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.

Thursday, 23 June 2016

Enlarged Board publishes decision: EPO President violated judicial independence

Merpel has now got her paws on several copies of the Enlarged Board of Appeal's decision in the latest round of the "House Ban" disciplinary action (reported here). If you like your IP decisions to be explosive, then she can't recommend it highly enough. The case reference is Art. 23 1/16, incidentally.

Readers can access the document here. It arrived in several copies today thanks to a number of correspondents who would no doubt prefer not to be identified, for reasons of modesty and career security. The decision is marked for "Publication in OJ", but the Board notes with admirable deadpan that its orders in the two earlier sets of proceedings, to publish those earlier decisions "have not yet been executed by the competent authorities of the Office."

It was already known that this third set of proceedings collapsed due to what was seen as an improper intervention by Mr Battistelli, the EPO President, regarding a decision by the EBA to hold oral proceedings in public, and that this was aggravated by the fact that the Administrative Council refused to distance itself from the actions of Mr Battistelli. Bear in mind, in what follows, that Mr Battistelli was not party to these proceedings, which were instigated by the Administrative Council (“Petitioner”) and the only other party was the impugned Board Member (“Respondent”).

Time prevents Merpel from doing full justice to this decision, but she believes that it speaks for itself pretty well in the most revealing passage, entitled:

"THE INDEPENDENCE OF THE ENLARGED BOARD AND THE OFFICE PRESIDENT’S LETTER OF 10 JUNE 2016 

36. In his letter of 10 June 2016 (see quotations in point XXVI. above), the Office President expressed his view that the Enlarged Board’s decision to hold public oral proceedings was unlawful. He further elaborated that the Enlarged Board does not have the competence to determine the facts in these proceedings. Finally, he indicated that he would not hesitate to take any appropriate steps available to him to ensure the orderly running of the Office and the safety of its employees in respect of the present case. 

37. The making of an unlawful decision is clearly misconduct. Hence the general, abstract threat to the independence of the Enlarged Board resulting from the amendment of Article 95(3) ServRegs (see para 8 to 13 above) has now crystallised as a result of the Office President’s procedurally irregular intervention in these proceedings. 

38. As the present case has shown, the Office President assumes the power to investigate and to suspend members of the Boards of Appeal and bar them from the Office. 

39. In addition, he may also propose any other disciplinary measures to the AC, pursuant to Article 10(2) (h)EPC. 

40. Thus, in the presence of these facts, ascertainable by any objective observer, all present members of the Enlarged Board find themselves threatened with disciplinary measures if they continue with these proceedings in the presence of the public, and seek to determine the facts of this case. This undermines the fundamental principle of judicial independence as set out in Article 23(3) EPC. Thus the conditions of Article 23(3) EPC are not fulfilled, unless the AC as appointing and disciplinary authority for all members of the Enlarged Board, including its external members, distances itself from this position of the Office President.

41. After having been given time during the in camera conference held on 14 June 2016 to reflect upon this situation, the Chairman of the AC made the following remarks in writing concerning the Office President’s letter and enclosure of 10 June 2016: 

"... Such a communication does not emanate from a party to the proceedings. In view of the fact that the Administrative Council is only represented in the proceedings pursuant to Article 12a(2) of the rules of procedure of the EBA, it cannot take position on a communication from the Executive Head of the Office. 

In this respect, and as per Article 23 (3) EPC, the EBA members are not bound by any instruction but must abide by the provisions of the EPC. This cannot be prejudicial to them, bearing in mind that the Council is the sole competent disciplinary authority for them ...”

42. The Petitioner in this case is the AC. The AC is the appointing and disciplinary authority for the Office President (the highest ranking appointee of the AC) , as well as for the members of the Enlarged Board, (the highest judicial authority of the EPO) . The Petitioner thus has an institutional obligation to clarify whether it endorses or not the Office President’s position as set out in his letter of 10 June 2016 and referred to above. 

43. For the Enlarged Board to be able to continue with these proceedings the position of the Petitioner would have to be that it did not agree with the Office President and acknowledged that, from an institutional point of view, the pressure exercised by the Office President in the present case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.

44. As can be derived from the statement of the Chairman of the AC, there was no clear and unequivocal declaration that the AC distanced itself from (or did not share) the Office President’s position. In such a situation, the Enlarged Board cannot legally continue with these proceedings. As a consequence it cannot make a proposal to the Petitioner to remove the Respondent from office. 

45. Thus to summarise, the Enlarged Board was reduced to the following alternatives:

— either, to take an “unlawful decision”; 

— or, to take a “lawful decision” according to the demands of the Office President, i.e. setting aside its decision on the public oral proceedings and taking as granted the facts established in the IU Report and/or the DC’s opinion.

46. In either case, the respective decision would be inherently vitiated because it would have been made under pressure from the executive and without the serenity and independence needed for a fair trial.

47. The intervention of the Office President, and this intervention alone, prevented the Enlarged Board from continuing the proceedings as had been planned, (see above points XVI to XXI) , from examining the case on its substantive merits as put forward by the Petitioner, and from establishing whether serious grounds for the removal from office of the Respondent existed in accordance with Article 23(1) EPC. 

The result of all this was that the EBA refused to make a proposal to terminate the appointment of the Board Member, ordered reimbursement of his costs, and ordered the decision to be published. Merpel is happy to comply with the last part.

One has to wonder how long Mr Battistelli's position can be considered tenable, given that he has been held by the highest tribunal in the European Patent system to have violated the judicial independence of that tribunal, and to have threatened its members? 

Then again, some AC delegates will not be fans of this decision (this being their third rebuff from the Enlarged Board in relation to a single disciplinary matter). Bear in mind that the AC was already given the opportunity to distance itself once from Mr Battistelli's actions and did not do so, or at least not unambiguously. One must assume that Mr Battistelli still enjoys the love and support of at least a faction within the AC (though Merpel hears that the faction shrinks at each meeting...).

273 comments:

1 – 200 of 273   Newer›   Newest»
Anonymous koward said...

Dear Merpel, you amply deserved a tin of king crab for dinner!

I see this in the PDF:

XXII. In addition to the submissions of the Petitioner, on 6 june 2016, the Chairman of the AC sent a letter directly to the Chair of the Enlarged Board expressing general reservations in respect of the decision to hold the oral procedings of June 2016 in public. Further, he asked for confirmation that the fgile would not be made available to anyone other than the members of the Enlarged Board in its present composition.

If I could attempt to rephrase this: Mr. Jesper Kongstad demanded that the EBOA reach a decision based on facts and evidence which is not made available to the other party, and such facts and evidence being provided by the President who isn't and cannot be a party to the proceedings.

Am I correct in my interpretation?

Anonymous said...

How can the AC continue to maintain Mr. Battistelli as President of the Office? This man shows total disprect for fundamental rights and fair governance.

Anonymous said...

In point XII of the Summary of Facts and Submissions the EBoA sets out the only two allegations put forward by the AC against the respondent.
There is nothing here which comes close to the "Nazi" accusations made public by the President at several occasions and never denied by the Chairman of the AC, who must have known they were unfounded.
The King is naked and so is his friend.

Lest we forget said...

How can the AC continue to maintain Mr. Battistelli as President of the Office? This man shows total disprect for fundamental rights and fair governance.

This is a strange rumour which has recently spread across Europe in some media, political circles and even with national judges - now apparently among EBA members ...

What an accusation!

https://www.epo.org/news-issues/news/2015/20150318.html

Anonymous said...

There are at least two Vice-Presidents in the management team and the chairman of the AC who could have warned the President that the letter he wrote to the Enlarged Board is violating judicial independence. But I am afraid that he did not ask them because he knows always better. Perhaps they thought also that it is better to let the President shoot in his own foot again. For Battistelli it is now high ¨Time to Say Goodbye¨.

Et sinon je reprendrais bien des croquettes said...

Further, he asked for confirmation that the file would not be made available to anyone other than the members of the Enlarged Board in its present composition.

This is not Kongstadt speaking here, this is His Master's Voice - why would the Chairman of the AC - or the AC itself - have any interest in keeping the file secret? Did they not say that "justice must be seen to be done"? - unless they knew that it's disclosure may damage the President - and them all.

De toute façon, on ne reprend pas des croquettes said...

Time to say goodbye to Battistelli? Pigs may fly. Shurely it is more likely that the AC will simply dig itself even deeper into its hole.

Anonymous said...

After the Brexit, now it's time for the BBexit.

Henri le Sage said...

Et sinon je reprendrais bien des croquettes said...

> why would the Chairman of the AC - or the AC itself - have any interest in keeping the file secret?

Because the Chairman may be way too deep in as well and his name may appear in the files a bit too often?

Or it may be His Master's Voice indeed - and Mr. Battistelli has grown way too big for the Chairman.

Mr. Kongstad should have realised what he signed up to with Mr. Battistelli. Who ruled the INPI with iron fist as well, that's no secret.

The AC realised they had to change working culture with the EPO. Bit by bit or the hard way? They chose the last option, conciously, and some members of the AC still support that option.

Neuland betreten said...

BB's words usually implied that the creation of the Unitary Patent was justification for his actions, and seemed to be one of the reasons why the AC put up with him, beginning with his secret contract.

Now that the Brexit meteorite hit the planet, and the UP looks at least severely compromised, will the AC change course? And what will BB do? Hide in a corner and sit out the storm?

The trade, foreign, and justice ministers of the EU28/EPC38 will undoubtedly have more pressing priorities than to try to salvage this comparatively minor agreement... (If the text of treaty has to be ratified, then the ratification cycle will have to start all over again).

Proof of the pudding said...

So now we know. El Presidente was of the view that the EBoa had no authority to conduct their own fact-finding exercise.

To quote the QC's opinion upon which the President relied:
"19. It will be recalled that the role of the EBOA under Article 23 EPC is to make a proposal on the removal from office, having regard to the fact that this sanction has been recommended by the DC and endorsed by the AC. This article does not confer an appellate or investigative power, let alone a free standing and further fact finding mandate. The nature and extent of the evidence already available to the EBOA means that the attendance of these witnesses is not necessary for the Article 23(1) EPC proceedings to be conducted fairly and effectively...

21. It is quite inappropriate that a full re-hearing of the facts take place on 14-16 June; there are no vires in this forum to conduct an appeal process nor indeed to recommence an investigation; accordingly, the personal presence of any witnesses from the Office will not be required or authorised by the President
".

Nice response from the EBoA, though:
"2. ... As it concerns a member of the judicial body of the EPO, who enjoys the guarantee of judicial independence pursuant to Article 23(3) EPC, this decision must itself also be arrived at in accordance with the principle of judicial independence pursuant to Article 23(3) EPC.

3. Neither the European Patent Convention nor the Rules of Procedure of the Enlarged Board of Appeal foresee these proceedings as an appeal from a decision or opinion in the disciplinary proceedings or establish these proceedings as a legal or factual part of the disciplinary proceedings governed by Article 11(4) EPC and the ServRegs. It is rather for the Enlarged Board to establish, to its own satisfaction, by an examination of the facts, evidence and arguments, whether it is in a position to make the requested proposal for removal from office...

4. ... the adversarial nature of the proceedings aims, as is usual under the rule of law in democratic countries, at guaranteeing the Respondent a fair trial and not at undermining the power of the disciplinary authority to take a final decision
".

On these grounds, the EBoA's reasoning appears to be perfectly sound. However, for reasons that I fail to comprehend, the QC's opinion does not appear to grasp the intent behind Article 23(3) EPC:
"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".

In essence, it appears that the President position's was that the EBoA should simply accept (unchallenged) the findings of the IU and the DC, i.e. that misconduct had been committed, and so should rubber-stamp those findings by proposing removal of member concerned. However, it is impossible to construe this position in any way that could be remotely compatible with Article 23(3) EPC - as being unable to conduct your own fact-finding exercise (and instead merely being forced to accept the findings of another party) clearly amounts to being "bound by instructions". To suggest otherwise is simply not credible.

So does this mean that there is now yet another ground to demand BB's removal from office, namely incompetence? I very much hope that the QC concerned did not independently arrive at the views expressed in their opinion... if so, then I hope that it is no one that I know!

Proof of the pudding said...

There are two other points that I would like to make.

Firstly, whilst I suspected before that it might be happening, it seems increasingly likely that some comments are being posted on IPKat on behalf of the EPO management. A particularly suspicious comments is from "independent", posting at 09:29 on 18 June:

http://ipkitten.blogspot.co.uk/2016/06/procedure-to-remove-board-of-appeal.html?showComment=1466238561927#c8753686057518486460

In hindsight, the points made in that post now look a lot like someone with full knowledge of the events on 14 June getting the President's reaction in first. I hope that I am mistaken, though, as it would not be the most dignified way for the management of the EPO to conduct its business.

Secondly, it appears that we have now reached a stalemate. The EBoA has closed the proceedings. It also appears extremely unlikely that they will hear the case again ("55. In the present case the Enlarged Board has made a final decision that it does not make a proposal for removal from office of the respondent"). However, they have the power neither to lift the "house ban" nor to fully reinstate the member concerned. I cannot imagine BB voluntarily taking those actions, but who could possibly force him to do so? One would imagine the AC, but he has ignored their explicit instructions before (as well as instructions from the EBoA regarding publication of certain decisions).

Is the only course of action now to lift his immunity? I imagine that if this were to happen, which I admit is unlikely, then there could be a surge of cases filed at the courts (including alleged defamation of the member of the BoA who was the subject of the proceedings).

Anonymous said...

Interested_Reader says:

The IMHO real "slap in BB's face" is in Points 1 to 3 of the reasoning. The EBoA makes it crystal clear that for proceedings held in front of it, it is entitled to gather facts and evidence on its own motion in order to take a decision to its own satisfaction, independently from any disciplinary proceedings under Art. 12a(8) RPEBA.

These are the points telling the President that his opinion of "you're just to propose dismissal for the reasons that the IU of mine has told you" is null and void and that he is the one that does not understand the EPC. The EBoA could also have said: "We're not your sock puppets."

Well done!

Anonymous said...

he is the one that does not understand the EPC

[Movie Opening: inspiring music, suggestive scenes]


"In a time of important reforms, the European Patent Office was managed by someone obviously unable to grasp the details of the Law ..."

Anonymous said...

[Movie Opening: inspiring music, suggestive scenes]

[deep breathing sounds emanating from the mouthpiece of a helmet sitting atop a coal black uniform]

Pukes, I am your father!

Kat a list said...

And the catchword is a big slap in the face of the AC!

Anonymous said...

It appears that the President position's was that the EBoA should simply accept (unchallenged) the findings of the IU and the DC

But that is exactly what happened to the dismissed and suspended Staff Representatives - the Office continues to repeat that the Investigation Unit is only a "Fact-finding" body, but is the IU that "decides" - on instructions of the President - not if but why the suspect is guilty.
7
Presented with the "proof", what other decision could have the DC taken for them, without risking dismissal?

If the IU - and the guillible Disciplinary Committee of the AC, and the renomed former British Judge - have already decided so, it is understandable that the President sees no need for witnesses and fact-checking.

Bloody disgraceful.


Anonymous said...

In the meantime, you want to take part in the

Kluwer Patent Blog Summer Quiz

http://kluwerpatentblog.com/2016/06/23/kluwer-patent-blog-summer-quizz

where no questions like "Who is the first EPO President who violated the judicial independence of the Enlarged Board?" are asked.

Anonymous said...

I would like to refer here to a comment from supernann made in the last post of Merpel about Brexit, because I think it is highly relevant.

"Incidentally, an intervention by the EU into the appalling goings-on in the EPO has been requested by many parties - EPO staff, MEPs of several political persuasions, national politicians. In vain, although as a bloc including the vast majority of EPO Member States it could intervene decisively. Its failure to do so is just one of its many failures and risks the demise of a once great European institution, which should be of concern to those on this blog."

Anonymous said...

EPLAW blog has a comment on the decision of the EBA:

EPO – EBA COMPLAINS UNDUE PRESSURE EXERCISED BY THE PRESIDENT OF THE OFFICE IN PROCEEDINGS ON THE REQUEST TO REMOVE A MEMBER OF THE BOARDS OF APPEAL FROM OFFICE

http://eplaw.org/epo-eba-complains-undue-pressure-exercised-by-the-president-of-the-office-in-proceedings-on-the-request-to-remove-a-member-of-the-boards-of-appeal-from-office/

Anonymous said...

BB started his 1st term by a speech in the hague, where he declared himself to be a "convicted european". We should have known back then! The brexit news this morning left me nauseous, but truly, how could I blame voters for not wanting to be part of that kind of Europe...

rosinenfurzer said...

he declared himself to be a "convicted european"

I do not really believe this.
He enjoys diplomatic immunity.
Securing a conviction would be next to impossible.

Anonymous said...

The Protocol on Privileges and Immunities does provide for the Administrative Council waiving the President's diplomatic immunity, but as the relationship between the President and the AC is akin to that of a dog who is being wagged by its tail, the prospects of his immunity being waived seem slim.

KQC - the King´s Queen´s Counsel said...

Perhaps will we sometime discover the identity of the distinguished English QC who advised the President in relation to his extraordinary intervention, and the amount of his professional fees, though these are likely to represent a fraction only of the costs to the European patent applicants of the disciplinary procedure so far, adequate damages and compensations not even included.

Operation Hummingbird said...

Whatever about the identity of the QC, the latest rumour doing the rounds at Eponia is that VP5 the head of the directorate responsible for legal services and international relations has been buzzing around like a rather nervous "Kolibri" (hummingbird) trying to make it clear to anyone who will listen that he had nothing to do with it ...

Anonymous said...

KQC,
Since the EPO is not subject to national laws, it is difficult to understand what expertise the QC could bring in such matters other than being of a skilled student of legal texts. In such matters, I would have thought that the practitioner of EPC law, in other words the EBA, would be the experts. In any case, seeking external legal advice to oppose your own internal legal procedures does seem highly dubious.

Anonymous said...

Bringbackalib.says

B atters UPC in tatters as we speak
B enny has had a torrid week
E nlarged Board has laid him bare
X posed,ridiculed,but he's still there!
I s he going to make monkeys of the AC again?
T hursday will show if they are primates or men(and women)

Anonymous said...

FIFA, FIFA, ... says

@Proof of the pudding said earlier

"So does that mean we are now in the situation where it is unarguable that the EPO is being run by a person who, under national law, could fairly be described as a criminal?"

Looks like the EPO is on the brink of becoming an international criminal organisation with its employees, pensioners and their respective families potentially being complicit or being held hostage. All this happens with the apparent consent (if not intent) the beloved home and host countries of the workforce ... in the interest of the organisation, of course.

According to Article 31 of the Vienna Convention immunity is provided from criminal, civil and administraive jurisdiction of the receiving state. No exemption from jurisdiction of the sending state is given, Article 31(4). Also according to Article 32, immunity may be waived by the sending state.

And remember: "Our organisation believes in an open and inclusive society based on fundamental principles of freedom, equality and justice." (EPO, Solidarity with the victims, Attacks in Brussels, 22.03.2016)

Observer said...

I always thought a QC is a reputable member of the legal profession who deserves a lot of respect. Reading what was published in the decision, this person seems an exception, and I hope it will remain one.
May be the pay-check he received from the EPO was decisive in his way of dealing with the matter. It rather shows a total disregard to the independence of the judicial, which is quite surprising for such a flying legal counsel.
If the AC ever thought that the EPA would rubber stamp a decision from the AC's DC it should get better advice.
The whole thing is disgusting and can only hope that BB reign ends as soon as possible, but the harm done to the EPO and its reputation is already irreversible.

Anonymous said...

May be the pay-check he received from the EPO was decisive in his way of dealing with the matter.

That's the EPO of today for you: a milk cow for any opportunist willing to give the President what he wants - QCs, External Consultants, Advisors, Communication specialists, IT specialists, members of the Administrative Council - you name it.

coroner of the BoAs said...

It was a serious error in fundamental law to issue any decision and at the same time admitttng they were under pressure and not independent . Resignation would have been the only legal way out. Having admitted their intrinsic partiality, they have set a precedence not only for the EBA but for all TBAs and judicial boards. They have admitted they are not functional. All their future and probably even past decisions are void. Not only VP3 is not above suspicion of partiality, as they previously admitted, none of them is.

Anonymous said...

A decision to discontinue/not-continue is also a decision of the EBA which ends the proceedings and as such must be announced by the EBA. There is no legal obligation on the EBA or ist members to resigne when the EBA is threatend.

Barbi

Anonymous said...

"Having admitted their intrinsic partiality"

coroner, mind to point out the specific passage of the decision where they make such an admission?

Thanks

Coroner of the EPO said...

The recent EBA decision is the very last step before the ultimate meltdown of the entire European patent system, which is already scheduled to take place this autumn, when the German constitutional court is due to settle two complaints filed in 2013 and based on an alleged - and now evident - lack of judicial review against decisions of the Boards of appeal (see the schedule of the cases to be dealt with in 2016 by the 2nd Senate of the court, rapporteur Prof. Dr. Huber, point 14 as published here: http://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/vs_2016/vorausschau_2016_node.html)
There is no way out, unfortunately.

Rumpole said...

Perhaps will we sometime discover the identity of the distinguished English QC who advised the President in relation to his extraordinary intervention ...

The identity of the QC is known in legal circles inside the EPO as (s)he is the co-author of a textbook on disciplinary proceedings. It is also rumoured that the QC and an associate participated in one or more of the recent "show trials" against EPO staff reps.

Anonymous said...

Brian Harris OBE QC?

Anonymous said...

rumors inside the EPO say that a representative from the German Bundesverfassungsgericht was present as public during the oral proceedings of the EBA in june

Anonymous said...

a representative from the German Bundesverfassungsgericht was present

I am sure the ghosts of the Founding Fathers of the EPO were also there ...

Proof of the pudding said...

I do not know Brian Harris. One reason for this is probably that he has retired (see http://www.39essex.com/8th-edition-of-disciplinary-and-regulatory-proceedings-published/).

I can understand why BB might have picked Brian for the hearings involving allegations of misconduct by staff. This is because Brian's view appears to be that "misconduct" is a flexible concept that has a scope that can effectively be defined by the investigating body. To quote Henderson Chambers:

"Misconduct is, and remains, the basic concept for disciplinary proceedings being commenced against a member by his or her professional regulatory body. Misconduct is said to be the oldest and perhaps still the most widely used form of allegation. Misconduct leaves it to the disciplinary tribunal to decide its ambit in any particular case, as opposed to individual offences of narrow scope: Disciplinary and Regulatory Proceedings, Fifth Edition (2009) by Brian Harris OBE QC and Andrew Carnes at para 4.02. The earlier terms “infamous and disgraceful” conduct or “serious professional misconduct” have largely given way to the use of the word “misconduct” or the words “professional misconduct”".

Taking this kind of reasoning to the extreme would, of course, allow an unscrupulous investigating body to pick almost any kind of conduct and frame it as "misconduct". I am not saying that is definitely what happened to the staff reps at the EPO, but it is hard to imagine that there are no other "experts" available who would have provided very different views on the matter. Thus, if Brian Harris was indeed involved in the disciplinary proceedings, then the observable evidence would certainly not be inconsistent with a "fit-up job" (in which the "expert" selected just so happened to espouse views that could be adapted to fit the management's narrative).

Another reason that I do not know Brian is that he does not appear to have dealt with / specialised in IP during his career (it is difficult to find out any information on his expertise, but his main legal publication seems to be "Disciplinary and Regulatory Proceedings", which suggests an area of practice far removed from patents).

I would therefore be very surprised if BB had relied upon Brian Harris to provide an "expert" view of the competence of the EBoA. Whilst not impossible (as I can see that BB may well have viewed the proceedings as being essentially "disciplinary" in nature), it beggars belief that BB would seek, from a (retired) QC with no experience in patents, an opinion upon what the EPC says that the EBoA can and cannot do. If this did indeed happen, then the case for firing BB on the grounds of incompetence might be further strengthened.

Proof of the pudding said...

@Coroner

Can I ask what you are trying to achieve by attempting to spin this episode as being some form of evidence that the BoAs of the EPO are not adequately "judicial" in nature?

Without wanting to prejudge the result of the constitutional case in Germany, I would point out that there is currently no viable alternative to the BoAs. With the future of the UPC looking uncertain (to say the least) for at least the next 2 years, what would the world of IP in Europe look like if decisions of the BoAs were found to be (incurably) unconstitutional?

I guess your choice of words ("meltdown of the entire European patent system") provides a hint at your agenda. But whose interests would that serve? It can be the work of moments to destroy institutions that have taken years of hard work and dedication to build. You therefore really need to be very certain that those institutions are built upon completely the wrong foundations before you take the wrecking ball to them. You also need to have a clear idea of what you would replace them with: the recent history of popular uprisings (and the type of "change" that, if unplanned, they ultimately produce) should provide a stark reminder of the importance of this point.

I would be happy to hear more from you if you can provide us all with a fully reasoned explanation of how your views will ultimately lead to an improved, fully functioning patent system in Europe. However, if not, then my personal preference would be for you to stick to the old adage that "If you don't have anything constructive to say, it's better to say nothing".

Anonymous said...

CIPA has filed a response to proposals for reform of the EPO Boards of Appeal.

Rumourmonger said...

According to rumours at the EPO, Brian Harris had no involvement.
But the hint to the book which he originally authored points in the right direction. The Essex trail is the one to follow.

Disheartened said...

Proof of the pudding,

Your quote appears to relate to disciplinary proceedings by a professional regulatory body against a member of a regulated profession, such as a lawyer. That is professional misconduct, or malpractice. The title of Brian Harris's book is consistent with that.

Disciplinary proceedings by an employer against an employee are not the same.

Are we sure that the previous anonymous poster has got the right QC?

Proof of the pudding said...

If the rumours are to be believed, then the candidates are:

Greg Treverton-Jones QC, who "specialises in regulatory and disciplinary issues concerning solicitors"; and/or

Alison Foster QC, whose "practice consists of public and administrative law with particular involvement in regulation and indirect tax".

I very much doubt that the experience of either of those QCs would qualify them to provide an "expert" opinion upon interpretation of Article 23 EPC.

Pacta sunt servanda said...

Has anybody given consideration to the implications for Article 32 of TRIPS ?
http://www.cptech.org/ip/texts/trips/32.html

Having a Headache from the construction noise said...

@Pacta sunt servanda:

The EPO is not a party to TRIPS. Those regulations therefore do not apply.

Quod erat demostrandum said...

I very much doubt that the experience of either of those QCs would qualify them to provide an "expert" opinion upon interpretation of Article 23 EPC.

That could however arguably make them a perfect "patsy" for BB ...

Pacta sunt servanda said...

The EPO is not a party to TRIPS but surely its member states are ?

If they allow the "judicial instance" at the EPO to be neutered might it not place them (the states) in breach of their obligations under TRIPS ?

Not a problem for the EPO but potentially a problem for its member states ?

Proof of the pudding said...

@PSS

You make a fair point. However, TRIPS Article 32 merely requires that "An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available". Thus, the obvious response to your point is that the BoAs do provide the "judicial" review required under TRIPS. That is, they review decisions (of the OD or ED) to "revoke or forfeit" a patent.

Case closed... unless, of course, you are questioning the "judicial" nature of the BoAs. In that case, I refer you to my comments above in response to @Coroner.

Having a Headache from the construction noise.... said...

@Pacta sunt servanda:
There is a precedent for that: the European Convention on Human Rights. All EPC contracting states are members, yet this treaty does not apply to the EPOff, and the EPOrg.....

Pacta sunt servanda said...

Pudding old fruit I am afraid that the case is far from closed.
Of course the the BoAs do provide the "judicial" review required under TRIPS.
Or at least one could credibly uphold that position until the latest decision.

The question is whether or not the BoAs can still be regarded as an independent judicial instance after the most recent denouement.
That is not to question their status under the EPC.

The issue is more whether the current situation within the EPO means that they can still be regarded as truly "independent" if the President can issue "threats" with impunity.

I am merely posing a question with presuming to have the answer.

The proof of the pudding - as they say - is in the eating and I put it to you that this particular dessert has yet to be digested by all concerned.


Having a Headach fm the construction noise.... said...

@Pacta sunt servanda:

Where does the cited TRIPS article demand a judicial independent review?

TRIPS article 32

Article 32 - Revocation/Forfeiture


An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.

Proof of the pudding said...

@PSS

So let me get this right. You are suggesting that the ability of the President of the EPO to initiate disciplinary proceedings and/or impose a "house ban" against a member of a BoA (which was the basis of the EBoA perceiving the President's letter as a "threat") means that the BoAs are not "independent" from the rest of the Office.

Have I understood that correctly? If so, are you not talking more about a perception of independence? I would rather have thought that the EBoA rather demonstrated their independence in this case, by not taking the decision that the President so clearly wanted.

Of course, the point about perception of independence is an important one to address, and so I would suggest that it is essential that the procedure for removing a member of the BoA is changed (again) to eliminate all possible influence of the President of the Office on the process.

Anonymous said...


EPO President once more obstructs justice, and fails to inform the AC:
https://www.suepo.org/documents/43465/55198.pdf

Pacta Sunt Servanda said...

Headache old chap it might be that the construction noise is befuddling one's brain ?

Unless I am very much mistaken the term "judicial review" when used in an international treaty like TRIPS means the review of an administrative or other decision by a judicial instance.
https://en.wikipedia.org/wiki/Judicial_review


A "judicial instance" is commonly understood to refer to a tribunal which is independent of interference by other branches in particular the executive.

If the BoA are not free from interference by the executive then arguably they no longer comply with the TRIPS requirement.

Compliance with TRIPS is not the EPO's problem.
But it could be a problem for the member states.

If you can't or don't want to understand that I suggest that you concentrate your mind on trying to fulfill your five-year plan targets and leave such issues to others. Just don't blame me when your government is sued by the US or some other non-European state for breach of TRIPS.

muddlehead said...

It says "judicial", not independent. But by arguing that the BoA are not judges, King B. argues himself that the requirements of Art. 32 TRIPS are not fulfilled. One may ask why? Doesn't he realise the implications or doesn't he care at all?

Jean-Claude's Jumper said...

Meanwhile, it appears that SUEPO is attempting to take the EPO to court again in the Netherlands:

https://suepo.org/documents/43465/55198.pdf

When can we expect a decision in the already-existing Dutch legal proceedings?

Anonymous said...

Proof of the Pudding said:

"I would rather have thought that the EBoA rather demonstrated their independence in this case, by not taking the decision that the President so clearly wanted."

The EBoA apparently was forced to terminate the proceedings because their envisaged course brought a threat upon them.
Termination of the proceedings and not taking a decision on the substantive merits was the only option because both, an "unlawful" and a "lawful" decision in any case would have been vitiated (items 44-46 of the decision).

This, in my view, cannot be called "independent".

Following your suggestion in principle the EBoA´s proceedings could always be forced to be terminated without issuing a decision on substantive merits merely by threatening the Board´s members.

Such a decision (termination of the proceedings), however, would be the direct result of the threat. Since the threat can be brought upon the members at will of the threatening party such an outcome of the proceedings (termination of the proceedings) could be brought about by the threatening party irrespective of any substantive merits of the respective case and fully at the discretion of the said threatening party.

In such a case the threatening party would be in the "driving seat" and by no means can it be concluded that under such circumstances the EBoA is independent.

Habing a headache... said...

@ Pacta sunt servanda:
Where does TRIPS limit itself to states having the judicial powers independent? It is NOT a requirement, however much we westerners want that to be.... See Poland, as example....

Also:
Compliance with TRIPS is not the EPO's problem.
But it could be a problem for the member states.


Do the member states care, if they do not even care for breaches of the ECHR?

Anonymous said...

Interested_Reader says:

coroner: Aren't you mixing up independence and partiality here? The EBA HAS made an clearly independent decision insofar as they operated in the range they considered to be free from threats. The decision also does not at all read that they took position for any of the parties involved (and parties means AC and Petitioner)

Anonymous said...

@Interested_Reader:

As long as a threat can be used by either a party to the proceedings or a third party to determine the outcome of the said proceedings (i.e. to cause termination of the proceedings at will by threatening the judges) I believe the judges cannot be independent.
I think in the present case they were impartial (The decision also does not at all read that they took position for any of the parties involved) but in order to be independent they would have had to be in a position to conduct the proceedings in a manner the board saw fit. This they were not. Had they been the outcome might have been different and a decision whereby they take position for any of the parties involved would most probably have been the outcome.

Question mark said...

Has it occurred to anybody that the EBoA took the decision not to propose dismissal of the accused member in order to terminate the proceedings and to prevent yet another attempt by the AC?

Anonymous said...

There is only one party other than the apponting authority that can propose to the appointing authority disciplinary measures in respect of the EBA members.
Therefore, when that only other exeptionl party indicates that it considers the EBA to be wrong and further indicates that it intends to apply measures available thereto, then the one argueing that there is no threat to the EBA is hard-pressed to explain why the members of the EBA should not feel threatend.

The members of the EBA should not feel threatend by any party other than the appointing authority which at the same time does not have the right to propose to the appointing authority any disciplinary action. This can be accepted.
However, the only exceptional party that enjoys the explicite right to propose the disciplinary measures to the AC also "enjoys" the respobnsibility not to use it as a threat to the EBA.

If I wrote to the EBA that I considrred their decision wrong and that I would propose disciplinary measures to the AC, the EBA would and should lough at me, but the EBA cannot do that in case of the one exceptional party. Thus, as I do not have the right to propose any disciplinary measures, I do not have the resposibility. I can freely indicate that I will propose disciplinary measures, but this, coming from me, is not a threat to the EBA. This, coming from you-know-whom, is a bit different.

Barbi

An Examiner said...

Good luck everybody for this meeting of the Administrative Council ...

Anonymous said...

Has it occurred to anybody that the EBoA took the decision not to propose dismissal of the accused member in order to terminate the proceedings and to prevent yet another attempt by the AC?

I don't agree with you, Question mark. As I see it, they terminated the proceedings because of the threat of the president. Since the proceedings could not be continued, they could not propose dismissal - as they were requested to.

If next time they will be able to hold proceedings in public and hear the witnesses of the IU, there should be no reason why they will not be able issue a decision on the merit of the accusations.

The guy cannot remain in a limbo without his name being cleared - or not.

Why do you think that their decision precludes another attempt by the AC - i.e., Battistelli?

Dream on said...

Good luck everybody for this meeting of the Administrative Council ...

Indeed. Let us hope that the AC realises that thanks to its recent reforms it can now suspend the President for up to two years pending an independent investigation into the reign of terror which he and his cronies have been conducting against EPO staff.

I am sure that they will take whatever action is necessary to restore order at the EPO.

naked emperor said...

"If next time they will be able to hold proceedings in public and hear the witnesses of the IU, there should be no reason why they will not be able issue a decision on the merit of the accusations.
...
Why do you think that their decision precludes another attempt by the AC - i.e., Battistelli?"

Do you seriously think that BB is going to tolerate a public hearing and the questioning of witnesses which might expose the misdeeds of "his" investigative unit ?

Finger in the dyke said...

Dutch press report about the laatest action to upheave the immunity of Battistelli:

http://www.nrc.nl/next/2016/06/29/vakbond-wil-opheffing-immuniteit-battistelli-2964865

Anonymous said...

Dutch press report [...]

What a nice image of the European Patent Office: the Bailiff, a public official of the Netherlands, escorted off the premises of the Office by five guards without even being told where the mailbox is ...

But hey! if it is all fine with the Dutch delegation in the AC, why should everybody else complain, right?

Vrijheid said...

"Liberation" turns on Battistelli !
A l'Office européen des brevets, un patron français sème la culture antisyndicale
http://www.liberation.fr/france/2016/06/28/a-l-office-europeen-des-brevets-un-patron-francais-seme-la-culture-antisyndicale_1462655

Two fingers in the dyke said...

"The union has filed a lawsuit in the Hague court to let the judge investigate the disciplinary measures independently. The bailiff who came to deliver the subpoena was escorted off the property by five security guards. They even refused to tell him where the mailbox is."

From: http://techrights.org/2016/06/29/epo-as-battistelli-barracks/

Anonymous said...

Latest rumour from the EPO: to avoid any further harm to the institution the CA envisages to discharge BB of his duties in respect of the boards, with immediate effect. M. Ernst the German representative will act ad interim.
Too smart to be true?

Anonymous said...

the CA envisages to discharge BB of his duties in respect of the boards,

Uh?!?

You mean:

A partial dismissal? (Is that like a partial pregnancy?)

A president for the EPO, and a separate president for the BoA?

The separation achieved by a mere vote of the AC?

William said...

discharge BB of his duties in respect of the board

Too smart to be true? Really?

[Enter two delegates of the AC]

[First delegate] Let's stop the kid from entering the glass department - he can still play wrecking ball in the other departments ...

[Second delegate] You are right, this way we don't have to deal with his temper tantrums ...

[Exit delegates]

Ab absurdo said...

Ernst the German representative will act ad interim.

An ad libitum President replaced by an ad interim President?

Anonymous said...

According to discreet contacts, the rumour is now that the above rumour on stripping BB of his powers over the BoA is nothing but a canard.

Anonymous said...

Well, it does turn out that there were hefty discussions throughout the day, with a particular emphasis over DG3 matters. The overarching Presidential powers were actually put into question. B28 should be busy "squaring the circle" throughout the night and prepare revised documents. Whether they can deliver under such pressure acceptable texts remains to be seen. These should also withstand scrutiny after been adopted in the hectic atmosphere of the AC.

Question Mark said...

That rumour cannot be true because the PC does not provide in that possibility.

Regarding my question (not opinion) about the closure of the disciplinary case: Isn't it so that a decision has been taken, that is, NOT to propose dismissal? That is a decision, on whatever grounds, substantive or not. There are plenty cases outside the EPO where a decision was taken on procedural grounds and it is not possible to reopen the case once a final decision has been taken, regardless if that was done on procedural or on substantive grounds. And yes, by taking this decision the member remains in limbo because there is nothing foreseen to reinstate him.

What an incredible mess.

Third World Justice said...

The EPO president is used to face the weak Administrative Tribunal of the ILO.
The ILOAT never organises Oral proceedings. There are no witnesses, no facts finding. The procedure is all but transparent. The file is not public then the Tribunal can easily modify the facts and hide the evidence brought by the staff members. Also, the Tribunal trust the EPO - No need to bring evidence for the EPO.

If the Office explains that the investigation found that Mr X did something wrong. The Tribunal will repeat that the investigation proved that Mr X did that thing wrong.
For the Tribunal, the EPO is a fair organisation that never lie. That's why the Tribunal never put in doubt the explanations given by the EPO.

The EPO wins 95 % of the cases in front of the ILOAT.

When the EPO is in front of a real justice, then usually it looses the cases.
For example, in front of a Dutch Tribunal or now in front of the Enlarged Board of Appeal.

Another sad day for Europe said...

Today the members of the AC disgraced themselves.

First they granted Benoit Battistelli impunity for his obstruction to justice and then they approved his disastrous reform of the Boards.
We can play a requiem for the independent judiciary review of the EPO decisions.
Shame on the members of the Council!

Anonymous said...

We will see how the new BoAC drafts the Rules of Procedure of the Boards of Appeal based on the wish of the President and the AC to reduce the backlog of appeal cases, ie to streamline and speed up the appeal proedure. No auxiliary requests and only revision of the decision of the department of first instance.
Brave new EPO.

Anonymous said...

I understand that a dead cat has been found, stuck in the ventilation system of the main building of the EPO.

That was obviously the source of the overwhelming smell of corruption that lingered in the air.

The problem is solved now.

Anonymous said...

Well, as far as I could see not one person who has to use the BoA, be it the parties, their representatives or the board members themselves, supported any of the proposed changes. But still the president convinced the AC members (a qualified attorney/practitioner before the EPO between them?) to decide that they knew better. But that's democracy for you.

Anonymous said...

Nobody cares for the
users. Because they dared to criticize Battistelli they are getting a fee increase and no place in the Boac

Anonymous said...

From HelloKitty:

Let us face it, Battistelli has won the final battle. It is now clear that Battistelli can threaten the enlarged board of appeal publically (that is the subject of this article) and get away with it. Any pretense of rule of law is abandoned.

It is now also clear that Battistelli can simply ignore the demands of the Council as he pleases (social dialogue, justice needs to be seen to be done, etc...). And it is also clear that he can fire whomever he pleases any time he pleases as he sees fit.

He won.

Anonymous said...

Nobody cares for the users

My dear Anonymous friend, if the users are not happy with all this they can go somewhere else to get their European Patents.

Oh, wait - they can't ...

Anonymous said...

One who knows says:
We have now reached the end of the EPO saga and the lowest morality level in the history of the Office.
It it clear that BB with his incompetent team will now reign undisturbed for another two years with the full support of the AC, whose members he convinced with cooperation money and intimidated with all kinds of threats.
We can well imagine what they will produce in the coming two years with their absurd synergism.
Disgraceful the attitude of the German delegation and government who tolerate such a situation on their territory. But we know: they have their own interest as the German Office has always been in competition with the EPO !
Disgraceful also the attitude of attorneys and their associations, especially the German and British ones. They will now get the inevitable erosion of quality and (good for them!) no many chances to play around with the claims as - in the name of efficiiency - the procedure will become more and more strict.
Adieu to the good old days of the ideals! Adieu to the EPO as a model organisation! Adieu to the solid values of justice and respect ! The sharks are here.

Anonymous said...

News from the Administrative Council
Outcomes of the 148th session
The Administrative Council (AC) met on 29 and 30 June for its 148th meeting. Following the presentation of the activities report of the President, the AC members congratulated the Office, the management and the staff, for the excellent results achieved so far in 2016. In what was a dense agenda, the latest session of the AC notably included the adoption of the reform of the Boards of Appeal.
Structural reform of the Boards of Appeal
By a very large majority (35 in favour, 2 abstentions, 1 against), the delegations supported the proposal of the Office concerning the reform of the Boards of Appeal, which aims at increasing the perception of independence and the efficiency of the Boards, based on five pillars:
a structural reorganisation of the BOA, with the setting-up of a Boards of Appeal Committee (BOAC) as a subsidiary body of the Administrative Council and a unilateral act of delegation of powers from the President of the Office to a newly created President of the BOA;
a new career system for members and Chairmen of the BOA;
the relocation of the BOA to a separate building in Munich;
a better cost coverage for appeals;
specific rules on the prevention of conflict of interest for members and Chairmen of the BOA.
After two attempts of reform which failed in 1995 and 2004, this is an historic achievement.
Budgetary and financial items
The AC unanimously approved the account of the 2015 budget. The financial statements 2015 received an unreserved opinion from the Board of Auditors in compliance with the International Financial Reporting Standards (IFRS). This is the sixth year in a row that this positive qualification has been obtained. The Board of Auditors expressed their positive comments in relation to the EPO Quality Management System, the project for the New Main building in The Hague and the good management of the IT roadmap. The delegations also gave a unanimous positive opinion on the initial budgetary orientations for 2017, showing their continuous support for the strategy of the Office.
The Council appointed Mr Groffmann as the new Administrator for the RFPSS, on a proposal of the President of the Office, in agreement with the Supervisory Board of the RFPSS.
Social topics
For the fourth year in a row, the Office presented a comprehensive social report, highly appreciated by the delegations. For the first time, the Office also submitted an environmental report. In relation to healthcare matters, the proposal of the Office to switch to a self-insurance scheme as of 1 January 2017 and the new contract awarded to Cigna for the administration of the healthcare reimbursement scheme, following an international tender were unanimously approved.
Because of the time necessary to finalise the reform of the BOA, it was not possible to address the two proposals on the revision of investigation guidelines and disciplinary procedures which are postponed to the October session of the AC.

Proof of the pudding said...

If these reports are true, then the reputation and functioning of the EPO has been dealt a mortal blow. The AC has let the president off the hook yet again, when there could not have been more blatant evidence of him overreaching his powers (and even defying the will of the AC). I now struggle to conceive of a situation where the AC would impose severe sanctions (or indeed any sanctions at all) upon the president... so it is perhaps not all that fanciful after all to suggest that we could have a Guantanamo-am-Isar if it carries on this way.

Is there a well-informed reader who can provide us with information about how the various different delegations voted? Also, are there final forms of the texts of the proposals that have been approved by the AC? Whilst I am at a loss as to how this situation can be fixed, it will be important for the users to know which national delegations have effectively ignored their feedback.

Upon reflection, we should perhaps not be too surprised that BB was, in the words of a previous commentator, "granted impunity". A much clearer infringement of the independence of the Boards of Appeal occurred when the president suspended (pending investigation) a member of the Boards. In addition to being contrary to the independence of the Boards, no one has ever seriously suggested that this action was anything other than a gross violation of the wording (and principles) of the EPC. And yet the AC officially sanctioned / pardoned that action. They also sanctioned the prolongation of the suspension of the member concerned, which (in view of the term of office of that member) could be viewed as dismissal in all but name, ie yet another contravention of the EPC. Next to these actions, the president sending a naughty letter looks like nothing to get too worked up about.

Which reminds me: did the AC decide what to do about the suspended member, given that the EBoA has closed the disciplinary proceedings without proposing dismissal? Under the provisions of the EPC, it would seem that the only viable course of action will be to reinstate the member, pay his costs for the proceedings (as well as salary withheld during the period of suspension) and leave him in peace to get on with his job. There is also an argument that his term of office should be extended for a period equal to that of the period of suspension.

But is any of that likely to happen, or will the AC sanction yet another violation of the EPC? At least the costs for the proceedings should be paid, as that has been ordered by the EBoA.... but, oh wait, I forgot that, thanks to the AC, the president can ignore the orders of all judiciary with total impunity!

Anonymous said...

Is there a well-informed reader who can provide us with information about how the various different delegations voted?

It seems tha the new version of the reform of the BOA was adopted with only one vote against (NL) and two abstentions (HU, IT).

Also, are there final forms of the texts of the proposals that have been approved by the AC?

Here you go:

Reform of the BoA, final version, with modifications highlighted.

Anonymous said...

My respect to the representatives of NL, HU and IT. Shame on all the others!

Proof of the pudding said...

Just seen a report on Techrights:

http://techrights.org/2016/07/01/leaked-ac-report/

Reform of the BoAs: 35 in favour, 2 abstentions, 1 against.

Reforms include:
relocation of the BoAs to a different building in Munich;
increase of the appeal fees;
new (career) structure;
new conflict of interest rules.

There are no other words for it, what a bloody disgrace! The last point (on conflicts of interest) particularly sticks in my craw. Even CIPA questioned the legality / enforceability of those rules ("We question whether broad discretionary proposals would be enforceable in a national court if necessary"). And yet this point seems to have been totally lost on more than 90% of the delegations to the AC.

The other points in the report are almost too much to bear ("the Office presented a comprehensive social report, highly appreciated by the delegations", blah, blah, blah). The final straw has to be postponement of discussion of disciplinary procedures. That is nothing more than code for "Carry on as you were, take your decisions and we will cover it all up afterwards".

Anonymous said...

A post in the EPLaw blog about the reform:

EPO – STRUCTURAL REFORM OF THE BOARDS OF APPEAL OF THE EPO

superann said...

Isn't there anything we can do? I realize that many of the people who write are EPO employees and fear for their salaries/pensions, but not everyone, surely.

Proof of the pudding said...

@superann

No, not all of us are EPO employees. But, with the AC seemingly in BB's pocket, what can we do?

In the light of recent events, I fear that only developments outside of the control of the Member States (e.g. an adverse decision from the constitutional court in Germany) could possibly prompt the AC into decisive action. But would we really want it to come to that?

Alternatively, if the media took more interest and thoroughly investigated quite why it is that the AC takes the decisions is does, could the EPO as whole withstand the fallout if clear evidence of votes for cash (or other personal benefit), blackmail or any other illegal activities was obtained? Or would it be even worse if we found out that the reason is that the delegates to the AC genuinely agree with BB's views?

Sad to say that the problem here lies in the fact that the founding fathers of the EPC did not foresee that the president of the EPO might (mis)use the resources at his disposal to effectively ensure that he controls his overseers. To speak plainly, there are simply not enough safeguards in the EPC against corruption (or to ensure an appropriate balance of power). (I should point out that I am not alleging that there definitely are corrupt practices going on here, just that there is nothing in the EPC that could stop them if there were.)

The problem is of course hugely magnified by the fact that the president of the EPO has immunity, and does not believe that he need recognise the jurisdiction (let alone the judgements) of any national courts. So, if the AC will not bring him to heel, who on earth can? I am clinging to the straw that something positive will come out of the court cases in the Netherlands. However, I am not holding my breath on that (as, even in the event of a decision adverse to the Office, no doubt some way will be found to "fudge" the issue and carry on as normal).

Anonymous said...

The development, or rather winding down of the quality at the EPO is very saddening and yet another blow to the stability that permitted a certain amount of complacency of the professionals.

Apparently, nobody among those who are responsible for carrying out the letter and intentions of the EPC have any historical perspective. Like politicians they are only concerned with getting re-elected and of financing their seat [almost like in the US, where fundraising seems to be the main activity of those elected to Congress, at least by some reports].

However, changes that may be carried out in one year to what was a complete application processing system will have repercussions for 15+ years, and those users that need to consider where to put their “insurance” money cannot risk obtaining superficially shiny patents that hide structural weaknesses, and on the other hand they cannot tolerate similar quality patents from their present or future competitors.

For consultants to smaller enterprises at least, the lesson is clear: it is no longer responsible to recommend obtaining a patent via the EPO, and the sooner alternative solutions are found on an individual basis, the better, because then the reforms at the EPO will not be felt.

The remaning problem will be an overabundance of unworthy patents from the competition, compounded by the ease with which the wise fathers expect the Unified Patent to be obtainable, that is, what defences can smaller enterprises muster against patents that go from irritants to (almost) trollls? We are not foreseeing a move to remove the European Opposition as a legitimate means of defence (but who am I to predict anything?), and that is what is needed.

9 months (and much more, if you have an early awareness) is definitely sufficient to structure supplementary searches and to study the paltry arguments for patentability that we see more and more. There is indeed a matter of cost, but smaller enterprises have ganged together in the past in order to protect their mutual interests, and paying a patent opposition membership fee corresponding in some agreed way with their turnover. And remember, due to the asymmetry of the EPC, the losing proprietor cannot go to the courts to try to reverse the decision and thereby gain further extortion time. Even if the EPO were to reject all oppositions, the opponents still have the courts available.

I think we need to think this way, and the AC members will not really be opposed: their patent offices will once more have responsibilities, and if they cannot lift them now, due to complacency and heavy reliance on EPO examination service contracts, they will b....y well have to re-charge their batteries. The EPO project will be a parenthesis in history, a brain trust of huge dimensions will disintegrate, and there will be human sacrifices. Let us celebrate the 30 years during which we were proud, but we must move on.

My candidate for a single country in Europe in which it would be worthwhile to apply in all cases, is Germany. Dependent on your purse and competitive situation you would choose other countries as well. We are back to before 1978! Luckily there are still some practitioners out there with experience that goes that far back.

George Brock-Nannestad

ex-examiner (UKIPO) said...

I fear that we have seen BB using the BBB principle to good effect (BBB = "Bullshit Baffles Brains", and old UK Armed Forces saying). I know nothing about the AC delegates, but it seems to be a law of nature (as expounded many decades ago in the classic textbook "Parkinson's Law"), that the sort of person who ends up in a committee like the AC, has seldom had "hands on" experience in the day-to-day operation of the organisation that they represent (often having come in from another field at high level), and, not wishing to show ignorance, will tend to follow the herd, especially if arguments are presented forcefully enough.

Ex-examiner now patent attorney said...

My dear Anonymous friend, if the users are not happy with all this they can go somewhere else to get their European Patents.

Oh, wait - they can't ...


National patents are suddenly much more attractive. Especially as many of the main patenting states have relaxed their requirements for local representation. The national route is now highly cost effective, and much less risky than putting all your eggs into the EPO basket. The EPO's new appeals regime makes the whole EPO route much too expensive and unpredictable. It may be OK for the big boys, but it's no longer a sensible option for SMEs.

Proof of the pudding said...

Upon further reflection, it is possible that some interesting (deliberate) tactics may have been employed by BB at the latest AC meeting.

The reason for reflecting is this: why was the discussion of the reform of the BoAs so pressing (i.e. no. 1 item on the AC's agenda), so complex (i.e. involving multiple proposals that, for no good reason, were tied together by the Office) and so controversial (i.e. so blatantly against common sense as to guarantee vigorous debate at the AC meeting)?

It could perhaps be that BB believes that the best form of defence is attack. If he can control the agenda and tie the AC in knots with a debate on the first item, then he neatly side-steps an issue that could have truly seen him in the firing line. He also gains months (instead of only days) to prepare his defence to any criticisms stemming from the recent EBoA (Article 23 EPC) debacle.

It may well be a lot more complicated than that. However, if it really was that simple, then the delegates to the AC need to wake up to the fact that BB may well be playing them for fools.

The killer said...

Why this reform is urgent?

21. (…) the President of the BOA will be responsible for proposing disciplinary action to the Administrative Council with regard to the members, including the Chairmen, of the BOA and the members of the EBA.

5. (…) the President of the BOA shall be appointed by the Administrative Council on a joint proposal made by the BOAC and the President of the Office (sic).

After this reform, the suspended member of BOA could be easily dismissed on proposal of the President of the BOA (for sure a BB good friend).
The members of the Enlarged Board who dared to organize the public oral proceedings will be in trouble too.

let's hope this is comment #100 said...

It appears, that the AC desperately felt the need to do something about the independence of DG3.

There are procedures at the german Bundesverfassungsgericht this year (the link is somewhere above). If the judges there see a lack of independence of DG3, it may cause quite some trouble, like an amendment to the EPC (http://www.stjerna.de/index_htm_files/Unitarypatent_Constitution.pdf, check out point 2).

Maybe this is why the AC felt the need to it quick?

The Cat that Walks by Himself said...

It's very difficult these days to follow the reforms at the EPO. So many different developments and proposed changes. Which of them are before the AC for decisions is difficult to understand. I hope at least the AC follows the situation.

RE: Considering that the present cost coverage for an appeal is 6.3%, the AC aims at increasing the cost coverage within the next five years to 20 to 25%.

On the one hand, an appeal fee of about 5000-7000 euros probably strengthens the case before national courts on the absence of independent judicial/quasi-judicial review of EPO grant/revocation decisions.

On the other hand, such a new appeal fee effectively diverts from the EPO patenting route small and middle size businesses/innovation, since they need fully disclose and make public their inventions while a review of EPO decision would have a 5000-7000-euro barrier. And this is just to start an appeal, without attorney costs, etc. And this all just for one patent.

Besides, it seems extremely disproportional to me to charge 5000-7000 euros a patentee who validates 3-4 countries and a patentee who validates 20+ countries. At the same time, also SMEs should be able to patent 38 countries.

Last but not least, an increase of BoA appeal fee seems to be indirect increase of patenting costs, given that now an appeal fee is already being paid, i.e. included in an entire series of EPO fees.

Anonymous said...

Amicus Curiae

I cannot help but wonder.

I hear that the Council extended the appointments of some members of the Enlarged Board having participated in the latest disciplinary decision. Nice sign. However, the Council should have suspended or dismissed the President, for interference with proper application of justice. That would have solved the independence issue, too.

It would also have bought enough time to finally organize the conference of ministers, overdue since 2012. Reshaping DG3 would definitely have merited such a conference, as would the UPC.

The impression I get is that all the Council is interested in is cash, i.e. as many patents and renewal fees as possible. As long as the President provides this cash, the Council will not stop him. Downside: once the applicants have voted with their feet and the cash flow drops, it will be really difficult to get the applicants back to the EPO. But that is unlikely to happen in the next one or two years, i.e. once the current President has left.

Anonymous said...


One point has to be made clear. All EPO activities are paid by the renewal fees.
None of them (including search, examination and opposition and not even mentioning the PR events of Battistelli or his bodyguards) cover its costs with the procedural fees.
The cost coverage factor of opposition, for instance, is similar (slightly lower) than that of an appeal.
Thus, BB's argument about the need for an increase in appeal fees in order to cover the costs is, as usual, completely disingenuous.
If that is not the reason which is the real reason?

Proof of the pudding said...

If the AC really were concerned about the independence of the BoAs, then why did they approve amendments that arguably make the Boards less independent (at least in some respects)?

It is not like they could not judge the effect of the proposals upon independence: AMBA's comments on that point were unambiguous.

By the way, does anyone have a copy of CA/29/16 as amended that they are willing to make available? I am willing to wager that the most problematic issues with that proposal were not adequately dealt with by the amendments.

Anonymous said...

does anyone have a copy of CA/29/16

Here you go:

CA/29/16 Rev. 1: Post-service integrity: prevention of conflicts of interest

CA/29/16 Add. 1 Rev. 1: Post-service integrity: prevention of conflicts of interest: comparison between existing and new text

cooperate or... said...

I believe the situation is now so bad and dangerous at the EPO that it is time that public, patent attorneys, economists and company bosses assemble and act together. Make a petition, use your professional or private network if you know politicians, journalists, economists, write to ministers or representatives. We need to inform them that the whole European Patent System is at risk. Companies, economy, research will be endangered if the EPO continues on this track.
About the other reform voted at last AC, namely "risk of conflict of interest", it is appalling that it appplies to DG3 members. A very clear conflict of interest exists at the moment at the EPO : the President and VP who force excessively high targets on examiners : EPC vs production and objectives. It is the representatives sitting at the AC : EPC vs money for grants, money for dentists, money for cooperation projects.

Anonymous said...

Anon,
I think those were only the proposal documents. As far as I understood the text wasn't agreed as so much time was spent on DG3? The DG3 document was amended to drop references to non-DG3 staff with regard to these documents but wasn't that just a nicety and CA29/16 would continue to be applicable to all staff if approved?

The Cat that Walks by Himself said...

RE: CA/29/16 Add. 1 Rev. 1: Post-service integrity: prevention of conflicts of interest: comparison between existing and new text

What is truly missing here is a comparison with national provisions/case law applicable in similar national cases. What is even more missing is an independent court capable to test proportionality and application of these CA/29/16 provisions. First of all, it goes about compensation for lost time and opportunities.

I would like to cite for the AC of the EPO a few great sentences: "And the wider our experience the more we can develop what I think is a key attribute - the ability to put yourself in the place of the other man or woman, whether they be litigant or witness or anyone else. This attribute - empathy-is precious; beyond just the courts it is one of the greatest protections against cruelty and one of the greatest forces for peace.", Robin Jacob, 'IP and Other Things'.

hbfiwv said...

This procedure which lead to the acceptance of the amended documents is the reason why the UK voted "exit".
First day clear NO!
some amendments overnight, and all public input, opinions,... are forgotten and the proposal is accepted anyway.
Sounds like Bruxelles....

European patent examiner said...

Reading all these insider comments above about "decreasing patent quality", "criminal international organisation", "applicants should go to national patent offices", "admin council not caring about staff" etc..etc.. it appears to me that there might be some darker forces at play here. Who has any interest in discrediting a good employer and an organisation that delivers an excellent product in this way? Perhaps some foreign power? Perhaps some communist/anarchistic or anti-IP rights organisation? Daesh? Who knows.. It says a lot that a lot of confidential documents and information ends up on the website of the very secretive anti-IP organisation Techrights.

Anonymous said...

Reading the decision of the council linked above:

The last word on budget and information stays with Battistelli.

Proposal for appointments and re-appointments are delegated to the president of the boards. However, they are made dependent on the whim of the president of the board, himself dependent from Battistelli for his appointment or reappointment (the Boac has only a rubber-stamping function because the crucial power to propose the chairman of the Enlarged board and give an opinion on his reappointment is not delegated).

The drafting of the Rules of procedure has been moved from the presidium to the boac where Battistelli is again sitting and the users and the members of the boards . are excluded.

Costs of the appeal (ultimately paid by the users in form of sloppy dg1-style treatment of the appeals and/or higher fees) are going to increase because of the move into a new building.

In summary: the council abandoned the idea of an independent judiciary. They gave control over it to Battistelli(at least previously they could decide who was going to serve as VP3), whose contempt for the rule of law is known and told the users to mind their business.

If it is true that the initial reactions to the office proposal were (rightly) negative one wonders what happened behind the closed doors of the council that led 35 delegates to be satisfied with just a couple of purely cosmetic amendments.

Anonymous said...

All of the alleged "decisions" of the administrative council (i.e. 43/16 and 29/16) are proposals only, it it clearly says in every case "for decision" on the cover page. In contrast, all decisions of the AC clearly state "Decision of the Administrative Council for/to/...". I haven't seen any official statement of the AC yet and what BB posts on the EPO's intranet (quoted several times above) has a credibility rating of close to 0%, at least if its face value is concerned. Before jumping to conclusions, lets wait for both explicit decisions and an official statement by the AC (in a hidden niche on the EPO.org homepage). It should come out next week. There's a lot of tactical moves going on, on both sides of the EPO/AC fence.

EPO Stooge

Anonymous said...

Please disregard my latest comment re official AC statement on 148th meeting, just saw it (http://www.epo.org/about-us/organisation/communiques.html#a25). I'm very surprised that they actually did allow proceedings for a removal to a new building in Munich, after initial strong words against it, including those of influential members like Grossenbacher. Depressing. Deeply intransparent.
EPO Stooge

Anonymous said...

@European patent examiner

Wow. What an accusation. Congratulations for reducing everything to "foreign power" "Daesh" "communist/anarchistic" or "anti-IP". This comment is not at all rational. First of all, "criminal international organisation" is not a term from me, "decreasing patent quality" is somewhat of a consensus and "applicants should go to national patent offices" is an opinion I've increasingly seen expressed and it gives me no solace as an ardent supporter of the EU (I'm a German living in the UK, so calling me "foreign power" is ludicrous, set aside "Daesh"); regarding "communist/anarchistic" -- again, totally baseless. I support neither Communism not anarchism. As for "anti-IP"? I spent over a decade fighting against software patents. Everyone who has read Techrights that long (or even for one week) knows this. This opinion is expressed repeatedly, but those who try to discredit the messenger would rather misrepresent the messenger, whereupon criticism becomes trivial. I know these tricks, they're commonplace. Remember that the patent system was all along dependent on quality control, not just for its its legitimacy but also for perceived value (per granted patent). The same goes for copyright law.

You said "it appears to me that there might be some darker forces at play here." Right, let's ignore how Battistelli has been ruining the EPO to the point where his approval rate is 0%; why not call his critics "dark forces" and believe that Battistelli's critics are "snipers", "Mafia", and armed "Nazis" [sic]? Maybe the "darker forces" are not his critics; maybe they're even anonymous comments in Google's Blogspot. Who knows...

You called my site "secretive anti-IP organisation Techrights." Actually, it's one of the most transparent sites out there. We are huge proponents of transparency at all levels in society (see daily links), as it helps guard against corruption and mischief. We used to even publish IRC logs on a daily/weekly basis (since 2008) until Control Risks with the Investigative Unit started scraping them in an effort to crack down on people (they never succeeded because thankfully we're technically ahead of them).

You also said: "It says a lot that a lot of confidential documents and information ends up on the website" (we don't even publish everything; far from it!).

The last point serves to demonstrate that people with access to such documents and information trust Techrights more than they trust their bosses. Why use that to discredit me and my site?

I welcome people to challenge my track record and check if I'm "anti-IP" as "European patent examiner" claims. I have published nearly 21,000 articles in Techrights with focus on justice for software development (my profession). We in the software spheres have copyrights for code; software developers generally don't wish to pursue patents because they know that such patents would slow down development, increase development cost, and potentially be used against them, quite famously by patent trolls (in the majority of cases NPEs rely on software patents and prey on SMEs that would settle without challenge).

Best regards and with true sincerity,

Roy Schestowitz

Anonymous said...

At this stage, no final decisions have been made: the government still has a chance to listen to the concerns voiced by the general public and leading experts alike. Here’s hoping it’s brave enough to recognise when it has made a mistake, and arrive at the right decision.

Alas, this wasn't referring to the institution we are lamenting here, but is rather about the proposed sale of the UK Land Registry...

If the Chancellor of the Exchequer himself is deaf to cries from the public, then minor second-tier bureaucrats in charge of "overseeing" a rather invisible international organisation has even more excuses to be tone-deaf.

Anonymous said...

Anon at 10:22,

The amendments made by the Admin Council in CA/43/16 Rev.1 might not do everything you want, but they do address some of your concerns. They are more than "purely cosmetic". Please read the actual document itself, not just the summary on the EPLAW blog.

For example, the BOAC now has to consult users about amendments to the Rules of Procedure, not just the EPO President. The actual wording is to be proposed by the new President of the Boards of Appeal, advised by the Presidium.

Anonymous said...

Anon. at 18.45:
Actually it is because I read the document that I say that the amendments are cosmetic. If you check my concerns (and those of CIPA or AMBA) you can see by yourself that they have not been addressed.

Anonymous said...

What'll be the free rooms in the Isar building be used for?
More personnl under direct supervision of "him"?
More toys (IU, ...) he can send out to other buildings?

I fear his bdygards are in "need" of a readyness room.
His rght hand and her bodyguards too?

More luxury apartments?

Anonymous said...

4. The Administrative Council is requested to take note with approval of Annex 3 concerning a unilateral act of delegation of powers from the President of the Office to a newly created President of the Boards of Appeal. Approval of this document by voting of the Administrative Council is not necessary.

Yeah, sure, I feel safer now...

"The Lord Gave, and the Lord Hath Taken Away"

ex-examiner (UKIPO) said...

There is not much point in being consulted if no-one listens to you.

Proof of the pudding said...

CA/29/16 Rev1 is certainly an improvement over the original, but it is still far from being acceptable.

It is good that we no longer have a vague reference to the "legitimate interests of the Office". But what could possibly be meant by "integrity of the EPO's appeal system"? And why has the option of forbidding a member of the BoA to take up a new position been retained?

I struggle to think of any potential conflict of interest that could not be dealt with by instead placing limitations upon the ex-member's future interactions with the EPO. If those limitations make a new position untenable, then that is a problem for the ex-member to sort out with his or her new employer. But forbidding a member to take up a new position is just an unenforceable restraint of trade (and an infringement of human rights).

Anonymous said...

From Anon at 18:45 to Anon at 10:22 & 19:38,

"Actually it is because I read the document that I say that the amendments are cosmetic. If you check my concerns (and those of CIPA or AMBA) you can see by yourself that they have not been addressed."

I said the amendments don't do everything you might want, but they do address some of the concerns. They pick up some of CIPA's suggestions, but not all of them. So they're an improvement, but not perfect.

I took one of your concerns as an example: that the Rules of Procedure would be drafted by the BOAC. If that was ever proposed, then it is several months out of date.

Recall that last November BB said that the Office (i.e. BB) would propose the RoP. Everyone said that was unacceptable. The AC told him to think again.

In February this year, BB made revised proposals. I don't know exactly what they said about the RoP, but there was a big falling out between BB and the AC. The AC decided that Board B28 would tell BB what to say about the reform of the Boards of Appeal.

At the start of the latest AC meeting, therefore, CA/43/16 said that the new President of the Boards of Appeal would propose the RoP to the BOAC, and that he would be advised in this by the Presidium. Thus, the RoP would not be drafted by the BOAC, but within the Boards of Appeal, as at present.

CIPA requested that users should be consulted as well, preferably by having observer status on the BOAC. The amendment CA/43/16 Rev.1 made during the AC meeting doesn't go that far, but it does say that the BOAC should consult users, particularly about the RoP.

Anonymous said...

From Anon. at 10.22 and 19.38 to Anon. at 18.45 and 21.41:

I referred to the amendments made during the last AC meeting, which, as I understand are those highlighted CA/43/16 Rev.1.

You refer to two points: the drafting of the Rules of Procedure and the involvement of the users in the BOAC.

The first point is dealt with in the new Rule 12c EPC, which, contrary to what you say, does not seem to have been amended at all during the Council.

In respect of your view that the Rules of Procedure would be drafted within the Boards, as present, it seems to be based on a superficial reading of the text.

Old Rule 12(3) EPC said that “The Presidium shall adopt the Rules of Procedure of the Boards…”.
The new Rule 12c says “On a proposal from the President of the Boards of Appeal and after the President of the European Patent Office has been given the opportunity to comment, the Committee set up under paragraph 1 (BOAC) shall adopt the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal. “ Thus you see that the President of the Boards can only make a proposal but the adoption, i.e. the formulation of the final text, has been moved from the Boards to the BOAC after giving the President of the Office (which was previously not involved at all) the opportunity to comment. That is clearly a step in the direction of less independence.

In respect of the involvement of the users, it is true that the proposal has been amended to say that the BOAC “carry out, where necessary, user consultations on matters of direct concern to users, such as proposals to amend the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal. “ But given how the opinions voiced by the users in the last consultation have not been into account, that is what I call a cosmetic amendment.

In summary I still think that this is bad reform that in many respects decreases the independence of the Boards. The fact that even worse reforms could and have been proposed is not a good reason for passing a bad reform. The members of the Council were right when they initially rejected it and I wonder on the basis of which deal struck behind closed doors they finally accepted it.

Old Rule said - New Rule says said...

Dear Anonimi et al

as the CIPA already did before they were approved, and Merpel too, we can go on and dissect these rules after their approval and find further problems - look, without being an expert I can even do that:

On a proposal from the President of the Boards of Appeal and after the President of the European Patent Office has been given the opportunity to comment

First the president of EPO makes a comment and then the President of the Boards of Appeal makes the proposal ... but what if the comment of the President of EPO is "I don't like that"? What happens then? Does the resident of the Boards of Appeal still make the proposal?

We shall not forget that the President of the Boards of Appeal himself is dependent from Battistelli for his appointment or reappointment ...

What I mean is: the fact that we are all here mentally masturbating [Merpel you can amend that] about possible scenarios deriving from the application of these rules means that they are not clear - there does not seem to be a definitive flow chart.

But the real truth is ... neither the AC nor Battistelli seem to care about your comments and analysis - or the one of the CIPA, or the users, or Merpel, or AMBA.

You can scream from the top of your lungs "this is unclear!", "this reduces the independence of the BoA!" - it seems to have quite the opposite effect: they adopt the rules even faster - overnight.

Stop it.

It's wasted time. At the end, whatever Battistelli proposes will be approved - with cosmetic amendments to save the face of everybody in the AC.

Remember, it has been declared that "this is an historic achievement" - who are you to go against history?

Fare thee well, Europe. said...

The new Rule 12c says “On a proposal from the President of the Boards of Appeal and after the President of the European Patent Office has been given the opportunity to comment, the Committee set up under paragraph 1 (BOAC) shall adopt the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal. “

"Shall adopt"?
No possibility to amend, or comment themselves, or not adopt unwanted RoP? What is the Committe then needed for? Clearly, in this instance, they are only rubberstampers.
A clear step towards dependency. But not necessarily towards dependency of the President of the EPOff.
The PoBoA can impose any rules he wants, and since his renewal is dependent on the President,.... But he can also implement any rules he wants against the wishes of the PoEPOff. The PoEPOff can only comment, not amend.

Slartibartfast said...

Very disappointing that all the disciplinary issues have been swept under the carpet until October. But is that a cleverer move than it first appears? I recall a rumour that the judgment of the Dutch Supreme Court in the SUEPO/EPO case is due in September. If that is true, and if the judgment goes against the EPO, it should make for a very uncomfortable October AC meeting for Battistelli.

Anonymous said...

I agree, Slartibartfast. Having the banned judge just wait for another four months in uncertainty is just irresponsible.
And congratulations for the three oxymora in a single contribution: a clever move of the AC, a court judgement against the EPO, an uncomfortable AC meeting for Battistelli.

Kant said...

Since the President gives the Staff Council less than 24 hours to review documents, presumably the BOAC can treat the President in the same way, meeting the letter of the law but giving him no real opportunity to interfere.

Back to basics said...

The new Rule 12c says “On a proposal from the President of the Boards of Appeal and after the President of the European Patent Office has been given the opportunity to comment, the Committee set up under paragraph 1 (BOAC) shall adopt the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal. “

To understand the significance of the changes you need to go to Article 23 (4)EPC:
(4)The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be adopted in accordance with the Implementing Regulations. They shall be subject to the approval of the Administrative Council.
http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar23.html

The relevant Implementing Regulations are Rules 12 and 13 EPC.

According to Rule 12 EPC, the Presidium shall adopt the Rules of Procedure of the Boards of Appeal.
According to Rule 13 EPC, the members of the Enlarged Board of Appeal appointed under Article 11, paragraph 3, shall adopt the Rules of Procedure of the Enlarged Board of Appeal.

In both cases, the rules of procedure "are subject to the approval of the Administrative Council" but they are adopted by "autonomous organs" of the Board of Appeal.

Under the new regulations, the rules of procedure are no longer adopted by "autonomous organs" of the Board of Appeal.
They are adopted by a subcommittee of the Administrative Council (the BOAC).
The organs of the Boards of Appeal have some input to this process but they are no longer responsible for adopting their own rules of procedure.

According to my analysis of the situation that amounts to a loss of autonomy.
I do not see how it enhances the independence of the Boards.

JK and BB said...

OW! that´s an unfortunate slip of the pen, due to the late hour.
We of course meant: "On a proposal from the President of the Boards of Appeal ... the Committee ... (BOAC) shall adApt the Rules of Procedure ..."

Back to basics said...

The point as I see it is the following:

Under the "old" arrangements, the judicial bodies (Boards of Appeal and EBA) adopted their own Rules of Procedure which were then subject to approval by the appointing authority (the AC which is the EPO "legislative").

Under the new arrangements the Rules of Procedure for the judicial bodies will now be adopted by a sub-committee of the AC (the BOAC) and presumably then approved by the AC itself pursuant to Article 23 (4) EPC (which has not been changed).

In other words: the Rules of Procedure will now be adopted by a sub-committee of the "legislative" and approved by the "legislative" itself.

I cannot see this as being anything other than a transfer of competence from the judicial organs (who previously disposed of the competence to adopt the RoP) to the legislative (which now disposes of both the competences to "adopt" and to "approve" the RoP).

Undoubtedly this is all just one small detail in the grand scheme of things.
But I fail to see how it increases or enhances the autonomy of the Boards of Appeal or even the "preception of independence" so close to the heart of the EPO President.

To me it seems to be a very clear erosion of autonomy.
But maybe I am missing something?

Anonymous said...

Back to Basics

I think what you are missing is that in most jurisdictions, court rules of procedure are produced on a collaborative basis. Yes, the judges themselves should be at the heart of it, but the fairest and most efficient outcome is achieved when other points of view are also taken into account. This is how it works in the UK and UPC, for example.

The requirement for separation of the judiciary from the executive arm of the EPO means that BB's original proposal (that he should have sole responsibility) was absolutely wrong.

But the current situation where the Boards have sole responsibility and don't have to listen to other views is not necessarily the best either.

Sure, you can argue about whether the proposed solution achieves the best balance. But it is more balanced than either of the above alternatives. And it does mean that the Boards themselves will still be drafting the rules, even though others will also have a say which they don't at the moment.

Anonymous said...

But maybe I am missing something?

What you are missing, Back to basics, is a picture of the President and the National delegations on holidays on a beach - possibly separatedly - sipping cocktails and yawning at your legal analysis that will change absolutely nothing.

Can you see it now? Yes? I thaught so.

Sorry to be blunt - nonetheless, you may have a point in your analysis.

Anonymous said...

To render them independent the Boards will be moved outside Munich in the middle of nowhere. The rest are just details that do not affect independence.

Anonymous said...

To render them independent the Boards will be moved outside Munich in the middle of nowhere.

The same sick idea crossed my mind too...

Excerpt from the EPO Codex, Circular 115 of 10 March 1983, "Guidelines regarding travel in the interest of the service at the place of employment":

(1) The place of employment shall be regarded as:
[...]
b) the districts listed in the annex for employees in post in [...] Munich.

[...]
The Munich area covers:

Aschheim
Baierbrunn
Brunnthal
Buchendorf
Dachau
Dingharting
Dornach
Eching
Eichenau
Feldgeding
Feldkirchen
Garching
Gauting
Germering
Gilching
Grasbrunn
Gräfelfing
Gröbenzell
Grünwald
Günding
Haar
Harthausen
Heimstetten
Hofolding
Hohenbrunn
Höhenkirchen
Ismaning
Karlsfeld
Kirchheim
Krailling
Lenstetten
München
Neubiberg
Neukeferloh
Neuried
Oberbiberg
Oberhaching
Oberschleißheim
Olching
Ottobrunn
Parsdorf
Percha
Planegg
Pleining
Puchheim
Pullach
Putzbrunn
Pöring/Poing
Sauerlach
Schäftlarn
Siegertsbrunn
Starnberg
Straßlach
Taufkirchen
Unterföhring
Unterhaching
Unterpfaffenhofen
Unterschleißheim
Vaterstetten
Wangen
Zorneding


Is this list applicable to the definition of "Munich" for, say, the purpose of <a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar6.html>Art. 6(1) EPC</a>?

And that list can be modified by the President, as attests footnote 2:

<i>Modified by decision of the President on recommendation of the GAC.</i>

Technically he could define Kreuzberg, Wedding or Marzahn or even Bremerhaven, Frankfurt/Oder or Gelsenkirchen as being part of the definition of "Munich", and no one would be able to do anything about it.

All the President's sock puppets said...

But the current situation where the Boards have sole responsibility and don't have to listen to other views is not necessarily the best either.

Sure, you can argue about whether the proposed solution achieves the best balance. But it is more balanced than either of the above alternatives. And it does mean that the Boards themselves will still be drafting the rules, even though others will also have a say which they don't at the moment.


Looks like the President's sock-puppets are busy today.

Under the current arrangement, the Boards don't have the sole responsibility.
There is a classical "separation of powers" arrangement whereby the Boards "propose" (i.e. adopt the rules) and the AC "disposes" (i.e. approves).

Under that arrangement the AC can exercise a certain amount of control over any proposed changes to the RoP by withholding its approval.

Now we go to an arrangement where the AC will both "propose" (via the BOAC) and "dispose".

As Back to Basics said that seems like a transfer of competence from the Board to the AC. All of the power is now concentrated in the hands of the legislature (AC).
In a situation where the legislature is subservient to the executive (President) that is worrying.

And as for "others" having a say, pray tell how is that supposed to come about?

Anonymous said...

Looks like the President's sock-puppets are busy today.

The President employs sock puppets who describe his proposal as "absolutely wrong"?

Get real.

Now we go to an arrangement where the AC will both "propose" (via the BOAC) and "dispose".

Or instead of making things up, we could actually read CA/43/16 Rev.1. The RoP will not be proposed by the AC. Nor by the BOAC.

They will be proposed by the President of the Boards of Appeal, advised by the Presidium. See new Rules 12c(2) and 12b(3)(c) EPC.

And as for "others" having a say, pray tell how is that supposed to come about?

See the Regulations of the Boards of Appeal Committee, Article 4(2)(i):

Quote:
[the BOAC shall] "carry out, where necessary, user consultations on matters of direct concern to users,such as proposals to amend the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal."

Anonymous said...

All the Presidents...
Regarding the others, did the document not deal with this by saying that the IP world would not be represented as only some areas of the BoAC' s remit would concern them? Will need to check the wording but I thought it was rather curt and direct.

Anonymous said...

All the President's...

In fact in the explanatory notes to CA 43/16, it is stated:
" 20. In the user consultation carried out by the Office, users said they would like to be
granted observer status on the BOAC. Given that the BOAC will deal with a variety
of issues which are of no direct interest to users, this is not deemed appropriate.
However, where necessary, the BOAC should carry out broad user consultations,
in particular on proposals to amend the RPBA/RPEBA."

rosenheim said...

Excerpt from the EPO Codex ...

I don't think it is necessary to look that far.

The EPO branch at The Hague (Art. 6(2) EPC) is located in Rijswijk. Rijswijk is a fully independent municipality whose only connection to The Hague is that it borders The Hague.

According to Visser, The Annotated EPC:
- When the EPC 1973 was concluded, the offices of the IIB (predecessor of the EPO branch at The Hague) were located in The Hague. When the EPO actually started, the IIB had moved to Rijswijk. There has never been an EPO office in The Hague.
- During the revision of the EPC in 2000 it was "decided (I'm not sure in what sense... probably simply agreed among the delegations) that "any geographical location in the EPC should be interpreted broadly, e.g. The Hague should mean the province of South Holland and Munich the country of Bavaria. Any geographical allocation would at some point restrict the reallocation of offices."

I guess one should be able to find this passage somewhere in the minutes of the 2000 diplomatic conference.

So... Munich = Munich area? Why think so small?

abc said...

"Now we go to an arrangement where the AC will both "propose" (via the BOAC) and "dispose"."

It seems a bit more subtle to me.

Previously, it was the presidium of the boards that drafted the RoP.
Now, it is the president of the boards. The presidium only advises the president of the boards.
So this power has moved from the presidium to the president of the boards.

Here comes the rub: the president of the boards will be hand-picked by the EPO president (sure, a "joint proposal" by the EPO president and the BOAC).

No big deal, because once appointed he'll be independent? Let's see...
Will his reappointment after expiry of his 5-year term be essentially automatic? Or will the EPO president have a big say in this?

We'll know soon enough how reappointment of the president of the boards will be handled.

Anonymous said...

So DG3 could be relegated to the fortress in Landsberg or some old pigsty around Augsburg without further ado. Hof might be remote enough for the President's taste. That's a not nice thought to start the week-end with...

I was well aware of the very long-standing resistance of the borough of Rijswijk against its annexation by The Hague, but never really made the connection with the EPO. The ugly dovecote in Rijswijk was however inherited from the IIB.

Weren't there plans to create a new site in ZH about 20 years ago? The name "Voorburg" resonates in my brain cells, but I'm not sure that was the place. This suburb is currently amalgamated with Leidschendam. I heard it "sous le manteau" that a plot of land had even been acquired, to be later cast off, yielding a beautiful profit set in bright red numbers. Anyway, it ain't the kind of story you would normally read in the Gazette.

I checked Art. 6 in my own copy of Visser, the French patent office is characterised as "disorganised". I don't think this is the proper assessment, but then my edition dates back from when BB was still the head honcho there. ;-)

The upheaval around the so-called "Areas of Competence" clearly was just starters.

Holland.... said...

IIRC, the enlarged Board of Appeals already decidd, that The Hague means anywhere in the Netherlands, and Munich is therefore interpreted as anywhere in Bavaria....

Will try to refind that sometime....

Leidschendam said...

It was Leidschendam and if I'm not mistaken the EPO made a loss on the plot of land. An architectural design competition had been held and the project was awarded in 1990 (building to be finished near the end of 1994), but patent filings collapsed so it was all cancelled.

I believe that the Dutch authorities that bought back the land for a lower price then again made a nice profit by changing the zoning regulations to make it suitable for housing. But I might not have all the details right.

European Patent Office, Leidschendam

cooperate or... said...

Thanks to Leidschendam for the link to the EPO building that was intended at the time. I find the design far more original that than of the future new Main :
http://www.epo.org/about-us/office/building.html
The rumor concerning the non-constructed building in Leidschendam was that after buying the land, it turned out that the land was not suitable for supporting a big building and the EPO had to sell it for other purposes (such as for houses, which are supposedly lighter than an office building), making a huge loss. Another badly prepared project at the EPO, very common nowadays - just check out what is coming with Early certainty (for examination and opposition)

Boardmember said...

I find the discussion about the independence of the boards somewhat strange. Haven't you read the title of the post and the linked documents? Battistelli opinion on the boards is quite clear: they are here to directly follow the conclusions of the investigation unit. Never mind that in other posts the investigation units was found bugging public computers and fabricating facts. The boards work is to do as Battistelli says.
I heard Battistelli privately say a year ago that since he is paying the salary of the boards, he should get what he paid for. I think this is the idea behind the new fee structure: if the boards want to be independent, they should self finance.
In private Battistelli is a relatively simple man: he pays, he wants obedience. The real problem here is that the Council agreed. They did not distanciate from the letter, they did not even raise the point in the last session.

Blatterstelli said...

In private Battistelli is a relatively simple man: he pays, he wants obedience. The real problem here is that the Council agreed. They did not distanciate from the letter, they did not even raise the point in the last session.

I fail to see the problem with the Council.
The Council has learned the virtue of OBEDIENCE.
The Council delegations comply with Simon Cameron's definition of an "honest politician" ("An honest politician is one who, when he is bought, will stay bought.")

The real problem seems to be the pig-headed stubborness of the Boards of Appeal which have yet to learn this lesson.

Proof of the pudding said...

Question: other than a resolution at an AC meeting, is there a mechanism by which the President of the EPO can be censored (or even dismissed / have his immunity lifted)?

If the answer to this is no, then can BB rest assured that, so long as he is able to control the agenda for each and every AC meeting, there will always be sufficient (and lengthy) distractions that will prevent the AC from ever reaching a decision that is adverse to him?

If this is the case, then the members of the AC who are at all concerned about the serious damage that is being done by BB to the reputation of the EPO ought to figure out a way of changing the way that the game is played at AC meetings.

La société du spectacle said...

Re: Simon Cameron quote

We're doomed.

I'm pessimistic about the EPO, the member states, and "Europe".

EPO welcomes OPECST Delegation

High-level French parliamentary commission visits the EPO

A delegation of France's Parliamentary Office for Scientific and Technological Assessment (OPECST), which is composed of members of both the French Senate and National Assembly, visited the EPO yesterday [7 July] for an exchange of views on the latest developments in the field of biotechnology inventions. The French delegation was headed by OPECST President, Jean-Yves Le Déaut, member of the French National Assembly, and also included representatives of the French Embassy. The task of the OPECST is to support the French parliament in gaining greater insight into technological and scientific matters on which it decides.

In his opening address, President Benoît Battistelli underlined that the EPO was closely following national debates on biotechnology in the member states. He welcomed the opportunity for an open dialogue with the OPECST on this topic.

The meeting was held in a cordial and constructive atmosphere, and focused on various points of common interest, including recent developments in the European patent system. It also offered the opportunity for an exchange between the OPECST delegation and a team of EPO patent practitioners and legal and economic experts. With biotechnology specialists from DG 1 and DG 5 and the EPO's Chief Economist present, the EPO gave a number of presentations on biotechnology patents, including on the economic aspects, and the legal framework governing the patentability of biotechnology inventions, with a special focus on the law and practice concerning inventions related to plants and human gene sequences.

On the occasion of the visit, the EPO President was given a "Médaille de l'Assemblée Nationale" by Jean-Yves Le Déaut in his capacity as member of the National Assembly.

08.07 16 | Author Raimund Lutz - Vice-President DG 5 | Target group: DG4, DG5, President-DG0, DG1, DG2, DG3

Vive la France! said...

The medal is not an award or decoration:

La Médaille de l'Assemblée nationale est une médaille remise à chaque député français en début de législature


It's something that also Le Pen father would have received every year.

Anonymous said...

@Vive:

According to your own link, this medal (in fact, a replica of it) can also be a "vulgaire breloque" handed out at the discretion of individual MPs:

« Certains députés offrent à des individus qu'ils souhaitent mettre à l'honneur, une médaille similaire éditée par la boutique de l'Assemblée nationale ; il s'agit d'un cadeau et non d'une décoration officielle. »

The other Corsican famously declared: « C'est avec des hochets que l'on mène les hommes. » But who is led by whom here?

Benoît B. doesn't seem to have the decoration Bonap was referring to, however a Charles-Robert Battistelli was awarded one in 1930.

Harmonious society said...

On July 12, the Permanent Court of Arbitration (PCA) in the Hague is expected to deliver its final award on the arbitration case between the Republic of the Philippines and the People’s Republic of China.

Mmh ... a country, run by a cabal of people forming a Central Committee, that considers itself above the law and has pledged to ignore any decision a Tribunal in the Hague may take ... does that remind you of anyone else?

Still, any similitude may stops there - fortunately, at the European Patent Office there are no secret trials on bogus charges against anyone who disagrees with the President, right?

Old man of EPO said...

Harmonious Society,
And rhe result went against the cabal - who immediately declared the decision and the court wrong and insisted that they would do whatever they had to do to protect their interests while ignoring the decision?

Mmm.

Proof of the pudding said...

From the absence of responses to the first question that I posed on 11 July, I guess that the answer is a resounding "no".

Nevertheless, it would still be helpful if someone with personal experience of AC meetings could comment upon the other question that I posed (regarding the setting of the agenda for AC meetings). It would help those of us watching aghast at developments to understand whether the representatives to the AC are spineless, or have simply been outmanoeuvred.

Anonymous said...

@Proof of the pudding:
Indeed, no. He even enjoys more immunity than "us employees", as he gets full diplomatic immunity according to the Vienna agreement... Even from his sending state, as all member states must accord it to him....

The president alone proposes the agenda, but the moment the AC meeting has started, the AC can amend and change the agenda. They can remove topics, add topics, change the order. But only with majority vote. (The AC approves the agenda.)
The topics as preliminary published and set by the president is therefore a mere proposal and non-binding to anyone.

Gombeen man said...

@Proof of the pudding

"outmanoeuvred"?

Really? With only one vote against (NL) and two abstentions (HU, IT)? C'mon ...

Anonymous said...

Pudding, the latest amended document isn't perfect, but it is a million miles from what Battistelli wanted.

He's presented three or four proposals over the last 18 months. Each time the AC has told him to go back and think again. That's why it has taken so long.

Remember that originally BB had planned to ask the AC for a final decision way back at the March 2015 AC meeting. But then the controversy over the house ban of a BoA member blew up, so he realised that he wasn't going to get all his own way. So instead of a final decision, he merely asked the AC for an opinion on CIPA's suggestion that he should delegate powers to a new President of the Boards of Appeal. (Do you really think that BB liked the idea of delegating power to someone else?)

Further proposals followed, but weren't good enough. Eventually, in February/March this year there was a huge bust-up, where the AC told BB that his proposal was still not acceptable, so Board 28 would tell him what it should say. Even then, during the June AC meeting they further amended what he had produced.

Of course, on each occasion BB's PR machine has issued a communique on the AC's behalf, saying that the AC was extremely happy with his proposals. But do you seriously believe everything you read in official communiques?

Proof of the pudding said...

@Anon 13/7 19:03

I fear that your comments rather reveal what I was most afraid of, namely a perception amongst some representatives to the AC that it is enough that BB has been battered back from his (apparently) preferred position on certain issues.

Let me be clear: avoiding an even more ridiculous alternative can hardly be counted as a "victory" if the outcome is still ridiculous. Also, has the AC not considered that, if BB were being particularly cunning, he might well make all of his initial positions so ridiculous that what ends up being passed by the AC nevertheless still gives him (at least) what he had secretly hoped for?

There is also the possibility of "sacrificial pawn" tactics. That is, could it be that BB is creating side-shows about issues that really do not matter that much to him, simply in order to ensure that he keeps a free hand on the issues that are truly important? Having to make some small concessions on minor issues is not such a high price to pay for ensuring you achieve your ultimate objectives.

I now understand more about how events have come to pass, but that additional knowledge has done nothing other than give me less cause for optimism. This is because my worst fears have been confirmed: the President really does control the agenda and is making fools of the representatives to the AC who oppose him. Also, with seemingly total immunity, it seems that the President really has nothing to fear... not even committing acts that, if judged under national laws, might land him in jail.

I really hope that there is someone out there who can figure out a way of fixing this, because I fear that there is worse to come for the European patent system if BB is neither jettisoned nor brought to heel.

Anonymous said...

Pudding, sorry but I can't agree that the latest outcome is what BB wanted all along. I fear you have been taken in by his constant propaganda that the AC thinks he is wonderful and accepts everything he says.

All you can really say is that the AC could have done more on some of the issues. But viewed objectively, while the outcome is not perfect, neither is it favourable for BB.

Proof of the pudding said...

@Anon

Can you really claim to know what BB wanted all along? I am not saying that I can either, but the point that I was making is that his tactics may be a lot more manipulative than is currently perceived. Perhaps, unlike me, you have not had your eyes opened to the fact that there are some individuals out there who will make a huge fuss (and fight tooth and nail) about an issue that really is of little consequence to them, simply in order to improve their negotiating position on other points.

From my perspective, the conclusion that "neither is it favourable to BB" just does not cut the mustard. I would instead have preferred a sane and sensible reform of (the rules of conflict of interest for) the Boards of Appeal - whereas the reform that we got does not meet either of those criteria.

Compromise is of course a very "European" way of doing things, and is no doubt essential in fora such as the AC. All I am saying is that just realise when you are being played - and when it is time to stand up to bullying behaviour and draw a line in the sand that shall not be crossed. Breaching provisions of the EPC and making threats to the EBoA really ought to have been such a line.

Anonymous said...

BB crossed a line that no President of the EPO should ever cross.
After two years it came up with a reform of the BOA that is "not perfect" (a nice understatement to say that it is plainly bad).
In respect of the other points of the Council resolution it seems that he also failed do deliver.

Then what happened at the last Council?
Did he blackmailed the AC by telling them "You want a reform of the BOA but I am not going to give you a better one"

Instead of saying him "Thank you for your service we are now going to look for somebody who is fit for the job and can also draft a reasonable reform" the members of the AC probably said "How nice of you to give us some face-saving minor amendments! We approve your reform because it could have been even worse".

The last Council was an all-time low for its members but I am afraid that worse may come in the future now that BB is aware that he can force them to do whatever he wants.

Anonymous said...

From HelloKitty
To Proof of the pudding

If I understand what you are saying, something else is more important to Battistelli than the board of appeal. What is it? What is he trying to achieve?

I am asking the question because I really wonder. To me it looks as if he was on a course set to destroy the office, but this cannot be. What interest would there be in that? So where are we heading to? How will the office look in five years?

Proof of the pudding said...

@Kitty

I don't know. However, I have my suspicions that money may be at the root of all of this.

Philippe Égalité said...

However, I have my suspicions that money may be at the root of all of this.

Surely not. There are nobler ideals at stake here.

Statement of the President of the European Patent Office on the terrorist attack in Nice

14 July 2016

The European Patent Office - its employees, managers and all staff - are deeply shocked and saddened by the terrorist attack which took place in Nice on Thursday, 14 July 2016.

As an international organisation the European Patent Office firmly believes in an open and inclusive society based on fundamental principles of freedom, equality and justice.

We believe that terrorism and blind hatred will never be able to destroy these principles, nor our values of cultural diversity, tolerance and mutual respect.

We express our deepest solidarity with the people of France and our heartfelt sympathy goes to the victims, their relatives and friends.

Benoît Battistelli


http://www.epo.org/news-issues/news/2016/20160715.html

Anonymous said...

Just wait, the EPO President will probably condemn the Cout détat in Turkey, just wait....

Transparent bull said...

The Frenchman Battistelli expresses heartfelt sympathy to the people of France. But only in English. Presumably for reasons of administrative efficiency. Who actually writes this sanctimonious bull***t, anyway? And who cares what the European Patent Office "firmly believes"? It's just a patent office, FFS.

Now eagerly anticipating Battistell's statement expressing solidarity with President Erdogan.

cevapcici said...

Still no comment from the EPO President about the coup attempt in Turkey?

Doesn't he care about what is going on there ?

Let us not forget that Turkey is an EPO member state !!!

Iknowthefuture said...

People discuss the future of the board of appeal as it it had a future. The president said it many times: in his mind, there is no need for the board of appeal with the UPC. The board of appeal members missing have not been replaced in the past years (just check how many posts are still vacant) and will not be replaced. The move to another place is classical in French politics, just check how it was done at French Telecom (it's in the press): they moved people around to harass them and force them to resign.

The EPO management is still busy with the UPC, BTW. They believe brexit is not a problem.

MaxDrei said...

I have been suggesting for ages that BB is busy "clearing the path" for the UPC and its seat in Paris. For as long as DG3 exists, some litigants might prefer to dispute validity in Munich rather than in Paris. How badly will that hinder the growth of a healthy caseload docket in Paris?

But now it seems that the UPC is dead. No docket then for Paris, in the foreseeable future.

Time for the AC to press BB to stop clearing the path, to change direction and reinvigorate DG3, so it can dispatch cases in reasonable time? Wake up industry. Put pressure on your governments to instruct their AC representative accordingly.

Iknowthefuture said...

Let me just say this: it is going to be the UPC, it is going to be in Paris and the board of appeal members will have nothing to say about it. They will never get employed by the UPC. The council and the president agree, nothing can stop them.

novinar said...

@Iknowthefuture

That is certainly the plan of BB & Co. as was revealed in the Süddeutsche Zeitung in October 2015.

One alleged aim of the failed coup attempt against BB was "... to prevent the Office from facing the biggest change in its history: the transition to the single European patent and a new jurisdiction with the Court in Paris, including branch offices, also in Munich. The Enlarged Board would be replaced as soon as all States have ratified the agreement.

http://www.sueddeutsche.de/wirtschaft/europaeisches-patentamt-der-erfundene-skandal-1.2695424

Unfortunately in the meantime the Süddeutsche seems to have stopped reporting about EPO affairs:
http://techrights.org/2016/07/17/suddeutsche-and-epo-pr/


Anonymous said...

From HelloKitty:

I reread the discussion againand it seems indeed that the days of the board of appeal are counted. Unfortunately, that also means that the examiners quality will not be controlled any more. When I talk to examiners, their main concern is that the BOA would turn over one of their decisions. THAT is what prevents them from cutting corners.
In this context, I am also reminded of persistent rumors that the EPO quality is down. And I also know that the Office is hiring less competent examiners, quite simply because the pay is not as attractive as it was. Munich is expensive, local firms are not finding the engineers they need and have raised their entry salaries accordingly while the EPO has lowered theirs.

I also read here that some patent attorneys are suggesting that the applicants use the national route, for increased legal certainty. How will that solve their problems when the competitor comes with an infrigement case based on an unclear, vague patent granted by the EPO and validated by the UPC, which will have force of law in all EU states?

Proof of the pudding said...

If you want to know the future of the EPO, take a peek at the official "social report":
http://documents.epo.org/projects/babylon/eponet.nsf/0/CA803AEC70D6E89FC1257FF40042DAA4/$File/social_report_2015_en.pdf

Despite being nothing more than a dry and dusty collection of statistics, the report contains some interesting figures.

Some of these clearly demonstrate that, at least in 2015, the EPO faced significant problems in recruiting. For example, relative to the figures for 2014:

Numbers of advertised vacancies: up >25%
Number of job applications received: down 12%
Nationalities decreased presence: GB (-32), DE (-29), NL (-28), AT (-10), SE (-7), DK (-6), CH (-5), IE (-3), PT (-1), LU (-1)
Nationalities increased presence: RO (+9), ES (+8), IT (+6), PL (+6), TR (+4), BG (+3), RS (+3), LT (+2), FI (+1), FR (+1), HR (+1), MK (+1)
Permanent staff: down 1.3%
Contract staff: up 13.45%
New hires: down 30%
Termination of employment: up 44%
Increases in termination: retirement (+51%), resignation (+44%), invalidity (+36%)

The figures also show signs of increasingly aggressive management tactics, such as no strikes allowed in 2015 (vs. 22 days in 2014), 99% of all internal appeals rejected (vs. 88% in 2014). The trend at ILOAT, however, is going in the opposite direction (with allowed or partially allowed cases virtually doubling in percentage).

Given the shocking trends that it reveals (which appear to point to an organisation that is in crisis), I am somewhat surprised that this report was produced at all.

What do the AC have to say about this? Figures that speak for themselves surely cannot be brushed under the carpet so easily.

Ka-ching! said...

Figures that speak for themselves surely cannot be brushed under the carpet so easily

Of course they can - at the European Patent Office the money brought in by the increased productivity speaks louder than any figures.

Proof of the pudding said...

@Ka-ching!

Sure, but the increase in money will only be a short-term effect. Unlike BB, the AC is a permanent fixture, and so will eventually have to deal with the mess that is currently being created. From this perspective, I still find it somewhat puzzling that the AC is doing so little to stop BB dynamiting the foundations upon which the EPO (and its reputation) is built.

Anonymous said...

From HelloKitty
To Proof of the pudding

It is true that the office is experiencing difficulties at recruiting. But that did not stop Minnoye to start a project to eliminate all examination stock backlog until end 2020. The project involves recruiting enough examiners to deal with the backlog (=hundreds) thereby creating "overcapacity". The project started this month, the first applicant were sent letters requiring them to state wether they were still interested in examination.

Minnoye will push this at all cost: stock must be zero within 4 years.

Proof of the pudding said...

@Kitty

Interesting timeline. When are the new recruits expected to start making a positive contribution?

In an area as complex as patents, my own experience teaches me that new recruits usually decrease productivity for quite some time (approx. 1 year). Assuming that it will take 6 to 12 months to recruit the numbers being targeted, that means that the management is effectively expecting the increased capacity provided by the new recruits to enable the backlog to be completely eliminated within about 2 years. Is that at all possible, do you think? Or is this just yet another indicator that quality will go out of the window?

Ex-examiner now patent attorney said...

Meanwhile, while the EPO has been eroding its USP (excellent search and examination quality), external parameters have changed, and the national route is increasingly attractive. Translation is now very cheap. You don't need a middleman in each country (at least not in most EU/EEA/EFTA countries), and most importantly you don't get tied up in fatuous, artificial arguments with examiners who haven't had time to consider the facts and arguments properly.

Anonymous said...

In order to correctly train people at the EPO you need at least three years, and this does not mean that the cost put into training are recouped. It needs in my opinion at least another two years. If the search backlog has to be down by 2020, which means in 4 years, provided the candidates are numerous enough to fill all corresponding posts. One should rather think of 3 years, as any present recruitment efforts will not bring the candidates into the office before 2017.

Creating overcapacity is always dangerous. The only way not to have a permanent problem is to give those people a five year contract. For examiners this is ludicrous for the reasons given above.

So by 2022 those people will have to leave the EPO if they are not fired before. Good scientists and engineers are getting scarce on the market. The perspective of going to The Hague/Berlin or Munich and having to leave again is very high and not encouraging. For sure no scientist or engineer having a good job will leave it for a stint at the EPO, as this also means to transplant the family. The possible candidates will be newly graduates. And for those the grass will be always greener on the other side.

One way to recoup the training costs quicker is simply to lower the training level. And request people to produce in the first year as much as 2/3 of what an experienced examiner produces. Before BEST, training in search and in examination was scheduled to be 3 years for search and 3 years for examination. When BEST came, which allegedly was giving a gain of productivity of 18%, the training time was halved. In three years an examiner has to be a good searcher and a good substantive examiner, i.e. a jack of all trades.

The quickest way to catapult the production/productivity is to use BEST as best as possible (sorry for the pun). Carry out a search with no results and then a direct grant is at the end. If this is in the interest of the applicants, even the big ones, is doubtful. It is certainly not in the interests of the so cherished SME’s by Battistelli and consorts.

And here you have your answer about the quality of what will come out. Skip corners in training and the quality goes inevitably down.

But by then VP1 who only has a faint idea of what a search is as he only ever searched in paper, will benefit from a super pension, and will have been congratulated by the AC for being an extraordinary manager, with probably an extra bonus on top.

On top of this the boards of appeal are wilfully destroyed thanks to Battistelli and consorts, with the help of an AC lacking any spine. One wonders if the AC could even be compared to a spineless shell fish. At least they have a shell. The AC seems to be nothing more than mollusc pushed around by Battistelli and consorts.

It is sickening!

Anonymous said...

Sovereign principality of EPOnia appoints consul [Warning: Techrights link ;-) ] to the United States.

My mind is so boggled that it's becoming numb.

Anonymous said...

From HelloKitty:
To Proof of the pudding:

I am not an examiner, but I have understood that all reference numbers for production have been abolished. In other words: the number of files an examiner is told to produce is entirely decided by his or her director. The director gives you a number at the beginning of the year and the examiner must bring that output in december. There is a formal complaint procedure, but it brings out the same number anyway.

We have old school directors close to retirement who are trying to keep the numbers somewhat reasonable. We have newly promoted directors who have been chosen for "loyalty".

Newly employed examiners are on a probation period. They get a set of formal courses and then they get a number of files to output till the end of the period. If they don't bring out the number, they don't get the contract. I would think that most of them bring out a fairly large output already in the first year. I would expect them to contribute significantly to the reduction of the backlog soon.

The problem will be to get them. Who will be desperate or ignorant enough to come to the office knowing that there will be "overcapacity" in 4 years, that you may be prevented to work for 2 years afterwards and that the Council may change any regulations (including retirement and insurances) whenever they want? The pay may be ok for someone fresh from University, but is not much higher than other places in Munich and whatever career opportunities examiners had (like being promoted to the board of appeal) has disappeared.

Anonymous said...

From HelloKitty
To Ex-examiner now patent attorney

What good will it be to them to have good patents if their competitors can shut them down with vague and broad patents at the UPC?

A very important fact has been forgotten in Merpel's article: the president of the council did not distanciate himself from the interference from Battistelli. Look at the text of the decision. Basically, what this means is that both the council and Battistelli view the enlarged board of appeal as subordinate to them and not as independent. The council did not object in their latest session.

In plain words: the enlarged board of appeal was expected to simply rubber-stamp a decision already taken. Even if the investigation was fraught with problems as some of the earliest comments in this thread noted.

These are the standards of justice of Battistelli and, we now understand, from the council. That is basically what the decision says.

Now, the all new UPC is created behind closed doors by the very same persons. How high do you expect the judicial standards of the new court to be?

Bonus question: how do you expect your clients to protect themselves against future decisions of the UPC?

Proof of the pudding said...

@Kitty

Thanks for the info. Would you happen to know whether the "production" targets for newly-appointed examiners are significantly lower than those of their more experienced colleagues? It would be insane for new recruits to have (nearly) the same targets as experienced examiners, but you never know with the EPO these days...

Ex-examiner now patent attorney said...

@HelloKitty What good will it be to them to have good patents if their competitors can shut them down with vague and broad patents at the UPC?

Not sure I follow the logic here. I'm not saying that the national route produces stronger patents. I'm saying that, whereas the EPO previously provided a useful due diligence service (search and examination), this has now been diluted to the point where the national offices offer a competitive and lower-risk alternative.

Crap patents are fine, just as long as everyone recognises that they're crap. The danger comes when a court (UPC or any other) starts with a presumption of validity, just because it's a European patent.

Anonymous said...

Secret FAQ ...

would like to reassure any applicant that every application will get the same high quality treatment as before, yet we'll by give more responsibility to the Division (read: pressure to the Division) to bring a case to a conclusion (under pressure).

Early Certainty sooner than you expected.

We need a new thread for this.

Anonymous said...

From HelloKitty:
To Proof of the pudding:

I don't know, but I imagine the number depends on the director. This is why the problem is not out: there are no official instructions, it just depends on the hierarchy being "loyal". Of course, they were chosen accordingly.

What you should also realise is that the system works entirely in one direction: Minnoye thinks aloud the figures he wants (say: divide the stock by 4 for 4 years...) and the hierarchy pass them down. Reportedly, with the new style of "loyal" directors, some examiners were presented with figures much higher than last year. Tough luck, they just have to comply or face disciplinary sanctions. If I understood correctly, in the next council Battistelli wants to make these dismissals a simple administrative measure.
How do you think we were able to increase production 15% last year with less examiners?

What I don't understand is how they expect to recruit any people at all, but Minnoye probably has a plan.

From HelloKitty
To Ex-examiner now patent attorney

Crap patents are not fine, even the USPTO is getting convinced. And if the UPC independence is of the same kind as the enlarged board of appeal indepence, that is not fine either.

The article above describes a very serious problem. In most countries, interfering with the independence of justice would trigger a constitutional crisis.

EPO examiner said...

The Enlarged Board of appeal did not rubber-stamped the decision that the president and the council asked them.
Probably for this reason they are going to be moved, although several suitable buildings are available in Munich, to Haar, a village outside Munich mostly known for its lunatic asylum.
Next time they will think twice before taking a decision that does not please BB or the council.
So much for the judicial independence.

The Ghost of Kemal Ali Bey said...

The article above describes a very serious problem. In most countries, interfering with the independence of justice would trigger a constitutional crisis.

Apart from Turkey where a constitutional crisis triggers an interference with the independence of justice ... :-)

Anonymous said...

The judgment 3694 of the ILO administrative tribunal is very interesting.
It confirms that the EPO does not follow the rules of law.

Anonymous said...

@Anonymous: I thought the ServRegs forbid to hire nationals of non-EPC member states (actually, other way around: allows only hiring of employees with a nationality of member states).... The last time I checked, the USoA was not a signatory of the EPC...
But then, this person is granted an easy income the next few years, for virtually nothing. Whatever he does will not influence filing strategies anyway....
And since he's neither French, Corsican, or Croatian, nepotism seems to be less of a problem this time....

Man, I chose the wrong career... But then, I love my job...

Anonymous said...

The Boards of Appeal are now paying a very high price for asserting their independence. Following the approval by the Administrative Council of the reform proposed by Mr Battistelli, they will firstly be exiled to a corner of the Munich area, viz. Haar, which is very well known for its psychiatric hospital, possibly a humorous touch introduced by the president.

Secondly, renewal of the members' appointment every five years, which used to be the default (in fact, it has never happened that a member was not re-appointed) is now subject to, among other, a performance evaluation. Coupled with another element of the proposal, i.e. to increase the cost coverage for appeals from 6,3% to 20-25%, firstly by increasing the members' productivity, there will now be a high pressure on members to focus on production if they don't want to lose their job. And if they lose their job, taking up another job will now only be possible after approval by the Administrative Council.

Finally, Board of Appeal members will be excluded from "step advancements", which are open to all other staff at the EPO, i.e. the members' salaries will be frozen.

It was already known that if Mr Battistelli doesn't like you, he will hit hard. He has proven this again with the reform package for the Boards of Appeal.

Dura Lex, sed Lex said...

The judgment 3694 of the ILO administrative tribunal is very interesting

Interesting indeed, because it confirms that by excluding the two members appointed by the Staff Committee, the Appeal Committee was improperly composed.

Also interesting, the decision of the Tribunal took less than 4 years.

In the meantime, how many decisions have been taken by the Appeal Committee in this faulty composition?

Proof of the pudding said...

@EPO examiner

Do you have good reason for believing that the BoA will be moved to Haar?

EPO – CA-43-16 Rev. 1:
"As a main precondition, criteria like good traffic links and
appropriate accommodation standards were taken into account
".

Although I do not know much about it, I doubt that Haar would satisfy this main precondition. For a start, there appear to be very limited hotel and restaurant facilities in the immediate vicinity of the S-Bahn stop, which is itself a significantly longer journey (by S-Bahn) to / from the airport.

Also, is there not going to be any consultation with users about this? If the decision is Haar, then I can envisage the users getting hopping mad about this - especially as they would be paying significantly more in appeal fees for the "privilege" of having an additional journey out of Munich centre to stay in hotels that may be unappealing to some. And all to address what the users have consistently argued was a non-issue, whilst no real progress (in fact, quite the opposite) has been made in addressing the substantive issues relating to the independence of the BoAs.

I know that a proposal for a new BoA location has to be put to the Budget and Finance Committee, but am unsure if the AC needs to take a formal decision upon that proposal. If so, then it looks like users will need to engage in intensive lobbying of AC representatives if the proposal really is for somewhere outside of Munich centre.

Anonymous said...

I see comments about overrecruiting, inflated production demands for newcomers, contracts for examiners.
It is a pity that there are no numbers attached to these allegations, no evidence.
Could any of you shed some light on this?

As I see it, the EPO has almost 4500 examiners who work, more or less, 30 years as examiner.
Doesn't this mean that you have to recruit 150 examiners per year just to remain at constant workforce?

Has any examiner been employed on a contract already?

I think it is great that the EPO finally is doing the work they have already been paid for!

Anonymous said...

re: Nomination of Albert Keyack als "EPO Attaché":

Keyack was reporting from the US Embassy in Brazil as least as late as May 2015, and had an E-mail address from the State Department. That was only one year ago.

The tone of his report linked above reflects the orthodox US foreign policy on "IP", and Keyack's affiliation is given to be with the USPTO.

It is rather ironical that the President who wants to control for two full years the lives of anyone "disloyal" enough to leave the EPO actually hired someone whose was serving a "competing" patent office. Isn't there a line somewhere in whatever is left of the Codex about not accepting any instructions from foreign governments?

Or is the fellow hired on a service contract concluded with an entity created ad hoc for this purpose?

Whose interests is he actually representing? Europe's? (And then, what is that position, and who defines it?) EPOnia's? (ditto) European or US industry? Small applicants?

Or could he rather be the US envoy to the province of EPOnia, like Rome or Imperial Britain sent governors to their vanquished peoples? (If then, why should he be paid by the EPO?)

The President does have a little leeway under the Codex to appoint staff under the EPC from states which are soon to become EPC signatories. Could the US accede the EPC? Is EPOnia about to be moved somewhere in Virginia?

Anonymous said...

Also, is there not going to be any consultation with users about this?

Like someone wrote above, GET REAL.

What consultations were there in the first place regarding the so-called "reform" of the BoA? What was the public's input in that hastily load of garbage pompously called a "plan"?

Were the outcries of the public, judges, etc. heeded when a BoA member was given the virtual sack for what was apparently a crime of lèse-majesté?

Anonymous said...

It seems that some applicants have their offices in the same building complex.

The board members will improve their perceived independence by discussing the inventions directly with the inventors at lunch.

Proof of the pudding said...

If the rumours are true, it looks EPO will be gaining an office that is outside of Munich city centre and that (compared to the Isar building) is more difficult for visitors to Munich to reach and is by far less well supplied with hotel accommodation, restaurants and other facilities that such visitors will need.

If the EPO management were being truly practical about this, then they would decide that such an office really ought to be occupied by the department(s) of the EPO that receive the fewest visitors. Given that pretty much everything that the Boards of Appeal do involves summoning visitors to Munich, I am certain that it makes no sense whatsoever to move them to Haar.

With this in mind, if the EPO president really is determined to physically separate the two current residents of the Isar building, then logic dictates that it really ought to be the other resident (that is, the president himself) who moves to Haar. Anyone up for lobbying the representatives to the AC to vote for this alternative?

Anonymous said...

@ Proof:
It is not about taking decisions that make sense.
It is about punishing

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