From March to September 2016 the team is joined by Guest Kats Emma Perot and Mike Mireles.

From April to September 2016 the team is also joined by InternKats Eleanor Wilson and Nick Smallwood.

Friday, 20 November 2015

Read it for yourself: Enlarged Board decision Art 23 1/15

Merpel hopes that readers who don't follow the goings-on in Eponia will forgive her for a final posting in what has been a busy week. She knows however that some of her readers are waiting with ill-contained excitement to see the text of the Enlarged Board's decision under Article 23, alluded to yesterday.

A copy of the text of the Enlarged Board decision is available to view and download here.

We are used to seeing G-series and R-series decisions from the Enlarged Board, but this decision and the procedural framework within which it issued are new territory for all concerned. Therefore the case gets a unique numbering and the official Case Number appears to be "Art 23 1/15".

Merpel's link does not point to the actual document as issued by the Enlarged Board, but rather to a slightly transmoggified version. If you spot a formatting or typographical oddity, it's down to Merpel. Don't ask why, simply accept that kats are largely incomprehensible creatures. However, Merpel did not redact details of the allegations and evidence (or lack thereof) -- that was the Enlarged Board's own doing for obvious reasons.

For some reason the EPO has not seen fit to publish this Enlarged Board decision on its website in the usual speedy fashion we have come to expect. Perhaps the top management is enjoying it too much to share with the world. Merpel, who has read it with equal interest, isn't so selfish. She looks forward to your comments.


***************************************


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).  


62 comments:

Roufousse T. Fairfly said...

At the oral proceedings, on 16 September 2015, the respondent confirmed his request that the AC request be rejected as inadmissible.

It seems that the respondent was permitted to access the building for this one time! Was he friked by the President's goons?

XI. On 28 July 2015 the respondent filed an objection against the then chairwoman under Article 24(3) EPC.

While we're at it, let's have fun...

The petitioner's representatives thereupon asked the Enlarged Board to reopen the oral proceedings on admissibi1ity,

Ha ha ha!

Sounds to me like the penultimate scene of "Trading Places" where Mortimer Duke cries in vain I want trading reopened right now. Get those brokers back in here! Turn those machines back on!

Art. 116: [...] However, the European Patent Office may reject a request for further oral proceedings before the same department where the parties and the subject of the proceedings are the same.

[The petitioner demands that] "The Enlarged Board of Appeal shall inform the Council representatives what exactly it wishes to receive from the Administrative Council in order to proceed with a substantive examination of the request for a proposal for removal from office of the respondent."

That one is even better. It's a really good thing I didn't have any food or drink in my mouth when my eyes saw this.

For these reasons it is decided that:

[...]

2. The reimbursement of all costs incurred by the respondent in the proceedings before the Enlarged Board of Appeal is proposed.


According to some sources, the president docked the respondent salary by 50%.

Would BB dare to dock it further in order to offset the reimbursement ordered by the EBoA?

And could the EBoA order the President to restore the respondent's salary and pay the monies withheld?

Roufousse T. Fairfly said...

In video: Mortimer Duke and Clarence "Control Risks" Beeks of Lyndhurst Security.

Anonymous said...

What a lucid presentation! I am particularly fond of para. 5.6 in this unpaginated document.

However, there is one thing that worries me slightly. Why on earth have apostrophies in quite a few places been replaced by superscript '1's? To me it indicates that this text has been obtained by optical character recognition and is not a copy of an official pdf file.

It is the same problem that we see with all electronic versions: to verify their authenticity. One example that features in the decision is the stick that was filed too late in several versions.

I cannot believe the spectacle that we have in front of us. How can anybody well versed in the adversarial procedure not file the proper requests, and timely? The only explanation I can see is that the petitioners thought that the rules could be defined as the case proceeded. And that they did not know the rules is indicated by the fact that they asked for instructions on how to proceed in order to succeeed.

Utterly shaken,


George Brock-Nannestad

Anonymous said...

In the nut shell, the EBA tells the AC that their request is inadmissible due to that it is legaly flawed. Also the decision of the DC appointed by the AC is equally legaly flawed. Thus, manifestly apparently, collectively the AC has miserably failed in its duty of care towards the member of the BOA by subjecting him to legaly flawed disciplinary proceedings. Moreover, collectively the AC has miserably failed the EPO and the European public by failing to calrify serious accusation of misconduct by a member of the BOA. Moreover, with the big help of the president and vice-presidents any further prosecution of this case has been seriously prejudist by publicising the details of the case in newspapers, and the AC did not manage to prevent this. Hence, the AC is not controling the stuation but rather it controlls them.

I do not see how there is anything els for the AC left to do, other than collectively resign at the next meeting in Decemebr.

They can then appoint BB as a temporary adminsitrator of the duties of the AC in lue of them. Then BB can swiftly investigate himself, in accordance with the EPC, in regard of the outageous charges of institutional abuse of the union, appoint a DC and win the case.

Barbi

What a mess said...

Than you so much, Merpel, for making this decision available to all. Great contribution to the strive for transparency so dear to BB's heart.
The perhaps most extraordinary element in the decision comes early, namely its cover page, where it is indicated that the Administrative Council's representative actually was ... the EPO! What a mess.

Merpel said...

Dear George (@ 18:49)

In answer to:
>However, there is one thing that worries me slightly. Why on earth have apostrophies in quite a few places been replaced by superscript '1's? To me it indicates that this text has been obtained by optical character recognition and is not a copy of an official pdf file.

Kindly see Merpel's original admission that the version you see is slightly transmoggified, may contain minor formatting idiosyncracies introduced by Merpel, and is not the official pdf. Kats have their reasons, is all that can be said. You can however be assured that the official PDF -- whenever the EPO sees fit to release it -- will be otherwise identical to what has been posted here.

Anonymous said...

There's one aspect that no-one seems to have addressed yet: When does the normal 5 year term of the allegedly renegade BoA member run out? A usually reliable source said it only has one year to run, but I haven't been able to verify that yet. Irrespective of what the EBA now does with the new request before it, the member will not be reappointed if Batistelli is still president. The member will then revert to being a normal employee of the EPO and Batistelli will sack him, with extreme prejudice.

Attentive observer said...

Thanks to Merpel for making the decision available!

What is extremely worrying is that this bunch of people, the AC and the president are presiding over the fate of a major institution in the world of IP. It is frightening to see the level of self satisfaction this people exude.... In a private company they would have been fired yesterday rather than today.

Asking a judicial body to tell the claimant what he should do in order to win his case is simply flabbergasting. Being faced by the non-admissibility of its request, wanting to reopen the discussion on admissibility is plainly laughable. Amateurism at his best....

On the other hand, it is not uncommon that in case of internal complaints it is not infrequent to amend the rules and their interpretation during the procedure, so as to insure that a decision adverse to a complainant is the necessary result of the procedure.

It is interesting also to note that the "petitioner" did not hesitate to invoke German law, as VP 5 did recently. How can it be that in some cases national law is or should be fully applicable, and in other cases, cf. decision of the Dutch court it is not? I hope that VP5 in his great wisdom and intelligence will issue a communiqué explaining the varying applicability of national legislation.

What kind of counsellors this people have? On the other hand, looking at what VP5 has recently let out, there is no wonder that it ended up in a fiasco.

One can only be sad when looking what those pseudo managers/lawyers have made out of a well working and reputed institution. If the hidden agenda of the president was to let the EPO to go into the wall, he is very near to have achieved his aim.

Anonymous said...

Seems I put my foot right into it! I read the document but not its context. I do understand the need for care, but oh, do I hate it! That is why I prefer public court cases rather than arbitration, although I am duty bound to alert my clients to the latter possibility.

But my general warning about various electronic versions floating around without any way of authenticating them still stands. There is a whole field of diplomatics that has been developed in to a digital approach within the last ten years, which is able to provide ways of certifying a particular file.

Best wishes and renewed thanks for the consistent reporting,

George Brock-Nannestad

Anonymous said...

Theater AC Congolese quotes…

A certain noise, a vain of laughter - comes
The folly of my wisdom hears their applause
Clapping, clapping - the thunder of a mischievous one
Spiteful people gain your attention through fear, not through respect;
Their applause rides unbridled gathering up the storm
Unleashed, gently with fisted hands - mindless the while
Hauntingly, the line of un-silvered clouds bring up the rear
And with sullen looks – ghosts of tattered memories appear;
The part of BB left in them – now convulsing as undignified waste
Waste, painted as quick-slivered art on heaven’s breast
Painstakingly dissipated by their, “to human is to air”
Remnants scatter, head-stoned, disfigured, no longer in pain;
Mourning shadows, un-imaginary lines – BBs new dawn scurrying
Scurrying from a decayed relationship - took years of planning
Nightmare – will forever be in desolate pursuit
Applause, applause – triumphed with unspoken phrases;
Now vanquished, wisdom is my peril
ACs agony, BBs cries fall on forbidden ears
Their un-thoughtfulness proceeds in a creeping motion
Clapping, clapping...

Meldrew said...

There are techniques for identifying the source of a document without providing obvious clues , e.g. by using different punctuation, subtle font changes, variable spacing.

Given the circumstances, transmoggification seems prudent.

Glad to be out of the madhouse said...

If this transcript correctly represents the decision (and I have no reason to doubt Merpel's word), then I must reckon that the EPO is currently been run by a bunch of incompetent idiots, and Benny's investigators are recruited from among the Keystone Kops. If I represented my clients before the BoA with the same competence shown by whoever represented the AC here (and we all guess his name), I think my clients would have good reason to sue me for gross malpractice. Don't these people know what "adversarial" means?

Anonymous said...

Amicus Curiae

Looks like a bunch of village idiots (the Administrative Council) decided to be represented in critical proceedings by THE village idiot (the Office), relying on some wild dreams (the opinion from the Disciplinary Committee). No wonder the Office is facing severe internal and external conflicts (immunity dispute in the Netherlands) with this level of competence of its supervisory body and its management.

But my question is a different one: Is it really appropriate that the Council chooses the Office as its representative in such proceedings? The decision is silent on this point which apparently was not raised.

After all, the Boards have the task to review decisions taken by the Office. It would appear somewhat odd that the Office prosecutes a case against a board member, even under the umbrella of the Council. Someone (epi?) suggested some time ago that the Council should seek independent legal counsel. A similar approach might be useful here. That would avoid any doubt on who runs the proceedings concerning board members.

Cynic said...

Amicus Curial,
In fairness, the DC may have both come to the correct conclusion and performed its own task well - we cannot know. All we know is that the prosecutor, having been told there wa s a case to prosecute, did not do so correctly. And, in fairness to them, it is the first time they've ever had to prosecute this type of case.
That said, the Village Idiot, in your parlance, did an extremely poor effort at presenting its case. But what happens when it gets its act in gear? Presumably they know someone who can formulate a reasoned case - assuming there is one to be made.

G.witter said...

After all, one aspect is highly reassuring: The EBoA stands up to Bully-stelli and his minions and gives the democratic concept of “checks and balances” a proper meaning. Of course, Bully-boy is currently hard trying to shift checks as well as balances in his favor through his reappointment practice and “reform” ideas, but it can be hoped, now more than ever, that the ice below his feet is getting thinner and thinner.


Anonymous said...

In criminal cases the state is represented in the courts by a public prossecutor who is also a part of the state. So, perhaps, the represntation of the AC by the Office could be regarde as analogous to that of a public prossectur representing the state. The problem is when the pubic prossecutor, or the Office here, miserably fails to carry out the due process. In such case the state, or the AC in this case, must act.

Barbi

Anonymous said...

Other person said...

The conclusion of this decision are the following:

The DC and the President were unable to present verifiable facts and substantiate the allegations made about the DG3 member.
Accordingly, the house ban on December 5th 2014 was not justified and has to be considered as an abuse of power by the President.
The President fooled the entire AC who agreed unanimously with the President’s proposal.
The press releases in the Financieel Dagblad and other papers seriously damaged the reputation of the EPO, for which the President and some VPs are responsible.
The EPC should be amended to limit the power of any President in order to prevent any such abuse of power in future.
The AC should lift the immunity of the President and the VPs for proper justice to be executable w.r.t. libel suits and damage done to EPO staff.
Control Risk should be banned from the EPO, this group contributed to the present situation.
The president of the AC (JK) should step down because of his failure to properly supervise the whole process.

Proud to be DG3 said...

To put this decision in its context: the DC was chaired by a former british LJ who acted also on the EUCJ; one technical chairman and one legal member of the BoA (both members of the EBoA) took also part. The role of the DC was not to act as a tribunal, but as a administrative organ that should make a recomendation on whether the charges where sufficiently heavy to recommend dismissal. The DC did not deliver a decision which could be reviewed by the EBoA, but a recomendation to the AC as appointing authority. The mistake of the AC was to present this recomendation as their case before the EBoA. Probably they would not have done so if the case had to be presented to the ILO-AT. That was the mistake: to not recognize that the proceedings before the EBoA were not an adversarial judicial procedure.
That the AC was represented by the office (to my understanding it was a principal director of DG5) is also not surprising: the AC has no staff for that. The AC probably did not consider that to select a legal practitioner from a member state was an option or necessary.
As a last point it is worthwhile to highlight the at least intelectual independence of the EBoA in delivering this decision at a time when the future, career and structure of the boards is being discussed by the AC and the president. I guess that neither the AC (or at least some of its members) nor the president will be amused by it. My deep respect to them all.

A Nonni Mouse said...

I am confused here, what exactly have the AC asked for at the October meeting that has not already been ruled as inadmissible by the EBoA? Surely there are rules about double jeopardy that should ensure any request is summarily dismissed. In fact (apart from the obvious one of the President's temper) why is there any reason why the BoA member is not back at work?

Battiscaphi said...

It was certainly not the AC´s choice to be represented by the EPO in this procedure. It was imposed by BB as a means to keep in control of the procedure, which actually was to oppose the AC and the concerned board member only, via the presence of his own legal "experts" at the heart of the discussions.
These are the same experts as those who - under VP5´s authority - systematically validate the numerous controversial guidelines recently imposed on EPO staff (on investigation, data protection, health, carreer system, etc.) or publicly attest the conformity of BB´s acts with the EPC or generally accepted principles of law.
Interestingly the EBoA´s decision now provides the first-ever judicial review of, and considered opinion on these experts´ legal work. Illuminating.

Flying Pig said...

"The EPC should be amended to limit the power of any President in order to prevent any such abuse of power in future.
The AC should lift the immunity of the President and the VPs for proper justice to be executable w.r.t. libel suits and damage done to EPO staff.
Control Risk should be banned from the EPO, this group contributed to the present situation.
The president of the AC (JK) should step down because of his failure to properly supervise the whole process."


And you expect any of this to happen in Eponia ?

Marx Brothers said...

To other person,

this would be possible if we were facing competent, wise and sensed people at the management level. Because we have in fact a band of blind followers run by a tyran,
BB will on the contrary:

Fire the suspended and investigated staff rep (preferably more)
Claim that he has signed an historical agreement (with a union representing less than 0,57% of the staff)
Boast that the production level (obtained from terrorized staff and fallacious methods) has never been so high at such a quality level (the lowest and faked ever)
Hire more investigators (with the worst morale ever)

And this will be the end for the EPO.
The clowns will return home, with brand new teethes, happy and satisfied for this unprecedented campaign of destruction.

Anonymous said...

The AC asked simply again of the EBA to hear the same case, in the absence of any new compelling evidence (as far as it is known). The question here is how may times can the member of the BOA be put in front of the EBA in the absence of any new compelling evidence relating to the same charges. The answere is obvious. Only once! It appears quite likely that the repeated request by the AC for the EBA to hear the case again will also be refused, on the formal grounds that the case before the EBA has been closed, the decision was issued and that there is absence of any new compelling evidence to reopen the case. The fact that the representaion of the AC failed to formulate arguments pointing to specific evidence does not render the old evidence new.

Barbi

druid said...

@Proud of whatever

The DC was not reaching its aim Irrespective of their more or less illustruous composition, they proposed something which was not accorded by the compent body the EBoA. Not serious, not even the best attorneys nor the best policemen always win their cases. Personally, I'd be hesitant - even as a former judge - to act as a policeman or a bar tender after having retired. That applies to the chairman of the DC as to VP5. Doubtful career choice. Why a disciplinary committee would require a technical member is beyond any logic. I'd rather have seen the necessity of a staff representative.
Not much to be proud of. We have witnessed a power struggle inside DG 3 with the VP3 on one side and most probably rightfully disgruntled board members, the rebels on the other. The rebels have won two battles, they got rid of their boss who is on sick leave , in the partiality battle, and now another point on the disciplinary battle on which very evidently also DG 3 was divided. Let's see whether two won battles win a war, lets see whetHer in December the member on which they had decided will enter the office to take up his duties at full salary. Let's see whether the Boards will be moved to Vienna or Cisinau.

The president has no problem to ignore court decisions in Hollland, why should he care about the utterings of an EBoA in whatever composition. His answer to this carefully drafted position is likely to be a sincere On s'en fou, to express it in his habitual ductus.

homer said...

@A Nonni Mouse:
The BoA member is not back at work, because he is still suspended.

It is a very good question whether a new request by the same body and based on the same allegations can be admissible. This is unknown territory, so nobody really knows. But it would not be difficult to argue "no".

Rule of Law? Check! said...

"in fairness to them, it is the first time they've ever had to prosecute this type of case."

I really don't agree here. This is not a problem of procedure. For me the most damning thing of the decision is that they did not provide any facts to support their accusations! The guy did not even know on the basis of what he was accused of! They were just repeating the accusations formulated by the President; they did not even bother to provide any proof.

Why bother, after all: Battistelli seems to have already decided that the guy is guilty! - he announced so publicly!

And like in the case of the AC, when they thought they could bypass it to fire the guy - they did not have any - ANY doubt that this would have worked!

Imagine an attorney who comes at an oral Proceedings, puts down a bunch of documents and says: "my claims are novel and inventive, these documents prove it" - but does not provide any passage, any argument. What do you expect the ED to do?

Dear Cynic, we are not talking about a small tribunal put up by a group of neighbours to judge the new family that makes too much noise: we are talking about one of the highest legal entities in Europe!!

These are lawyers, not lumberjacks! They are supposed to know the basic tenets of the law!!

Once again, the way that VP5 is acting is so EMBARRASSING, so EMBARASSING!

Can you just imagine the effects on the public perception of the EPO??!!


(Houf ... )









Anonymous said...

Amicus Curiae

The request from the Council was not examined on the merits. Hence, the Cou8ncil may of course come back once again, to get the desired evaluation on the merits (provided they jump the admissibility hurdle this time).

There may be a time issue, as already mentioned. How long can a staff member be kept "in suspension", in particular someone being "a judge in all but name"?

G.witter said...

@druid:

Certainly, it would not be too surprising if the President simply ignored the decision. However, this would mean just putting more fuel into the fire.

Complaints are pending in the Constitutional Courts of a number of European countries and in the European Court of Human Rights in relation to the EPO. The more Bully-stelli is bullying and ignoring generally accepted legal principles and values, the more arguments does he provide against the EPO in these proceedings. Therefore, the courage of the EBoA to fulfil its duties and not to bow to the would-be authority of their "sun king" is very important and, as said earlier, deserves the highest respect. Their behaviour stands in the best institutional tradition of what the judiciary is all about in a democratic system.

We will see at some time what said Constitutional Courts and the ECHR think about the old story just brought up again by Mr Lutz, insinuating that they considered the conditions at the EPO in the year 2015 to be lawful and consitutional, relying on old case law from the 1990ies.

Ultimately, we may even have to be thankful that Bully-stelli is such a Machiavellian character.

A Nonni Mouse said...

@ Amicus Curia

I appreciate that the request was not examined on the merits, largely because the EBoA were not able to determine what those were from the submission from the AC. In most jurisdictions failure to submit the (or any) evidence will lead to the case being thrown out and the prosecution losing any chance to have another go on charges relating to the same alleged offence. It is not clear to me why the AC should be permitted to have another chance at getting the result the President wants.

No excuses said...

It was certainly not the AC´s choice to be represented by the EPO in this procedure. It was imposed by BB as a means to keep in control of the procedure, which actually was to oppose the AC and the concerned board member only, via the presence of his own legal "experts" at the heart of the discussions.

Battiscaphi you should not try to absolve the AC from the consequences of their very own decisions.

If not their choice then whose was it ?
BB cannot "impose" anything upon the Council that the Council does not want to accept.
BB reports to the Council not the other way round.
They should be made to face the consequences of their actions.

Battiscaphitrockbottom said...

The AC actually had a second try: the decision of which the grounds have now been published had been announced orally at the oral proceedings of 16 September 2015, i. e. before the last AC meeting in October. The AC then decided to re-file a request to the EBoA, which presumably is currently under examination. Since the AC did not then know the reasons for the rejection of the first request, the second request will hardly have been better substantiated.
Perhaps will the EBoA consider whether the Board member accused of misconducts can be subjected to a secound round for the same facts, i.e. whether the general principle of res judicata applies to the present judicial instance.
Incidentally, the non-admissibility of the AC´s first request might have had a regrettable consequence, in that it deprived the EBoA of an opportunity to address highly interesting issues, such as the compliance with the ECHR of the investigation guidelines and of the disciplinary procedure launched against the accused member.
So it might in a way be desirable that the AC at last manages to file an admissible request sometime before BB - or the EPO - have gone.

Kant said...

A simple question. In general, in proceedings before the EBA, an applicant can either represent themselves if they come from a contracting state or they can be represented by an attorney at law or a EPA. On what basis could the AC be represented by an employee of the EPO?

Bloggerhead said...

After all, one aspect is highly reassuring: The EBoA stands up to Bully-stelli and his minions and gives the democratic concept of “checks and balances” a proper meaning.

Well said. The EBA shall be praised for defending due process.
The proceedings against the suspended member have exposed the manner in which BB has being operating since introduction of Circular 342.

All he needs to do is select an "irksome" staff member, give instructions to the IU and sit back and watch.
The IU fabricates allegations on a "made to measure" basis, passes these on to a disciplinary committee for rubber-stamping and there you go ...
In the rare case where disciplinary committee might dare to voice "dissenting opinion", BB simply ignore it secure in the knowledge that when the ILOAT deals with the case in the distance future he will be long retired in his villa on Corsica or wherever ...

He tries to pull the same stroke with the suspended board member and expects that everything will run as smoothly as in other cases ...
It now looks like he miscalculated big time ...

Kudos to the EBA for refusal to fullfill the role of a rubber-stamper assigned to it by BB.

We can be grateful that miscalculation on the part of BB has finally exposed rotten system that was introduced on his watch with the tacit approval of the AC.

Anonymous said...

Yes, BB can ignore the decision of the EBA, except this time it is not for BB to ignore it. The AC must ignore it and the EPC expressily forbids that. This is why the AC resubmitted the request to EBA. Moreover, the EBA did not examine the merits, because, none were presented. If one fails to present evdience before a court, one cannot argue that the court did not decide based on evidence.

Barbi



Anonymous said...

Well, the AC cannot argue that the AC was mislead by BB, for the simple reason that, accoring to the EPC, BB cannot lead the AC and therefoe he cannot mislead it either. It is all the AC and only the AC responsibility what decisions or requests the AC formulates and submitts. The only way to put the blaim on BB is to argue that he provided falls information to the AC, but not that he mislead the AC.

Barbi

Anonymous said...

Amicus Curiae

@Nonni & Battis...:

The request was dismissed as inadmissible. If the AC files a new request with different (read: better or sufficient) substantiation, the Enlarged Board may be obliged to treat it.

That is the situation I know from several national laws. And it makes sense. Res iudicata applies only if the case is the same. If there are new facts/evidence, you can normally bring the same question a second time. The case is nevertheless different.

I also know that, in order to avoid abuse, a court may decide not to allow a 3rd, 4th, etc complaint for the same question, even if new facts/evidence are presented. To my knowlegde, however, this is an exception and a prerequisite is that the case has been examined on the merits at least once.

Old man of EPO said...

Battiscaphit...
I would be surprised if the AC's rep at the hearing had not been able to pass on the EBoA decision and reasoning. The written decision makes clear that the PD asked what they had to do to make their submissions admissible I.e. they were aware of a deficiency or at least it's nature, if not being able to work out how to overcome it. Thus the 2nd attempt at least started from an attempt at presenting the evidence correctly.

Cynic said...

Rule of law,
I see your point. I was only trying to bend over backwards to be fair rather than being vindictive as some are want in the EPO senior parish. Since this is clearly a first in terms of prosecuting a BoA member in front of the EBoA at the request of the AC/BB, then it is to an extent new ground. BB seemed to expect it to be a formal exercise rather than an adversarial hearing and that was, it turns out, wrong. I could gloat or I could be magnanimous that the failure was understandable to a degree. Yes, they may be paid to do better but it's a bit like asking a tax lawyer to prosecute an IP case. That they are put out of their depth is perhaps not completely their fault.

homer said...

@Amicus Curiae:
The request from the Council was not examined on the merits. Hence, the Cou8ncil may of course come back once again, to get the desired evaluation on the merits (provided they jump the admissibility hurdle this time).

One thing seems clear: if the EBA had declared the request inadmissible because it had not been made by the AC (but by its chairman), that would not have barred the AC from making a request itself.

What also seems to clear to me is that if the EBA had declared the request admissible and had refused it as unfounded because no convincing case had been made, a second request based on the same allegations would not have stood a chance of being found admissible.

But the EBA declared the request inadmissible, basically because no case had been made at all. No decision on the merits was possible, because no merits had been presented. Should the AC be given a second chance? Does the AC have the right to get a decision on the merits, no matter how much it messed up its first request?

In my view, the decision of the EBA implies that the AC does not have that right. Because if the AC had the right, it would have made no sense for the EBA to declare the first request inadmissible. Instead, the EBA should have given the AC the opportunity to fix its request. Maybe the EBA should even have explained to the AC what it expected from an admissible request. That way a delay by many months could have been avoided. No legitimate purpose is served by declaring a request under Art. 23(1) by the AC inadmissible without giving the AC the opportunity to repair the deficiencies, if the AC can validly make a new request. (Making the AC or the President or VP5 look stupid is not a legitimate purpose.)

The EBA did not give the AC that opportunity and did declare the request inadmissible. Why was it so strict? Presumably because this is not a procedure for getting a fishing license, but a discplinary procedure having a major impact on an individual. It should be done right on the first try. The AC failed to do it right and has now lost its right to prosecute the case further.

Possibly VP3 could still have made an admissible request, if he had not been on sick leave.

Anonymous said...

"That they are put out of their depth is perhaps not completely their fault."

In the member states there is enough legal councel available that is very well versed in adversariar cases. Thus that the AC failed to use the expert legal councel and instead used VP5, or what ever, that miserably failed is not a valid excuse.
To Amicus Curiea: the whol point is that, s far as known, there is no "new facts/evidence" presented. The same facts and the same evidence that had already been submitted once were resubmitted. The only change is better arguments pointing to the same facts and the same evidence that had already been submitted. This is jsut like asking the court to reopen the case, because, one forgot to make an argument based on the previous facts and previous evidence. Such a thing can nover work.

New facts and new evidence are crucial for reopening a case. But new arguments based on the old facts and old evidence are not enough.


Barbi

Anonymous said...

Dear Old Man,

I think that the AC representative asked what they had to submit because they got surprised by the decision and had no clue how to go on...

Whatever reason, I think that just by putting the question, the AC representative touched the deepest point of the well...

"Dear Chairman, could you please be so kind to tell us how can we prove that Mr XCVV is guilty?"

Come on that sounds really like a joke...

Rule of Law? Check! said...

Dear Cynic,

at the end, I also get your point.


Cheers.

Rule of Law? Check! said...

To "Anonymous" at Saturday, 21 November 2015 at 19:28:00 GMT

(c'mon, can't you get a better pseudonym? We're all doing an effort here ...)

I don't think the problem is facts and evidence. I think the problem is the link between an accusation - "He's an armed nazi" - and evidence to be found somewhere on a USB stick - "we have found in his office a Nunchaku and a copy of the The Rise and Fall of the Third Reich" by William Shirer.

I think they have the right to come back and say that "this accusation is supported by these facts" ...

But then, good luck to them ...

Anonymous said...

Amicus Curiae

@homer
A good line of arguments, chapeau! Wait and see.

selfmade mess said...

In view of the severe shortage in manpower in DG3 consecutive to the complete stop of nominations imposed for almost two years now by the President of the Office, the members of the EBoA should be extremely reluctant to accept their working capacity being monopolized by repeated requests filed exclusively to compensate for one party´s bad handling of its case. Since the other party's obviously difficult personal situation can only degrade with time, anything else than putting now a definitive end to this sad spectacle would amount to encouraging institutional harassement.
The AC would be wise to drop its second request, accordingly.

Contador said...

@homer - "Possibly VP3 could still have made an admissible request...

Now that the EBA has seen the evidence gathered by the IU and the conclusions of the DC, surely it can make its own proposal to the AC without needing the AC to ask it to do so. It could conduct its own internal disciplinary proceedings and make a proposal to the AC in the case of serious grounds for removal being found. It strikes me there are two reasons why this will not happen; the evidence does not provide any basis for bringing a case for removal, or maybe it is necessary for the EBA to gather the evidence for removal independently, which would mean establishing a separate IU within th EBA. Another task for Control Risks?

Anonymous said...

An irky leprechaun says…

The EBoA returns the exhibits to the AC:

1) Bag with 5 USB sticks with a post-it that reads “suspicious USB sticks are not allowed on EPO workstations , IT safety rules, and the brand Control Risks on the USB sticks does not help”;

2) Bag with one nunchaku with a post-it on it “please return to the Amicale karate club as there is a shortage”;

3) Bag with one book “Rise and fall of the Third Reich for Dummies” with a post-it that reads “ Most likely the IU’s copy”;

4) Bag with a dartboard with BB’s mugshot and score card with a post-it on it, “seems to be the IU’s dartboard, because the scorecard shows the IU versus CR guys”

CASE CLOSED!!!!

Anonymous said...

Pat Man says:

1. It has been established that the BoA member is not a beweaponed nazi as was stated by BB and his minions.

2. Therefore it seems to me that libel has been committed against the member of the BoA.

3. I assume that the injured party will be considering a law suit against BB and the AC (in the person of JK). It is my hope that neither BB or the AC will be able to hide behind their immunity for this offense.

4. It is time that our spineless AC members woke up and started to smell the coffee, they may be named in person in any future legal action, I know I would if I were this person.

5. Doubtlessly the collective punishment of the BoA is well into the planning phase, I hope they like Vienna.

Meldrew said...

Vienna? I heard Hartlepool.

Anonymous said...

I wander why the AC did not decide to ask the qualified athorties of the memeber state, i. e. the public prossecutor for Germany to assist in conduct the investigation of the alledged misconduct by the BOA memeber. Was it perhaps, because, the AC susspected that these authorities would not be too keen on usning key-loggers, etc?

Barbi

Anonymous said...

Will be interesting tomorrow, to turn on computer at EPO and see what new propaganda is on intranet front page. Also how many securotyu guards will be in office like it was last week - so many guys, so many cameras, all on INSIDE. Hardly see none outside. When even old East German peoples in office start calling them the IU Stasi - no joke, they tell many scary stories - then it is surely serious.

Latest p[oster have pix of 3 suspended peoples, at top a little SS-type badge and "Arbeid maakt Blij" - never never seen this at EPO, soprry to owners of this website for obvios reasons.

But hey look bright on the side - we now are hiring new examoiners. Don't go well, tho, numbers of applicants low, new examiners leaving and still in first year, news of workers's paradice and conditions at EPO well known in world. But commentators here who heavily criric and don't like examiners and think we're lazy well you welcome to apply.

No, my Enlgihs not bad or machine translated. Too much or my words and writing way on EPO database and easy too too identify me.

Just because your paranoid doesn't mean they're not out to get you.

Concerned observer said...

Will be interesting tomorrow, to turn on computer at EPO and see what new propaganda is on intranet front page. Also how many securotyu guards will be in office like it was last week - so many guys, so many cameras, all on INSIDE.

No surprising. They are afraid of an Air France incident. At laast demo in Munich on October 14, Lutzikus failed to securing extra Polizei reinforcements from the Bavarian Landespolizeipräsident:

The “Landespolizei” had to block two lanes of the Erhardstrasse for the occasion, because Mr Zelkjo Topic (VP4) forbade the demonstration on Office grounds. Staff and police ended up precariously balanced on those blocked traffic lanes with cars rushing by. For the Office to put both staff and the police in such danger when there is ample place on the EPO grounds is utterly irresponsible and in our opinion a gross breach of the Office’s duty of care. It says a lot about how much the current top management hates its Staff Union that it allows Greenpeace to demonstrate on Office grounds, but not SUEPO.

The hatred seems at least partially due to fear: we were told by the police that Mr Lutz (VP5) had called the Landespolizeipräsident – the highest ranking police officer in Bavaria, second only to the minister - to ask for extra police enforcement, possibly riot police, apparently fearing escalation like at Air France. The demonstration remained peaceful, as always.
We didn’t notice any more police than usual.

I can only deplore most profoundly this adoption of a public stance said...

"because Mr Zelkjo Topic (VP4) forbade the demonstration on Office grounds"

I would like to comment this fact using the immortal words of President Battistelli in his letter to Pierre-Yves Le Borgn, the french politician:

"Such a situation, which makes a mockery of the fundamental principles of freedom of expression and association, of democratic pluralism, cannot be tolerated within our organisation and investigations were commissioned with the aim of establishing the facts and responsibilities."


http://ipkitten.blogspot.com/2015/11/why-enlarged-board-rejected-ac-in.html?showComment=1448191972045#c4826726034384692021

Kilroy was here said...

Is the present VP3, Mr Van der Eijk, still on unlimited sick leave and thus out of function? Is there any information about him?

Kilroy was here said...

I found something in TECHRIGHTS There I read: http://techrights.org/2015/10/06/epo-unlimited-sick-leave/ There I read: ¨Van der Eijk's unlimited sick leave, which seems likely to have little or nothing to do with sickness (as we explained yesterday). As Chairman of the Enlarged Board of Appeal (EBoA) and DG3 VP, Van der Eijk is probably the only remaining potent threat to Benoît Battistelli because the boards are, in principle, independent from Battistelli’s corruptible EPO (in practice Battistelli just breaks the rules).¨There are some more comments:
1)Mr Battistelli’s plan:Get rid of the present VP 3
2)He has angered the top management, mainly by R19/12 and refusal of the enlarged board to agree to the dismissal of the DG3 member under investigation.
3)Replacing DG3 with the UPC appears to be impossible without a diplomatic conference.
4)Also quite obviously the german delegation in the AC would be strongly against weakening Munich as Europe’s patent capital, so all those plans might go nowhere as the other delegations (of the new countries bought by BB with free new dents) will be very reluctant to outvote Germany in that matter.
1) to 4) are all possible answers. Does Marc Rutte, the prime minister of the Netherlands have contact with VP3 Van der Eijk to get relevant and important information? It seems to me that Mr.Van der Eijk is a strong character for whom it is impossible to be ¨his masters voice¨. I hope strongly that Mr.Van der Eijk is not forgotten by the Dutch government.

Anonymous said...

@Kilroy: Mr. Van der Eijk is back.

Kill le roy

The Cat that Walks by Himself said...

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 [...].


I was thinking quite a while about this provision, and, today, while reading a work of a very very respected author, I dare to share the following thought.

The cited wording of Article 12a(1) seems to violate the European Patent Convention since it allows the Administrative Council to make "a proposal for the removal from office of a member of the BoA" BEFORE the Enlarged Board of Appeal decided on existence of the act that would justify the removal.

The Administrative Council is a supervisory body, but not a judicial or quasi-judicial body. There is no legal basis in the EPC for exercise of judicial or quasi-judicial duties by the Administrative Council by evaluating validity of evidences and their legal effects.

How do you know she is a witch? said...

Read the hilarious exchange between the Lawyer of Dr. Schestowitz of Techrights and the one acting for the "EPO" and accusing him of "defamation":

How the EPO Twisted Defamation Law in a Failed Bid to Silence Techrights

(a little down the page)

Note the striking similarity with the case of the member of the Board of Appeal. As Schestowitz's lawyer says:

"You have now – desperately – come up with “malicious falsehood” and “confidentiality” – but you do not set out the bases of your claims in respect of either claim."

Looks like they did not learn anything from Art 23 1/15, didn't they?

Gummibärchen said...

The Administrative Council is a supervisory body, but not a judicial or quasi-judicial body. There is no legal basis in the EPC for exercise of judicial or quasi-judicial duties by the Administrative Council by evaluating validity of evidences and their legal effects.

I fear that you do not understand how things are done around here Bubba ....

The Administrative Council has nothing to do evaluating validity of evidences and their legal effects. This work is performed by the Investigative Unit.
The AC is just there to rubber-stamp.

So what's your problem exactly ?


SLAPP Happy said...

If this is true then the President of the EPO will not be a happy SLAPPer :-)

In the past it seems that he has had much better luck in other jurisdictions ...

Kant said...

Indeed. Mr. van der Eijk signed off G 1/14 on Nov. 19.

Lest We Forget said...

Indeed. Mr. van der Eijk signed off G 1/14 on Nov. 19.

Excellent news.

I am glad to hear that his health has greatly improved.

This time last year he apparently had great difficulty signing off on some important documents for the Administrative Council:

The Enlarged Board of Appeal Complains to the Administrative Council

Subscribe to the IPKat's posts by email here

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