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.

Thursday, 8 October 2015

Viennese waltz may be the last dance for Board members

For some it's a game,
for others a sad reality
Up until very recently, the mooted new home for the European Patent Office (EPO) Boards of Appeal was Berlin, unwilling as its members might be to move at the whim of the EPO President. But, as Merpel reported last week, a new proposal is being negotiated behind closed doors: why not move the Boards to Vienna?  Merpel understands that President Battistelli is close to sealing a deal between Germany and Austria which would make this possible.

Why Vienna?
But consider this riddle: what does a move to Vienna achieve that a move to Berlin will not?

One suggested answer is found in the EPO Service Regulations. Under Article 53, refusing to relocate to another country is a sackable offence. There is no direct provision for firing an employee who refuses to relocate to a different city within the same country.
Article 53
Dismissal for other reasons
(1) The appointing authority may decide to terminate the service of a permanent employee if:
(a) the Contracting State of which the employee is a national ceases to be party to the Convention;
(b) the employee refuses to be permanently transferred to a country other than that in which he is serving; ...
Headquartering the Boards in a different country opens up the enthralling possibility of firing Board members, possibly even without the distasteful necessity of referring such decisions to the Enlarged Board. As Mr Battistelli has discovered in the last year, even getting one Board member fired is not as easy as one might think. The European Patent Convention and due process keep getting in the way.

Why move at all?
The drive to get the Boards out of Munich strikes Merpel as either deeply stupid or entirely cynical, and she doesn't believe Mr. Battistelli is at all stupid.  The purported problem identified in Mr Battistelli's proposal to reform the Boards of Appeal was the "perception of independence". You couldn't, he argued, have Boards in the same building as other EPO employees whose decisions a Board might be reviewing -- which is an odd argument, since there are no Examining or Opposition Divisions based in the Isar building.

A rather more widespread perception around the EPO is that Mr Battistelli can't bear to have the Boards in "his" building (Merpel seems to recall that they were there first, though), and/or that he wanted to teach the Boards a lesson. Even having his own private express lift from car park to the sumptuously appointed presidential floor does not always exclude the chance that he might encounter one face-to-face during his working day.

You can be on top
and still be furious ...
The relationship was poisoned when the Enlarged Board decided Case R19/12, a decision about judicial independence about which Mr Battistelli was furious. You see, far from lacking independence, the real problem for EPO management is that the Boards are sometimes too damn independent and this cannot be tolerated. Yes, there's a structural issue in how the Boards fit into the European Patent Organisation, which would require amendment of the Convention to fully remedy, but this did not seem to cause problems in practice until now.  Nobody should pretend that this proposal to move the Boards out of Munich serves the interests of judicial independence. It is really the opposite: showing this group of ungrateful judges who's really the boss, who's in control of their careers.

Having established that the Boards had to get out of the current Munich headquarters, Mr Battistelli identified two options: find another building in Munich, or relocate the members of the Boards to Berlin (Vienna, which is now the front runner, appears to have been arranged behind the backs of the Administrative Council (AC) and of the Boards, since it never formed part of the formal proposal).

Boards of Appeal are
getting the message
One would normally think that, faced with the choice between (i) uprooting a group of senior employees from their homes and sending them to another city or country, and (ii) finding an office building in a city the size of Munich, there would be no debate over the proper and ethical course of action and no difficulty in achieving this goal, but Merpel understands that the intention was always to push the Boards out of Munich, and the option to stay there has never received any serious consideration. Whether the AC falls for this ruse remains to be seen.

Merpel wonders if there is a mathematical formula involved which governs the relationship between judicial independence and distance from those being judged? If so, then Merpel suggests that the AC really needs to think about packing the Boards off to Reykjavik - an unbeatable 2,676 km from Munich as the crow flies.


SMR said...

Reykjavik? I would have thought he might send them to Coventry.

MaxDrei said...

We are asked to suppose that the reason for requiring the judges of DG3 to move to Vienna or face the sack is:

"...showing this group of ungrateful judges who's really the boss, who's in control of their careers"

At first sight, it seems ridiculous, that the AC can allow the President to behave like this, and destroy the fount of the highly respected and intellectually sound and coherent jurisprudence on the substantive law of validity of patents in Europe. But is it?

Elsewhere in the blogosphere, we read that what suits the power users of the patent system, in their struggles to hold down the upstarts of this world, is legal UNcertainty. The judges of DG3 have upset not only the ego of the EPO President but also the egos of quite a few CEO's of giant corporations. There are no Champions of the EPO amongst their ranks. These CEO's (it is thought that many of them are in fact sociopaths) are the masters of the universe whose minions and lobbyists explain to ministers in national governments where their duty lies. Ist so. And these governments in turn explain to their delegates on the EPO's AC how to vote. In being responsive to the minions and lobbyists, BB is only doing the bidding of his masters. Ist so.

But what of the public? Is legal uncertainty good for it? Is a coherent pan-European body of caselaw on patent validity a Good Thing for the public?

Remember "What's good for GM is good for America"? When it comes to patent law, is "What's good for VW" (for example) good for Europe?

Anonymous said...

I think A23(1) EPC trumps the service regulations though.

Write H. Bosch

FormerEx. said...

This site is farcical. The kats should get a day job, or join and evening knitting class.

Lulubelle H. MacTavush said...

Is this the real life?
Is this just fantasy?
Is causing landslides
My escape from reality?
Open your eyes
look how things lie and see

I'm just a rich boy, I need some sympathy
Because I’ve big income, like it so
So the Boards had to go
That’s the way the wind blows, long as they are far away from me,
from me

Mama, just moved the Boards
Put a gun against their head
Said you move,or else you’re dead
Mama, life has just begun
Because I’ve gone and moved those salauds all away
Mama, oo-o-o-o-oo
Didn't care if they did cry
Means I don’t have to look at them tomorrow
They’ll no doubt carry on, doesn’t really matter

Too late, their time has come
Sends shivers down my spine
Full of pleasure quite divine
Goodbye, all you Board folk – you just had to go
Gotta go away from here and face the truth
Namely, I am le Chef - (that’s the way the wind blows)
The local Grande Fromage
I sometimes wish you’d never been there at all...

I see a little silhouetto of a Board Far away, disarray, never more shall we tangle Wiener Valse and Strudel, reduced to my poodles, oui! Hallelujah, hallelujah Hallelujah, hallelujah Hallelu-go figure, oh, Magnifico-o-o-o-o Je suis le Grand Chef, all AC loves me (Il est le Grand Chef, de la ville de Louis L’État, c’est lui, la loi ce qu’il écrit!) Easy come, easy go, Boards just had to go Won’t miss them, no! So glad to see them go – let them go! Won’t miss them, no! So glad to see them go – let them go! Won’t miss them, no! So glad to see them go – let them go! Glad to see them go! Glad to see them go! Ho, ho, ho, ho,ho, ho, ho Tous ces cochons, rapid fashion, without passion let them go They tried too hard to be independent folk from me, from me from meeeeeeeeee

So you thought you’d ignore me and spit in my eye
You could be independent and thus me defy?
Oh, baby - can't do this to me, baby
You just gotta get out - just gotta get right outta here

You don’t really matter
Anyone can see
You don’t really matter
Only thing that matters...
Is meeee

(That’s the way the wind blows)

Wag said...

Reykjavik ain't good enough.

French Guyana would be a far better candidate:

1) It's in France;

2) it has adequate facilities currently standing idle;

3) and the air fare and malaria shots will dissuade anyone except fools from requesting or attending oral proceedings.

Henri le Sage said...

@MaxDrei, 11:58:00:

You may be right about your chain of command, with CEO's (almost) at the top of the chain of command. And we have TTIP in preparation to confirm.

Yet, I cannot imagine this is the background of this game.
Multinational companies want to have their patents granted. That can be resolved by working the examining division. The patent will be granted without too much issues and appeal is never an option.

So in my opinion, it is a game only between BB and the Board members. The AC never was a problem (or was it? some members, perhaps...). And the highly respected members of national judicial institutes have spoken out clearly for the just case. Some time ago - and I have not seen communications from their addresses anymore for a long time. Have they gone underground or did they give up. I do hope it is the first option.

Because if they have given up, indeed, it is open season for the Board and BB will have Board members for breakfast, lunch, dinner and desert.

katlover said...

FormerEx does seem rather out of touch. If he or she cares to check, he or she will spot that the kats all have very demanding day jobs but give generously of their own time to promote news of ip matters.

If you don't like it, why not shove off to another blog or start your own and see if you can do better?

MaxDrei said...

I think that readers should keep in mind that it is not just President Putin who has a hit squad of anonymous blog spoilers busy countering postings adverse to the presidential line. Why? Bbecause it works!

So, take every posting here (including mine, of course) with a large pinch of salt and ask yourself "What's his Agenda? Why is he saying that?". A large dollop of intelligent scepticism is called for.

Meldrew said...

Lulubelle H. MacTavush clearly has plenty of time to spare: and on National Poetry Day their comment is timely.

But in the spirit of conspiracy theory I ask whether the pastiche of Bohemian Rhapsody is a hint that a move to Prague is in prospect.

nail said...

As H. Bosch noted, Art. 23(1) EPC has precedence over the service regulations.

It is difficult to imagine that the EBA would propose dismissal of a member refusing to be permanently transferred to Austria, given that the EPC does not allow the boards to be located in Vienna.

I suppose reappointment of members could be made conditional on a transfer to Vienna. That would give a 5-year transitional period in which many boards might hardly be functional.

But that would not solve the problem of the illegality of the boards operating in Vienna. The question whether it is legal to hold oral proceedings in Vienna (or do any appeal work there at all) will be put before the boards and it is hardly conceivable that the boards will defer to the president and ignore the EPC.

BB does not care about such subtleties and the AC does not care full stop, so the relocation exercise is going to be another nail in the coffin of the European patent system.

Lulubelle H. MacTavish said...

Meldrew, nope, just a minor talent for making very bad rhymes very quickly.

Prague would be an unfortunate choice. A defenestration of the Board in Munich strikes no particular chord, but one in Prague started off a minor skirmish some time back.

MaxDrei said...

Henri, thanks for your 11:58 comments.

Brussels was all set to issue worthwhile auto emission controls until, at the very last minute, Angela Merkel got on the phone to the relevant EU Commissioner and acquainted him with the deeply-held wishes of the German auto industry. The controls went no further.

Think of the notorious cases when DG3 has found a blockbuster patent (pharma, telecoms) invalid. Blown away, throughout Europe, in one fell swoop. What does that do to the blood pressure of the CEO of the patent owner? Who do they think they are, at the EPO, the Big Boss fumes. They should know their place, It is me, not some scrivening Patent Office jobsworth, who drives my business.

Yes, other things being equal, BigCorp wants its patent applications through to issue. But are other things equal? If I were a CEO, I might be just as happy paying annuities to the EPO for ever, on tens of thousands of not yet examined WO publications, as long as I can quickly take through to issue and then enforce the ones it turns out I need quickly, to stamp on a troublesome upstart. In fact, for bringing the upstart to a settlement, it might even suit me better that my ten thousand WO publications have not yet come under the blowtorch of substantive examination at the EPO. I can say to the upstart's legal advisers: read the claims of all those WO publications and imagine what I'm going to do to you when I get them all to issue.

So Henri, what say you to that? I'm looking for an explanation why those serving on the AC are so craven. I'm sceptical it is because BB is paying for private dental treatment in Munich, or for slap-up dinners. I think they are followiing the line given them by their ministers. So why do their ministers behave like that? Because they are under somebody's thumb or because the EPO is not important enough to appear on their radar screens?

El ángel exterminador said...

As H. Bosch noted, Art. 23(1) EPC has precedence over the service regulations.

BB does not care a fig for Article 23(1) EPC.
He will soon show the Enlarged Board of Appeal their place.
They refused to submit voluntarily to his will.
They shall now learn the price of disobedience !

Paolo said...

During his recent visit to Rome BB was only received by an Under Secretary of State.
Sadly, the Minister was not available ...

Rule of Law v. BB said...

Moving the boards to Vienna without a previous diplomatic conference would be outside the legal frame of the EPC and, as a consequence, further weaken the independence of the boards. As Sir Robin and the European judges observed in their letter concerning the house ban, threatening the judicial independence of the Boards of Appeal would “call in question the guarantee of an independent and impartial review of the European Office's decisions by a judicial body. Not tolerating that should be the common interest of all Member States of the European Patent Organisation.” They quite explicitly pointed out that the point could well come up in a real case concerning the status of Board of Appeal.

Let´s hope that the members of the AC are wise enough not to put at risk the future of the EPO and of the unitary patent.

Cynical said...

They quite explicitly pointed out that the point could well come up in a real case concerning the status of Board of Appeal.

By then BB will be safely retired so he hardly cares about that !

Anonymous said...


Inside sources conveyed to me that the boards are moved to a place called "Ryswick" or "Rysiwik" or so ... i couldn't find out where that is. They get a transparent building and a VW for free, regular software updates included.

To come back to the beginning of this thread: ServRegs 53(1)a could be invoked, when the first memberstates cease to be party to the Convetion as they see coming that the party is in fact over, or at least realize they are not invited. NL could be first as the EPO rendered void the seat agreement unilaterally with CA/D 10/14, or did they not?

MaxDrei said...

Can Rule extrapolate? What if BB's game is indeed to shift the patent revocation business out of the EPO in Munich and into the UPC in Paris? And what if, in engineering that shift, he is doing the bidding of Brussels. You know, have a real court to do the patent validity work in Europe, rather than a mere Patent Office.

Anonymous said...

Last Tango
Before the Boards start a Viennese Walz, there might well be a last Tango to be danced at next week´s session of the AC, either by the Boards or the President.
Consistent rumours indicate that the dubious operation launched in December against a board member for alleged misconduct might turn out as a disaster for the President. He is said to be pressing the delegations to overule (!) a decision by the EBA which he considers wrong.
This is a very dramatic move because it now faces the AC delegations with their responsabilities: either they publicly denounce the President´s action and he is virtually dead, or it supports him and it is the end of the Boards of Appeal as an independent judicial authority.
Les paris sont ouverts. Rien ne va plus, as you say, Monsieur le Président.

Naturheilkunde said...

The very moment that the AC overrules the decision of the EBA, the decision will be leaked to the public and it will be the end of the trust of the public in the EPO.

Btw, in the last years the President has consistently overruled every single decision made by the disciplinary boards.

If the EBA issues a decision in favour of the member of the BOA and the AC accepts it, the President should go.

Songs of Praise said...

the President should go.

Perish the thought !

At the name of Benoît
SUEPO’s host doth flee;
On then, investigative soldiers,
On to victory!
BoA’s foundations quiver
At the shout of praise:
Brothers, lift your voices,
Loud your anthems raise!

Like a mighty army
Moves the "apparatus" of BB:
Brothers, we march onwards
Aided by "Immuniteeeeee";
We are not divided,
All one Body we —
One in faith and Spirit,
One in ENArchie !

Crowns and thrones may perish,
Kingdoms rise and wane;
But our mighty President
Constant will remain.
SUEPO hordes can never
’Gainst his will prevail;
Staff has VP4 and VP5's promise,
Which can never fail.

Respectfully said...

The Office spares no effort to save Staff from the Baddies of SUEPO:

Anonymous said...

A DG3 asylum seeker says…


Nope, it will not be the empty Sijthoff building beside the EPO Shell building in Rijswijk (The hague), because the Rijswijk community council has recently decided that this is not an option for refugees from Munich. VP1 tried very hard to make this work and he felt really bad after that decision...

Anonymous said...

A summary of the contributions to the user consultation on the structural reform of the Boards of Appeal is now available online ... -> wesite updates

Any body missing their contributions? I bet.


Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':