From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 14 June 2016

Procedure to remove Board of Appeal member from office ends - after reports of attempts to nobble the Enlarged Board

Extraordinary news has just reached Merpel.

Today was the day fixed for the Oral Proceedings before the Enlarged Board of Appeal in which the Administrative Council of the European Patent Office was seeking a proposal from the Enlarged Board for the removal from office of a Board of Appeal member.  Under Article 23 EPC, only the Enlarged Board can make such a proposal, and without it, a BoA member cannot be removed from office.  Amazingly, this was the third set of such proceedings; two previous cases in respect of the same matter had been concluded with no admissible requests made by (or, more strictly, on behalf of) the Administrative Council.  Merpel says "on behalf of" because it appears that it is employees of the European Patent Office, technically employed by the President as their appointing authority, who are acting on behalf of the AC in this matter. (For the background of this case, see the first section "Boards of Appeal - disciplinary case" of Merpel's post here).

Today's hearing was not published on the Oral Proceedings calendar of the EPO, but there were notices announcing the hearing placed around the EPO, which indicated that the Oral Proceedings were public.  Article 12a of the Rules of Procedure of the Enlarged Boards of Appeal, setting the rules for proceedings under Art 23(1) EPC, states:

(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.

Clearly, then, the EBA had decided to make the Oral Proceedings public.  Merpel can only surmise that this must have been with the agreement of the Board of Appeal member concerned.

Now, Merpel has heard a couple of reports of what happened today.  Apparently, despite the notices, in fact for the beginning of the hearing the public was in fact excluded.  Merpel understands that the reason was that the President had written to the Enlarged Board in an attempt to stop them from making the proceedings public.  Merpel is then told that the proceedings continued in public - the EBA stated that they had received a threatening letter from a non-party to the procedure (presumably the President), and asked "the petitioner in its quality of the members' appointing authority to distance itself from the threats in that letter" (see comment here at 17:54 today).  [Edit 21.40] Merpel understands from this and later information that the EBA asked the Administrative Council (the petitioner) through its Chairman to distance itself from the President's letter, which the AC Chairman did not do to the EBA's satisfaction.

Merpel then understands that the EBA considered that it could not continue under these circumstances and closed the case without proposing removal from office of the Board member concerned.

Will this be the end of the disciplinary case?  Merpel does not know.  She presumes that any semblance of due process does not allow an unlimited number of attempts to prosecute the same matter, and three seems quite a lot.  But as ever in the EPO at the moment, who can say?

Merpel finds such an attempt to nobble persons acting in a judicial capacity, as here, even over a procedural matter, quite outrageous.  It increases the suspicion that the President's proposals to reform the structure of the Boards of Appeal is aimed at perception of independence (window-dressing such as the physical location) while decreasing actual independence (removing security of tenure and removing from the Presidium of the Boards of Appeal the right to determine their own rules of procedure).

Concerning the proposed reform to the Boards of Appeal, the latest proposals are due for consideration by the Administrative Council at the end of the month.  AMBA - the representative body of the Board of Appeal members - has criticised the proposals, adding to earlier concerns expressed by AMBA and the Presidium of the Boards of Appeal (which you can read here).  AMBA states:

In the Boards’ view, if this proposal is adopted in its present form, it will inevitably result in further challenges before constitutional courts and before the Enlarged Board as in R 19/12.
In our view, it would be far better to reject this proposal and accept that the problem underlying R 19/12 has in fact already been resolved by the Vice-President’s withdrawal from management activities.

Merpel completely concurs.


83 comments:

Such an heinous act! said...

Further rumor has it that the EBA has forwarded the president’s threat to the chairman of the Administrative Council.

Anonymous said...

As I understand the information given, the Enlarged Board contacted Mr. Kongstad, the Chairman of the Administrative Council, and asked whether the Council distanced itself from the allegedly threatening letter. Since the answer received was not considered satisfactory, the Enlarged Board decided that they could not continue with the case and did not propose removal of the member from Office.

Et sinon je reprendrais bien des croquettes ... said...

Techrights seems to have further details:

"The important thing, which is missed out in the article, is that the Administrative Council itself, in the form of Kongstad was contacted twice today, in order to clarify whether they would distance themselves from the President’s letter. His answers were apparently so wishy-washy that the EBoA were not reassured that their independence was protected. Hence they could not continue because of the “threat” to their independence. The word “threat” was actually used."

Anonymous said...

The EBoA was right in considering that its independence was threatened. Mr Battistelli has just put a document for the June session of the AC which defines Standards of Conduct applying to everyone including the BoA. All EPO employees must act solely in the interests of the organisation. Nothing is said about the interests of the users of the patent system and the public. And its the EPO Stasi, the Investigative Unit which will track those deviating from the standards.

Anonymous said...

Is that the end of it before the EBA with regard to this 'case' (number 3) or did the EBA just suspend procedures? If ended, who will rid BB of these troublesome judges? Will there be legal advice (VP5?) that the EPO judiciary is out of control and not acting correctly? Surely now the AC will have to resolve the big issue - BB v DG3. They either decide to overrule DG3 or they overrule BB, it's difficult to see any form of co-existence.

Ex-examiner now patent attorney said...

Amazing. A new low for the EPO.

I'm confused, and trying to make sense of the bigger picture. Does anyone have any insight into why the EPO has descended into such farce? The common narrative seems to be that, once Battistelli realised he was above national law, and could change internal regulations at will, and was answerable only to a disparate bunch of spineless bureaucrats, he decided to give the EPO a good shake-up - either for ideological reasons (ENA-style) or because he's simply a nasty piece of work, depending on whose narrative you read.

But isn't it more likely that the AC gave Battistelli specific objectives, such as improving productivity, and that he was simply not able enough to deliver on these without causing all a whole lot of collateral damage to the office and its reputation?

And whose idea was it to set Battistelli these objectives anyway? Was change really needed? What was the motivation for the changes? Fear of the UPC? The TTIP?

Whatever the reasons, there needs to be some transparency and public accountability. The current situation is not only farcical but also a touch sinister - is it really a good idea to entrust important national legal and economic issues to an organisation with no effective accountability?

L'Angelo Misterioso said...

@Ex-examiner:

Personally, I have always seen the dead hand of Eminence Grise Roland Grossenbacher (or 'Roland' as BB warmly refers to him in meetings of the AC) in all this. He has led the hawkish element in the AC ever since he became head of the Swiss delegation and if there is any concertation involved in the various measures introduced by the BB regime, he is at least the arranger, if not the bandmaster. This is not to say BB is his creature: I think Benoît is now beyond anyone's control. But Roland must be viewing the present mayhem with a certain satisfaction.

As for the third leg of the milking stool, I suspect that Jesper thought he was playing as an equal with the big lads, but probably now realises that the game has got too rough for him. Certainly, he does not seem to be exercising any leadership in the AC, for someone who is supposed to be its chairman.

Proof of the pudding said...

Truly astonishing. If it can be proven that there was a "threatening" letter, then it is hard to see how that could amount to anything other than an attempt to pervert the course of justice. If an ordinary CEO had done this in the UK, he would have committed a criminal offence that carries a maximum sentence of life imprisonment.

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?

Regardless of the semantics, the AC needs to act now, even if they have arguably been complicit in bringing this situation about. On this occasion, the president has unarguably overstepped the mark (and in a serious way). Given that the president has also taken other actions that are directly contrary to instructions given to him by the AC, then what choice does the Council have but to give him his marching orders? There would appear to be no options for "finessing" this situation so that business can carry on as normal.

I shall finish with a thought experiment. Imagine you are BB. Also imagine that there is some reason why it is essential to your survival that you keep from the public certain details pertaining to the investigations into the Board of Appeal member that you are trying to get rid of. Then what, in this imaginary situation, would you do if the Enlarged Board decided to make the dismissal hearing open to the public? Apart from making it as difficult as possible for the public to attend, you would perhaps try to engineer a situation where the Enlarged Board would be forced to close the hearing without having discussed the substance of the case (and hence without revealing to the public the material that could really damage you).

This kind of tactic would be akin to ensuring that your claims go down for added matter upon appeal, just in order that you do not receive a public (and final) pronouncement of unpatentability on a substantive ground such as novelty or inventive step.

The observable facts appear to fit the theory pretty well. However, could BB and his team be that devious? If so, just how explosive / damaging is the information that such tactics are aimed at suppressing?

Unlawful? said...

Further details, according to an internal post of SUEPO:

15/06/2016

Enlarged Board of Appeal dismisses the case against the DG3 member amid treats by the EPO President Battistelli

Newsflash
 
Public oral proceedings before the Enlarged Board of Appeal (“the Enlarged Board”) were scheduled to start yesterday, 14 June, at 9.00h, to decide on the request for removal from office of a member of the Boards of Appeal by the Administrative Council (Article 23(1) EPC). The Administration required members of the public to enrol on a list with their name and the information whether they were EPO employees or external to the Office. About 25 badges allowing entry to room 109 were then distributed essentially according to the order of the list.
 
The hearing did not start as scheduled. During most of the day a conference in camera (i.e. not the hearing as such) took place. The discussion apparently centred around a letter sent a few days ago by the President of the Office to the Enlarged Board. Essentially, it appears that the President condemned the decision to make the hearing public as “unlawful” and affecting the proper functioning of the Office. The exact content of the letter is, however, unknown.
 
The Enlarged Board apparently perceived the letter as a threat and asked the Chairman of the Council whether the Council endorsed - or not - the position taken by the President. Apparently the EBA did not receive a clear and/or reassuring answer.
 
The Chair only officially opened the hearing at about 17:15h. In the presence of the public, a decision along the following lines was announced  (note: this is not verbatim):
 

The EBA received a letter from an authority which is not a party to the proceedings and which they perceive as a threat. The AC, as the disciplinary and appointing authority of the members, was asked whether it endorsed that letter. The Chairman of the AC did not distance himself from the letter. Under these circumstances, the Board cannot continue the proceedings and consequently does not propose to remove the respondent from office.

 
After the above announcement the Chair requested the public to leave the room.
 
SUEPO central

Kaschperl said...

Enlarged Board of Appeal dismisses the case against the DG3 member amid treats by the EPO President Battistelli

How nice of the President to have distributed treats to staff.
Jolly ungrateful of the EBA to have complained about this.

Kant said...

Presumably, such a letter passed over the desk of the head of the legal division. It beggars belief that he didn't consider the ramifications this would have on the case being heard. Having received such a communication seeking to influence the decision of the EBoA members, the members could have each declared themselves unable to take part in accordance with A.24(2) EPC but instead took the pragmatic decision to end the proceedings. Well done!

Anonymous said...

Here a further summary of the recent events:
http://www.juve.de/nachrichten/namenundnachrichten/2016/06/eklat-am-epa-battistelli-greift-in-amtsenthebungsverfahren-ein

Google Translate said...

http://www.juve.de/nachrichten/namenundnachrichten/2016/06/eklat-am-epa-battistelli-greift-in-amtsenthebungsverfahren-ein

(link to a Google translation)

Ugly: the Court had requested the testimony of 3 witnesses from the Investigative Unit, but the President did not authorize them to depose because they could reveal how the computers were monitored, while the has always maintained that proper rules were followed ...


Anonymous said...

Amicus Curiae

I wonder whether the Enlarged Board really closed the case, by taking a final decision on the merits. All reports are a bit vague on this point. If a decision had been taken, it would probably have been announced with the public present. It would make sense to simply put the whole procedure on hold, since every decision would be tainted by interference in the independence.

This approach would leave the current request from the Council in pending, with the procedure suspended. The nice side effect is that any new request - #4 according to my count - would not be admissible, due to the procedure still pending.

Disheartened said...

The apparent source of the Juve article is the accused BoA member's lawyer, Senay Okyay. This lends it some authority.

But where is Battistelli's threat? From the other reports here, I would have assumed it was explicit: "If you hold these proceedings in public, then I will do [something bad]".

But according to Juve, Frau Okyay merely reports that "The President described a public hearing as unlawful by the statutes of the Office."

Certainly, it was both wrong and stupid for Battistelli to attempt to interfere directly like this. The right people to argue this issue were the Admin Council's representatives (who are of course employed by Battistelli). Perhaps they had already tried and lost.

But in different circumstances, I think an appeal board or a national court would just have ignored such an intervention, perhaps rebuffing it with some trenchant comments. And then they would have continued to make an independent decision about whether to hold the proceedings in public.

So what this incident underlines is the fragile state of relations between the Boards of Appeal and Battistelli. Because of all the very real threats that Battistelli actually has made to the Boards (unwelcome reforms, removal to Berlin or Vienna), they are ultra sensitive.

The result is that the Enlarged Board feels threatened by a letter which, in different circumstances, they might just have ignored. They fear how Battistelli might retaliate, even if he makes no explicit threat.

The independence of the Boards of Appeal is still as big an issue as it ever was.

Anonymous said...

Disheartened,
Did Juv not also report that the President refused to allow witnesses from the EPO to be heard? Hardly a threat admittedly, but certainly interference.

Disheartened said...

Anonymous at 22:17,

The President's refusal to allow EPO witnesses to be heard is neither a threat nor interference. However, it does weaken the case against the accused BoA member.

Perhaps requesting that the oral proceedings be public (guessing that the President would then withhold the witnesses) was a clever tactic by Frau Okyay?

Et sinon je reprendrais bien des croquettes ... said...

@Disheartened

The President described a public hearing as unlawful by the statutes of the Office.

Yes, of course: the narrative now is "The President only wanted to help and they overreacted".

Please, read again Art 23(1) EPC:
(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.

Clearly, the Enlarged Board had decided otherwise, and in general they seem to be well-versed in the procedure - contrary to the President who has previously attempted to convince the AC to dismiss the member of the BoA without even passing through the EBoA, as the rules require.
If the Enlarged Board had decided otherwise, the President should have no say in that.

I think an appeal board or a national court would just have ignored such an intervention

They probably would, with the difference that:
1) Angela Merkel would never write a letter to some judges to tell them how to proceed:
2) the proceedings in a national court are public. Not so at the EPO, where Secret Trials are held on the pretense of confidentiality.

You did not refer to the fact that the President barred the witnesses from the Stasi - ehm, Investigative Unit, to appear at the proceedings.

Let me explain you why.

When the computers in the public - public - area of the Office were put under control, there was no request to the Data Protection Officer. The request was made only after the guy was caught doing whatever he was doing.

From the article Welcome to EPOnia, the strange land of European patents that is outside the law:

A strange letter from the head of the EPO's Investigative Unit to the organisation's internal data protection officer asked whether the spying described above "would have been authorised"—implying the request was being made after the fact. Also curious is the handwritten authorisation on the document, which is dated December 3, 2014—exactly when the Board of Appeals member was suspended for "alleged dissemination of material which was, as was also alleged, defamatory."

Which means that the data collected from the public computers were obtained illegally. They cannot be used.

(Btw, Techrights has still a copy of the request to the DPO with the date clearly visible.)

Had the witnesses of the IU confirmed this, in a public proceedings, the case would have crumbled. So, the President barred them because their deposition could have helped the defendant.

To conclude, the president is trying to interfere with the proper administration of justice: did the Enlarged Board really overreact?

Spooky said...

Under EU data protection law (Regulation (EC) No. 45/2001) covert surveillance measures have to be approved by a "prior checking procedure":
"In cases where the risks to your fundamental rights are high, the institution concerned is obliged to assess the implications of that surveillance on privacy and data protection (also known as an impact assessment). This impact assessment must then be submitted to the EDPS for prior checking i.e. before the surveillance becomes operational."
https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Factsheets/Factsheet_4_EN.pdf

Does anybody know what regulations apply at the EPO ?
Is such retroactive rubber-stamping permitted ?

Anonymous said...

One should keep in mind that the EBoA in this case comprised two external legal members (Kathrin Klett (CH) and Anna Dimitrova (BG))
(see http://www.epo.org/law-practice/legal-texts/official-journal/2016/etc/se1/p2.html and https://en.wikipedia.org/wiki/Art_23_1/15_and_Art_23_2/15).
They are national judges of their respective countries and it can be assumed that they are well prepared to discern if the letter of the president represented a threat to the baord or not.

cevapcici said...

In addition to that Bulgarian judges appear to be well versed in the ramifications of covert surveillance operations:
http://sofiaglobe.com/2016/01/15/bulgaria-former-court-chief-gets-suspended-sentence-in-eavesdropping-trial/

The Bulgarian Judges Association seems to understand a thing or two about the "separation of powers" doctrine:
"Judges Association Urges Politicians Not to Jeopardize Law-Based State"
http://www.bta.bg/en/c/DF/id/1015331?PageSpeed=noscript

Whistling Train said...

Interesting to read that the EBA had invited three (!) members of the Investigation Unit as witnesses to its hearing. Both the chairman of the AC and the president of the EPO must have immediately understood this meant that the EBA would not simply endorse the alleged pieces of evidence put forward against the accused judge, but make an issue also of the way these have been obtained.
Although an invitation to hear witnesses must have been issued largely in advance of the hearing, and put to the president´s attention by his legal staff - who happens to also represent the AC in the procedure (!!) - the president waited for the very last day to send his explosive letter.
This is pretty like launching a bomb on a moving train.
But why did the procedure so direly need to be derailed? And why did the chairman of the AC deliberately not defuse the bomb?

Anonymous said...

If the President thinks, that the behavior of the Enlarged Board of Appeal is unlawful, then he should perhaps go to the German courts to get help in this matter.

Torquemada said...

I'm not normally one to see a conspiracy where a cock-up adequately explains events, but:

The AC has now tried three times to instigate proceedings to remove the Board member. Each time they have screwed up such that the proceedings could not continue. They are surely by now well aware of the standards of evidence and argument which will be required to persuade the EBOA to make a recommendation of dismissal, and yet each time they have failed to even get their case off the ground far enough to discuss substantive matters. To misquote Wilde: to screw up one attempt may be regarded as a misfortune. To screw up two may be regarded as careless. To screw up three...?

At first this level of incompetence seems hardly to be believable. Having failed twice now, surely they should have gone in with a watertight approach on the third attempt if they were serious?

Well - what if they're not seriously trying to remove the Board of Appeal member? Recall that Mr Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli. Maybe the larger AC players, having lost patience with BB but unable to remove him due to his grip on the smaller members, have decided deliberately to undermine the credibility of their own case to remove Battistelli by other means.

So here we have the EBOA asking Kongstad to distance himself from BB's threats. Kongstad fails to do so - preserving whatever impression of loyalty to BB may remain. But in doing so, he torpedoes the proceedings against the Board of Appeal member, in a manner which drags BB's already-soiled reputation further into the mire. Sure, it also makes Kongstad look bad at first glance - but the major damage is to Battistelli. Hey presto, an opportunity for Kongstad to persuade the rest of the AC that "regardless of the merits of the case", they must reluctantly come to a decision to expel BB for the sake of the reputation of the Office...

Even if the smaller members vote in sufficient numbers to save Battistelli, the loss of support of the bigger members should surely be inevitable (if they have any sense of decency). Devoid of the support of DE, CH, FR, NL, maybe GB, surely his authority is drained and maybe the big players are then banking on the idea that he can either be brought to heel, removed with a final push at a later date once he fails to comply with them again, or persuaded to fall on his sword.

In other words, Kongstad avoids any public statement either against Battistelli, or in favour of the suspended Board member. He appears to remain loyal or neutral to the last, while at the same time ensuring that the proceedings fail in a manner designed to cause maximum embarrassment to BB.

It would be no crazier than anything else we've seen from the EPO lately.

Anonymous said...

1984 says:

Just to complete the picture since it appears everyone is shocked of how things are run when they become a bit public. My unfortunate reality is these reports do not deviate from the daily life in-house. I am an examiner. Or more accurately, I was an experienced examiner, I am now on the payroll. I was once proud of doing my job diligently. Maybe it is linked to the technical field, I used to examine diligently with a low rate of grants, even when compared to my close colleagues. Most files I examined were withdrawn when explained why they would not satisfy the technical and legal requirements. I refused the large part of the other applications and, amongst the refusals challenged all but one stood before the BoAs.

Following the procedure towards a sound refusal requires serious work and takes time. I was never processing high numbers of applications, average compared to colleagues, had no rapid career but was proud of my work. Sure cutting many corners would have provided me immediate financial advantages in terms of promotions but would have been at the expense of the public, the competitors and my pride. I don't know which one mattered most. I never gave in anyway.

Things have changed over the last three years. Production targets were raised, colleagues were put in direct competition for steps and promotions. The collaborative work we used to do mostly vanished. I have tried to stay focused on my work and its quality. I was soon put under pressure of my direct boss for having a low "productivity" (some kind of bizarre calculation dividing a weighted sum of the times you pressed a button claiming a search report is out and of the times that an application is granted, refused, withdrawn or that the applicant stopped paying the renewal fees by the available working time. Unrelated to the amount of actual work done but use to promote and punish). Not that my "productivity" had changed but the ones of my colleagues went up dramatically (rat race for grabbing big bonuses) and I am now in the target line. My manager explained me that I needed to do 40% more productivity to stay out of trouble. I told him that it was totally unreasonable and the work could not be done this way. He assured me he knew that but had no margin and had to follow the orders.

I then reflected on the actions of my own government represented in the Administrative Council. They obviously do not care. Neither do most other countries. The very same goes for the public at large and applicants.

I decided to preserve my health, my family and stopped doing my job. This year I will deliver more patents than I have done over the last 10 years at least. I am going back home earlier, have longer coffee breaks and do not elaborate relevant technical and legal arguments anymore. I avoid citing pieces of prior art that are too relevant; citing an approximate document is enough to write a formal objection, wait for the answer and submit it to the colleagues. I do not believe they read anymore what they sign and everyone is happy. Not my pride. But the price is paid. Had I known I would have end up in such a situation, I could have acted this way much earlier to get promoted. It is hardly a secret that most of today's managers reached their positions either by having extraordinary "productivities" or by escaping towards functions not having any "productivity" calculations. Ask examiners about ridiculous examples of patents granted by their managers!

I am now making most people happy: my manager, Mr. Battistelli, the Member States, the Administrative Council, the applicants, their representatives, my family. I can only be sorry for my lost pride, my lack of courage, the public at large for restricting freedoms, the competitors for the unfair competition, the taxpayers for the extra expenses of the judiciary, the consumers for the extra licensing costs and the reader because I am too verbose. Telling makes my sense of guilt more bearable.

Eine gewisse Demut ist angesagt said...

@1984

Thank you for your heartfelt confessional. You are not alone. The recent slide in examination quality has been very clear to those of us who study cases carefully. But not only in the sense of granting applications too easily. We are also seeing negative communications issued with virtually no serious analysis. Cite a few documents, cut and paste the standard paragraph about being routine for the skilled person - job done! The application will be shelved for the next two or three years, while the EPO continues to collect those juicy renewal fees.

1985 said...

@1984

I totally agree with you, 1984 - and also share the same, big regret: I should have started earlier to send out s#*t.

Anonymous said...

Aliens in Underpants

The future shape of IP in Europe, the balance between legal security and the need for costly litigation, is being determined by one thing only- the greed of the AC and the national patent offices.

The Investigative Unit said...

Dear 1984, dear 1985,

don't worry - we will find you.

The Investigative Unit

Anonymous said...

Another pet in the Madhouse says:

Thank you, 1984, for expressing so accurately my own feelings! Both so funny and sad to think you may just be in another country or just next door. We will never talk about it, we will never know. If the word were to be spread on the identity of anyone talking, our families would be screwed. Not worth the risk of the institutional retaliation.

1985 said...

The Investigative Unit

C'mon people, it was a joke ...

Actually, the subject of the comments was becoming so depressing that I thought to shake up a little the things ...

I apologize if I made someone nervous ...

Anonymous said...

1986
What I find rather impressive is that the Epo keeps winning each and every patent quality survey. Not only are we the best of the world but in 2015 our quality greatly improved over 2014...
http://m.epo.org/news-issues/news/2016/20160602a.html

Anonymous said...

Thank you Mr. Battistelli: you probably have dispelled in the public at large the last doubts that the dismissal and degradation of the three Staff Representatives has been conducted in a fair and independent way.

Bravo.

Anonymous said...

@1986

our quality greatly improved over 2014..

Do you remember the fate of the Survey organized by the Office about the reform of the BoA?

The results were completely misrepresented by Battistelli to support his agenda - as a post by Merpel detailed.

Do you really expect El Presidentitssimo to report any negative results that do not fit his agenda?

Good luck with that.

Kat a list said...

@Disheartened
Not a threat to declare an action by EPO employees unlawful? That is a very serious threat, because the EBA members, being EPO employees, would then disobey the statutes and could be accused of not acting in the interest of the office. You know what that means: investigation unit and sanctions, perhaps even dismissal. I do call that a threat.

Anonymous said...

Plaudite, amici, comedia finita est..

O Thou, who sees all things below
Grant that thy Eponians may go slow
That they may study to comply
With regulations till they die

Teach us O Lord to reverence
Committees and councils more than common sense
Impress our minds to make no plan
But pass the baby when we can
And when the Tempter seems to give
Us feelings of initiative
Or when alone we go too far
Chastise us with a Circular

Mid war an tumult, fire and storms
Strengthen us we pray with forms
Thus will thy Eponians ever be
A flock of perfect sheep for Thee!

The Ghost of Roger Casement said...

"Loyalty is a sentiment, not a law. It rests on Love, not on restraint.
The government of Eponia by Blatterstelli rests on restraint and not on law; and, since it demands no love, it can evoke no loyalty.

[...]

Where all your rights become only an accumulated wrong; where men must beg with bated breath for leave to subsist in their own land, to think their own thoughts, to sing their own songs, to garner the fruit of their own labours - and even while they beg to see these things inexorably withdrawn from them - then surely it is a braver, a saner, and a truer thing to be a rebel in act and deed against such circumstances as this than tamely to accept it as the natural lot of men."

Sword of Damocles said...

@Disheartened
Do not forget that under Article 10(2)(h) EPC the President may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11(3) (the members of the Boards of Appeal).
Is the potential "threat" becoming clearer ?

Spooky said...

The picture that is emerging here is that one of the aims of the President was to prevent public discussion about the covert surveillance measures.

Does anybody know what regulations cover the use of these measures at the EPO ?
Obviously the EPO is outside the scope of the EU data protection law such as Regulation (EC) No. 45/2001.

Does it have any regulation to cover this matter or is the use of covert surveillance at the EPO completely unregulated ?

Can anybody help on this ?

Disheartened said...

Sword of Damocles,

I think you illustrate what I was saying. Article 10(2)(h) EPC existed for 30+ years without the Boards feeling unduly threatened by it.

However, the current relations between the Boards and the President are so fragile that they do now feel threatened, even when no explicit threat is made.

Bravehearted said...

@Disheartened
How can you claim that no explicit threat was made if you haven't seen the contents of the letter ?

As far as is known the President expressed the view that it would be "unlawful" to hold a public hearing.

Thus if the Board held a public hearing it would - according to the President's view - have committed an unlawful act. Or to use the favorite Eponian terminology these days - the members would have been guilty of "misconduct". And everybody inside the EPO knows what that means. Since December 2015 Board members can be suspended for a minimum of 24 months on a proposal from the President.

Under these circumstances who could blame the Board for requesting clarification from THEIR appointing authority (the Council) to which the President is also subordinate (or supposed to be)?

It is OBVIOUS that the onus was on the Admin Council to clarify the matter and to state UNAMBIGUOUSLY whether or not it shared the President's view about the "unlawful" nature of a public hearing.

If the Council did share the President's view then it would be likely to follow any proposal that he made under Article 10(2)(h) EPC.
If it did not share the President's view then the Board had no reason to feel threatened.

The Council Chair should have given a clear and unambiguous answer to this question and it was his failure to do so that resulted in the termination of the proceedings.

PS: The safeguard of Article 34(2) of the Service Regulations has also existed for Staff Reps. and their nominees for 30+ years: "The fact of of performing such duties shall in no way be prejudicial to the person concerned."
It was respected (more or less) by all previous Presidents who kept their staff rep bashing activities within the bounds of reason.
That was until the current Pres decided to ride roughshod over it and "prosecute" staff reps and their nominees on trumped-up charges of "misconduct".

So the nervousness of the Enlarged Board members is very understandable.
After all they are dealing with a person who once told them to their faces "In my opinion you are not judges !"

Now it seems that someone has finally had the courage to tell him "On s'en fout de votre opinion, Monsieur Battistelli".

Anonymous said...

@1984

This year I will deliver more patents than I have done over the last 10 years at least.

It seems that the effects are starting to see.

Disheartened said...

Bravehearted,

All we know (from the accused BoA member's lawyer) is that the President's letter used the word "unlawful". You seem to acknowledge that.

But we have not been told of any actual explicit threat. As far as we know, he didn't actually say "If you hold these proceedings in public, I will do XXX". Everything else that you describe is just fear of what the President might do.

That fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards. That is the reason for the fragile relations to which I referred. It is the reason why the Boards are nervous. It is the reason why the independence of the Boards is a big issue.

I said all of this in my previous post. You are not saying anything which contradicts it.

superann said...

I think there is a slight misunderstanding among commenters about what is meant by "threat" in this case. Yes, individual members of the EBoA who are EPO insiders (some were external persons) could indeed consider the President's letter personally threatening. But I think they meant that the President's interference was a threat to the integrity of the proceedings, by attempting to forbid the public hearing and by refusing to allow the EPO employees called as witnesses to testify. No fair hearing could be possible in such circumstances.

Anonymous said...

I guess the issue was not merely whether the members of the EBA themselves felt directly threatened in their job by the intervention of the president. Also the respondent (accused member of the boards) and the public at large had to be absolutely confident that the judges in charge would conduct the procedure and decide freely and in full independence, rather than acting as BB´s puppets. The AC actually is the sole authority which could have given this guarantee in the circumstances, but it failed to do so despite having been offered several chances, apparently.

Anonymous said...

conduct the procedure and decide freely and in full independence, rather than acting as BB´s puppets.

You mean, like the Disciplinary Committee which examined the cases of the three Staff Representatives? Certainly, if they felt threatened and under pressure from Battistelli, they could turn to their appointing authority which is ... oh, is Battistelli.

Freely and in full Independece! Urrah!

An Eponian said...

Freely and in full Independence! Urrah!

I like that.

Actually, I shall add it at the end of my grants to dispel the impression in the public that I'm granting only to reach Battistelli's targets.

I shall remove the "Urrah", though - it doesn't fit the code of conduct.

Anonymous said...

If there were no threats in that letter, BB will not pass up on the opportunity to penalise the EBA for groundlesly failing in ist duty to deliver the requested dismissal for the judge. So that, if he does not request a penalty for the EBA at the next AC, it will mean that the EBA can prove that threats were there in the letter.

Barbi

Another Eponian (not the same above) said...

There's a huge difference between writing in a letter that the procedure is "unlawful" and actually providing legal arguments in support of that statement - arguments that the EBoA would have certainly discussed and admitted or rejected, depending on their merit - and merely alleging that the procedure is "unlawful".

As someone noticed above, the consequences of doing something that Battistelli alleges is "unlawful" are very clear to every EPO employee - weapons and nazi memorabilia will be found in your office.

Another anonymous observer said...

A truly historic moment for the EPO.

At last somebody within the organisation* has stood up for the rule of law and takes a principled stand against the abuses of the EPO management.
(* And I am not referring here to the Administrative Council!)

Many people have been waiting such a long time for a hopeful signal like this and are truly grateful that it has finally come.

Sad to think that such hideous abuses of power are tolerated for so long at the highest political levels throughout Europe. But those responsible will wash their hands and pretend that "we were never informed", "we didn't know" etc. while they dance on merrily to the tune of "Put another nickel in the nickelodeon".
Shame on them.

independent said...

As someone noticed above, the consequences of doing something that Battistelli alleges is "unlawful" are very clear to every EPO employee

It would be unfortunate if that turns out to be the reasoning of the EBA. It would convince only those who need no convincing, which is just useless.

A mere "unlawful" by the president who does not get to decide anyway (Art. 23(3)) should have been easy to dismiss.

The threat had better be real and serious. Probably it was, but at the moment it is impossible to tell. The idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous to take serious unless the letter actually makes such threat.

Anonymous said...

Everybody here is focusing on a real or perceived threat in the letter of the President - the details of which we will probably never know.

In my opinion, forbidding the three members of the Investigation Unit to appear at the hearings, as requested by the EBoA, is the real scandal here!

Anonymous said...

Dear Independent
You posted "The idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous to take serious unless...."

the two of recent of our feline friend concerning EPONIA, start on the sidebar with

"Extraordinary news has just reached Merpel."
(this concerns the EBoA OP that was torpedoed )

the other reads "Merpel thought that nothing at the European Patent Office could surprise her any more. How wrong she was. " (post employmen restrictions)

Who would really be suprised if one or more members of the EBoA would be marched out of the EPO because somebody ruled that a house ban was the right thing for these Judges , who are not really Judges ?

Cri de coeur said...

Who would really be suprised if one or more members of the EBoA would be marched out of the EPO [...]

Actually, a lot of people at the time were surprised.

Remember Sir Robin Jacob's Letter?

And the one of the Six National Judges?

And the one from Dr Tilman Müller-Stoy? - with the caption from Merpel: "who's asking the DE delegation to the AC to set the EPO management straight" (sorry, Dr. Müller-Stoy: it really did not work ...).

After Battistelli informed the AC - and the public - that the suspended member of the BoA was (allegedly) an armed nazi, I can understand their reluctance to continue to defend him ... but now? After the AC failed for 3 TIMES to have him dismissed, would it not be the time to SAY SOMETHING?

Actually, the silence of the IP world is defeaning.

Only Merpel is brave enough to continue to cover, comment on and criticize what is going on at the EPO.

Where are you Sir Robin?

Anonymous said...

@Cri de coeur

"an armed nazi, I can understand their reluctance to continue to defend him"

When people who dare criticize and resist a dictatorship are caught, they are never good family's fathers.

To avoid that normal people could identify themselfes with the person expressing a legitimate critic or an act of resistance, they are publicly presented as monsters, perverts, with the convenient discovery in their offices of incriminating material.

Defending someone like this becomes embarassing -  Sir Robin is not heard anymore.

But the person has not acted alone! - we are told. Further conspirators are discovered, guilty by association - first the Judge, then the Union Leaders.

Thus, one by one, the pillars of a civil society are silenced - in secret trials in which the State' s security may be conveniently invoked to avoid embarassing witnesses to appear, or with reformes to enhance the "perception" of independence, presented with grand fanfare.

And all this is appening - of all places - in Germany, the representative of which in the Administrative Council belongs to the Minister of - wait for it - "Justice".

I'm surprised that nobody noticed this - but then, not everybody lived in the former East Germany.

Anonymous said...

And all this is appening - of all places - in Germany, the representative of which in the Administrative Council belongs to the Minister of - wait for it - "Justice".

Justice minister Heiko Maas (SPD) ain't really the sharpest knife in the drawer. Look at his performance in the NSA and Netzpolitik scandals...

With the EPO, Maas has a politician's dream: a half-plausible excuse to say "not my department!".

But it could still be worse... A lot worse... Three words: Thomas. de. Maizière.

Friar Tuck said...

Where are you Sir Robin?

I would not expect too much from Sir Robin and his friends.
They may be in a quandry.

Rumour around the EPO has it that a retired British judge chaired a disciplinary body appointed by the Admin Council which rubber-stamped the work of the IU.
Seems like he never heard of Article 23 EPC.
A bit embarrassing for all concerned.
It cannot be pleasant to wake up and realise that you have been a Presidential patsy.
Might help to explain the current silence.

Anonymous said...

From HelloKitty:

So what happens next?

Whether it was by failure of allowing witnesses to be heard or by a threat letter to the enlarged board, one thing is clear: Battistelli obstructs justice.

Another thing is clear: in their last meeting, the administrative council gave clear instructions that "justice must be seen to be done". In addition to "restore social peace", "start talks with the unions", etc...

Normally, in cases as clear and detrimental to the function of the EPO as this one, the expected answer would be: lift Battistelli immunity and find another President at interim to sort out the mess.

So I am asking the question again: what happens next?

Anonymous said...

HelloKitty said: "Whether it was by failure of allowing witnesses to be heard or by a threat letter to the enlarged board, one thing is clear: Battistelli obstructs justice"

Quite amazingly, the President himself has given an indication of why the procedure against the accused member of the boards might have had to be stopped at all costs.

In his final decision against Elizabeth Hardon, the recently fired chairwoman of SUEPO, as published here: http://techrights.org/2016/01/16/battistelli-has-isssues-with-hardon/ the President wrote:
“As regards the defendant’s request concerning the DPO authorisation, the Office’s explained both the technical and the legal aspects. It has explained the exact circumstances under which the investigation took place. For the avoidance of any doubt, the Office did not intercept your correspondence to Mr XX, nor access your private email account. Rather, it collected evidence in the context of an investigation against unknown persons within the premises of the Office and more specifically at one of the Office’s public PC kiosks. Screen shots of email correspondence and activities of Mr XX were obtained in that context. These included screen shots of two-way correspondence between Mr XX and you. It was in that way that your involvement came to light. It was demonstrated to the Committee that the Office had not relied upon intercepting your private email at all, and you were mistaken to think so. These reasons and details were considered carefully by the Disciplinary Committee who fully understood and accepted them. They do not require further elaboration“ see § II (iv) of the President´s final decision.

The President´s final decision thus evokes a suspicion that the Investigation Unit
might have violated the private e-mail accounts of the accused member of the boards and of his alleged accomplice, Elizabeth Hardon. The Disciplinary Committee in Hardon's case, chaired by the very Mr. McGinley, see § II (i) of the decision, who a few days ago unexpectedly announced his early resignation http://techrights.org/2016/06/15/ciaran-mcginley-is-leaving-epo/ was apparently satisfied by the explanations of the Investigation Unit that they did not gain access to any private e-mail accounts.

It cannot be excluded that a public hearing by the EBA of several members of the Investigation Unit in the present case, which obviously relies upon the same investigations, could on the contrary have revealed that the Office in addition to its admitted spying on publicly available computers also hacked the private e-mail accounts of its staff, with disastrous consequences.

Anonymous said...

From HelloKitty

We don't really care about what happened to Mrs Hardon here or what reason there was for nobbling the board, as Merpel says.

This is about obstruction of justice. This is about threatening a high court. These are pretty serious offenses anywhere.

The Office can't afford to leave these offenses unanswered.

To nobble: "to cause or force (someone) to do something that you want by offering money, making threats, etc". Try to do that to a court in your own country and see what happens.

An Examiner said...

"We don't really care about what happened to Mrs Hardon here"

Actually, we do - because if the reason she was dismissed is that she contacted the accused member of the BoA, and at the end the President is unable to show that he did anything wrong, that the accuses against her should fall too and she should be reinstated.

Another reason why we care is that the strategy to get rid of them seems to be the same.

We care about Else, actually we really do.

Anonymous said...

The actions taken against Staff Reps, including some in The Hague right now (to further cement atmosphere of terror top-down), began with Hardon, so of course that matters. It is offensive to suggest otherwise.

Roy Schestowitz

Belling the cat said...

The potential "charge sheet" seems to be expanding - gradually but inexorably.

* deploying covert surveillance measures of questionable legality

* attempting to "nobble" a judicial body by means of alleged "threats"

* attempting to interfere with the course of justice by obstructing the hearing of witnesses

Anyone for an investigation ?

Perhaps if someone competent to carry it out can be found.

Watch this space but don't hold your breath ...

Anonymous said...

From HelloKitty:

When I wrote "We don't really care about what happened to Mrs Hardon here", I meant: "What happened to Mrs Hardon is not really relevant to the present discussion about threatening the boards". I also find that what happened to her and to the other dismissed people is scandalous.

But what we have here is that the President is threatening the enlarged board of appeal. In the Patent Office, a judicial body. For the jurist in me, this is unthinkable.

Falcone said...

We do not know what was written in the letter, but hard to imagine that it was anything that a true judge could have considered a serious threat. Was there a bullet in the envelope? You know judges are the guys in whose honour places are named in Sicilian and other towns. People who lived in army camps and moved about with bodyguards. These people in Munich do not know what a threat is and what are the only two ways to reply: Resignation or ignoring it which in this case would have been the only dignified answer. These guys have definitely proven they aint no judges. They therefore do not fullfill the judicial role required under the EHRC or the constituition of most member states. Karlsruhe will have to take this into account later this year.

Judgeman said...

@ Falcone:
You should have stopped after: "We do not know what was written in the letter".

Good luck convincing the "real" judges in Karlsruhe later this year when you tell them about your suspicions concerning the contents of "the letter".

Judgeman

The Cat that Walks by Himself said...

RE: These guys have definitely proven they aint no judges. They therefore do not fullfill the judicial role required under the EHRC or the constituition of most member states.

In case you happen to mean the European Convention on Human Rights (ECHR), the Technical Board of Appeal and Enlarged Board of Appeal are the only exiting review/appeal bodies for everybody binding in Europe-38-Countries decisions, that is, patent monopolies. There is no alternative body covering all functions of the TBoA/EBoA and no plans for one. This is about the role.

Judge Knot said...

You know judges are the guys in whose honour places are named in Sicilian and other towns. People who lived in army camps and moved about with bodyguards.

The only ones who move around with bodyguards inside Eponia are King Batti and his flunkies.

Everybody else is completely "unprotected" including the quasi-judges of DG3.

The "real judges" you are referring to can at least to some extent rely on the backing of the State.

When the quasi-judges of DG3 contacted their "appointing authority" they found out that the lights were on but there was nobody at home ...

https://s3.amazonaws.com/lowres.cartoonstock.com/animals-turtle-tortoise-lights_are_on-shells-empty_shells-cgan2701_low.jpg


Xavier West said...

@Falcone You act tough for a wimp! Tough insult towards the judges in Munich. Why don't you disclose your real identity here instead of using such a dirt cheap mafia pseudonym? Oh wait, gotcha mafioso, you just revealed your identity, don't you?

Judge Bat said...

@ falcone
So the only true judges are those who walk around with bodyguards? Do you mean that Battistelli is the only true judge so he can decide what is lawful what isn't? Well, he did tell the judges of he EBA, didn't he? He also told the staff reps. And they would not listen so now they have to deal with the consequences. So next step: investigation against the disobeying judges.

Anonymous said...

Shall we expect the EBA to issue a decision based on what happened and/or minutes of the hearings? Maybe in time for the next meeting of the AC?

Obviously, don't expect the Office to publish them ...

Anonymous said...

Anonymous,
Since the hearing was public, it would seem logical that the decision (and reasoning) would be public. Of course, in camera discussions would be excluded but it would be likely that some people would/could be concerned in advance about the scope of disclosed information relating to third parties? Perhaps sufficiently concerned as to 'advise' the EBoA about what they should disclose and not? I'm intrigued.

Batti´s telling said...

What one would definitely expect from the EBoA is that it considers whether the accused judge really is the dangerous, armed Nazi propagandist depicted by BB in several public interventions and newspapers to justify the immediate house ban imposed upon him since December 2014. If not, they should absolutely exonerate him publicly from such charges.

Anonymous said...

Battis's telling,
To what extent is the EBoA (or any board) able to function as a court? I'm not clear what their ability is to hear witnesses and what the consequence of perjury is. Can they refer such cases (and I'm not suggesting that is relevant here) to local authorities? Would they be able to require witnesses to make affidavits before local authorities? I ask this only with regard to the EBoA's ability to make statements of innocence or guilt. I thought their brief was limited to answering the request placed before them according to EPO laws.

Witness Protection Scheme said...

Never heard of Article 117 EPC ?
http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar117.html

Upon my oath said...

While you're at it have a gander at the Implementing Regulations, Rule 119:

"Before a party, witness or expert may be heard, he shall be informed that the European Patent Office may request the competent court in the country of residence of the person concerned to re-examine his testimony under oath or in an equally binding form."

Anonymous said...

WPS and Umo,
Yes, I underwood that generally but I meant the practicalities. If the EBoA is not able to hear people they or the 'defendant' wish to hear, I presume their powers are limited.

Anonymous said...

See also
Rule 120
Hearing by a competent national court
http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/r120.html

Anonymous said...

The Register reports about an Open letter from EPO staff pleads with country reps to fire president.

The letter is here.

Mikhail Tukhachevsky said...

"Open letter from EPO staff pleads with country reps to fire president."

Pray that it works - because if it doesn't the Investigation Unit will be quite busy in the Great Purge that will follow ...

Anonymous said...

Quo-usque tandem!

Anonymous said...

Let´s not care about independent justice, but instead let us spend the applicants fees having nice and glamorous little events:

https://www.youtube.com/watch?v=pAIE_2p3nm4&feature=youtu.be

Anonymous said...

to Anonymous citing Cicero

the whole of the introductory part might be interesting too

it reads (with one word omitted) in English: When, ..., do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?

to whom might that apply ?


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