It has been quite a long while since Merpel visited the European Patent Office. She would like to apologise to those readers who have wanted more frequent updates, and thank those who have sent her news over the last couple of months. There have been quite a few developments, to which she will now turn her attention. Since many of these issues have now been ongoing for some time, she will briefly summarise the background of each one.
Boards of Appeal - disciplinary case
There are two issues relating to the Boards of Appeal. First is the suspension of a member of the Board of Appeal by the Administrative Council, following the imposition on him of a "House Ban" by the President all the way back in December 2014. Many (including almost all internal members of the Enlarged Board of Appeal Appeal and many distinguished external members - see IPKat post here) considered that the "House Ban" contravened the EPC, since only the Administrative Council can exercise disciplinary authority over a Board of Appeal member, but the position was somewhat regularised by the AC's later action. Later, the Service Regulations were amended by the Administrative Council last December, so that Board of Appeal members can be suspended pending disciplinary proceedings for up to two years, rather than four months as was previously the case (and is still the case for normal EPO employees).
The removal from office of a Board of Appeal member requires a proposal from the Enlarged Board of Appeal. The EPO has now twice petitioned the EBA for such a proposal. The first was rejected as inadmissible (See IPKat here). The second case (given the unusual number "Art 23 2/15", indicating that it is a proceeding pursuant to Article 23 EPC) has terminated in a Decision of 11 February 2016 that is rather inconclusive. All of the admissible requests made to the Enlarged Board were withdrawn, while further requests will apparently be considered as a further reference - now the third related to the matter. The Decision states it is to be published, but Merpel has not yet seen an official publication of it by the EPO. Furthermore, Merpel wonders how many more opportunities the administration is going to have to put its case to the EBA while following the norms of natural justice.
Boards of Appeal - reform
There is general agreement that the Boards of Appeal of the EPO need some organisational reform. Most see the main issue as being perception of independence from the rest of the EPO structure, given the quasi-judicial role of the Boards in reviewing EPO decisions and actions. However, the proposal from the President of the EPO to reform the Boards was widely criticised, both for some of the specific details (some of which were considered to be incompatible with the EPC), and for the overall approach, which conflated independence with efficiency and seemed fixated on moving the Boards to another physical location. Moreover, the Boards of Appeal were themselves not consulted during the drawing up of the proposals. At the Administrative Council meeting of 16 and 17 December 2015, these proposals were not adopted; instead the AC mandated its own sub-group "Board 28" to elaborate guidelines to take the reform project forwards. After a falling-out between the President and Board 28, at the March meeting of the Administrative Council, the President was asked to formulate proposals based on these guidelines (see the text of the AC Resolution below) for consideration at the June AC meeting. We await details of what these proposals are.
The Boards of Appeal have put forward their own proposals for reform, and you can read the history of the reform from the point of view of the Boards on the website of their organisation AMBA. Merpel understands that the Boards have NOT been consulted even in the latest re-formulation of a proposal for reform.
Merpel understands that the President is still fixated on the idea that the Boards need to be in a different building from the rest of the EPO, although now the idea is that it will be in another location in Munich, not another city altogether such as Vienna. The Munich suburb of Garching, halfway out to the airport, is the latest rumour. The motivation to move the Boards from their current location seems odd since the justification is that the members of the Boards should not be mingling with the first instance Examiners whose decisions they are reviewing. But the Boards largely work in the Isar building, whereas the Examiners work almost exclusively in the PschorrHöfe buildings. The main other occupant of the Isar building is the President...
Boards of Appeal - resourcing
The original proposals for reform of the Boards of Appeal presupposed that they have an issue with efficiency. These turned out to be based on misleading comparisons. While the Boards themselves agree that something has to be done about the growing backlog of appeal cases (estimated at about 8000 cases), and some increase in efficiency probably needs to be part of that, most of the respondents to the EPO's own consultation on reform of the Boards of Appeal emphasised that the reform and any efficiency increases need to be considered together. A more pressing issue in the ability of the Boards to deal with the caseload was that for some considerable period no new appointments had been made, and reappointments left to the very last minute (this raising concerns that the delay in reappointment could be used to make Board members more biddable in the meantime). Precise numbers are a little difficult to establish, but by March 2016, Merpel understands that no new appointments had been made for about 2 years, 7 Boards lacked a chairman and about 13 technical board member positions were vacant. Finally, a few new appointments (2 chairmen and 3 technical members) were made at the March 2016 meeting of the Administrative Council. Apparently the President denies that there has been any issue with the levels of staffing of the Boards, and considers that since he agreed to the creation of a new Board, the Boards have been "expanded"; it is to him apparently immaterial that this "expansion" is more than offset by the number of vacant positions and Merpel understands that this new Board was never in fact filled. Merpel very much hopes that the Boards will continue to be fully staffed.
Social situation at the EPO
Also at the March 2016 meeting the AC expressed in the strongest terms so far its displeasure at the handling by the President of the social situation at the EPO, where there is much unrest amongst the employees about changes to career progression, working policies, sick policy, imposed essentially without consultation. The following resolution was adopted, so remarkable in its wording that Merpel wishes to reproduce it in full:
in its capacity as supervisory organ of the EPOrg -
having repeatedly expressed its deep concerns about the social unrest within the EPOffice;
having repeatedly urged the EPOffice President and the trade unions to reach a consensus on an MOU which would establish a framework for negotiation between social partners;
noting that disciplinary sanctions and proceedings against staff or trade union representatives have, among other reasons, made it more difficult to reach such a consensus;
noting that these disciplinary sanctions and proceedings are widely being questioned in the public opinion;
recalling the importance and the urgency of the structural reform of the BOA;
recognizing the important institutional role of the AC and its dependence on a well-resourced and independent secretariat;
Calls on both parties to the social dialogue to recognize their responsibilities and to work diligently and in good faith to find a way forward, and:
Requests the EPOffice President -
to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediationOther calls to action have been received from a number of French MPs - recently Philip Cordery, Pierre-Yves Le Borgn', Richard Yung, Claudine Lepage, Jean-Yves Leconte and Hélène Conway-Mouret wrote to the French Minister of Economic Affairs Emmanuel Macron to " demand once again that France take action towards a reform of the management of this international organization. "
pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions;
to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended;
to achieve, within the framework of the tripartite negotiations, an MOU simultaneously with both trade unions, which would have no pre-conditions or exclude any topics from future discussions;
to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BOA;
to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for reinforcement of the AC secretariat and a clarification of its position in terms of governance.
Requests the staff representation and the Trade Unions -
to acknowledge the importance of firm and fair disciplinary procedures; and to respond constructively to the initiatives set out above, in particular to work rapidly to an agreement on Union recognition without preconditions.
Disciplinary action against staff representatives
The "disciplinary sanctions and proceedings against staff or trade union representatives" in the above resolution refers to the fact that three of the 10 staff representatives have been singled out for disciplinary proceedings, resulting in the sacking of two and the downgrading of another in January 2016. Merpel understands that two others are also facing disciplinary proceedings. One of the staff representatives who was dismissed, Elizabeth Hardon who is the chair of SUEPO Munich, additionally had her pension docked; however this further sanction was removed following an internal appeal.
Recognition of SUEPO
Just before the March 2016 AC meeting, the EPO signed a Memorandum of Understanding with one of the EPO unions, FFPE-EPO. But, as reported by the IPKat here, that union is tiny and mostly exists only in the Hague. The AC resolution quoted above calls on both the President and the main EPO union SUEPO to work to "agreement on Union recognition without preconditions."
Here, there has been not much progress. In fact, almost immediately after this there was an official strike on 7 April 2016 (having passed the rather high hurdle for a strike to be permitted at all under the Strike Regulations). The vote in the strike ballot was overwhelming - 4062 voters (60% of the total EPO employees), of which 3701 in favor of the strike (91%). The strike participation was also high - 2078 full day and 579 half days: 2657 in total. The official strikes are rather rare, since they rely on the President approving a strike ballot. In between official strikes, demonstrations are quite frequent, and there is to be a further one on 11 May in Munich.
SUEPO is not prepared to sign an MoU along the lines of that signed by FFPE-EPO; its counter-proposal has been disregarded. It is hard to see how the EPO administration can negotiate with SUEPO when the chair and vice-chair of SUEPO Munich have been dismissed and the chair currently banned from EPO premises. Another fundamental sticking point is that SUEPO wishes to revisit the controversial reforms from the last few years, while the administration wants to have those accepted and confine discussions to future reforms.
One of the most controversial aspects of the current functioning of the EPO is the "Investigation Unit" which conducts internal investigations (sometimes also using external investigation companies such as Control Risks) into staff conduct under "Circular 342", which came into effect in January 2013. During such investigations, failure to cooperate is itself a disciplinary offence (so no right to silence), and no legal representation is permitted. Here at least there is some progress - the President has started a review of the functioning of the Investigation Unit, and SUEPO has provided its comments. Merpel will cast her last piece of hope that this review may lead to a disciplinary procedure that does not offend basic principles of due process.
In the meantime, reports of the contracts recently signed by the EPO refer to 6 contracts with 6 individuals to provide "Close Protection" because of "increased security requirements", at a reported cost of €550,000 for 6 months. Merpel is astonished that senior EPO management are considered to be in need of such protection.