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Wednesday, 18 November 2015

By Juve! The EPO responds to Professor Broß

Raimund Lutz
Yesterday, in "Former judge says actions of AC and Battistelli "devoid of any legal basis", this moggy posted an English translation of some strong criticism of the legal basis of certain decisions taken by the Administrative Council of the European Patent Organisation and the President of the European Patent Office (EPO). She also noted that the respected German law publication Juve had just published a rebuttal, by EPO Vice-President Raimund Lutz.  

The Kats have now received from the EPO an English-language translation of the Lutz rebuttal.  It reads like this:
EPA disciplinary proceedings: administration rejects criticism from ex-Constitutional Court judge  
Mathieu Klos
17.11.2015
 
 The European Patent Office (EPO) has defended itself against attacks by the former Federal Constitutional Court judge Prof. Dr. Siegfried Broß. At the end of October, in an interview with JUVE, the administration cited a structural problem regarding the Boards of Appeal, as the judicial branch of the EPO is known. He called into question the legitimacy of the court because of "an obvious personal connection between the President of the Office and the supervision (of the Boards)".   
Raimund Lutz, EPO Vice-President for Legal and International Affairs, contradicted this, saying: "The Board of Directors and President are acting on the legal basis of the European Patent Convention, the Constitution of the European Patent Organisation (EPO)." The statements made by Professor Broß appeared therefore "completely unfounded". Moreover Broß has made this assessment in the light of the "ongoing disciplinary proceedings before the Board, obviously without knowledge of the facts alleged and even without reading the available information". 
The former judge at the Federal Constitutional Court and previously the Patent Division of the Federal Court had, however, in an interview with JUVE, called into question the legal Working Guidelines of the EPO. Broß holds that the EPO structure is incompatible with the European Convention on Human Rights (ECHR), the European Charter of Fundamental Rights and the rule of law and democratic principles. The Administrative Council and the 38 EPO member states had therefore requested the complete separation of the EPO-Court from the Office. 
 In the JUVE interview, the constitutionalist had also been critical of the impeachment proceedings against a member of the Boards of Appeal, which the Board had initiated at the beginning of October. The governing body had asked the competent Enlarged Board to recommend the dismissal of the judge. "This method lacks a constitutional basis," said Broß. 
 He also described the behaviour of the Head of the Office, Battistelli, as unacceptable, because he had published an internal e-mail, to all EPO employees, personally discrediting accusations against the judge. Previously, the Board had published the main accusations. 
 "EPC will not be changed"  
EPO Vice-President Lutz now contradicted the view of the constitutional lawyer. "Of course there are several ways to build a legal system that meets the requirements of the ECHR. A wide variety of models are represented in our 38 Member States. The founding fathers of the EPO have opted for the model of the Boards of Appeal. "The Board of Directors currently see no reason to change the provisions of the European Patent Convention". 
Lutz refers to a number of high court judgments from Member States in which courts of final instance of the Board of Appeal to grant a patent has been challenged in the national courts. "The fact is that the national courts have rejected these complaints in all cases as inadmissible or unfounded, arguing that the rule of law offering substantive and personal independence of the Boards of Appeal and their members is guaranteed in its entirety." 
 Lutz refers inter alia to decisions of the German Constitutional Court. The Court of Justice of the European Union (CJEU) has also, in the context of its decision on the European unitary patent, indirectly dealt with the legal system of the EPO. "The judgement adopted in the light of an action brought by Spain alleging a lack of independence of the European patent system was completely disregarded. This illustrates that the CJEU does not share the view of Professor Broß". 
 "No influence on the substance of cases"  
Broß reproaches the Board of Directors and the President as having acted illegally, which Lutz also rejects. "The EPC is the Constitution of the EPO. The Board and the EPO President are bound by this Convention, and not by national rules". According to Lutz, various provisions in the EPC and in the relevant staff rules also guarantee the independence of the Boards of Appeal and their members.”This clearly shows that the President has no influence on the substance of the cases pending before the Boards." 
Lutz also sharply attacks the remarks of Broß on the conduct of Battistelli and the Administrative Council in the context of the disciplinary proceedings These were conducted on the basis of EPC provisions with the Board as the competent disciplinary authority, and not as claimed by Broß, led by the EPO President. Vice Chairman Lutz also points out that the disciplinary committee appointed by the Board of Directors meets under the chairmanship of a British high judge and with the involvement of Board of Appeal members. "This committee came to the clear conclusion that the entire procedure, including the investigation carried out under the responsibility of the Board, was carried out in a legally correct manner." 
This moggy is no constitutional law expert, and bows (miaows?) to the superior knowledge of those readers and comment-posters who are.  She will however content herself with one observation which seems to her to be of considerable significance.  The arrival of this English translation marks the first item of communication received by her from the EPO in over a year -- and, in defending the position it has taken, the EPO is at last beginning to engage with this part of the social media rather than sitting sullenly behind a wall of silence.  Merpel welcomes this. Every long journey begins with a single step and, if transparency is ever to be achieved and trust restored, active (and, ideally, interactive) communication may be that first step. 
Reminder for commenters: As has been true with Merpel's EPO posts for some time, and as is now the general IPKat policy, comment-posters are required to identify themselves via a pseudonym if they don't want to use their own names, since there are far too many people called "Anonymous" and it can be difficult-to-impossible to work out which Anonymous is which [if any anonymous posts get through, it's by accident -- not a change of policy]. Also, Merpel moderates EPO-related comments quite heavily, knowing that some readers get so exercised that they forget the normal standards of comment etiquette (or even of libel laws).  
Further posts from Merpel on staff suspensions and health and welfare issues are still in the pipeline ...

38 comments:

Luztikus said...

According to usually well informed sources, the decision of the EBoA rejecting the AC´s request for dismissal of a judge for alleged misconduct is to be published soon, and its publication might be devastating for both the AC and BB.

Cynic said...

Luztikus,
Indeed an interesting wait. In the meantime, maybe Herr Lutz can inform us where in the EPC it states that the Board of Directors (the Administrative Council) has the right to lead on the issue of Board of Appeal discipline? Are the boards independent of AC control or not? Of course, a committee set up by the AC has absolved the AC of any wrong doing. So that settles things. Unless the EBoA...

concerned said...

Hmm. This seems to be long on platitudes and short on actual content, neatly side-stepping the substance of most of the criticisms made by Bross...

"Broß has made this assessment in the light of the "ongoing disciplinary proceedings before the Board, obviously without knowledge of the facts alleged and even without reading the available information"."

All I can say there is: Wow. Not at all a high-handed and arrogant response, is it?

It's redolent of the infamous "response" from VP1 to Sir Robin Jacob's letter of concern (http://ipkitten.blogspot.co.uk/2015/01/judicial-independence-epo-responds-to.html):

"Sir Jacob 1) is not aware of all facts
2) is not aware of what the decision of the president was (office ban)
3) does not understand that the AC took the decision based on facts!
4) does not understand that this case has nothing to do with the independence of the Boards!
5) and nevertheless writes this letter!"

Convention watchdog said...

VP3 argues as he may be expected to argue as his master‘s voice.
1. No change of the Convention
“The Board of Directors sees no reasons to change the provisions of the EPC.” This is the real obstacle to solve the problem of the contested status of the Boards of Appeal. The development over the past 3 years has shown that the integration of the Boards into the Office can used in manner of which the cited fathers of the Convention could have hardly dreamed. The continuing punishment of the Boards for decision R 19/12 (no replacement for retired members, delayed re-appointments, control of contacts to stakeholders, decisions on missions of board members reserved to the President, threat of (illegal)relocation, change of the service regulations introducing reporting and remuneration dependent on achievement asf) makes evident for everybody that pressure is put on them.

Why not change the Convention? It was changed in the interest of the pharmaceutical industry (term of the patent, Article 63 (4)), it was changed for implementing BEST (institutional provisions), is creating an independent judiciary deserving the name less important?

Relying on previous national case law not finding a fly in the ointment may turn out disappointing. There are several cases pending before the German Constitutional Court in which the institutional deficiencies including the Administration’s influence are put forward in court proceedings for the first time. VP 3’s reference to the CJEU’s decision on the Spanish action against the unitary patent regulation appears somewhat ironic: The CJEU carefully avoided to address the status of the Boards. Otherwise they would have been forced to deal with the attorney general’s opinion in case G 1/09 clearly concluding that the Boards are no courts.

2. Correct disciplinary proceedings?
The true question is not whether the disciplinary proceedings were conducted in accordance with the disciplinary regulations, but whether these regulations are violating higher ranking law, in particular when applied to a board member. Fact is that investigations were conducted before and after establishing the disciplinary committee by the investigation unit, immediately reporting to the President. It is without precedent in any state respecting constitutional principles that an administration conducts investigations against members of the Court which has the task to decide on the administration’s acts, to mention just the most obvious legal deficiency in such proceedings.

Frusty said...

Well, what could you expect from an a) official repesentative of the EPO who b) knows that any critical remarks would result in a visit by the Investigative Unit and subsequent suspension (preemptive to avoid any harms to the office; authorisation by the AC can be ordered later)

Cynic said...

PS Not sure who did the translation, but strangely VP Lutz became VIce-Chairman Lutz by the last paragraph. Unlikely mistake for anyone at the EPO to make. Maybe done by an outsider? The PR company, perhaps. Or Google Translate? Similarly the reference to a Board of Directors rather than the Administrative Council is glaringly odd. Did Lutz read it? Is it an official EPO translation? Maybe better check the rest for inaccuracies.

homer said...

Cynic, see Art. 11(3) and (4), 10(2)(h) and 23(1) EPC.

@IPKat:
Are you sure this translation was provided by the EPO??

One would assume that the EPO knows the proper translation of the term Verwaltungsrat or would have looked it up in the EPC...

"Lutz refers to a number of high court judgments from Member States in which courts of final instance of the Board of Appeal to grant a patent has been challenged in the national courts."

Google translate, I say.

Attentive Observer said...

It seems ludicrous even for laypersons that the EBA has simply been asked to endorse a decision taken by the AC.
Where is the independence of a judicial body when the decision it has to take has already been decided elsewhere?
That even for a former judge, what VP 5 claims to be, this contradiction is vehemently denied, shows how the denial attitude of the higher management has obscured some minds who actually should know better.
It is time to stop this stupidity. The reputation of the EPO is already so tarnished, that one wonders what the AC is good for, beside grappling some money, the big man of EPO, just decides at his whim to give them.

Anonymous said...

The Kats have now received from the EPO an English-language translation of the Lutz rebuttal.
Spooky or what? Now they start to engage in the debate in this forum? The cynics amongst us would possibly think they starting to run scared? Have they reached the point of no return?

Anonymous said...

Someoneabovethelaw repeats:
Interesting to see how Mr Lutz attempts to defend the legal wrong-doings of Battistelli (and indirectly his own legal advice to him). How could this guy become President of BGH and Vice-President of the Legal Department and International Affairs of the EPO???!!! He has absolute no sense of the law. How patethic his rebuttal!

Sign here said...

The opinion of Mr. Lutz is more and more irrelevant, nowadays.

In any other place, someone who allowed the Organization to be found in breach of Human Rights should have fired a long time ago.

He is only used by the President to give an air of "legality" to his actions.

Actually, it is well know within the Office that Mr. Lutz is able to write his signature upside down, so that he can sign whatever the President pushes across the table to him without having to turn it round to read it.

Anonymous said...

to concerned:
thanks for the excellent summary

P.R.X. Assize said...

This kind of carefully-managed press statement may be better than nothing, but it makes my skin crawl.

"The judgement adopted in the light of an action brought by Spain alleging a lack of independence of the European patent system was completely disregarded. This illustrates that the CJEU does not share the view of Professor Broß"

You can read this and understand that the CJEU disagrees with Broß, which is of course Lutz's intention. But in reality the CJEU did not even look at the question of the EPO's independence. Spain objected that unitary patents will be granted by the EPO without judicial review, but the CJEU dismissed the action on the grounds that Regulation 1257/2012 had nothing to do with the granting process. It did not examine the question of the independence of the EPO boards of appeal.

Lutz has either not understood, or he is deliberately trying to mislead. I'm not sure which is more worrying.

Henri le Sage said...

First move in a personal pissing contest.

So much for dignity.

I do not know Prof. Dr. Broß, but hope he will leave the gauntlet where it lies.

Nichtmehrlutzikus said...

Here an article in a german newspaper on the recent developments at the EPO.
It reveals that even external attorneys who dare to represent the union are subjected to threats and legal procedures by the office administration.
When will this terror be stopped?
http://www.merkur.de/wirtschaft/europas-patentamt-schasst-gewerkschafter-5878313.html

benQ said...

Amazing, that Mr. Lutz does not even bother to touch the main point, that the EPC and its associated regulations may be incompatible with ECHR. I do not think that the CJEU had been engaged with this question. The CJEU usually rules precisely (maybe over-precisely) on the questions referred to it and I am pretty sure that this question has never been asked before the CJEU. The rest of his justification is "we are doing everything perfectly in line with the EPC", which is rather pointless if the compatibility of the EPC with the ECHR is put into question.

And naturally, the "famous" decision of the Dutch court is not mentioned at all, but other Court decisions favorable for his sidestep of argumentation are cited; however, these Courts had not been engaged with analyzing the compatibility of the EPC and the ECHR, the independence of the BoA on substantive issues was not at question here.

Thema verfehlt, sechs, setzen.

Kuriosity Killed the Kat said...

VP1 ?

That wouldn't by any change be the same VP1 who was allegedly involved in leaking the "facts" about a confidential internal investigation report to the Dutch press ?

Just asking like ...

G.witter said...

As usual, this EPO statement is nothing more than a blatent attempt to muddy the waters.

Those familiar with the cited case law of the German Federal Constitional Court (BVerfG) and the European Court of Human Rights will notice immediately that their application to the present situation at the EPO is - to be careful - very limited.

Of course, once again, the EPO tries to rely on old case law of said courts which dates from a time - the most recent ones from around the year 2000 - when the EPO still acted like an institution bound by the Rule of Law. As we all know, this has little to do with what it has developed into in recent time and with the actual situation, especially the "house ban" incident from December 2014. Therefore, the idea that these decisions could be seen as a confirmation of the legality of the EPO's most recent conduct is certainly very bold, but has nothing to do with a competent, well-founded and realistic legal analysis.

Likewise bold is Mr Lutz' idea that the CJEU had dealt with BoA independence in its decisions on the unitary patent "by silence". If I remember it correctly, the court's position was that the "unitary effect" being attached to the granted EP to constitute the unitary patent comes "downstream" of EPO institutional matters. Hence it did not address Spain's arguments in relation to BoA independence. Based on the aforementioned (admittedly a little weird) understanding of the court, this is logical, but means nothing more than that they have not ruled on the issue. Presenting this silence as an approval of the legality of the EPO's conduct speaks for itself.

The declaration that the EPO was bound "not by national rules" is a remarkable one to make for a former German Federal judge like Mr Lutz. He should be well aware that, at least from the German constitutional law perspective, the EPO is, of course, bound by national rules, namely by the fundamental constitutional law principles, especially by the fundamental rights and the Rule of Law. The EPO must abide by them, only then is its operation compatible with the German constitution.

In the past, as indicated, the German BVerfG repeatedly confirmed that this compatibility was given. There are currently at least five constitutional complaints pending at the BVerfG relating to the more
recent of the EPO. We should, sooner or later, be told by the court whether this compatibility with the German constituion still stands.

G.witter said...

One additional remark:

In this thread (and in another one), it could be read that Mr Lutz was "President of BGH", i.e. of the German Federal Supreme Court. This seems to be a misunderstanding.

As far as known, Mr Lutz was a judge at the German Federal Patent Court (Bundespatentgericht), but not at the BGH.

Certainly, being critical about public institutions and their top personnel seems to be more and more imperative these days, but hope lives that at least the courts are not - yet? - as degenerated as other public authorities.

Anonymous said...

Someoneabovethelaw thanks G.Witter:
Many thanks for the clarification. Indeed Mr Lutz was President of the BPG, not of BGH. The latter is too far above his level. He would have never been able to ascend there. He unfortunately made it to the EPO where, as "sign here" correctly observed, he signs anything which justifies the wrong-doings of the President.

Attorney of reason said...

"The Board of Directors and President are acting on the legal basis of the European Patent Convention, the Constitution of the European Patent Organisation (EPO)."

I suggest that if the anti-EPO campaigners are unhappy, they lobby their government representatives to lobby for a change in the EPC. Clearly it is in such a sorry state that it is better to have nothing. One other small thought; if people don't like the EPO, they can always use the national route for obtaining patent protection. Just saying.

Peter Bonetti said...

"The CJEU usually rules precisely (maybe over-precisely) on the questions referred to it"

Thanks for that gag benQ, it really cheered me up this morning.

MaxDrei said...

There is a huge difference between the Federal Patents Court in Munich (BPatG)and the Bundesgerichtshof (BGH) in Karlsruhe. Your first port of call for patent revocation cases in Germany is the BPatG. The final instance is the BGH. The BGH sets the BPatG straight. Just recently, a district court in Germany, handling an infringement case, ignored the BPatG finding of invalidity because it was so sure its decision to revoke would be reversed by the BGH.

And now I gather, V-P R Lutz was previously "President" of the BPatG. As another commentator observed, the BGH might have been, for Herr Lutz, out of reach.

The BPatG? In the immortal words of Shania Twain "That don't impress me much". And I guess what Herr Lutz enjoys in his newer job, as Top Legal Dog at the EPO, is the greater scope to throw his weight around, and no longer anybody with any right to put him straight.

Remember that remark from Winston Churchill about Germans, that depending on whether they are above you in rank or below, they are either kissing your feet or grabbing your throat. One or the other, always. I imagine that Herr Lutz enjoys having his feet kissed.

L'angelo Misterioso said...

Not a Google job, but not the best translation, either. The headnote is seriously mangled in two places. For example:

"At the end of October, in an interview with JUVE, the administration cited a structural problem regarding the Boards of Appeal, as the judicial branch of the EPO is known. He called into question the legitimacy of the court because of "an obvious personal connection between the President of the Office and the supervision (of the Boards)"

should actually read:

"At the end of October, in an interview with JUVE, this person (original: 'Dieser' - referring to Prof. Broß) identified to the authority (orig: Behörde - the EPO) a structural problem regarding the Boards of Appeal, as the judicial branch of the EPO is known, which judge legal Affairs Quality (orig: Gerichtsqualität), calling into question the legitimacy of the Boards because of "an obvious personal conflict (Verquickung in original - should be interpreted as conflict here, also means mix-up or connection or confusion) between the President of the Office and the supervision (of the Boards)".

The rest of the article up to "EPC will not be changed" appears accurate enough as are the paragraphs following, whatever you think of their content.

As already remarked by other posters, however, with the spin of a politician but lacking the rigour of the lawyer he claims to be, Lutz deliberately elides or confuses matters inconvenient to him, a common EPO administration tactic.

In the last paragraph, some explanation is also required for outsiders: the 'Board' referred to is the Administrative Council (the translation is sloppy and inconsistent here) which has the power to set up the Disciplinary Committee which was convened by the AC to consider the case of the suspended DG3 BoA member. This committee should normally be led by an externally appointed President (invited by the AC) and also comprises a vice-president (externally appointed), two members appointed by the EPO administration and two members of DG3 (usually BoA chairmen, not ordinary members). As the composition has not actually been published anywhere it is impossible to ascertain whether the DC was actually correctly constituted. It did, however, come up with the decision asserted by Lutz, but this may have been based upon a narrow interpretation of what the EPO internal rules now say. It should be borne in mind that they will not necessarily (or even probably) have considered the legality of the internal staff regulations with reference to external norms.

Thus, it is still unclear to this writer, at least, what their terms of reference were, what exactly a 'legally correct manner' entailed and against which norms it was measured.

Anonymous said...

Someoneabovethelaw comments:
Just great the contribution of MaxDrei on Lutz! How true! My compliments!
Great also the comments of BenQ!
How entertaining this blog. Thanks, Merpel! Please do not be too impressed by the moves of Mr Lutz.
All he does is defend the undefendable twisting the law and the rules which he either ignores or disregards.

Anonymous said...

EBoA decision is now out.Lutz last seen hanging by his toes from the 10th floor.

Lutzilicious said...

EPO just jumped the shark...

Schlussmitlutzig said...

In the procedure the AC was defended by a PD who directly responds to Mr Lutz (which is an odditity per se). The EBoA rejected the AC's request mainly on the ground that the AC had failed to do its job.
The lesson for BB is that whilst it might well be comfortable to work with people who have no spine, the problem with them is that they usually have no brain either.

The Fonz said...

Anon 16:11 - where can we see the decision? At the very least, can you summarise (or leak a copy to the Kats?!)

Anonymous said...

Disgression perhaps. Some people in UK and other popularists think that "Human Rights" and International Court for them is a scam and not needed, and doing it is like a treason.

Hey people look at EPO situation and count your lucky stars. There is no such thing as a benign dictator, every one went bad and history prove it.

At least colleagues from old East Block no more suffer from their "Ostalgie".

Anonymous said...

Fonzie I'm in a happy daze at the moment.

Anonymous said...

prayforepo
not related to this topic but interesting for the readers : the EPO published a wonderful job offer : investigator in the famous investigation unit! So if you have, inter alia, a master's degree in " law, criminology, forensic science, fraud investigation, or related subjects" here is your chance of getting the job. See http://www.epo.org/about-us/jobs/vacancies/other/int-ext-5918.html .Fees could be better spent on e.g. hiring administrative support whose number has shrunk so much...

Old man of EPO said...

After reading all this - exacerbated by the (incompetently?) doubtful translation - I wonder if Merpel will ever hear from the official EPO again! The old, "it's better to be thought a...." springs to mind. It couldn't have gone worse if a Translakator had provided an English version in less than purr-fect English.

Meldrew said...

Human Rights are damned inconvenient: but less so than Human Wrongs.

Garnichtlutzig said...

To Prayforepo:
Amongst the key requirements for the mentioned job of an investigator you will have noted: "the ability to handle multiple cases simultaneously".
Perhaps submit five union members simultaneously to torture, of whom two in The Hague and three in Munich?

Jobbo said...

Amongst the key requirements for the mentioned job of an investigator you will have noted: "the ability to handle multiple cases simultaneously".

Are they allowed to advertise a selection criterion which clearly favours women?

Anonymous said...

A newspaper-boy quotes...

President Barack Obama once said:

"Justice is what people need more than anything
Justice is also what made our Founding Fathers
Break away from a tyrannical king"

Anonymous said...

Someoneabovethelaw thanks Schlussmitlutzig:
Dear Schlussmitlutzig, I find your contribution great and to the point. The name you have chosen is a program. Congratulations! -and many thanks !

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