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.

Friday, 4 December 2015

Boards of Appeal tell AC: we were never consulted

Everyone agrees that there is a problem with the judicial independence of the EPO Boards of Appeal, and as covered previously on this blog, the Administrative Council (AC) asked the President, Mr Battistelli, to come up with a proposal to improve this situation. 

(When Merpel says "everyone agrees", she is of course referring predominantly to herself, but is reinforced in the correctness of her beliefs by the Enlarged Board of Appeal, epi, CIPA, EPLAW, CCBE, BusinessEurope, CNIPA, AMBA and most of the patent judges across Europe, all of whom have expressed views to the effect that the Boards need to be administratively independent from the management of the EPO and to be properly resourced to do their jobs.)


The problems with judicial independence were revealed a series of decisions starting with R 19/12 and culminating in R 2/14 where the Enlarged Board said its Chairman could not be subject to managerial instruction from the President of the EPO


Following a user consultation on an earlier draft, Mr Battistelli is today presenting to Board 28 an updated proposal addressed to the AC, which is attached hereBoard 28 is the inner circle of the AC and usually makes the decisions that the rest of the AC follows, so today's meeting is critical to this process.

Mr Battistelli tells the AC that user groups approved and were largely in favour of his earlier draft. In reality, the users predominantly told him that he was focussing on the wrong issues; that their primary concerns were for legal independence and quality decision making rather than the mere perception of independence; that the proposal was conflating an unrelated issue, i.e. the stated goal of increased "efficiency", with the structural lack of independence; and that moving the Boards to a different city would be unproductive and probably harmful. The proposed oversight mechanism (a new Council controlled by AC members and their appointees) was, users said, not properly independent, and the budgetary mechanisms would leave the Boards subject to improper influence. All in all, a pretty negative report which is helpfully summed up by the Association of Members of the Boards of Appeal (AMBA) here

But the user consultation is reported as being largely supportive despite all that. Mr Battistelli reports:

In general, the reform of the BOA was welcomed by the users and CA/16/15 was seen as a sound proposal and good basis for further work. The result of the user consultation was presented to the AC at its 145th meeting in October 2015 within CA/82/15 and subsequently published on the official EPO website. In parallel to the user consultation the Office held a series of consultation meetings with representatives of the BOA dedicated to the different elements of the reform.

The Boards take a very different view. Their Praesidium (overseeing body) has written to the AC members in frustration, disputing that they were properly consulted, and asking for their voices to be heard. Not unreasonable, given that it is they whose careers are on the line, and it’s their children who will have to move schools if they are relocated to Vienna, Berlin or anywhere else. 

Merpel reproduces the memorandum from the Praesidium below, which addresses the current proposal in depth, questions why their views have been largely ignored until now, and asks the AC to let the Boards present their views directly to the Council.


----
Dear Delegates of the Administrative Council
Dear Mr President
Dear representatives of epi and Business Europe

Munich, 1 December 2015

Re: CA/98/15 - Orientation paper on the structure and efficiency of the Boards of Appeal

The Presidium apologises for having to address you at such short notice on the above mentioned paper, but we had no knowledge of the content of the document before it was posted on Micado, during the evening of Friday 27 November. Consequently, the Presidium has decided to provide a quick initial reaction, so as to reach the delegates in time for the upcoming Board 28 meeting.


Consultation
The proposals in the orientation paper have not been elaborated "in close cooperation" with the BoA, contrary to what was announced in the President’s communique after the March AC. The Presidium was involved in some discussions with the Task Force preparing the Office proposals, but our proposals and the concerns we expressed are in no way reflected in the paper.

Summary
The Presidium is of the opinion that the proposed measures do not achieve the declared aims of increasing the Board's autonomy and improving the perception of independence. What's more, certain elements even cast further doubt on their independence and make them less independent than before. The most important legal question has not been answered yet - that of whether the proposed delegation of powers from the President of the Office to the President of the BoA can take place under the EPC. Further crucial aspects such as autonomy in budgetary and communication matters are not addressed.

Boards of Appeal Committee (BoAC)
In reaction to the proposal of a BoAC in CA/16/15, the BoA developed their own proposals to enhance autonomy and independence and provided these in an interim report to the task force [footnote]. The cornerstone of their proposals is the setting up of a "Senate", comparable in its role and composition, with i.a. members of the BoA, to a "Council for the Judiciary" as is common to the EPC contracting states. None of these proposals is reflected or even mentioned in the orientation paper. The BOAC as foreseen in the opinion paper CA/98/15 has advisory and supervisory functions over the President of the BoA, who is responsible for the management of the BoA. In this Committee the President of the Office has a seat while, apart from the President of the BoA, no BoA members are involved. Although the President of the Office has no vote, he is a member of this body which has far reaching competences. He is thus part of a supervisory body over the Boards, which is in clear contradiction with the required separation of powers.

The proposal for the structural reform was triggered by R 19/12 in order to solve the problems outlined therein. If the President sits on the Committee supervising the President of the BoA, who is at the same time Chairman of the Enlarged Board, the partiality issue raised in R 19/12 would become crucial again.

Efficiency
The orientation paper makes it quite clear that efficiency targets are intended to be set, which are then the basis for step advancement, promotion and finally for re-appointment. Linking reappointment to such efficiency targets greatly weakens the security of tenure, which is an essential element of judicial independence. Moreover, the President of the Office is involved in the body which is supposed to play a key role in setting these targets and deciding on the Board members' careers.

The comparison with the performance of the BoA of OHIM is inappropriate. The BoA of the EPO act as a final instance judiciary, whereas the BoA of OHIM do not; they merely have an administrative function within a system in which the judicial functions are provided by the EU courts in Luxemburg.

Also, the figures taken in CA/27/78 in 1978 were at the time chosen just as an initial basis for calculation, not yet knowing the number and complexity of cases which were going to come. They are at present not realistic. If at all a comparison of "production figures" is made, this should be with the Bundespatentgericht in patent cases. That comparison shows that there is no difference in the "production figure per rapporteur", with the notable difference that the BoA work in the three official languages.

The paper continues to mix the issue of efficiency with independence, despite the fact that the user survey clearly showed that the representatives’ institutions were primarily concerned with having an independent BoA provided with the necessary resources to deal with the caseload and pendency times properly. Efficiency in the sense of more decisions per member was not considered to be an issue which could be dealt with in the context of independence and autonomy.

Rules of Procedure (RPBA)
According to the proposal in the orientation paper, the RPBA are no longer to be adopted by the Presidium of the BoA themselves, but instead by the BoAC on a proposal from the Office. The BoA would not be even involved in this process. The comparison with the legislative process in a national state is not convincing. In a comparison with e.g. Germany, it would be equivalent to the DPMA (Deutsches Patent- und Markenamt) proposing the Rules of Procedure for the Bundespatentgericht. Particularly problematic is the situation that it would be the Office which would have the lead in setting the rules which the Boards would then have to follow when reviewing exactly the same Office's decisions in patent grant and opposition proceedings. All this is clearly contrary to the necessary separation of powers and cannot possibly increase the Boards' independence or autonomy.

In addition, with the BoAC as a sub-committee of the AC, it is doubtful, both from a legal as well as a logical viewpoint, whether Article 23(4) EPC allows for members of one and the same body (the AC) to both adopt and approve the legal instrument of the Rules of Procedure of the BoA. Having the same procedure apply to the Rules of Procedure of the Enlarged Board of Appeal, the highest judicial instance under the EPC, aggravates the matter even further. Also, the German Bundesverfassungsgericht (2 BvR 1848/07) decided that the constitutional protection of procedural rights of a party (Art. 24(1) Grundgesetz) is guaranteed by the BoA establishing their procedural standards via their jurisprudence.

Location of the BoA
In the orientation paper the issue of the location of the BoA is now being mixed up with other managerial issues in the Office which have nothing to do with the independence and autonomy of the BoA.

Greater autonomy is not achieved by moving the Boards to a place other than Munich, because it is the institutional separation, not the physical distance from the Office which is decisive. Moving the Boards to another city (e.g. Berlin or Vienna) runs the risk of losing a large number of highly experienced Board members. Such expertise is quite specific to the European patent system and cannot simply be replaced by increasing the recruitment of external candidates as suggested. Moreover, neither the EPC nor the Protocol on Centralisation provide a basis for moving the Boards of Appeal to Berlin or Vienna: Article 7 EPC allows only for sub-offices other than in Munich or The Hague, if they are for the purposes of "information and liaison"; the Protocol on Centralisation puts the sub-office of Berlin under the direction of the branch of The Hague.

Conflicts of interest
Here, the orientation paper mixes up something that might possibly be an issue with other senior appointees of the AC and the President, with the issue of the independence of the BoA. Any cooling-off period after leaving the service of the BoA coupled to a system with an uncertain reappointment (even with the partial financial compensation envisaged] would have a serious detrimental effect on the Boards’ ability to recruit technical members from among sufficiently qualified European patent attorneys and legal members from among sufficiently qualified attorneys-at-law and national judges.

In any case, the provisions in the EPC (Art. 24 EPC) and in the present Service Regulations already sufficiently provide for issues of conflicts of interest.

Guarantees for judicial review
Since the judicial status of the BoA is an essential pillar in the European patent system, because they take final decisions on European applications and patents, their independence should be clearly guaranteed and not weakened. If the proposals contained in the paper find approval with the Administrative Council, it is foreseeable that cases filed before national (constitutional) courts would have a higher chance of success. Indeed, they could be based on the argument that the Boards of Appeal can no longer be considered a judicial body compliant with Article 6 European Convention of Human Rights and Article 62(5) of the TRIPS agreement.

Furthermore, the BoA also have the competence to revoke unitary patents by a final decision. In any new structure created for the BoA, which are part of the future unitary patent system, the independence of the BoA - in the sense of the ECHR and TRIPS - must be safeguarded beyond any doubt.

How further?
The present letter is merely a first reaction which aims to reach the AC delegates before the Board 28 meeting of 4 December.

More than one-and-a-half years have passed since the decision R 19/12, which acted as the catalyst for the process aimed at solving the issue of real and perceived judicial independence of the BoA. We fear that the result of that process, as put forward in the orientation paper, will not improve the situation at all. Quite the opposite, in fact. Apparently the concerns we have expressed and arguments we have presented have not been convincing. The reasons for that are not clear to us. Maybe we are believed to be biased, as we are directly affected by the proposed reform. In order to avoid that any such impression dominates the debate, we recommend to involve independent external experts - as was done in the reform process before 2004 (in which the BoA were fully involved) - to help the Organisation find a solution which puts the judicial independence and functioning of the Boards of Appeal on a solid legal footing.

The Presidium and AMBA would appreciate to meet with the Chairman and members of Board 28 of the AC, to address these matters, with a view to arrive at a workable solution. Finally, the BoA are still faced with a stop on recruitment, even though compared to 2014 there has been no significant change in the number of appeals filed or in the number of withdrawals of appeals. As a result, the loss of manpower through retirements is negatively affecting the capacity of the Boards to deal with the incoming work not to mention reducing the back log.

We would therefore urge the Council to treat this issue as a matter of urgency.

The Presidium of the Boards of Appeal

[footnote] see: http://www.amba-epo.org/page/get/reform-proposal

80 comments:

Anonymous said...

What has happened to the formatting? The new layout is much harder to read...

Anonymous said...

When the wise men point to the moon, the imbecile looks at the finger, uh, at the formatting.

says Maimon

Anonymous said...

Fractured timing says...

Everything you see, hear, and feel about the EPO, EBoA and AC
is a decoded pattern of illusions!

Chattelbox said...

The Boards of Appeal must finally recognise that they too belong to the "cheptel humain" of the Great Énarque !

L'angelo Misterioso said...

Clearly, El Presidente is going for the big one: while he still can (before the political shit really hits the fan) he would like to 'reform' the BoAs in a 'reasonable' way which will 'extend their independence' by putting them at a physical distance from the rest of the administration.

This is, of course, the purest cant: as the assembled staff of DG3 point out, in common with his treatment of the rest of the EPO staff, Battistelli is at present deliberately trying to intimidate DG3 by:

1. Deliberately not filling vacant posts in DG3, which not only makes the allocation of work more difficult, but raises the question of who will be retained in post of those already in post;

2. threatening to move them to a new site (which, for reasons of service, they may not be able to oppose - see ServRegs, if you can find the relevant passages) - which may (will) ultimately lead to the resignation of many of these 'turbulent priests' (look it up).

Despite the apparent enshrinement in EPC of the independence of the boards, we see that there are, nevertheless, ways in which the president can apply pressure to DG3, even if this is not a direct pressure to individual members or chairman.

Is this really what the framers of the EPC intended? If not, Quo Vadis DG3?

Anonymous said...

The President´s paper is a perfect illustration of the way the Office is managed in general: profound disrespect for the staff concerned, shameless misrepresentation of facts, abysmal ignorance of elementary principles of law.
Almost two years lost now, the AC desperately passive. The Boards of Appeal will never fit into the Unitary Patent system. Score: Germany 1 - Europe 0

Kant said...

Is it then suprising that applicants in their droves are choosing to file their applications at the national offices (see PACE blog) rather than at such a corrupt office where no independent court can review decisions?

Anonymous said...

CivilCourage says:

I fear the AC, Board 28, etc.. are too large.
Since there are so many, no-one wants to be the one who stands up first and opposes by saying no.
Everyone assumes the others, who will be more knowledgeable, will stand up.
Since the group is so large, surely someone must have informed him/herself and lead the way.
But noone does the reading and self-informing beforehand, since the group is so large. Surely someone of the others has done so and I can concentrate on my own work.

aknown issue in psychology.
The larger the group is that watches bullying happening, the less likely someone will stand out of the crowd and help those being bullied.
Common phenomena and can be seen in subways, trams, busses, trains, ...
The larger the supervisory board, the less likely it is that the non-executive directors will intervene.

Anonymous said...

The PRAESIDIUM of the Boards of Appeal have written to the Delegates of the Administrative Council
I remember that the EPO has reminded all staff that only the Office has the prerogative to speak to/contact the Administrative Council;

will the members of the Praesidium now be subjected to sessions with the Investigating Unit and susequent diciplinary proceedings ?

Horza

Anonymous said...

Amicus Curiae

I have been following this EPO story for some time, and I agree with Merpel and the Presidium of the Boards. The only conclusion I can draw from the President's paper for the Council is unfortunate: it looks like the President intends to mislead and deceive the Council, his supervisory authority. If that is correct, I personally believe the Council should dismiss the President.

Unfortunately, the chances that the Council will do their job are slim. Some delegations will voice concerns, but in the end, the Council will very likely rubberstamp whatever the President has sent in. They have done it in the past, they will do it in the future. The only exception was the desired dismissal of the Board of Appeal member where they had obtained independent external advice.

I will appreciate to be proven wrong, both on the President's intention and the Council's behaviour.

Anonymous said...

The French, Europe and IP deserve better than Battystelli.

Sinterklaas

This is the end said...

@ Amicus Curiae

This is not the first time that the President has attempted to mislead and deceive the Council: we all recall the last time he asked the AC to Ignore the Enlarged Board. Had the AC not obtained independent external advice, we all know how it would have ended.

If for every request of the President the AC has to seek independent external advice, what's the point of having a President. They rather should put an "independent external advice" at the head of the Organization.

But I agree with you. The AC will, once again, rubberstamp the proposal of the President.

Still, I would really like the faces of people at epi, CIPA, EPLAW, CCBE, BusinessEurope, CNIPA, etc. They took the time to expressed their views only to see that is their partecipation - but not their views - that is used to support whatever argument the president wants to push forward.

A Question said...

Do we know if the Presidium and AMBA actually met with Board 28?

Qweschtion said...

Amicus Curiae wondered: "If for every request of the President the AC has to seek independent external advice, what's the point of having a President"
Subsidiary question: an what´s the point of having a DG5 Legal/International Affairs? What are these people doing? Is their job an illustration of the EPO´s high quality services?

Anonymous said...

Clooney comments:
In this final phase, Board 28 has met neither the Presidium nor AMBA. There is no need: they have been heard before and what they have to say doesn't matter any way. Battistelli goes ahead with his plan. He doesn't care about right or wrong. He must dispose of the boards which are disturbing the whole process of UPC. They should disappear or be reduced to the level of an internal opposition division. Their present independence is a highly disturbing factor.
What matters is the future Court in Paris which - once created - he will occupy with his team (Lutz, Bergot, Regis-Hannard, Rechema etc.). EU Institution >>> benefits >>> tax free pension >>> making history >>> perhaps even a "place Battistelli" .
Sad, very sad.

Anonymous said...

It's christmas soon... USA for EPO

There comes a time when we need a certain call
When the staff must come together as one
There are people dying
Oh, and it's time to lend a hand to end
The greatest scam of all

We can't go on pretending day by day
That someone, somehow will soon make a change
We're all a part of the EPO's great family
And so the truth - you know the truth is all we need

We are the staff, we're still producing
We are the ones who make a brighter day
That's why we're leaking
There's a choice we're making
We're saving our own lives
It's true we'll make a better day
Just you and me

Well, send'em to Vienna
and they'll know we just don't care
And our decisions will be no longer free

As the office keeps showing us
hiding behind immunity
And so we need Article 4a EPCeeeeeeee

We are the staff, we're still producing
We are the ones who make a brighter day
That's why we're leaking

There's a choice we're making
We're saving our own lives
It's true we'll make a better day
Just you and me

When you're down and out
There seems no hope at all
But if you just leave
This way it will all fall
Well, well, well, let us realize
That one change can only come
When we stand together as one
...

Anonymous said...

USA (Who is there) for EPO - You are a GENIUS man.

Anonymous said...

My president, Mr. Batistelli, is consumed with the ambition to do a great thing, to break the illegitim resistance of the EPO staff to the drastic curtailment imposed to their professional dignity and employment conditions. This is his legitim vision, his vision as an outstanding manager and charismatic leader, to push things hard, to achieve whatever his convictions tell him to be right, deliberately accepting the risk of damaging or possibly even destroying the European Patent Organisation, which thrived too much over decades. I admire my cute leader and great manager and love the chaos he produces. He makes everyone happy. God save the King!

Broken inside said...

Why writing about all this, Merpel? Why telling us how wrong things are at the European Patent Office when nobody seems to really care? Cui bono, Merpel? Cui bono?!

Stop it.


It's just not worth.

Neither you nor the "Enlarged Board of Appeal, epi, CIPA, EPLAW, CCBE, BusinessEurope, CNIPA, AMBA and most of the patent judges across Europe" can do anything anyway. Anything.

Did you read above Clooney's comment? " Board 28 has met neither the Presidium nor AMBA".

Stop it.

You are only taking the risk of being sued for "defamation" by the "EPO".

Anonymous said...

The Dutch Court established that the European Patent Organisation of which the AC is a part and the highest supervisory body breaches the Human Rights. It is a fact regardles of whether the order of the Dutch Court can be executed or not due to the immunity issue.
Til today the AC failed to change this sorry state of afairs and if any change has taken place it is to the wors.

The EBA which is, for all intents and purposes, an independent court decided that the AC has failed to substantiate properly the allegations of misconduct raised against a member of the Boards and therefore refused the request of the AC.
The AC decided to put the board member again before the court (EBA), by requesting a decision of the EBA, again, as far as it is known in the absence of any new and compeling evidenec. This means that the AC is prepared to "knock on the doors" of the EBA until the AC gets what it wants, regardless of the principles of the law.

The above shows that this AC is determined to proceed with its plans no matter what and is prepaired to take any kind of collateral damage.

Thus, I do doubt very much whether an opinion of who-ever it may be, which is not fully supportive of the plans of the AC can be seriously considered by this AC.


Barones Much-Refusals.

Sibylla said...

Suddenly, the wise words of Merpel in a previous post spring to my mind:

"A report which is vetted, contributed to, and possibly edited by the President will be a whitewash."

How prophetical, Merpel, how prophetical ...

Anonymous said...

I asked my friend who is working at the EPO how it was there,
he said he couldn't complain.

Anonymous said...

And with rubber-stamping this proposal the AC members will incidentially approve some further measures, which have nothing to do with restructuring the BoA: dismantling patent information tools and services at the EPO and post-employment restrictions for staff leaving the EPO. The last bit will be good for Battistelli and Co, as they will receive 70% of their EPO salaries for two more year, once they have to leave.

Furious cat

Curious said...

"I asked my friend who is working at the EPO how it was there,
he said he couldn't complain."

Good for him.

Mind to explain why does he find nothing to complain?

A Nonni Mouse said...

@9.17
No I don't suppose he can, that's been sort of the point of all the posts and comments for the last 18 months or more. It's what happens when you take away people's basic liberties, they have to stop complaining or lose their livlihood.

Kilroy was here said...

Anonymous, ask him a bit more. When he said he couldn't complain it can mean that he is in the team of Benoît Battistelli OR he wants to say that he can not complain because when he complains he will be invited by the Investigation Unit (IU) or the ControlRisks people. If you do not know what that means, ask you friend. Ask him also if he knows why more than 2000 people inclusive directors were protesting in front of the Isar-building.

Anonymous said...

"I asked my friend who is working at the EPO how it was there,
he said he couldn't complain."


the trolls are back ! 73000 EUR / months spent in whitewashing by the EPO thanks to applicants' money...

Meldrew said...

Curious/Anonymous - Perhaps ironic jokes have no place in commentary on EPO matters.

On the other hand, page 16 of the paper does say there are no financial implications.

The amba commentary is a well balanced analysis of the various responses to consultation, even where not all of it agreed entirely with amba's earlier expressed opinion. It is to be hoped that the AC can take an equally well balanced view on the proposal and the comments.

Anonymous said...

Bingo. The joke actually was that someone doesn't get the joke.

Anonymous said...

Because:
1) Tax-free salaries at the level of a CEO of an SME.
2) 40 hour work-week
3) Full medical insurance for the entire family, covering 80%-100% of medical costs
4) Defined benefit pension
5) Nice additional perks: tax-free cars, world-class sports facilities on premises, advantageous conditions for home loans.

Anonymous from above.

Anonymous said...

A surfer in the President's wash says...

@Sybella

“There will be no whitewash in the White House.”

Richard M. Nixon

WorkingAtTheEPO said...

I guess that some of those who do not give a damn about what is happening to others (and who just care about the money they receive at the end of the month) might say that they cannot complain.

However, the overall majority of employees does care. I have met very few people working at the EPO who still say that they cannot complain.

A staff survey would give unequivocal results. However, any attempts to do a staff survey are blocked by the management as well as any attempts to initiate an external audit or external investigations about what's going on at the EPO (except spying on staff by companies such as "Control Risks", of course).

Anonymous said...

A surfer in the the President’s wash says…

@anonymus 10:51

It's unfortunate that EPO staff should lose, because of their salary package, the art of illumination. The problem is the EPO management and the AC that uses statistics like a drunk uses lamp-posts, more for support than illumination.

Anonymous said...

@ Anonymous from above 10:51

Your information seems to be a bit outdated or simply wrong:


1) Tax-free salaries at the level of a CEO of an SME. - EPO salaries are taxed with an internal tax
2) 40 hour work-week - in theory. Many examiners work many more hours in order to reach their target production Figuren
3) Full medical insurance for the entire family, covering 80%-100% of medical costs - There is a catalogue of Delfinen treatment measures which are covered. Furthermore, for non-hospital treatment there is a limit of supportable cost per year.
4) Defined benefit pension - not for staff having joined the EPO after 2009. They have a salary saving plan
5) Nice additional perks: tax-free cars, - not in every place of employment, world-class sports facilities on premises, advantageous conditions for home loans - interest rates on the market are currently lower.

Anonymous said...

VivaMexico says:

@anonymous from above:

Sure, the work is well paid, and has a good package, but most of the employees live and work far from home, and all of the, have a very high education.
Tax free cars is not true for most sites, and even in The Hague only for the first ten years. (once you get to management level, the Dutch state gives you the right for tax free again, and then even for shopping).

Most employees I kniw there say the package is still good, but the surroundings which are work-related, but not work itself have made it very discouraging to work there.
But many trot on and do what they're paid for, without looking left or right, and gave detached themselves BECAUSE management dud not care about them at all, and to protect heir personal happiness, they disconnected.

Defined Benefit is also not true for those who entered the office after 2009 (?). They have a mix of Defined Contribution and Defined Benefit now.

But even if the package is still good, you have the right to dfend what you have, especially if your working contract is amended without consulting you, or even against your will. Most employers would not dare to do that, as courts in most cases are fast enough to make the manahement that misdecided feel it too. But at the EPO, the employees can only hope for a decision in 8-10 years time (and with incrasing ILO-AT backlog potentially much longer), which then will also only be an opinion where noone can order the then management to actually follow up the tribunals opinion.

PublicOpinion said...

Maybe Mr. Battistellli tends to go a little bit to far especially in case of the BoA, but in principle he is right. He deals with an office full of examiners that are overpaid, slow and often unexperienced and not well educated in patent law. It is, of course a hard management job to change that after about 40 years of negligance and such a task will not lead to many new friends. Those who are crying now should remember their excellent salary, social security and relative small workload im comparison to industry. Especially the excellent paid judges of the BoA should remember that there is o guarantee of a lifetime paradise job at Munich. The public in Europe paying them has a well justified expectation to these guys with their highly priviledged jobs to be flexible enough to move to Berlin or Vienna, that are also good places to live i.e. as a well paid member of an international organisation.

maxdrei said...

Please read "Clooney" at Saturday Dec 5 at 10.52. I have one thing to add. It is not just BB who wants to shift the judicial function from the EPO to the UPC. It is also the EPC Member States which are EU members. This explains why the AC never does anything to impede BB. In demolishing DG3 BB is doing no more than implementing his masters wishes.

Meldrew said...

Maxdrei

It is of course well known that all EU Member States are in favour of greater centralisation of judicial functions at an EU level.

[Oops - a bit of irony slipped in there].

Experience indicates that a large culturally diverse body is more capable of bemused indecision than Machiavellian conspiracy. That is why democracies are so inefficient (but usually comforting).

Anonymous said...

Surfer in The President's wash says....

@PublicOpinion

Correction:The examiners have to deal with an office full of managers and politicians that are overpaid, slow and often inexperienced and not well educated in patent law. Furthermore any details to add on a patent attorney/ patent court judge salary package? (... it would help to reflect properly on what could be a public opinion)

MoralOpinion said...

@PublicOpinion


Finally some comments in favour of the management of the Office! Thank you!

I was tired to read since more than two years only comments about suicides, human rights violated, non-respect of the law, abuses, nepotism, etc.

Your comment changes everything.

Meldrew said...

Public Opinion

Please note, the public in Europe do not pay examiners' salaries, the applicants do, and heavily.

The public in Europe indirectly receive money (paid to national patent offices) from renewal fees paid on patents that are examined by the EPO - patents on which the national offices spend no money other than to open a cash desk.

In some cases income from European patents is used nationally to subsidise their national applicants, at least giving something back to those who pay EPO fees. If you are in a country with no such "cash back" arrangements, tough - lobby your government.

In other cases income from national patent offices is diverted to general government purposes. Theoretically this might reduce other taxes, but I wouldn't bet on it.

The interesting issue is that the recital 21 of the UP Regulation states that national office share of UP renewal fees should be used for patent-related purposes. It will be interesting to see if this happens.

Anonymous said...

HelloKitty says:

(Responding to "PublicOpinion").

Maybe examiners are overpaid, maybe they are not, I don't know. But what you don't understand is that whatever savings were made on them were not passed on the applicants. So where did they go?

One of many said...

To PublicOpinion:

How would you know the examiners are slow and not very well educated in patent law? If you were a patent attorney, the only job bearing similarity to ours, then you would probably earn better than a patent examiner. Otherwise you have no knowledge whatsoever about our work and no right to denigrate us.

You cannot compare the job of an examiner spanning three fields - engineering/chemistry/medicine/etc., law, linguistics - with the job of an engineer in the industry. For instance an EPO examiner would definitely not write "priviledged" or "negligance", like you, Sir:) Is it Batistelli or Elodie Bergot writing? I´m asking this only because "negligance" would seem to be a wrong spelling done by a Frenchman/-woman.

The move to Berlin, Vienna or ... Banja Luka is only a foreseen punishment for not obeying the master, not a reasonable management decision, and it´s typical for the present management style based on threats and punishments. It is one of the many solutions to invented problems at the EPO.

Whichever way you look at the present situation a manager allowing the social conflicts to escalate to this level, lying to the AC and asking them to take an illegal decision would be dismissed by his supervising authority in the outside world.

TreatyNotifier said...

To all those discussing the wish/plan to shift jurisdiction from E(BA) to the UPC. Do we have any formal or informal suggestions of that by EPO, or its member states? If I try to see how that may work, it is a decade(s?) long plan with many pitfalls, so it would surely be ambitious, and I wonder if this is the true motivation for many of those actions.

Note that the UPC will be a court of several EU member states (and not an EU court like CJEU), to which non-EU member states cannot accede (they may in the very far future, after changing the EU founding treaties, but until then, CJEU has blocked that option adequately). It will do what any national court can (but won't be able to take over the functions of the EPO Boards of Appeal). Again -and I am just trying to follow the logic- the court MAY technically take over the BA-role after changing the EPC (so it can give jurisdiction in "EBA-cases" to an international court) AND changing the UPC Agreement, both agreements needing to be approved by all participating nations.

It seems very unlikely non-UPC member states (notably Spain, Switzerland, Norway, Turkey) will approve this system. Note that also with the Lugano Agreement (which extended the Brussels I Regulation to Norway, Switzerland and Iceland) the non-EU states would only sign if they could use their own court (EFTA court) instead of CJEU to ask prejudicial questions. I cannot imagine how they would give jurisdiction to a court to which they cannot be a party.

Will there be a strong influence from UPC to EBA? Quite possibly. The decisions of Aa court of 13-27 of the 38 member states should weigh on the BA. Especially since a strong divergence between those 2 judicial organisations would not be desirable. Furthermore 1 set of EPO decisions will be subject to UPC rather than BA-oversight: the decision to grant (or not to grant) unitary effect. But I don't think that will lead to much litigation.

Anonymous said...

To waht "PublicOpinion said.."

I have to note that 40 years of negligence does not result in the EPO being the best patent office, but exactly this is what BB propagates. Or is BB not telling the truth?
So, just perhaps: Is the "PublicOpinion" not well misinformed or well uniformed?


Barones Much-Refusals

Anonymous said...

HonestOpinion says...

@PublicOpinion & MoralOpinion

"There is probably a perverse pride in my administration... that we were going to do the right thing, even if short-term it was unpopular. And I think anybody who's occupied this office has to remember that success is determined by an intersection in policy and politics and that you can't be neglecting of marketing and P.R. and public opinion."

Barack Obama


Anonymous said...

Meldrew,
Of course examiners' salaries are paid by the public ! Every time you buy a product or service from a company who owns patents, a fraction of what you pay goes to the company's patent portfolio, and therefore (in part) to procedural fees and renewal fees at the EPO. It is not because it is not directly levied from the public that it is not paid by the public. For comparison, would you say that officers dealing with personal taxation at HM Revenues & Customs are paid by the public, but those dealing with corporate taxes are not ?
Anonymous from above.

spartacus said...

@TreatyNotifier:
"To all those discussing the wish/plan to shift jurisdiction from E(BA) to the UPC. Do we have any formal or informal suggestions of that by EPO, or its member states?"

The clearest informal suggestion of this has come from the President himself through the Sueddeutsche Zeitung:
Und um so zu verhindern, dass das Amt den größten Wandel seiner Geschichte durchläuft: den Übergang zum europäischen Einheitspatent und einer neuen Gerichtsbarkeit, mit Gerichtshof in Paris samt Außenstellen, auch in München. Die Große Beschwerdekammer würde abgelöst, sobald alle Staaten das Abkommen ratifiziert haben. Der Mann und seine Kollegen würden ihre Positionen einbüßen.

Entry into force of the UPC agreement obviously does not mean the immediate end of the boards of appeal (or even of the EBA), but this strange twist seems to say something about what is on the mind of the person it came from.

An earlier suggestion (in a slightly different direction) was given last year in Juve:
Das Europäische Patentamt plant offensichtlich, seine Beschwerdekammern dem Europäischen Gerichtshof (EuGH) zu unterstellen. Vorbild sollen die Regelungen für das Harmonisierungsamt für den Binnenmarkt in Alicante sein.

(There are of course many reasons why the CJEU will never be made an appeal instance for decisions by the EPO BOAs. And the OHIM example gives a couple of the strongest reasons.)

Any view on the compatibility with the (unamended) EPC of Vienna as a location for the EPO BOAs? See in particular articles 6 and 7 EPC and the protocol on centralisation. T 1012/03 shows just one way how quickly a move to Vienna could end in a catastrophe (well... in a very urgent need to convene a diplomatic conference to fix a rather big mess).

If the AC is wise, it will decide that the BOA reform cannot be left to the present dysfunctional Office, but has to be worked out by the member states themselves and decided upon in a diplomatic conference amending the EPC. The amended articles could be made provisionally applicable so it would not have to take 10 years for the reform to take effect.

Anonymous said...

Those really are weasel words.

Anonymous said...

Working overtime in the Isar building are we?

German examiner said...

Working at the EPO is still OK. At the age of 40-45 I earn about 7,500. I do not have the Auslandzulage. However, my salary in Munich must be enough for me and my spouse.

She is not allowed to continue her work as Patentfachangestellte, according to Art. 16(3) Service Regulations.

Any permanent employee may be required: - to take the necessary steps for terminating within a specified period any employment exercised by his spouse where such employment is in any way connected with the Organisation and proves to be incompatible with that of the employee .

Anonymous said...

Amicus Curiae:
Re Public Opinion:

"Maybe Mr. Battistellli tends to go a little bit to far especially in case of the BoA, but in principle he is right. He deals with an office full of examiners that are overpaid, slow and often unexperienced and not well educated in patent law."

You certainly have an axe to grind. I cannot say about the basis of your statements. Not being an examiner, I would not know exact details, but there are some principles:

International Agencies usually offer the highest wage of any member state, for the EPO that will be Swiss or Norway, frequently higher than the local wages. Why: to attract staff from these countries. I cannot say whether that qualifies as "overpaid".

As for the other points: Who, may I ask, is responsible, if examiners today behave as you state? Correct, the management. Assuming your statements are correct, the EPO was not properly managed for an extended period of time. In other terms, the Council in the last years or decades did not do its job.

What makes you think they do their job now, exercising oversight and control?

Meldrew said...

Anonymous
"For comparison, would you say that officers dealing with personal taxation at HM Revenues & Customs are paid by the public, but those dealing with corporate taxes are not?"

What a strange (and strained) analogy. Are you unfamiliar with the concept of taxation? Taxation is extraction of money from the unwilling to provide services to the many. In both of the above cases the providers of money are normally unwilling, and sometimes imaginative in reducing the amount they have to pay.

In contrast Patent Office fees are fees paid for by the grudging to provide a service for the grudging [examining applications], and with little scope for imaginative accountancy.

There is a public service element to Patent Office fees and services, in that not all applications are allowed [some standards are required]. But it is surely the case that the unwilling public at large do not pay for the EPO, only the grudging innovator pays.

Some wonder how long people will want to pay......

TreatyNotifier said...

@Spartacus, thanks, so at least a decent newspaper has suggested combination of BAs and UPC. Although they may be right on the facts regarding the suspended BA member (no idea), they are so strongly wrong however on the facts regarding the UPC (with the curious text that 28 (wrong: =8) out of 38 (suggestive: as 10 can't!) already are party, that all need to be party (they forget: and the UPC Agreement + EPC needs to be amended), and that Germany is not a party (hey, that's correct), that it is hard to get factual ideas out of that. At least if this coms from the higher echelons of EPO, I'd say they'd get the facts right...

Again, I don't think Norway at all will allow this ever to happen, unless they can accede to UPC. As for the legal basis of moving the BAs: I never got into that, so I have no idea. It at least seems a lot less ambitious than "subcontracting" to a different organisation...

Henri le Sage said...

Pondering over some of the comments above, things become clear to me.

I always thought Battistelli was aiming for another job within the French government, once Sarkozy would be president again. It may be more probable he is aiming for a position with the UPC. For which reason he is already getting rid of the appellate bodies with the EPO. Their decisions would be a mere nuisiance to the UPC.

So Battistelli is serving EU interests rather than EPO interests. But wait, the UPC is not part of the EU? Correct - that is the way Great Britain wanted it to be implemented. But with a larger pan-European federalist lobby (hello Guy Verhofstadt c.s.), I expect the UPC to be part of the EU in no-time. With support of the AC, instructed by national governments who are supporting the same federalist movement.

And EU federalism is an unstoppable train. We have seen two clear wins by the people in referenda (France, Netherlands) opposing matter that was introduced in the EU later on, against all democratic principles. And the same will happen with the referendum on Ukraine (April 2016, Netherlands).

But why does the UCP with case law need to replace the BoA case law? Because EU bodies are easier to access and control for the corporate lobby. If not directly, then still via the EU parliament.

In other words, I am beginning to feel this circus is not about Battistelli vs. the Boards of Appeal, but fits in a larger scheme of EU federalism - for the benefit of corporate lobby to establish one single body they can focus their lobby efforts on.

Conspiracy theory? Perhaps. But I have seen too many pointers already.

Millipede said...

@TreatyNotifier
another reason why it is not to be expected that the UPV will replace the BoA is that the BoA are still cheaper and more technical directed thatn the UPC.
An opposition (eventually followed by an appeal to the BoA) has much lower fees than the (proposed) UPC court fees for a revocation action.
Secondly, the EPO Opposition Division has three technically qualified members and the EPO BoA has two technically qualified members and only one legally qualififed member. At the EPO the technically qualified people thus are in the majority over the legally qualiified members. For the UPC this is the other way around: there we have one techniclaly qualified Judge and two legally qualififed judges and in the appeal bord of the UPC the ratio is 3:2. Thus in both cases a majority of legally qualified judges.
This means that applicants/opponents that want to decide the case on technical issues - which is most often the case in invalidations - better could address the EPO.

An additional reason is that the EPO Opposition Division and the BoA may invalidated the patent for all 38 EPC States, while the UPC can only invalidate for the (max 27) UPC States.

Henri le Sage said...

@ Millipede:

The advantages of the EPO Opposition Division as well as the Boards of Appeal (the latter ones in particular) are exactly the reasons why these institutes need to be decapitated - this applies to the BoA in particular.

Because the UPC will not be able to beat the EPO institutions - at least not on the short term. So they need to be deactivated or at least be set back - for the EU to be on top of matter as soon as possible. As the EU is better to control by industry.

Oops, but UPC is not part of the EU, how could I forget???
Not *yet*, I'd say.

AliceinEponia said...

From the comments above, a couple raise questions in my mind. TreatyNotifier suggested Norway wouldn't be happy about combining BAs and UPC. What would the UK think in the event it left the EU? How will Cameron and his chums play this during the debate within the UK and will it become relevant in the "renegotiations" as some sort of pawn? Maybe the UKIPO likes to have more revocation actions for itself, though how this would be financed beats me, with current tiny official fee. And as to BB's ambitions, is mayoralty of a French village in his dotage not sufficient anymore? I'm not one for conspiracy theories normally, but the lack of openness in the shenanigans in eponia recently doesn't half scream out for them.

Anonymous said...

Some people complain about costs and patent examiners being paid too much. With all due respect, the two are different things. It is not because BB lowers the costs of search and examination that he intends to lower taxes.

And as to what the office invests in search and examination, there is an old business saying which runs like "in the long term, you generally get what you pay for". If the position is not attractive for competent examiners, the office will not get them. It is that simple.

Also: applicants do not only pay so that the Office grants patents. They also pay so that the Office refuses their competitor's patents. How much is that worth to you?

Last but not least, the President is French. The French had a patent system without examination where all work was done by litigation courts. It may simply be that this kind of solution is what the President wants for the future: a simplified grant procedure, maybe through automation of search and examination, and the whole burden transferred to a litigation court. You don't really need examiners in that future.

A concerned examiner.

Meldrew said...

A concerned examiner said ".. a simplified grant procedure, maybe through automation of search and examination, and the whole burden transferred to a litigation court. You don't really need examiners in that future".

This might not for a while - see CIPA debate on the motion "This House believes it is inevitable that, within 25 years, a patent will be filed and granted without human intervention.".

The motion was passed on the basis that one patent being filed and granted in the next 25 years without human intervention was enough to meet the terms of the motion.

However, what was not considered at the debate was whether a complete change in political/legal framework to do away with search/examination might affect the outcome. Note the discussion on cost.

Luddites of the world arise - the future approaches quickly.

Old sad man said...

I do not think that discussing the salary level of EPO staff bears any relationship with the events occurring now. It is just a side aspect, which has to be looked at, but not at the moment.

When one looks at CA/98/15 a few things appear very clearly:
[By the way CA/98/15 is not available on the site http://www.epo.org/about-us/organisation/documentation/ac-documents.html. One wonders why?]

1) A very specious way of trying to claim approval for the measures proposed: there is no general approval to be seen.

2) A presentation of facts which is very biased to say the least when it comes to suggest a transfer of the BA to Vienna. If you want to kill your dog, you just claim it has rabies says an old French proverb.
Does the president realises the extra costs it will involve for the users of the system when the Boards transfer to Vienna? Just to get his revenge? I thought the EPO was set up in the public interest, not for the president to rule as a dictator. How does this fit with the stance that everything is done to promote innovation in Europe and help SMEs? Can SMEs be loaded with such extra costs?
With all due respect, how many appeals are dealt with by representatives from Eastern Europe?
Are all the investments of firms of representative setting up branches in Munich made in vain, just as it pleases the president to send the Boards in exile?
What the document does not say is that Germany was not keen for the Boards of Appeal to be transferred to Berlin.

3)The introduction of a one year cooling off period for former staff. It is pretty clear that the president and his minions will never get a job in the patent world, but examiners and former members of the Boards of Appeal may. So it is nice to get a bit more money for a while.
Former “normal staff” of EPO do not need this. What about a former examiner or Board member wanting to act again as representative after leaving the EPO? For obvious reasons, he gave up his quality of representative when working for the EPO. Why should he wait again if he leaves?
What has this to do with the independence of the Boards of Appeal?

4)Have the AC and the president ever heard of something called separation of powers? What is proposed in the BOAC is exactly a mix of legislative and judiciary powers, the whole compounded by the presence of the president, albeit without a vote, but certainly not without a voice. That is not what one understands with separation of powers. My will is law, and the rest I do not care.

It is tragic to see how the EPO is driven into the wall by a bunch of would be managers more interested in their own pockets than in that of the public and of the users of the system.
Slowly the president’s hidden agenda emerges: destroy the EPO, so that the UPC might be the only viable system left in Europe.

MaxDrei said...

Discussing this situation with a studious colleague, he pointed out to me that, back in 1973 when the EPC was being written, a European Patent Court was part of the plan. But back then politicians ran scared of that idea, so nothing came of it, and instead we ended up with EPO DG3.

What has changed since 1973? Patent litigation has become global big business, not just in Big Pharma but also in telephony.

Politicians in Europe today are more scared of the world-wide Big Corp forces that reprimand them for having made no progress since 1973, and up till now have STILL failed to create a single instance where patents can be litigated once and for all, for all of Europe.

BB is tasked with making the UPC a success. One way is to push up pendency in DG3 to 5 years or more, another to clear out of DG3 all the wisdom and experience. When the UPC starts up, it will have judges but no cases to try. Business will be brisk. Pendency will be short, and so compare very favourably with that at the EPO. A flying start, you might say.

And Big Corp will show its appreciation to those that helped it. Nice consultancies for those who pulled the strings behind the scenes.

Remember, DG3 can't try infringement but the UPC can. And it can also do validity, and revoke patents; like DG3 does only more forcefully. What's not to like?

Anonymous said...

As pointed out above, the planned restrition, i. e. the cooling period virtually for all staff, has nothing to do with the reform of the BA.
As to why it is proposed now, the obvious possible answer is that the president is planning already a further reform, which he expets that will drive staff out of the EPO in masses and this roblem must be prevented by appropriate strategic prior reform that prevents the staf from doing so.


Barbi

Anonymous said...

EPO’s Academic Coffee-corner quotes…

“Firstly you must always implicitly obey orders,
without attempting to form any opinion of your own
regarding their propriety.
Secondly, you must consider every man your enemy who speaks ill of your king;
and thirdly you must hate a Frenchman as you hate the devil.”

- Horatio Nelson-

Realist said...

The idea that any change to the BoA will take decades overlooks one thing - board members are not being replaced already and current contracts are for 5 years. To me that means the whole of DG3 could be removed in 5 years. Certainly if the retiring ones are not replaced (or those who won't go to Vienna), then a significant effect will be produced in a very short time whether the non-EU patent states like it or not.

cpc said...

@MaxDrei:
"back in 1973 when the EPC was being written, a European Patent Court was part of the plan"

That was the Community Patent Convention. Two texts exist, one from 1975 and one from 1989.

Some background information in this paper, which helped me to find:
Convention for the Europeant patent for the common market (1975 text)
Agreement relating to Community patents (1989 text)

I don't think the 1975 text (I have yet to read it) provided for an appeal against BOA decisions. That was too late already (EPC 1973 already having been adopted) and it would have made little sense in view of the mismatch between EC member states and EPC contracting states.

I believe that during the drafting of the EPC further court systems have been considered.

Tony Soprano said...

SUEPO “is not a trade union, it’s a mafia-type entity” according to Battistelli.

Well that clearly explains the need for forensic investigators ...

WhatTheHeck said...

"... it's a mafia-type entity" ... should I wonder from where BB knows such structures..? sounds like an expert opinion. Kinds of also reflects his view on staff since quite a lot is member of this Mafia.

To quote from the same article as Tony above:
“To pretend that I have created a climate of terror, that people are living in a dictatorship, where they are terrorized is just ridiculous,” said Battistelli. “You don’t obtain the results we are obtaining … with people who are terrorized. You obtain that with people who are motivated, fully supporting the strategy we are implementing.”
This is so sick, it's unbelievable - this guy is so detached from his staff it's amazing (well or not: have a look at his bodyguards without whom he doesn't dare to be public)

And a comment on the cooling-off: it's for two years a payment of UP TO 70% of the last wages: so for Mafia-staff Zero, but fo BB and his inklings its a nice extra Bonus ... however, wonder how they want enforce it (except for stop paying) as national courts obviously cannot be consulted.

Anonymous said...

If the situation inside the EPO were really as Battistelli claims, why then the resistance to external oversight? Surely not shyness - he should be saying "Don't believe me? C'mon in, talk to anyone you like. No pressure, they're all allowed to say what they like?" I've worked for corporations/institutes who do just that. They rely on law, not internal stasi.
As for SUEPO being like a mafia, this is as risible as it is contemptible. For many years they were noisy but not very effective, c.f. UK unions in the 1970s, for those of us who, during the short weeks we actually worked did so often in the dark. SUEPO were sadly comparable with the Ant Hill Mob as a mafia. BB and Kongstad are really spinning a yarn by complaining that the whole EPO was run by SUEPO. But it is undeniable that staff have demonstrated in their thousands, under observation, without any strong-arming, in support of SUEPO committee members who have had the courage to stand up to the current authoritarian, in the absence of any protection of law, and have suffered immediate consequences. Need it really be said that European human rights legislation developed as a direct consequence of the actions of our own uncontrolled authoritarianism? And it's as pertinent to the establishment and maintenance of many individuals' rights, such as property, as to the rights of those who do the work.

Perhaps it's time to remind our various AC members, especially the UK ones, that according to the Human Rights Act in the UK, they are obliged to act in accordance with the Act in ALL of their activities on behalf of the state. As far as can be seen, at the moment they are failing in their statutory duty. Whatever le Lider says.

But as mentioned above, the arrogant decline to listen to the protestations of small entities.

Korinthenkacker said...

A certain EPO executive is currently on leave to occupy a vice-president position in Alicante.

Was a "cooling off" period deemed necessary?

And would OHIM impose a cooling off period should he decide to return to his former love?

Not convinced said...

It does get oh so laughable that Battistelli mans the barricades for the ordinary man and his rights at the EPO, then runs to the press to attack staff with claims of neo-nazism, defamation, conspiracy and organised crime (Mafia). By all (legal and moral) means root out those who are doing wrong, but to go from the one or two alleged trouble makers to this scattergun approach of tarnishing everyone with outrageous allegations of illegality is looking ridiculous. 880K euros well spent? I'm not sure, so far. But getting half the office to back the other side and to walk the streets must cast doubts.

ex-examiner said...

“You don’t obtain the results we are obtaining … with people who are terrorized. You obtain that with people who are motivated, fully supporting the strategy we are implementing.”

Oh yes you can: demotivated staff managing to attain a good work output achieving a good work performance was exactly what happened at the UKIPO a couple of years ago (although presumably without actual terror . The staff met all their work performance targets set by their Minister but failed to meet their ministerial target for "Staff engagement", which was one of the lowest in the Civil Service. Because their bonus was based on meeting ministerial targets, they were financially penalized for being unhappy in their job. Their engagement index did improve the next year, however, as giving a truthful engagement response would have been akin to turkeys voting for Christmas, this is probably not surprising.


The post https://ipkitten.blogspot.co.uk/2013/02/does-it-pay-to-be-patent-examiner-part.html and its comments refer.

Anonymous said...

The Apocalypse Is Near states:

From Tony's linked article:

"The Patent Office’s press office said the organization is looking to hire a consultant to analyze occupational hazards and make recommendations. However, this won’t constitute an independent investigation into circumstances surrounding the suicides, which would require the consent of all the EPO’s contracting states, it said."

Where is that enshrined in the EPC or seat agreements?

The administrative council can do this, with a simple majority vote. Definitely not all contracting states do need to consent.
I am also very confident, that if the EPOffice decided to have an external, indepent (or national) authority do an investigation, that the AC cannot say no to such an investigation. (EPO-PPI articles 19&20)

But it sounds good to give such a statement. Luckily politico.eu clearly formulated this statement as coming from the EPOffice, and not unsourced.

Anonymous said...

BB is a seriously deluded individual, and an unpleasant one at that. He's like a nastier, slimier version of our 2nd president, Paul Braendli, who also went a bit nuts by the end. "Absolute power corrupts absolutely" and all that...

And of course he's such a big man that he daren't come and speak to the staff, because he's afraid of the reaction that he might (and by this I mean certainly would) get. By all accounts, the last time he spoke to the directors and senior management he was almost laughed out of the room, so out of touch was he.

At the moment everyone is trying to keep their heads down and is hoping that he seriously f#*%s up in such a big way that the AC finally has to act. Can't wait to see what happens next week, although I'm not holding out much hope for any rational behaviour or support for the staff from such an esteemed bunch of career civil servants.

The Cat that Walks by Himself said...

Later, I will post some comments on the "Orientations for the structural reform of the EPO Board of Appeal".

However, I would like to start from something positive, constructive. An alternative proposal.

(1) the President of the EPO delegates, i.e. transfers entirely, under art. 10(2)(i) EPC, his functions or powers in relation to the BoA to the Supervisory Board of the Board of Appeal;

(2) the Supervisory Board of the Board of Appeal, with a majority in 1 voice, consists of the EBoA and BoA members. Plus, members of the Administrative Council and representatives of national judiciary;

(3) The chairman/President of the Supervisory Board of the Board of Appeal has served for the BoA at least 5 years.

The Cat that Walks by Himself said...

Finally, I've got a chance to read “Orientation for reforms of the Board of Appeal of 27 November 2015.” From a law perspective, it seems to be a quite empty document.

One would expect a substantiated legal presentation that leaves no doubts or vagueness with respect to definitions and legal basis for new provisions. Especially, when it goes about a proposal for institutional reforms of the Board of Appeal.

The text uses many legal terms that have not been defined in the document, as a result, the stretch of the proposal and its legality is practically impossible to assess.

Here is just a very few questions which naturally appear during the reading the “orientation”:

(1) What is meant under “attribution of powers” in the orientation? Under which exactly provision of the EPC this attribution would take place?

(2) What is meant under “delegation of powers”? What is a difference between “attribution” and “delegation”? Under which exactly provision “delegation” would take place?

(3) Which waiver is meant under IV A b) 10 line 4 of the orientation?
Which powers would the EPO President waive under IV A b) 10 line 4?

(4) What is a subsidiary of AC?

(5) What is a legal basis for a supervising subsidiary of AC?

(6) How after waiving "functions in relation to the BOA" under IV A b) 10 line 4,
would it be possible for the EPO President to participate in setting/composing the BOAC, see IV A c) 18?

And even participate in any meeting of the BOAC under Art. 14 Rules of Procedures of AC : "The President of the European Patent Office shall have the right to attend, or be represented at, any meeting of a subsidiary body."

(7) What are general-level-supervisory-functions of the BOAC IV A c) 14 that do not influence particular cases handled by the Board of Appeal?

(8) Wouldn't supervising functions of the BOAC violate Art 23(3) EPC: "(3)In their decisions the members of the Boards shall not be bound by any instructions and shall comply only with the provisions of this Convention." ?

(9) Supervising functions of the BOAC seem to implement an indirect (or even direct) instruction mechanism for the Board of Appeal. Especially, when a composition of the BOAC would be as described under IV A c) 14.

(10) What would guarantee independence of the BOAC, i.e. something in line with Art. 23(1) EPC? Is any danger that a dependent BOAC will take care of independence of the Board of Appeal?

There is one sad thing about this orientation for reforms: there is nothing about the Board of Appeal in there.

Anonymous said...

Thank You cat,
I have the impression that You put Your paw on some raw (fishy) spots.

Your comments exemplify the way the Office seems (not) to work, by introducing vage and strechable reforms (?) , that allow a certian person with a DR. hc title to do watever he wants

a fish lover

Rule of law vs. BB said...

Amba also comments on the President´s proposal.

http://www.amba-epo.org/page/get/amba-ca9815

Balance of Power said...

It is certainly in the AC´s power to send the Boards to Vienna and/or to institute a BOAC in line with the present proposal of the President. And it will be in the Boards´ power - in the course of the first appeal case they will come to deal with after the discussed institutional changes have entered in force - to rule that sitting in Vienna and/or applying Rules of Procedures imposed by such BOAC offends against the EPC.
Accordingly, systematically ignoring the Boards´ views on these essential issues does not look such clever.

Anonymous said...

Sad cat says:
Since there is no sanction on infringing the EPC by the AC or the president, the AC will not care much about any (E)BA decision in that sense. The only possible thing that might help is a big stink from the parties who now have to travel even more. But since by then much money will have been wasted and nobody wants to waste even more, they, too, will not make a big fuss about it. Especially since I signal positive reactions from representatives regarding visiting Vienna. What will then happen is that the EPC wil be changed retroactively, even if it will take the overdue diplomatic conference, which, the cats should not forget, is constituted by the same persons who make out the AC, deputizing for their ministers. I have seen that last time.

How sad can one cat eheh get?

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