Can the European Union investigate the European Patent Office?

For a considerable time, both the IPKat and Merpel have received a steady stream of emails seeking to bring to their attention certain allegations concerning a Vice-President of the European Patent Office.  Until recently, the nature of these allegations has been rather difficult to verify, since the sources have been invariably pseudonymous, and any corroborating information available in Croatian only. The IPKat is a site for community discussion of intellectual property law, not an investigative journalism site, and Merpel does not have the resources to undertake independent investigations.

Recently however, Merpel has been alerted to some further developments that are both newsworthy and raise some interesting legal issues.  In particular, she has been informed that a Petition has been filed with the European Parliament, asking the European Parliament to investigate the appointment of  Mr. Željko Topić as the Vice-President of Directorate-General 4 of the European Patent Office back in March 2012.  Mr Topić had previously been Director General of the State Intellectual Property Office of the Republic of Croatia since 2004.  In formation about the background to this, and a copy of the Petition itself, can be seen here (which is the same link as the first in this paragraph). The complaints about the suitability of Mr Topić for office relate to allegations about his previous position.

The petition dates back to 2013, but was originally filed with a request for confidentiality; the IPKat understands that it became public more recently.  The official reference number of the Petition in the Petitions Register of the European Parliament is 2848/2013.

The legal issue is this - does the European Parliament, or any EU institution, have competence to investigate the EPO at all?  Aspirant European Intellectual Property enthusiasts learn very early on that the EPO is not an EU institution and does not have the same member countries. Until recently, it may have been hard to argue that this is suitable subject matter for a petition at all. The Petition itself acknowledges that this is an issue, and argues as follows:

"Whereas the EPO is not an organ of the EU, the EU has a legitimate interest in the proper governance of said Organisation. This interest derives inter alia from the following considerations:
"(i) Article 17 (2) of the Charter of Fundamental Rights of the European Union (hereinafter CFR-EU) states that “Intellectual property shall be protected”. The EU thus has an acknowledged statutory responsibility for protecting the intellectual property rights of its citizens.
"(ii) In 2012, EU Member States and the European Parliament agreed on the so-called “unitary patent package” – a legislative initiative consisting of two Regulations and an international Agreement laying the foundation for the creation of unitary patent protection in the EU. In the context of this unitary patent scheme, the EPO has been entrusted with the task of granting unitary patents. It is also foreseen that the EPO will be in charge of centrally administering the unitary patent, levying the annual renewal fees and distributing them to the participating EU member states."

It seems to the IPKat that the first of these two grounds is hard to argue.  The fact that there are EU norms of intellectual property cannot give the EU competence that it does not have.  The second is more promising.  If work that is within the field of responsibility of the EU - the Unitary Patent - is to be entrusted to the EPO, then the EU must be satisfied that the EPO is a fit and proper institution that complies with EU norms.  This includes its governance, and compliance with other EU principles, such as employment rights, access to justice, and protection of personal data.  Only if the EPO fulfils EU requirements in this regard can the EU properly entrust matters relating to the Unitary Patent to the EPO.  Thus, it seems to the IPKat, the Unitary Patent has perhaps provided the nexus between the EU and the EPO that was formerly lacking.

The IPKat will be interested to see what becomes of this petition.