall set out all the facts, arguments and evidence relied on. All documents referred to shall be attached.

(6) The proceedings shall be conducted in writing, where necessary or requested supplemented by oral proceedings according to Article 14, and may not be concluded without the respondent being informed of the facts, arguments and evidence underlying the request and having had the opportunity to be heard on them. The respondent may appoint a person to advise or represent him.

(7) Article 117, paragraph 1, EPC shall be applicable.

(8) The proceedings shall be conducted independently of any disciplinary or national proceedings.

(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.

(10) The Enlarged Board of Appeal may on request propose the reimbursement of some or all costs incurred in the proceedings by the respondent if the request to make a proposal for their removal from office has been rejected.

Anonymous said...

I bet that the request by AC is inadmissible, because, the AC did not provide to the EBA any evidence what-so-ever of the alledged misconduct. I assume that the letters report accurately information from cited publically available sources. The AC did not provide even a slightest evdience that the information is inacurately reported. In case that it is reported accuratly and the sourse is identified, it is immaterial whether the information is or is not defamatory. Even, if it would be the case, than the resposibility for the inaccuracy is found by the cited sourse and not by the person who cited the sourse and reported what the source said accurately. Moeover, if the AC was of the opinion that there is false information being spread by the person in question, the AC should have asked the national authorities for hep with providing such evidence to the EBA. The AC instead relied entierly on the fact that the author of the letters was identified (by illegal means)but the AC did not bother to provide any indication that the author of the letters was the sourse of the defamatory information. And so the request is inadmissible, I bet.


Anonymous said...


A proposal to the EBA under A. 12a RPEBA made by the Chairman of the AC is NOT a proposal made by the AC. Hence such a proposal should be considered inadmissible, irrespective of its substantial merits. Moreover the EBA cannot make such a proposal, only the AC or VP3 are entitledto do so.

Hein Blöd said...

The member states and the AC could not care less about the EPC, unless posts are to be filled (i) in senior management (Art. 11(1) and 11(2)) or (ii) in the AC (Art. 27) or (iii) cash can be extracted from the EPO (Art. 37-51) and deviated into the national budgets and/or IP offices. The rest is decoration, to be used or not, at your convenience.

One example: Does anyone remember Art. 4a EPC?

"A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system."

The EPC2000 entered into force in 2007. Now we are in 2015. Has anyone seen such a conference yet? Is there any way to force the member states to adhere to the rules that they have set themselves?

Let's see whether, faced with the current situation, the AC shows some basic understanding of the wider picture and takes its responsibility. Can anyone imagine, for example, that Angela Merkel asks the German Parliament to explicitly ignore a decision of the German constitutional court? In all but the most banana republics such an act would lead to immediate dismissal, if not jail.

Quo vadis, EPOrg?

Anonymous said...

Bringbackalib said...

H ere is the latest on the book
I t's 3-1 he's off the hook
G ood odds it seems,but second glance
H is Highness wants to make a stance

N either EBA or EPC will stop our Batters
O nly his opinion matters
O ur friends at FIFA are changing tack
N ow or never AC,give him the sack!!

Where there's a will ... said...

Is there any way to force the member states to adhere to the rules that they have set themselves?

Why not take the German (or any other EPO member) state to court to force its delegate to propose a motion for a ministerial conference to be held in accordance with Article 4a EPC.

The state can be accused of breaching its obligations under an international treaty. Whether successful or not, such an action might at least get some press coverage ...

Anonymous said...

In case the AC takes such an illegal decision the EBOA should immediately go on unlimited strike and call for all EPO employees to join ...we will see how long the member states and the EU will let this rot without intervention.

Anonymous said...

To the last Anonymous:

Strikes do not work anymore for EPO examiners, as most of us tend to do an extra effort afterwards, in order to meet the production plan previously agreed with the director, or face the consequences.
Result: instead of showing our disagreement we actually do a favour to the Office, by doing the same work for less money.

Anonymous said...

To the second last Anonymous:

... and according to the new rules - approved by the AC -, it's the President who decides if and when people can strike.

Arthur Scargill said...

... the EBOA should immediately go on unlimited strike ...

But only if the President approves the strike.

Otherwise they would be breaking the law and exposing themselves to disciplinary action.

And then they might have to remove themselves from office ...

Cynic said...

Currently it's first on the agenda on Thursday morning. An evening/night of twisting arms on Wednesday? The discussion on the reform of DG3 comes later (or at least the report on the consultation will be presented for information rather than a decision).

Anonymous said...

Indeed Merpel, we ware witnessing here an "entirely disproportionate and bizarre" reality, where EBA decisions, as well as court decisions, are simply to be disregarded. Difficult to decide which one is worse: the first contravenes the "constitution" under which the european patent system was built, the second ignores a conclusion that fundamental human rights are violated at the EPO...... hmm....tough call....really tough.....can we say that one is worse than the worst one could possibly imagine?

Dear AC members, if you don't stop this NOW, who knows what you will be asked to pass in December? When will any of you finally show some courage?

Anonymous said...

New at this...

Of relevance, in the new RPEBA (which were approved by the AC two meetings ago), that in proceedings under Art. 23 EPC are involved two external legal members (in all likelihood two national judges) and that decisions are to be published. So, no matter how it goes, we should end up knowing why the EBA decided what it did, and (if the decision is unanimous) that the decision was shared also by external judges.

If the president somehow manages to persuade/force the AC delegates to go against the spirit and letter of the Convention, the only residual hope is that one of the dissenting Contracting States (if any) invoke a conflict under Art. 173 EPC and bring the ****storm to the next level...

Anonymous said...

To anyone who recognises himself in that.

You do not or did not strike? Just assume it. Do not try to justify it with fake reasons. We (examiners) are all accomplices of what happened to us. We keep being accomplices...

Anonymous said...

BB’s fall quotes...

Piercing spikes penetrate the forest dawn
A new competitor rises, crackles and ruts,
his guttural roaring upstaging
the AC’s yearly striptease
nuts, wood, bark and leaf
flutter, quiver and fall
silent witnesses to the need of scent, search and seed
his crown of thorns a halo of might
sharpening up his battered horns
head-stretched antlers in battle-lock
Catapulting towards BB as a rival
wounding, spitting spittle of skin and kin
triumphant, his mane of thorns harden and rise
his oil deep eyes melt down his prize
BB waits, doe-eyed, trembling, expectant.
The cotton wet mist softens the thundering thrust
his humping hammer of bone, meat and gore
the other eyes freeze as sudden as BB falls down
upon the deep forest floor
and listens to the ancient patterned dawn.

Anonymous said...

Article 12a RPEBA only entered into force on 1 April 2015 ( The famous "house ban" already occurred in December 2014, and the alleged misbehaviour of the BoA member even earlier.

So the request by the AC according to Article 12a RPEBA that the EBA make a proposal for the removal from office referred to an incident before the applicable rule existed, which "by recourse to general principles of law, in particular good administration of justice, due process for all parties concerned, ..." should not be allowed.

Maybe this was the reason why the request was rejected as inadmissible by the EBA.

Anonymous said...

At the last AC there was no vote to request a proposal from the Enlarged Board, the AC was only informed that its chairman had requested a proposal. It appears clear that a mere request from the chairman is inadmissible under Article 12a RPEBA.

Anonymous said...

Bombard BB and his supporters with lawsuits at National Courts, for every breach of the EPC and general principles of law. Most lawsuits will not succeed, but at least it puts pressure on BB an his minions and generates bad publicity for these alfa males.
The union SUEPO at the EPO will find that a majority of staff would love to pay for an army of lawyers to go after BB and his entourage.

Anonymous said...

An any mouse

"Article 12a RPEBA only entered into force on 1 April 2015 (".

First decide you want to try the accused.

Then establish the procedure to try the accused.

What next?

Make the law the accused was alleged to have breached?

It may be the problem was caused through insufficient comprehensive terms of service.

May I suggest this?

Old man of EPO said...

Surprised that Art. 23(3) hasn't been quoted for completeness, to whit:

In their decisions the members of the Boards shall not be bound by any instructions and shall comply only with the provisions of this Convention.

Stuck in the middle said...

How frustrating it must be for the council when confronted with a quasi judicial body that dismisses cases as inadmissible, indiscriminately!

Is Merpel aware of the irony? Every attempt by the staff to request review of any decision these days is treated thus.

Revenge is a dish best served cold. I look forward to seeing the reasoning, the office rarely does the staff the courtesy of giving reasons that make any sense.

Anonymous said...

Elliot Ness said....
To the loyal and obedient members of the Administrative Council of the EPO: thank you for publishing in this report the financial amount that the president gives to you, no strings attached, in order to obtain your unconditional support, "...A financial envelope of 13m EUR was made available by the EPO to support direct cost of co-operation with Member States...". How many AC representatives must top up their ....., tax free, thanks to these generous 13-million euros.

No EPO employee, whether a BoA member or the Chair of the Staff Union herself, will stand between the AC representatives and these much appreciated 13-million euros

No surprise here said...

The major countries (DE, UK, FR, etc.) will probably abstain, and the president will win with the support of the little players that can be easily bought with co-operation money - just like it happened with the Health care reform.

Anonymous said...

Co-operation money is rather uncritical. More than half of it is not spent at all year after year, from the rest a lot is rather spent internally on providing them some IT support or patent translate, then there is some money for training attorneys for the EQE, and for what still remains there is a cost-sharing principle.

Of course for some countries it is interesting to earn a bit on DSA, to have some decent food or some expensive language courses paid by the EPO.

However in monetary terms this is really peanuts compared to ever-increasing national renewal fees.

And as personal incentive, positions within the EPO are of much higher interest. Nearly all EPO top managers come from Nat. Offices.

slartibartfast said...

An official communique is now available...

Anonymous said...

Concerned examiner says:

This has appeared in de Dutch press:

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