Merpel wrote recently about the latest plans of the European Patent Office to reform the Boards of Appeal of the EPO. One aspect present in the earlier proposals of CA/16/15 (see IPKat here, here and here) was that post-service restrictions on employment should apply to former members of the Boards of Appeal, in order to prevent the appearance of conflicts of interest. This aspect has been removed from the main proposal and made the subject of an entire new proposal of its own, to apply not just to Board of Appeal members, but all employees of the EPO.
According to the proposal document:
In order to foster the public’s trust in the integrity of the services provided by the EPO, it is important to prevent the risk of real, apparent or potential conflicts of interest not only during service, but equally after its termination. [original emphasis]
But is this true, Merpel wonders? Have there been any, let alone any significantly large number of occurrences of, situations where what EPO employees have done after leaving the EPO has diminished "the public’s trust in the integrity of the services provided by the EPO"?
As the proposal document itself points out:
The EPO’s legal framework already foresees specific obligations applicable after termination of service: an obligation to behave with integrity and discretion as regards the acceptance of certain appointments or benefits (Article 19 of the Service Regulations), and an obligation not to disclose professional information (Article 12 EPC and 20(3) of the Service Regulations).
What is the evidence that further regulations are needed in this area?
Anyway, the basic plan is stated to be as follows:
For the purpose of monitoring post-service activities, all former employees would for a certain time after leaving the service be obliged to inform their appointing authority prior to engaging in any occupational activity, gainful or not.
If the envisaged activity is related to the work they carried out immediately before leaving the service, and could lead to a conflict with the legitimate interests of the Office, the former employee could be exceptionally prohibited from taking this activity, by decision of the appointing authority. In order to make the prohibition relevant, only the duties carried out during last up to three years of service would be taken into account.
The proposal gives the EPO two months to impose any restriction, otherwise the departing employee is free from restriction. This part at least seems reasonable.
A feature of the earlier proposal, that the departing employee might be financially compensated in respect of any restriction imposed, has, handily for the EPO, been dropped:
The monitoring and case-by-case assessment of envisaged post-service activities would help clarifying the practical scope of the integrity obligation. Decisions of the appointing authority would be the result of a careful consideration and balance of the interests of the former employee (freedom of work) and the service. Prohibitions would only be applied in exceptional cases, where an envisaged post-service activity raises concrete integrity-related concerns, and thereby puts at stake the general integrity obligation. Thereby, the former employees’ freedom of work would not be limited in a way such as to justify a financial compensation.
But Merpel, as alert as a patent attorney for inconsistency between the Description and the Claims of a patent, notices that the draft amendments to the Service Regulations that are set out in the proposal, makes no reference to "Prohibitions would only be applied in exceptional cases" - instead it gives the EPO administration wide-ranging and unfettered powers:
(2) A permanent employee or former permanent employee intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service, shall inform the appointing authority thereof.
If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the legitimate interests of the Office, the appointing authority may, having regard to the interests of the permanent employee or former permanent employee and the service, either forbid him from undertaking that activity or give its approval subject to any conditions it thinks fit. [emphasis added]
It further states:
(8) The appointing authority may lay down further terms and conditions for the application of this Article to the respective employees; these shall cover in particular the form and content of the information referred to in paragraph 2.
It must be cause for concern where powers are stated to be used only exceptionally, but granted without restriction. Moreover, the EPO is explicitly moving to a situation where more employees are expected not to stay their whole working lives with the EPO, so the question of what an ex-employee can do will rise in prominence. For example, the proposals for reform of the Boards of Appeal plan to remove security of tenure so that Board members can no longer expect to be automatically re-appointed at the end of each 5 year term.
For the Boards of Appeal, the most significant issue is that Board members cannot improperly use their former status to the advantage of a particular party by representing them in proceedings before the EPO, but this was dealt with more than 2 decades ago in case G/94.
As an organisation, the EPO is struggling (to put it politely) with its staff relations. It is baffling that the Administrative Council might think it to be a good idea to to add to the list of staff grievances by granting the EPO President, who is the "appointing authority" for most staff, an entirely new ability to control the career of staff members even beyond their departure from the Office, without at least being convinced first that the lack of such powers was damaging the Office.
So Merpel returns to her original question - what is the evidence that further restrictions are required now?