Managing Intellectual Property has just published an article containing a series of questions and answers, put by Managing Editor James Nurton to EPO President Benoit Battistelli and Chairman of the Administrative Council, Jesper Kongstad.
The questions relate to the recent events leading up to and following the AC meeting covered at length on this blog, and cover topics such as staff unrest, union representation, the independence of the Boards of Appeal, and the allegations that a "reign of terror" exists. The answers provide an insight into the response of those at the top of the EPO management to the criticisms levelled at the organisation.
In the spirit of the current festive season and in view of its importance, Managing IP has made the article free to view. In the spirit of brevity, Merpel will refrain from comment at this time and leave it to her readers to do so.
The questions relate to the recent events leading up to and following the AC meeting covered at length on this blog, and cover topics such as staff unrest, union representation, the independence of the Boards of Appeal, and the allegations that a "reign of terror" exists. The answers provide an insight into the response of those at the top of the EPO management to the criticisms levelled at the organisation.
In the spirit of the current festive season and in view of its importance, Managing IP has made the article free to view. In the spirit of brevity, Merpel will refrain from comment at this time and leave it to her readers to do so.
Battistelli and Kongstad respond to EPO criticisms
![Battistelli and Kongstad respond to EPO criticisms]()
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Friday, December 19, 2014
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Brass neck.
ReplyDeleteAlso some further comments today by President Battistelli.
ReplyDeletehttp://blog.epo.org/patents/2014-another-successful-year-epo/
The penultimate paragraph specifically relates to the suspension of the Board of Appeal member.
Harken! The president speaketh:
ReplyDeletehttp://blog.epo.org/patents/2014-another-successful-year-epo/
It is worth reading this several times over. In my view, it seems there is at least one logical fallacy, some misdirection and several non answers to the questions asked.
ReplyDeletePlease do read it your self and make up your own mind.
I am losing confidence in the EPO, or at least in the leadership of it. But one should always be careful about deposing a king or an emperor.
"I would also urge all commentators, especially those having a legal background, to be mindful in their public expression on a case which is still under investigation, in order to protect the rights of the defence and to guarantee the impartiality of the investigation under the supervision of the Administrative Council which is the decision making body."
ReplyDeleteBB 19 DEC 2014
There is something very odd about this statement.
The staff can address the AC? Really? The gentlemen must have let the fact that they banned the staff representatives from last last 2 meetings Slip their busy minds.
ReplyDeleteAs for objecting to the VPs - the staff representatives have a formal objection pending since the ILO had previously said that such contract members are not allowed in such committees. Rather than boycott meetings they have chosen to attend but state their objection lest their attendance be seen as tacit approval.
Lay but not least, the president ignores that the 70% turnout to vote was a democratic success because the electorate used the only means open to them to vote against him. Similarly the strike votes when more people than ever void for strike. He is being selective in the extreme and either wilfully or unbelievably blind to the meaning of the turnouts.
I notice the presidential blog warns those with a legal background to be careful in commenting on the BoA member case. I haven't noticed any comments on the case; only comments on the president's actions. Fortunately he is above reproach when indicating there that the innocent man faces prima facie evidence of misconduct
ReplyDeleteHere is the REAL interview (part I):
ReplyDeleteHave you (President and/or AC had any direct contact (e.g. meetings) with staff representatives or unions regarding their concerns? Do you plan to do so?
JP: As a chair, I was forced to have contacts with the staff reps at each of the quarterly AC meetings. They used to be present as observers. Then I contributed to their suppression by not giving them the floor when they were about to raise critical questions, and by running away from them when they wanted to address me personally. Of course you cannot do that too openly. Some delegations want me as a chair to keep in touch with the staff representatives. I had to be careful.
BB: Yes, Jesper, I have seen that this was difficult for you. Therefore I remind you that at the last two AC meetings, staff representative were no longer present.
How I managed to prevent them from coming? That was easy. You know, since I am at the EPO, I have always singled out critical individuals and hold them responsible for group actions. The staff representatives were aware of this. I did so for the first time when they sent emails to the enire staff. I agree in principle that they might represent all staff (I always agree in principle on anything)but of course I do not agree that they may address all staff by email.
When they did so, I threatened some of them by a warning letter, in order to prepare them for being fired.
Furthermore, I amended the election rules for the staff committee, in order to make it unworkable.
Nonetheless, the staff reps kept on fighting. But they did not appoint a chair - they knew that I would single out the chairperson and punish him. Then I pretended that I could not send them an invitation for the AC meeting. Therefore, they were not present.
As a result, they could not disturb our talks with the delegations and they could not put nasty questions. They can stay in the office and produce patents instead. And Jesper can finally enjoy the AC meetings again. It is a win-win situation.
JK: Yes, Benoit, I agree with you, you did a great job on this one. I am really happy I do not see them anymore. Some of them were really annoying. You know, they wanted the EPO to be assessed by Transparency International, these weirdos. What should that be good for?
You remember, Benoit, when I closed the contract with you, we had in the beginning difficulties to convince the delegations that they should give consent to the contract without even seeing it. That was really difficult, but we managed. And we have not kept the contract (which guarantees both of us a sh..load of money) secret before the delegations in order to show it then to some curious eyes of Transparency International!
BB: I perfectly agree with you, Jesper. In fact, it is our contract and OUR money. And I am happy that you enjoy the AC meetings again.
JK: Yes, in particular as not only the staff reps do not put questions anymore, but also the delegations have given up on asking as they anyway do not get answees from you.
BB: Yes, Jesper, that is also what you have to understand: If people put questions, do not give answers, Jesper, give money instead!
Problems? Who said there are problems at the EPO? Everything is wonderful and everybody like each other.....
ReplyDeleteI have rarely seen such hypocrisy as in the article of IAM.
Why has the EPO audit committee build up in 2009 been disbanded in 2011, and pure coincidence, a BB crony (former secretary general of the French patent office) be named on the Board of auditors?
In which country an investigation can be started against you, without the possibility to be assisted by a lawyer and an obligation to cooperate? Is this respecting human rights?
Why are examiners suddenly faced with production increases of 10% and more?
Part of the explanation lies in the fact that the top management of the EPO has promised the AC production and productivity increases due to new tools which have cost a lot. If they do not want to get the sack, or at least have unpleasant questions to answer, they have to deliver. Hence increasing the pressure on the examiners is the only reply they found.
When quoting percentages of staff striking, it would be more correct, not to say honest, to relate the figures to examiners. How will the performance of PD HR (one BB crony) be measured? Probably by the number of times she screams at her staff?
One is wondering whether the whole upheaval about the suspension of the Members of Boards of Appeal was not provoked in order to get the rest, i.e. bad HR policies, go through nearly unnoticed.
It seems that the now accused member of the Board has been traced and under observation for a long time. Was there such urgency in acting, the more so publicly?
At the AIPPI conference in Montreal BB has been heard making derogatory comments on the examiners. Is this a correct behavior for the head of the EPO?
A representative of a small country having dared question BB rush to push through his reforms has been warned that her country will not get any further funds from the EPO. Just have a look at: http://techrights.org/2014/12/07/battistelli-audio/
The REAL interview - part II
ReplyDeleteHow do you respond to allegations made in Munich and online that thre is a "reign of terror" at the EPO?
JK: Look, we are the representatives of 38 countries, and we meet behind closed doors. As long as we deliver enough money to our local governments, they do not care too much. And we have immunity. So we can do what we want, basically. And we fully respect legal provisions, in principle.
I mean, a respect for legal provisions in principle does not mean that you do whatever you want, when you have to. For example, when we had to appoint an auditor, we went for Frederic Angermann, with whom Benoit had already successfully worked together at the INPI. He makes sure that whenever we need money for whatever reason, it is available without that curious eyes spot it. I mean, in the end, it is OUR money.
The fact that the EPC stipulates that the independence of an auditor should be "beyond reasonable doubt" is not to be interpreted too narrowly. And last but not least, I think that Frederic is beyond reasonable doubt a very trustworthy person and in particular very loyal to Benoit.
BB: Yes, he is, for sure! I agree with you, Jesper. I mean you have to be careful when you talk about a "reign of terror", you know. In my opinion, this kind of reigns only comes into existence when legal provisions are not observed. We, however, fully observe legal principles and legal provisions.
For example, look at this question of indepedence of DG3. In principle, we respect that. Article 23 EPC stipulates that a DG3 member can only be removed when the Enlarged Board of Appeal proposes this and the Council endorses it. Unfortunately, the Enlarged Board of Appeal is sometimes not very cooperative. To this end, there is no difference between DG3 and the ordinary staff, in my opinion.
So we had to act - in order to prevent further damage, and also in order to demonstrate that staff cannot do what they want. Apparently the warning letters that I had sent and the suspension of some ordinary staff - out of the blue - was not perceived as convincing enough.
I mean, let us be reasonable: The fact that Zeljko Topic is facing at least six criminal charges in Croatia is anyway in the blogs. We cannot afford that the reputation of this honourable Vice-President is further damaged. If a DG3 member reads the blogs and talks to his colleagues instead of performing his duties, he should be punished so that he and all staff know how to behave correctly. And I would like to add that the Council fully supports me on this one.
JK: Yes, of course. The EPO is a renowned institution, we cannot afford to have its reputation damaged by individuals telling lies or even the truth. That is also why we continue to support you, Benoit, no matter what you do.
Being an employee of the European Patent Office, I am so angry and completely a loss for words and after reading the written statements of Mr Kongstadt and Mr. Batistelli ... I am absolutely speechless.
ReplyDeleteIn the last months, so many things have happened at the EPO which I would have deemed absolutely impossible to happen just in the middle of Europe, in the 21st century. It's like a nightmare and with some part of my mind I'm expecting to wake up the next moment and to find out that it was just a bad dream. But it is not.
How can such things happen? We're facing a system where not even the most fundamental basic rights and principles of democracy and justice apply, just in the center of modern Europe. Within a few months, we have seen the collaps of a previously stable institution and the introduction of means which should be unthinkable of in democratic countries.
And yet, it is happening. Just in the center of Europe. Apparently even with the support of our own countries, which are so proud of declaring how much they value human rights. That's what shocks me most.
At the same time, those who are responsible and have introduced this system give a written interview full of untruthful assertions, to pretend how democratic, balanced, well controlled and lawful those cruelties are. What a shame!
Either the AC is really not aware of what is really going on at the EPO (which is hard to believe), or they are aware of it but do not care, or they even fully support it.
What a shame for our European countries and our societies, to turn a blind eye to the creation of such an inlawful and inhuman system, just in the center of Europe. What a shame for Europe, and for each one of us European citizens.
The answer that caught my eye was the one about losing your job if you speak out in public ie on the private EPO intranet. Read it. What sort of an answer is that?
ReplyDeleteNote the wagging finger, that the employee who dares to speak must respect the Rule of Law. And then ask yourself who decides afterwards, when someone who speaks out is spitefully and vindictively punished, whether the President has followed the Rule of Law in meting out that punishment. Can you check? How are you going to do that?
Is this what is being alluded to, in these references to a reign of terror?
As far as I can see, till now the Contracting States, because it suits them, have abdicated their responsibility and are being wilfully blind.
The REAL interview - part III
ReplyDeleteSUEPO officials say they cannot speak out about their concerns because they risk losing their jobs. How do you respond to this?
BB: As I said, in principle I fully respect the freedom of expression. But I am the PRESIDENT of the EPO, and if someone thinks he has to express himself, he can do that anywhere he wants, but not on the premises of an organisation that enjoys impunity ... I mean immunity.
I would like to remind you that I have managed to remove basically all possibilities for EPO staff to get legal redress. One remaining thing was the Internal Appeal Committee. There were two guys who had not yet really got the message, so I suspended them. The suspension is still in force, they are now at home and they can express themselves freely there. And we are not disturbed. Again, it is a win-win-situation.
The staff representation does not refuse to appoint new members to the Internal Appeal Committee, because they fear that the new members would also be punished.
That is good. If they send new ones, we will give the possibility of free self-expression as well. If not, it shows that the staff representation is either not interested in nomminating members, or does not function properly, or both.
JK: I can only say that the Councicl fully supports the President. The fear to loose one's job at the EPO should also not be overrated, as we are anyway doing our best to diminish the quality of these jobs.
The REAL interview - part IV
ReplyDeleteYou plan to move to performance-relateed pay for staff. How will performance be judged?
BB: Performance will be judged on the basis of loyalty. For example, Zeljko is very loyal to me, his performance is extremely good. Also the Principal Director Human Ressources whom I brought from France, is exremely performant. Another example is the German VP who is a very loyal person and supports all our activities although in his former life he was a legally qualified person.
The Council members are also very loyal, except for one or two. So I was forced to reduce the cooperation budget of the respective countries to zero. I hope their performance will improve next year.
There are some more French persons in the Presidential Office who are very loyal, the same applies to some of the VPs.
You know, we can also not reward everybody.
If you have to have 100 pages of Q and A then maybe there is a problem with your plan?? Heaven forbid that it might be explained by an expert rather than on an intranet page. How was that channel of communication with staff again?
ReplyDeleteSlapdash slapdash putting on the whitewash
ReplyDeleteSlapdash all day long
In and out the corners
Looking for informers
This is Battistelli's song
Either BB is lying bluntly into the reporter's face, his memory is rather short termed or he has so much lost contact with reality that a mental disorder should not be excluded. Any case renders him unsuitable as President.
ReplyDeleteBtw, as it was not mentioned yet above: "the figures we published in full transparency" ... does he mention that ALL EPO staff is counted as 100% basis ... meaning including all management (yes, also BB himself), DG5 people (including for example lawers representing the EPO against staff members), DG3 people, people from HR which are directly dependent on his lickpits, intimitated staff and not to mention all those which were requisitioned to be present (eg for oral proceedings or IT for ensuring support and running the machines) ... as these people could not or must not strike, they should not go into BB's transparent calculation ... but well, we are used to BB's virtue with numbers when remembering the count of (filed) patent (applications) discussed some time ago on this blog ...
Sorry, but the link isn't working properly for me. The article I am directed seems quite reasonable.
ReplyDeleteIn addition, if I was to be publicly critical of my manager or any other colleagues, such as on this website, I would expect to be dismissed from my post.
Anon 00:36:
ReplyDeletePeople are exercising their freedom of speech. If you don"t like that then go and live in North Korea.
I agree with BB: comparison with 20th century Europe is preposterous. More useful is to compare today's EPO with today's China. How do the respective Ruling Parties manage the people under their governance and, in particular, anybody who dares to utter a word of criticism of The Party?
ReplyDeleteDo me a favour will you, any reader who approves of BB's chosen methods. How do they differ from those used in China and, if they don't, is this a good thing, and the way forward to a better future?
And while we are on China, imagine the studious G5 relations between the managements of the EPO and the other four Patent Offices. When it comes to a productivity target or an output statistic, does BB feel a need to wave his around, to show to the American gal that his is more impressive than those of the three Asian guys?
In reply to that last Anonymous at 00:36, the way I read BB, what "publicly" means to you and what BB means by "public" are two different things. Within the EPO "public", the absolute EPC definition of the state of the art applies: what is "made available" includes anything communicated orally, even to just one other employee.
ReplyDeleteAnonymous 00:36
ReplyDeleteYour position is clear, as is my reaction.
Anon 00:36
ReplyDeleteI think a lot of comments on these threads are from concerned attorneys. What are you going to do about them?
Not clear what "them" refers to, the comments or the attorneys.
ReplyDeleteNot clear who comment is addressed to, IPKat or Battistelli's.
Not clear whether "about" means "about" or "to".
Either previous comment was not from an attorney, or it was from an attorney with high skills in creative ambiguity.
"In addition, if I was to be publicly critical of my manager or any other colleagues, such as on this website, I would expect to be dismissed from my post."
ReplyDeleteOr some form of disciplinary action, yes. But that's not the issue.
The issue is who can administer that disciplinary action. The EPC is quite clear. For Board of Appeal members, it's the Administrative Council.
All the President can do is to propose it to the AC.
After the fact, the President is now saying that this disciplinary house ban was a "precautionary and provisional measure". But the EPC doesn't even give him the power to do that.
Furthermore, immediate precautionary and provisional measures would only be justified if there was some imminent risk. Why take the action when he did? Was there really an imminent risk which made it essential to act now, rather than proposing it to the AC meeting scheduled just one week later?
We should of course bear in mind that we don't know all the facts, and it is right that disciplinary proceedings should take place in private. However, there have been strong rumours about the nature of the BoA member's alleged defamatory statements. Such statements have been circulating for a long time. Unless there's something more, I can't see how they form an imminent risk that would justify immediate action and wouldn't wait for a week.
It is clear that the President has exceeded his powers under the EPC. If the AC is to live up to its "full endorsement of and support for the principle of independence of the members of the Boards of Appeal", then it should be pressing him very closely about why his immediate unilateral action was essential. Their Communique gives no confidence that they are doing so.
"People are exercising their freedom of speech. If you don"t like that then go and live in North Korea."
ReplyDeleteFree speech on this website? I do like a bit of comedy at Christmas. Just read you own posts responding to my little bit of "free speech".
Hypocrites extraordinaire.
To Anon at 10:55 - I'm not dumb enough to click on your link, so unfortunately, I'll never be able to get down to your level of understanding.
Yo are all welcome to come and visit Aberdeen, where you will what life is like in a competitive business environment. Realities are much harsher where I live.
ReplyDeleteTo anybody who regards the linked article to be an objective view of things, one needs only to consider the gentlemens´ responses to question 1:
ReplyDeleteMr Kongstad seems to have forgotten that the staff representatives have been excluded from the last 2 AC meetings, of which he is president.
The GCC, of which Mr. Batistelli is so proud, has recently taken place in the presence of external security guards. Staff representatives who were brave enough to attend have enjoyed hearing such bon mots as "je m´en fou de vos opinions" and "encore un mot et vous etes virez".
You would have to laugh, if these gents were not running an International Organisation.
If you need to assert that you're not running a "reign of terror", surely there is something seriously wrong.
ReplyDelete"Free speech on this website? I do like a bit of comedy at Christmas. Just read you own posts responding to my little bit of "free speech"."
ReplyDeleteI think that you misunderstand the nature of free speech. The right encompasses the right to say things which are stupid, erroneous, offensive or self serving.
It also includes the right for others to say that what is said is stupid, erroneous, offensive or self serving.
The more people exercise their rights the more one can judge which comments are stupid, erroneous, offensive or self serving.
Please continue posting so that we can each, individually make such judgements.
The Q/A-show published on MIP is simply scandalous.
ReplyDeleteA more objective view on what is currently happening at the EPO in terms of the violation of fundamental rights can be read in an article published in today´s issue of German Newspaper "Sueddeutsche Zeitung". The title of the well researched article speaks for itself:
"Staat im Staat" -(a state within the state).
It will presumably be available online soon.
I urge government officials and users of the patent system, in particular industry, to react adequately to this systematic breach of the rule of law which is prejudicial for the European patent system as a whole and endangers the future unitary patent which will be managed by the EPO.
As stated in the Sueddeutsche Zeitung, the German parliamentary "Committee of Legal Affairs" is beginning to get really curious.
It´s high time.
For all who were wondering what Mr. Kongstad will do to guarantee the independence of the BoA his answer is: nothing.
ReplyDeleteHe seems to be the only person in the IP community unaware that the issue independence of the Boards has not only been raised in the internet but also before national courts and the boards themselves.
Instead he prefers to address, as a reaction to decision R19/12, the organisation and functioning of the boards. It is not very clear to me what he means, given that the Vice President of Dg3 stated at the case law conference in The Hague that the boards are finally mastering their workload (see report in EPI magazine).
I for one am very worried of his possible real intentions. Hopefully he does not mean “give the members of the BoA a good lesson and finally bring them under control so that they will never dare again to dissent with the President”.
That would be very bad news for the system and its users.
"The Q/A-show published on MIP is simply scandalous."
ReplyDeleteAfter reading it you have to wonder - don't the interviewees realise that they are addressing smart people who have functioning brains? Contemptible.
On Saturday, 20 December 2014 at 00:25:00 GMT
ReplyDeleteAnonymous said...
"In addition, if I was to be publicly critical of my manager or any other colleagues, such as on this website, I would expect to be dismissed from my post."
The EPO and its top brass define their organisation as "a state within a state".
It is not their employer as such that the EPO employees criticize and resent.
It is the non-democratically-elected rulers of the state within the state.
Imho I believe that the administrative council also is in breach of the epc. The suspension of the board of appeal member could only have been made after consulting the enlarged board of appeals. This process clearly was not followed. I honestly think that this will jeopardise the unitary patent since it shows that the independence of the board is no longer guaranteed.
ReplyDeleteMr Kongstad clearly refers to Decision R19/12: "Following a decision taken by the Enlarged Board of Appeals last spring, the AC is reflecting on ways to improve the organisation and the functioning of the BoAs. This issue will be on the agenda of our next meeting. Let me emphasize at this juncture that the Contracting states put the highest value on the judiciary independence of the BoAs."
ReplyDeleteEvidently they see a problem, because the Enlarged Board has held that its own Chairman might be suspected of partiality, given that as Vice President 3 he is also part of the administration of the Office.
So what might the AC do?
Mr Kongstad mentions previous proposals to organise the BoAs as a completely separate entity from the Office. That would indeed put the highest value on the judicial independence of the BoAs.
But it would require a diplomatic conference to amend the EPC. According to Mr K, "there is currently no substance to be really addressed at ministerial level in the view of the Contracting states".
In other words, they're not going to put the highest value on judicial independence.
Alternatively the AC could do what has been suggested they might do, in a comment to a previous IPKat post. They could integrate the BoAs more firmly within the organisational structure of the EPO, and give Mr Battistelli even greater control over them. That would probably also require a diplomatic conference, and I think it would be two-faced in the light of Mr K's MIP interview.
Alternatively they could do something to separate the functions of the EBA Chairman from the Office. He would no longer be VP3 but would report independently to the AC. That could be done by the AC itself, without a diplomatic conference. They could amend Rules 9 and 12 EPC. And they could instruct the President to delegate his power to propose disciplinary action over BoA members to the EBA Chairman, under Article 10(i) EPC.
This would enhance the independence of the BoAs somewhat. But it would annoy Mr B hugely. Does the AC have the bottle for it? If it does, then Mr B will have brought it upon himself by taking direct action against a BoA member, instead of waiting to propose it to the AC.
A final alternative would be to insert a new EPC Rule stating that a Board member shall not be considered partial under Article 24(3) EPC simply because of his involvement in the administration of the Office. But this is clearly not "putting the highest value on the judicial independence of the BoAs." And I'm not sure that it can be done without actually amending Article 24 itself - which again would require a diplomatic conference.
Maybe Mr B is proposing something like the latter suggestion. If so, it will be important that the AC should show its own independence.
Anon at 17:13,
ReplyDeleteArt. 23(1) EPC says that removing a BoA member from office requires a proposal from the Enlarged Board.
But suspension is not removal from office. The AC can do it under Art. 11(4), after a proposal from the President under Art. 10(2)(h).
Anon 1212,
ReplyDeleteNice. But you have the ability to take legal action against an employer for breach of contract, unfair dismissal, etc. At the EPO staff do not. Even after retirement, the EPO can take action against you for saying the wrong thing and you have no legal recourse to settle a disagreement with your former employer.
Anon 1054,
Why now? Perhaps because apparently the current head of the investigators dept retires soon? If you don't do it now you might have to repeat the pre-investigation under a new leader?
ReplyDeleteAs it is Sunday
Habakkuk 1 New International Version (NIV)
1 The prophecy that Habakkuk the prophet received.
Habakkuk’s Complaint
2 How long, LORD, must I call for help,
but you do not listen?
Or cry out to you, “Violence!”
but you do not save?
3 Why do you make me look at injustice?
Why do you tolerate wrongdoing?
Destruction and violence are before me;
there is strife, and conflict abounds.
4 Therefore the law is paralyzed,
and justice never prevails.
The wicked hem in the righteous,
so that justice is perverted.
"If you need to assert that you're not running a "reign of terror", surely there is something seriously wrong."
ReplyDeleteVery possibly.
Another time may be when asked the question "Are you running a reign of terror."
Anon at 13:13. You are clearly far too clever with your comments for my little brain to understand. Such deep deep sarcasm is not covered by Oscar's quote.
"The EPO and its top brass define their organisation as "a state within a state".
It is not their employer as such that the EPO employees criticize and resent.
It is the non-democratically-elected rulers of the state within the state."
Maybe, but I don't believe that makes a difference. Private companies have layers within layers where members act to protect their self-interest, rather than the company.
Some people just don't get it: if a private company as employer unfairly dismisses or disciplines me, I can go to court. If the EPO unfairly dismisses or disciplines me, I go to ???
ReplyDelete" if a private company as employer unfairly dismisses or disciplines me, I can go to court."
ReplyDelete1. It would not be considered unfair to dismiss an employee for publicly bad-mouthing, defaming other employees.
2. Employment law differs across Europe. In the UK, employee rights are weak so the right to bring an employment tribunal claim would be limited and may not be possible for this case.
(comment part 1/2)
ReplyDeleteIt is incredible that the goings-on at the EPO force me to read EPC articles that I never thought I would need to peruse, but which I trusted implicitly. However, in order to be able to perhaps get an indication of what can legally be expected, there is Chapter IV comprising Articles 26-36. Interesting! For instance, WIPO is the only organisation that has a right to send an observer to AC meetings (Art. 30 (1)). All others have to be invited or have a prior agreement with the EPO. There are numerous references to “Rules of Procedure”, and the AC is competent to amend them (Art. 33, (2), (c)). But I cannot find them!
However, I have found another interesting provision: Article 149a (2)(a):
“The Administrative Council shall be competent to decide that: the members of the Boards of Appeal or the Enlarged Board of appeal may serve on a European patent court or a common entity and take part in proceedings before that court or entity in accordance with any such agreement”. Now, have members of such boards, individually or severally, been notified by the president that if they do not shape up, i.e. display suitable respect for the present EPO management, they will not be proposed for such duties? Would such notifications, perhaps verbally only, be regarded as threats?
The AC chairman expressed in the MIP interview that there has been no need for a diplomatic confererence, because the introduction of the UPC/Unitary Patent system did not require it. [“There is no plan to call for a diplomatic conference nor a conference of ministers because there is currently no substance to be really addressed at ministerial level in the view of the Contracting states” (MIP interview)]. Incidentally, accorting to Article 172, the proper term is “a Conference of the Contracting States”, not “a diplomatic conference”.
I disagree, because there is still an asymmetry in the prosecution of a European application that would have the property of becoming a Unitary Patent if it were granted, namely that there is no judicial recourse in case it is not granted in the first place. A diplomatic conference is needed if the unified patent court system is to be a full patent court system for the adherents in the EU. In other words, it may be important to an applicant to be able to appeal a rejection confirmred by a BoA to the patent courts, and we are creating a host of those. Other commenters have brought further arguments why a diplomatic conference with its huge administrative cost is of urgent interest.
(comment part 1/2; greetings at the end of part 2/2)
(comment part 2/2)
ReplyDeleteWhereas the AC is fully responsible for the running of the EPO, there is no doubt that if a big customer (in casu the 25 EU countries forming the UPC/Unitary Patent system) will have a huge influence. For instance, they do have a majority in the representation in the AC’s 38 members but not ¾. For this reason it is extremely important that the select committee defined in Council Regulation 1257/2012 preamble (16) is created and works in a fully transparent fashion; indeed we must request a transparency that far surpasses that of the present EPO AC. That does not require a diplomatic conference. The tasks to be put on the EPO (against payment, obviously!) are defined in Article 9, and the continuing cooperation between the EU Council and EPO is specifically mentioned in Article 14. Obviously, the EPO AC may refuse to accept the tasks because there is not a ¾ majority (Art. 35 (2) defines where this majority rule applies), but where does that leave the EPO?
[“(16) The group of Member States making use of the provisions of Part IX of the EPC may give tasks to the EPO and set up a select committee of the Administrative Council of the European Patent Organisation (hereinafter ‘Select Committee’)”. (17) and (18) of the “whereas” clauses are not quoted here.]
There are hence two weak spots in the AC/EPO president’s armour: the ILO, which fortunately has recognized the problem of human rights, although they are overworked and cannot deal with it, and the economic side, the big customer. The EU Council only has political access, but it is much quicker, and it is the task of concerned persons and organisations to convince their respective governments and the EU Council that the silliness at the EPO must stop.
Where are SACEPO and EPI in these matters?
One thing is certain, as long as the president has ¾ of the votes in the AC for his proposals, he has everbody by their balls. In particular the BoAs, the EBA, and the EPI.
(end both comments)
Kind regards,
George Brock-Nannestad
ReplyDeleteRather than using slandering, libelling,bad-mouthing or defaming, what about this one:
whistleblower - an informant who exposes wrongdoing within an organization in the hope of stopping it.
Couldn't this be closer to what's happening?
And some - anonymous at 23.54.00yesterday , for instance - still don't or can't get it: I asked where I can go for UNFAIR (sorry to be shouting, but I am in good company there) dismissal when the EPO is the employer (without debating the particular case of the board member and what that board member might or might not have done).
ReplyDeleteBecause even with weak employment protection, in the case of UNFAIR dismissal I stand a good chance even before the UK courts.
It's strange that some people, maybe centred on Aberdeen, consider that taking employment means you have no rights and your employers have no need to follow any laws. Stranger still that that should be the view of those in a branch of the law. Cynicism takes many forms, but for those in the legal world to deny the purpose or benefit of laws to others is incredible. Surely a respect for the law or attempts to uphold laws is to be respected no matter how hard the application is?
ReplyDeleteAccording to Mr K, "there is currently no substance to be really addressed at ministerial level in the view of the Contracting states".
ReplyDeleteHas Mr K ever read the EPC? According to Article 4a EPC, a conference of ministers of the Contracting States responsible for patent matters SHALL meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system.
Article 4a does not appear to be linked to a 3/4 majority, does it? Thus, the EPC does not provide the AC, Mr K. or Mr B. with the right not to organize such a conference, but obviously with the duty to do it, whatever they assume to be the view of the Contracting states and whatever the substance to be really addressed at ministerial level in their views are. During the last AC, not all states appeared to share Mr B's policy, e.g. SK, SE and even FR(!), IT and SI. A conference of ministers could bring the other states to reconsider their position in the AC. By not organizing such a conference, do Mr K and Mr respect the Law (or to quote Mr B "his Bible")? Could it be that Mr K and B prefer to avoid such discussions even if this means not to respect the Law?
Good stuff from George B-N.
ReplyDeleteIt is clearer to me now. On human rights, it is a Faustian bargain. You accept a job at the EPO, you relinquish the employment rights you can go back home to enjoy. So, who cares?
On judicial independence, I suspect only 3 States understand and, of these, only DE and NL are engaged, and also impacted financially enough to be bothered to do anything about it. I hope I'm wrong but I'm not holding my breath.
"only DE and NL are engage".
ReplyDeleteOn what basis do you make this statement? I was not aware any government was trumpetting its position. Until this affair is concluded it is too soon to reach conclusions as to any state's position.
"Where are SACEPO and EPI in these matters?"
SACEPO are Presidential appointees and answer the questions they are asked. I doubt they will be asked this question (although individually they be willing to express their views out of Stasi earshot)..... This does raise a question as to whether a truly independent advisory body reporting to the AC might be useful. Such a body might have raised doubts with the AC when the divisional rules and other fiascos were perpetrated...
EPI, is not in a position to reach a view in a hurry. Although EPI has influence, such influence is unlikely to survive contact with a hostile president who could make attorney's lives so unpleasant....
Silence should not be confused with inaction.
I am thoroughly confused by MaxDrei's post.
ReplyDeleteHold your breath?
Since when does indifference mean that the behavior one chooses to be indifferent to is morally correct?
"Alternatively [the AC] could do something to separate the functions of the EBA Chairman from the Office. He would no longer be VP3 but would report independently to the AC. That could be done by the AC itself, without a diplomatic conference [....]"
ReplyDelete"This would enhance the independence of the BoAs somewhat. But it would annoy Mr B hugely. Does the AC have the bottle for it?"
There are two reasons why the AC won't have the bottle for it.
One is that they normally rely on the President to propose amendments to the EPC Rules. (Divisional time limits, anyone?)
So who would actually draft such rule changes, apart from Mr Battistelli's own staff?
The other reason is that all Mr Battistelli needs in order to defeat such proposals are the votes of one quarter of the AC members. He can get that by bribing them with the cooperation budget. (Or more likely, by threatening to take it away from individual contracting states.)
EPO employees seem to believe the grass is greener outside their world in respect of employment rights.
ReplyDeletePersonally, that is something I find strange.
EPO employees also believe the case of the suspended appeal board member, whatever the justification (unreasonable or otherwise) is supportive of their fight against every change the EPO is trying to implement. I'm sure the appeal board member put their neck on the line to protect those EPO employees (minority or otherwise) that don't pull their weight and take excessive sick leave, leaving their comrades to do their work for them. After all, none of us want the malingerers within our teams dealt with.
Would anonymous of 15.20 stop trying to confuse the issues.
ReplyDeleteWhat even EPO employees are supposed to be entitled to is the basic rule of law as it it is laid down in the constitutions of the EPC member states. And despite smooth talking by certain members of the top management, they are not. Are you trying to say that efficiency and efficacy should be able replace the normal rules of human conduct? I guess you are.
P.S. To the ipkat: have you checked lately that your website doesn't contain any malware that would allow third parties to identify the ip addresses of your contributors? If North Korea can do it, so can other computer-savvy organisations ... (not that I personally care)
A North Korea-style hacking operation requires huge resources. So that's where all our renewal fees go!
ReplyDeleteMore seriously, I do see that parts of the way Battistelli behaves are unacceptable. His attack on the independence of the Boards of Appeal is a foot-shooting exercise because it illustrates that to a wider audience.
Nevertheless, the EPO is the slowest* and most expensive of the world's major patent offices by quite a wide margin. As an attorney I do strongly believe that there is a need to increase the efficiency and productivity of the Office.
In industry, measures such as productivity-related pay and career systems are a common way of achieving that. It is also common that they generate dissatisfaction in the workforce when the changes are introduced. This is why complaints of that nature do not generate much sympathy. Sorry, but change is needed.
If the EPO staff wishes to gain support, you need to concentrate on the issues that outsiders can agree are unacceptable. (As some of you are doing.)
_____________
* I am aware that not all applications suffer long delays in the EPO, but many do. At least in the past, many old applications have been left to fester for years and years on end, while examiners process and grant more recent cases. Cherry-picking which has been encouraged by the previous production-monitoring system, perhaps?
Monday begins with a voice of reason, thank goodness.
ReplyDeleteOf course some of the employees at the EPO are lazy and of course management has to encourage them to work. I like the Japanese idea, that the job of managers is to facilitate coal face productivity. Any President that tackles this problem with the best that modern management techniques offer will gain the respect and thanks of those many conscientious and loyal employees who are not lazy, the ones who care about doing a good job and enhancing the reputation of the employer, the Organisation, the Office and of patent law as such.
But approaching the task with the mantra "Staff, I have news for you. Until morale improves, the beatings will continue" is counter-productive and squanders all the goodwill and pride in the job that has been built up over 35+ years of intelligent thoughtful pioneering brush-clearing work.
Many patent attorney readers outside Europe will nod in vague and general agreement with the "slowest and most expensive" comment above. Those closer to the action will know that cost is not the fault of the EPO Examiners and nor is delay. Aside from the usual suspects, I blame those patent attorneys in private practice who (either out of ignorance or greed, or a lack of self-confidence) fail to acquaint their clients that Europe is not the USA, and approaching prosecution at the EPO no different from prosecution at the USPTO will lead to long delays and will prejudice the chances of getting to issue a claim that will be effective in the patent courts of mainland Europe (where the English law writ does not run).
And as that astute correspondent writes, EPO Examiners respond to whatever half-baked productivity rules management imposes, even if that means that some applications fester for years. And anyway, few Applicants want to be visited straightaway with the high costs of national validation at the time of grant. And the strategy of "keeping something pending" is standard practice at the USPTO. There are ways to accelerate, like PACE, which are available. Few applicants exploit them though. Ask yourselves, why's that then?
In short if the EPO is expensive and slow for you, don't whinge, and blame the EPO Examiners. Instead, do something about it. The new Rules operating since last month will help you.
"Although EPI has influence, such influence is unlikely to survive contact with a hostile president who could make attorney's lives so unpleasant...."
ReplyDeleteJust a word to the wise: Mr. Topic's former law firm partner happens to be in the Disciplinary Committee of EPI...
"At least in the past, many old applications have been left to fester for years and years on end, while examiners process and grant more recent cases."
ReplyDeleteAs somebody who has been on both sides of the divide, I confirm MaxDrei's response to this. In many, if not most cases, the applications that somehow get stuck in Examiners' cupboards are those that are...hmmm...less competently drafted and/or prosecuted. And the points system at the EPO discourages tackling difficult cases first. Which usually also arranges the applicant: "Better a long-pending application than a rapidly-rejected one." Of course, having a large backlog of crap, festering applications is hardly in the interest of third parties or the public, but as long as nobody complains about *that*, the EPO management and the Administrative Council will be happy.
But I'd more generally disagree with the idea that the EPO is "slowest". As a rule, the European search report gives a pretty clear hint of where the application is headed. And quite often, also for overseas applicants, the European search report is the first serious feedback the applicant receives, well before the first official actions from other offices. I'd even say that some other patent offices seem to suddenly wake up when the ESR is published...In fact, through that and its role as ISA, the EPO effectively seems to make much of the work of many other patent offices...
The newly revised Rule 164 EPC was broadly welcomed as allows applicants to request a search for an invention which was not searched by the EPO as PCT Searching Authority. Under the previous rule, this was not so. However, it is often forgotten that the new rule comes at the price of in some cases adding several months to the processing time.
ReplyDeleteThis example is only one of many, where the structure of the application processing in the EPO brings with it inherent delays because of time limits which are generous to the applicant.
Should this be changed? Should we go back to to the previous rule 164, or the previous a one- month time limit under Rule 161 EPC? Or should the European examiner be able to issue communications with a shortened time limit for reply of one month (or less) as is possible in other patent offices? It is my guess that such measures would be generally unwelcome.
All of which, of course, is not meant to say that there are not unnecessary - and sometimes severe - delays in the office itself.
Generous time limits and snappy processing just don't easily go together ...
MaxDrei: "Those closer to the action will know that cost is not the fault of the EPO Examiners and nor is delay. Aside from the usual suspects, I blame those patent attorneys in private practice who (either out of ignorance or greed, or a lack of self-confidence) fail to acquaint their clients that Europe is not the USA, and approaching prosecution at the EPO no different from prosecution at the USPTO will lead to long delays"
ReplyDeleteAnon of 02:18 here. I work in-house in UK industry, so I don't have US clients who need educating. Nevertheless, many of my EP applications are still pending for years after the US, Japanese and Chinese equivalents have been granted.
I'm very happy to acknowledge that this has been due to the system rather than the fault of individual EPO examiners. However, it does indicate that the system needs to be changed. As I said, resisting such change doesn't get much sympathy.
And yes, I have been known to take advantage of the delays induced by the system. It can be useful to keep something pending, so you can play games with claim amendments and divisionals, in order to gain advantage over competitors when commercial circumstances change. Working for the commercial advantage of their employers or clients is part of a patent attorney's duty.
I'm not saying that's a good thing. My competitors do the same thing to me, so it's swings and roundabouts.
And it makes more work for the examiners on the receiving end, slowing the system down still further. It's another reason why the system needs to change, so that neither I nor my competitors can do this.
To Anon of 11:08, I suspect that a lot of the "difficult" cases that are left to fester are not badly drafted in the first place, if they were drafted by European practitioners and not in the USA. But they may become problematic later on, when the attorney tries to re-purpose the claims in the light of changed commercial circumstances. The examiner may then see those cases as badly drafted because the description wasn't intended to support the amended claims.
If the patents were granted before the commercial circumstances changed, you wouldn't see as many problems. True, we wouldn't get to play our commercial games, but we wouldn't be able to complain about that. And our competitors wouldn't be able to play games against us either.
As somebody wrote above, you cannot both give parties ample time to file their written submissions and dispose of cases in double quick time. Just ask Christopher R-S.
ReplyDeleteAnd as to the EESR, I confirm that other Patent Offices do indeed wake up when they see them. Let me give you a tip though. When you reply, don't mention the Problem and Solution Approach. It causes embarrassment in those other jurisdictions, because they have to follow the approach dictated to them by their own courts, and their own courts cannot abide the EPO's simplicity efficiency and fairness in regard to the core issue of obviousness.
8 years to first office action and that being an allowance?
ReplyDeleteDon't peddle that xenophobic line that it is only US origin cases that have problems.
The delays experienced vary hugely according to technology and examiner, and in my experience do not correlate highly with the person who drafted the application.
Yes, bad applications on the whole fare badly, particularly when the applicant cannot take his attorney's advice, but the US do not have a monopoly in bad technology.
My heart sings when I see Examiner X's name on a search report, as I know a decision (allowance or refusal) is likely in a finite time.
My heart sinks when I see Examiner Y is involved, because I know that whenever he does get round to the case, whatever I reply he will take a year or two to respond on - even if PACE is requested. Those examiners whose response to a PACE request is to appoint oral proceedings in over a year's time please take note of how much you are despised.
I fear that the poster who commented " I blame those patent attorneys in private practice who (either out of ignorance or greed, or a lack of self-confidence) fail to acquaint their clients that Europe.." etc, may be unaware of the sort of problems that the private practice attorney can have with foreign clients.
ReplyDeleteWhile now retired, I have successively been a professional engineer, UK Patent Examiner, attorney in industrial practice, and attorney in private practice. When I was in industrial practice, I was in a position to use my technical and legal knowledge to ensure that the initial UK application was in good shape, and could modify the initial UK application to comply with the special requirements of foreign countries. My hands were largely tied in private practice, where I was generally given a specification in English and was normally only able to adapt the claims to European practice, the only amendment to the description usually being the deletion of lengthy statements of invention to reduce the excess pages charges.
If I did notice any prima facie technical errors in the description, they were generally left well alone. The last thing a US client wanted was documentation that could be "discovered" in any subsequent litigation which would cast doubts on the enabling disclosure of the original application. Likewise, for applications originating in the Far East, the deferential culture meant that it was pointless for me to draw my instructing attorney's attention to any technical errors in the description or drawings that I might notice, as the (lower status) instructing attorney would be unable to point them out to his (higher-status) client. All we could do was file "as is" and await the inevitable objection that would eventually be raised in the written opinion issued by the (higher status than me) EPO examiner. Many of my first responses started with a request to correct obvious errors to address insufficiency/lack of clarity objections.
An attorney is obliged to act on his client's instructions, and if a client wants an application filed in a particular manner, then that is what the attorney has to do. An attorney can only advise his client, and cannot dictate what he must do. Patent Office people sometimes fail to appreciate is that all some applicants want is a patent number to put on a new product to keep competitors guessing, are relatively unconcerned with its outcome, and are content to have an application pending for as long as possible.
Ron
I gather from my sources:
ReplyDeleteIt is not controversial among EPO staff that certain things must change to make the process more efficient and cost-effective for users. What they want - and this is not an outrageous request - is that if they have to produce more with the same quality, there be resources that allow them to do so. Without improved tools (as opposed to the mere promise of improved tools), working harder and longer only goes so far before corners must be cut.
It is not so much that things must change (or are changed) that angers EPO staff, but how. Determination in implementing reforms is not, and should not, be the same thing as brutality.
The staff is tired of the brutality and impunity of the EPO leadership - the latest BoA incident being only the latest example. They are also fundamentally opposed to cronyism and opacity. I can agree with that. Cronyism should have no place in a European institution, and I find it unacceptable that the remuneration of Mr Battistelli is only known to Mr Kongstad (apparently, it has not even been disclosed to the other delegations in the AC). It would be also interesting to know how much are the allowances disbursed to Mr Kongstad, who apparently is seen in Munich more than in Kopenhagen. I hope that applicants and the European public are not footing unreasonable bills in that respect.
A final warning to the legally minded out there. I DEARLY hope that the suspension of the BoA member was justified on the facts. If not, it would be difficult to argue that the BoA judges are independent. In that case, some domestic Courts might conclude that the BoA decisions are defective. This would create HAVOC in the whole European patent system. I hope Messr Battistelli and Kongstad have thought long and hard about the consequences of their actions. If not, I fear the only way to try and salvage the system may well be for the AC to dismiss both gentlemen.
JB
Anon 1517,
ReplyDeleteThe delay in OP is unforgivable but, in fairness, in some areas the EPO is struggling to recruit (yes, even at these exalted conditions - note that BB has not reduced the starting salaries as part of his reforms). Additionally, there has been a shortage of available rooms in Munich and hence the need for a long delay before the first available date.
Anon 1622,
Your point is accepted by most examiners but is a delay in the system which almost sets back the treatment by a year. You can't solve. We can't solve it. Management wants to dream it away. Ironically, you do often see the granted EPO claims appearing as the next filing in stalled US proceedings.
I believe the patent using community (which is also European society as such, although it is not aware of it) has two essential requests:
ReplyDelete1) that the EPO provides ”hand-made” patents, i.e. examination to high standards, using good ingredients (= relevant prior art), and
2) judicial independence of all actors that perform the role of judges.
A third request is that non-grant shall be subject to full judicial review – it is a failing of the present EPO system because it only creates individual, national patents, but it may be corrected in conjunction with the UPC/UP system for the member states.
Do the EPC and AC Rules of Procedure stand against these requests?
I have now found the Rules of Procedure for the Administrative Council; I have read many of the documents that were available yesterday on the EPO website, and I have read up on the Select Committee, which is already in operation with Rules of Procedure that are very similar to those of the AC. I am hence less naïve than I was when commenting from basic principles.
The general impression of the Rules of Procedure is that they are meant to handle situations where, if after long deliberations an agreement is finally reached, it will stick for good. The voting rules are more distrustful of the participants than any auditing rule I have ever seen in a license agreement. Distracting elements, such as opinions of observers, in particular Staff Representation, are at the discretion of the president of the EPO, and there is no doubt that it is a great time-saver to exclude it completely from meetings. And it testifies both to the courage of the EBA when they wrote the open letter and to the AC as an ivory tower, while is quite clear that unless the open letter is presented by the EPO president to the AC, it does not exist. And possibly it should have been addressed to the members of the Select Committee (but the president is the filter here as well, Article 2.2 (b)).
Concerning the Select Committee my naïve hopes that the EC representative might have a proper word to say had been squashed even before I began hoping, because the Rules of Procedure for that committee state: ”Before any voting, the Chairperson shall ensure that the representative of the European Commission has had an opportunity to give its position on the proposal at issue.” (Art. 9,1. (3) dated 25 June 2013). But the EC representative has observer status only!
In both the AC and the Select Committee the Rules of Procedure are made by these bodies themselves, requiring ¾ majority (AC: EPC2000 Art. 33 (2) (e); SC: Art. 9(5)(iv)). And as a previous commenter noted, this means that only 25% are needed to block any revisions. A very stable system indeed!
My impression is that it can only be economic reasons that drive the present developments we observe. This means that we should focus, not as much on openness in the decision-making process as on transparency in budgeting, both of the EPO and of the national patent offices in the EU countries. Follow the money!
My conclusion is that there are no obstacles to the introductory requests to be found in the EPC or the AC Rules of Procedure as such, but if the EPO is being regarded as a milking cow we shall see failures such as those created by capital fund ownership of public utilities.
Why have I written all the above? Mainly in order to inspire any politicians who will be inundated with IPKat comments when they Google ”EPO president”. It is certainly not to bathe myself in the light of being self-published. I’d rather everything worked smoothly.
This is responsive to the anon at 12:33 who tells us about Examiner X (good guy) and Examiner Y (not a good guy).
ReplyDeleteAs we both know, guys like Y exist. He is by no means the only one. Until now, not enough has been done to discipline them. Their behaviour damages the reputation of the EPO. They should be helped to mend their ways, on pain of being dismissed.
But if you have a discussion with Y you will likely find that he follows the Points System devised by EPO Management more faithfully than X does.
At least now, under the new Points Regime, PACE cases have to be done first. And more: under the new Regime, even the mildest enquiry, when might we expect to receive the next Office Action, catapults the file to the top of the Examiner's pile.
Max drei,
ReplyDeleteIn fact even before now a quick expression of interest was enough to bring a file to the top (or at least to be treated in 3 months!). The new system just counts it as a low number (ideally we take number 1 on our stock list and out average is monitored).
Concerning the suspended BoA member there are still some questions these two liars did not answer.
ReplyDeleteThe guy is accused of disseminating calumnious information.
How can M. Battisteli be aware of the presumed wrongdoing without publicly acknowledging that he spied him?
If espionnage was indeed performed, what makes that the communications of this particular person were checked, recorded and examined? Or are ALL EPO communications, internal and external, subjected to this particularly disgusting screening?
Since the banned employee does not fall under M. Battistelli's responsibility, why did not inform the employee's superior of the wrongdoings he discovered?
In a normal court in a normal european country, all these unanswered questions would be sufficient to allow any jurist to claim harassment, intimidation, procedural breaches and abuse of power.
The misfortune of this person is that he forgot he was working at the European Patent Office.
Question,
ReplyDeleteIf an examiner responds to a PACE request within a reasonable time by setting a date for oral proceedings for an unreasonable time, has he met the PACE requirement to respond within a reasonable time?
The new regime has been discussed in outline, but there is insufficient public detail. In particular, what is the priority being placed on applications that have been waiting for years for a supplementary search?
The new regime may be an improvement, but that does not mean it is free from the potential for "gaming" by some examiners.
"As somebody who has been on both sides of the divide, I confirm MaxDrei's response to this. In many, if not most cases, the applications that somehow get stuck in Examiners' cupboards are those that are...hmmm...less competently drafted and/or prosecuted."
ReplyDeleteUtter nonsense. If they are poorly drafted they are easy to examine and difficult to prosecute. The cases I see festering are those that are a little more complicated to search, understand and examine.
Low-hanging fruit = bonus.
Open up a couple more offices, abandon the language requirements for examiners and there will be no problem recruiting high quality individuals. You will also raise the standard of technical legal know-how, because time spent learning 2 or 3 new languages can only detract from time spent learning the law or becoming an expert in an area.
ReplyDeleteAnd before all those tri-lingualists pipe up, I'm sure it is possible for some to be stars at everything, but ultimately it is an overly restrictive pool to recruit from.
Does an average salary of 7600 at the age of 45 compensate all of the requirements?
ReplyDeleteScientist working at the EPO is not allowed to peer review the papers in the scientific journal. They simply cannot have a side job.
An engineer in Plaspoelpolder losing a job at age of 45 will get 60% of his last wage for cca 2 years if he worked at Shell but ZERO if he worked a couple of doors further at the EPO.
A dutch amtenaar may refuse to be transferred, a german Beamte may also refuse and be fired, but he still has the unemployment benefits. At the EPO it is enough that you refuse to be transferred from one post station to the other and you are on the street with nothing.
Most of the pension rights accumulated before joining the EPO are lost. There is not even right to the Hartz IV if you are unlucky enough.
It is enough that you refuse to be transferred from one post station to the other and you are on the street with nothing.
Even during the probation, the EPO can request a spouse of an examiner to quit the job if the EPO deems that spouse´s job could influence the examiner. If his (hers) spouse works at Unilever, an engineer at Shell is not required to show yearly the spouse´s pay check , but the EPO examiner must.
Even if the EPO examiner does not pay box III tax in the Netherlands, he must pay the corresponding “Kapitalerträgesteuer” in his home country. He and his (hers) spouse are still obliged to file Dutch tax return, but even if they paid certain taxes in the Netherlands, they have almost no tax deductions…
Anon@19.28
ReplyDeleteIt would be easy to search and examine in English only if it was not for the political reasons (and about 30.000 yearly french language applications from France and Belgium) and do not forget that the EPO is required also to search the Dutch Belgian and Dutch Dutch national applications...
And yes, the German automotive industry files in what language?
I take it no-one files in Spanish, Italian, Japanese, Chinese, Swedish, Norwegian, etc etc etc??????????
ReplyDeleteSomeone in the UK on say £100,000 pa, on losing their job is entitled to zero cash or rights unless they were employed for >2 years.
If made redundant after 20 years service (average these days is about 5 years in industry) a 40 year old would be entitled to £9280 redundancy pay. For 6 months they would get about £60 per week unemployment benefit then nothing.
Oh, mustn't forget, with > 2 years service you have the right to written reasons for your dismissal.
How my heart bleeds for EPO examiners, especially with the anti-moonlighting provisions that is common practice elsewhere.
@Anon 19:28
ReplyDeleteAn interesting thought, but probably not supported by facts. Are you sure that monolinguals have better mental ability to learn the law than people who demonstrate intellectual skills like mastering several languages? Please provide references for your assertions.
@Anon 20:05
Such "problems", if one can call them problems, are beside the point of this discussion. The thread is about whether or not there is abuse of power in/by the EPO leadership.
@ Anon 21:33
The fact that the UK environment is particularly harsh (a nice legacy of the Thatcher era?) does not make it pleasant, or right.
Sadly, many commenters outside the EPO seem to have such unsatisfactory working conditions that they envy the EPO examiners. Their expressions of jealousy obscure the fact that what society needs is good quality examination of applications and a professional dialogue between applicant (via his/her EPA) and the examiner. The purpose is to obtain what is possible within the phrasing of the application as filed. Obviously, the EPA shares the responsibility for a professional dialogue. Society as such is not concerned with working conditions, only when human rights are involved.
ReplyDeleteWhen several examiners (it seems to be quite obvious that the anonymous examiners who comment on IPKat are not one and the same) warn us that through the way their work is laid out in future, quality will suffer, then they are the specialists in examination, not the attorneys who have a chip on their shoulder. If they are forced to cut corners in order to fulfil administrative targets two things suffer: examination and job satisfaction. I believe new EPO examiners start out with some excitement, although it is probably somewhat less than when it was a pioneering activity in the early 1980s. I believe that they have some built-in absolute criterion of quality, but that it wears thin when the contrast to their targets becomes too great. With such a big staff it is only natural that we find both type X and type Y among them. It is the same with teachers or doctors, there is a spread.
It is irresponsible and lack of interpersonal skills in the immediate supervisors that the type Y is not identified early and possibly even removed due to lack of quality, and that the administration has to resort to mere counting in order to measure fulfilment of arbitrary production figures. Arbitrary in the sense that they do not contribute to quality. And it means that the mediocre-quality but production-figure fulfilling examiner will be encouraged in his/her lack of quality. And it also means that nobody inside will dare to discuss the falling standards, because the statistics support the regime. But that only means that the statistics provide the wrong answers, because the wrong questions are being asked.
Now, all application files are open, and it would be quite possible if tremendously expensive to analyse the quality of prosecution in a cross-section of cases simply by studying them. Perhaps this is thesis work? To me, for instance, the greatest interest would be in evaluating the quality of the communications and the responses – I have used it to find a good EPA for a special purpose. To others perhaps the time scales involved or the drafting of the original application would be of interest. A special case could be the quality of the opinion notes accompanying summons to oral proceedings in opposition cases – because they attempt to sum up what is to be decided, they reflect on the quality of examination of the opposition.
Incidentally, I was Anonymous at Monday, 22 December 2014 at 15:53:00, but I forgot to write my greetings at the bottom, sorry! It sort of defeats the meaning of self-publishing.
Best regards,
George Brock-Nannestad
Equally, the fact that something is pleasant does not make it right.
ReplyDeleteI understand recreational drugs can be pleasant, but the dependency they may induce is not good for moral fibre.
@ 21.33.00
ReplyDeleteThat may all be so, but even in the UK that employee can go to court if the dismissal was UNFAIR - in the EPO can at best do -what?
If you think the UK is the measure of all things in employment law, you are telling us a lot about yourself ...
"A special case could be the quality of the opinion notes accompanying summons to oral proceedings in opposition cases"
ReplyDeleteA sore point. A two-line sentence pointing to the relevant EPC Articles and Rules is in my view insufficient to comply with Rule 116(1), but is becoming more common, even in complex cases.
Look what the BB favoured model of higher productivity (inevitable associated decrease in quality we are already seeing) and examiner turnover has done to the USPTO. Nothing is being learnt from the history of that story. As someone already pointed out from the three parameters speed, cost and quality, it is only possible to optimize two at any one time.
ReplyDeleteAgain, good stuff from G B-N.
ReplyDeleteTime and again, one sees at oral proceedings how two timid or inexperienced EPO Examiners (or, worse, DG3 members) are in awe of the other member, whether that other member be the chair, first member or rapporteur. After all, there are an awful lot of newbies these days at the EPO, ill-equipeed to argue with a Senior colleague, and each of them has to work with the stubborn senior the next day, and the day after that, for the rest of their careers.
George quite rightly implores supervisers to filter out recalcitrant newbies. All well and good, but every time an EPO Examiner acquiesces in a bad Decision, and defers to a forceful but illogical Senior colleague despite their better judgement, the EPO's reputation suffers.
That said, I think the "It takes 3 pairs of eyes to reach a Decision" is one of the best things about the EPO, for keeping Quality up and Reputation high.
Representatives need top communication and interpersonal skills. So do EPO Examiners.
Just had a communication from the EPO BoA saying the previous Chairman "can no longer participate" and is replaced by the previous legally qualified member. No further reason given. I'd hate to speculate.
ReplyDeleteI can't imagine this is going to help speed an appeal filed in 2010 on which nothing has happened.
I have tried to understand the mechanism that led to the presentation of a case concerning employment at EPO to the International Labour Organisation. I consider it an act of desperation of enormous importance.
ReplyDeleteThe EPC has considered it so important that Article 13 relates specifically to this:
ARTICLE 13
Disputes between the Organisation and the employees of the European Patent Office
(1)
Employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organization in the case of disputes with the European Patent Organisation, in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees.
(2)
An appeal shall only be admissible if the person concerned has exhausted such other means of appeal as are available to him under the Service Regulations, the Pension Scheme Regulations or the conditions of employment.
The versions in EPC1973 and EPC2000 are virtually identical, except that the former has the sentence “, as the case may be” after the last word in (2), “employment”.
The Rules of Procedure (RoP) of the AC according to the decision 7 December 2006 [the earliest I have access to] has an article 18 that covers this in greater detail:
http://documents.epo.org/projects/babylon/eponet.nsf/0/69665AAE88C7677AC125729C00585128/$File/CAD06008_en.pdf
Strangely, this article 18 has been twice amended. The juxtaposition of the 3 versions would be interesting to show here, but the character count would exceed 2 comments – hence too long and unreasonable to blog followers:
On 26 October 2012 it was decided, it seems, to put in further steps in the appeal procedure:
http://documents.epo.org/projects/babylon/eponet.nsf/0/F44EA2A833862CD9C1257B1A00322E35/$File/CAD12010_en.pdf
and on 12 December 2013 it seems that stricter reporting was specified:
http://documents.epo.org/projects/babylon/eponet.nsf/0/965D77B4CCEE775DC1257CEE004FF9D7/$File/ed13020.pdf
The two latest decisions were signed by the AC chairman, Mr. Kongstad and were obviously taken with ¾ majority.
Without knowing the “Service Regulations for Permanent Employees of the European Patent Office” and their various versions (also decided by the AC, by the way – Art. 33(2)(b)EPC2000) [would I at all be entitled to know them?] it seems to me that the revised Article 18 of the AC RoP aims at introducing further administrative and appeal steps before a matter can be referred to the International Labour Organisation. This might mean a considerable delay before such referral, because Art. 13(2) EPC says that all avenues of appeal under the Service Regulations have to be exhausted before referral. Instead of Art. 13 EPC being a safeguard it becomes a millstone. This to me appears as a unilateral reduction in the quality of the conditions of employment at the EPO.
Now remains to study the Travaux Préparatoires before the 1973 creation of the EPC in order to see what was the intention of Art. 13 EPC:
http://www.epo.org/law-practice/legal-texts/archive/epc-1973/traveaux.html
I notice the following fresh position openings at the EPO:
“Several lawyers with focus on international employment law (MULTIPLE/5755)
The European Patent Office in Munich is seeking several lawyers with focus on international employment law *
Deadline for applications: 27.1.2015
[http://www.epo.org/about-us/jobs/vacancies/other/5755.html]”
In a way it seems to confirm my impression above, “keep it indoors for as long as possible”. On the other hand, I may just be biased due to the many comments in these last months, and that the active pursuit of international employment law by the EPO administration is simply a way to fill a long-felt need for more professionalism, all for the common good. But it would seem that employees would do good to obtain professional advice, too.
Best wishes,
George Brock-Nannestad
Dear Anon at 12:27,
ReplyDeleteplease provide the case details and date of said letter.
My experience is limited so maybe there is no standardisation. of such letter, but those that I have seen always just state the change and the names of the new members.
If such a letter has been personalised in a non-standard way in order to take the internal politics directly to the Users of the EPO, then I fear for the author of the letter. If I'd done such a thing I would expect an official reprimand and a formal warning, possibly dismissal, or at the least placed on the top of the list for candidates should redundancies be required in the future (this is legally valid as a means of selecting people under such circumstances.
I do hope this was not a wasted comment and it turns out your letter from the EPO doesn't exist.
Dear George,
ReplyDeleteI have pointed out different "working conditions", or to be accurate, different employment rights, in the UK compared to those quoted for other EU states. I have done so because EPO employees are stating how unfair they are being treated compared with everyone outside of the EU. I'm happy to imply the limitation to "everyone in wealthy European nations", although we live in a global competitive environment where a large proportion of workers in wealthy EU states have to compete wih lower-pad, highly skilled workers in countries such as India and China.
Let me clarify one point:
I DO NOT ENVY THE WORKING CONDITIONS OF EPO EMPLOYEES.
I'm not sure how to say things louder or clearer on a blog, but you should rest assured that this is meat to be heard LOUD AND CLEAR.
Just because you are a member of a large group of people with a shared viewpoint that is bombarding this website and damning anyone who dares to have a different view doe not make your argument credible.
I, for one, have never been a member of a herd, whatever its calling. Sheep tend to bleet and that ain't my thing.
Dear ANON at 23:20,
ReplyDeleteIt's an old response, but I suggest you read the comment at 19:28 again, because you will find it answers the question posed already. The term is pre-empting.
Re the comment the 21:33 comment, I suggest you read my comment to George. It is not an opinion on the niceties of a position, but a simple statement of the factual position. Unless you are of the opinion that us real-world mortals should support the creation of Utopia in EPOland I fail to see the problem. If EPOland employees want to work in Utopia, that's fine. However, I and most other mortals will not fight for you, nor pay for it, so I'd suggest you stop bleeting you message anywhere outside of thAt great Intranet we've all heard so much about.
3 comments in a row not on the side of the the freedom fighters. What will the censors make of it?
Regardless whether you agree with the EPO President or with the staff, surely the point is that the current tension is simply unsustainable?
ReplyDeleteIf staff feel so aggrieved that unprecedented numbers of them are using platforms like this to post their comments, then the President and the Administrative Council MUST ADDRESS those grievances.
Fobbing off the staff in an interview like the one in Managing IP is hardly likely to solve anything, is it?
@anon 18:09
ReplyDeleteEvery transition is inherently unstable. EPO staff are now at the "Anger" stage of the Kübler-Ross model, and stability will be reached once they reach the "Acceptance" stage in a month or six.
Nothing new under the sun...
The Kübler-Ross model requires modification for the stateless, other-worldly, EPO examiners. The new "whining" stage could last as long as a pending complex biotechnology patent application.
ReplyDeleteOnly kidding chaps. Have a Happy Christmas. After all, you've been so miserable for so long you could do with a break before the real misery starts next year.
Or is taking a joke not permitted under El Presidente?
I have tried to understand the mechanism that led to the presentation of a case concerning employment at EPO to the International Labour Organisation. I consider it an act of desperation of enormous importance.
ReplyDeleteThe EPC has considered it so important that Article 13 relates specifically to this:
ART. 13
Disputes between the Organisation and the employees of the European Patent Office
(1)
Employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organization in the case of disputes with the European Patent Organisation, in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees.
(2)
An appeal shall only be admissible if the person concerned has exhausted such other means of appeal as are available to him under the Service Regulations, the Pension Scheme Regulations or the conditions of employment.
The versions in EPC1973 and EPC2000 are virtually identical, except that the former has the sentence “, as the case may be” after the last word in (2), “employment”.
The Rules of Procedure (RoP) of the AC according to the decision 7 December 2006 [the earliest I have access to] has an article 18 that covers this in greater detail:
http://documents.epo.org/projects/babylon/eponet.nsf/0/69665AAE88C7677AC125729C00585128/$File/CAD06008_en.pdf
Strangely, this article 18 has been twice amended. The juxtaposition of the 3 versions would be interesting to show here, but the character count would exceed 2 comments – hence too long and unreasonable to blog followers:
On 26 October 2012 it was decided, it seems, to put in further steps in the appeal procedure:
http://documents.epo.org/projects/babylon/eponet.nsf/0/F44EA2A833862CD9C1257B1A00322E35/$File/CAD12010_en.pdf
and on 12 December 2013 it seems that stricter reporting was specified:
http://documents.epo.org/projects/babylon/eponet.nsf/0/965D77B4CCEE775DC1257CEE004FF9D7/$File/ed13020.pdf
The two latest decisions were signed by the AC chairman, Mr. Kongstad and were obviously taken with ¾ majority.
Without knowing the “Service Regulations for Permanent Employees of the European Patent Office” and their various versions (also decided by the AC, by the way – Art. 33(2)(b)EPC2000) [would I at all be entitled to know them?] it seems to me that the revised Article 18 of the AC RoP aims at introducing further administrative and appeal steps before a matter can be referred to the International Labour Organisation. This might mean a considerable delay before such referral, because Art. 13(2) EPC says that all avenues of appeal under the Service Regulations have to be exhausted before referral. Instead of Art. 13 EPC being a safeguard it becomes a millstone. This to me appears as a unilateral reduction in the quality of the conditions of employment at the EPO.
Now remains to study the Travaux Préparatoires before the 1973 creation of the EPC in order to see what was the intention of Art. 13 EPC:
http://www.epo.org/law-practice/legal-texts/archive/epc-1973/traveaux.html
I notice the following fresh position openings at the EPO:
“Several lawyers with focus on international employment law (MULTIPLE/5755)
EPO in Munich is seeking several lawyers with focus on international employment law
Deadline for applications: 27.1.2015
[http://www.epo.org/about-us/jobs/vacancies/other/5755.html]”
In a way it seems to confirm my impression above, “keep it indoors for as long as possible”. On the other hand, I may just be biased due to the many comments in these last months, and that the active pursuit of international employment law by the EPO administration is simply a way to fill a long-felt need for more professionalism, all for the common good. But it would seem that employees would do good to obtain professional advice, too.
Best wishes,
George Brock-Nannestad
I get the impression that there is a general view that the world is a tough place and EPO staff will soon stop complaining and get down to some proper work. I fear the enormity of the situation is getting lost, so let me try this.
ReplyDeleteLet us assume the staff do suddenly "behave". Let also accept that there are one or two invalid patents out there. Now, let us give the staff a battistellian working ethic. Perhaps then in order to meet their quality and production targets, instead of granting, they can refuse lots of applications. Ok, perhaps a small minority of troublemakers may complain, but there has been a long history of people complaining about the EPO and it's a tough world out there. Whether the refusals were justified will cease to be an issue, since the BoA would be so snowed under that there would de facto be no appeal. And those supervising - Batistelli and his équipe - would see that the targets have been met and the numbers add up and all will be well.
Please don't even think "they can't do that" because the staff of the EPO don't think that any more now that experience has shown the contrary.
The unthinkable is horribly destabilising and the patent system lives from stability and trust. Be glad the staff of the EPO are still acting as a buffer.
Might also be worth remembering that nobody at VP level or above has ever granted a patent. At the AC level there may be those who have at national level but it does not appear that many intervene beyond the revision of the EPC earlier this century. Surely, in the 'real world' this would be incredible, in that not one voice can explain details of the core activity of the organisation? Would you expect a steel manufacturer not to have somebody with practical experience of the production techniques or a financier who has never been involved in investing the assets etc.
ReplyDeleteStaff's concerns can be easily ignored by those who do not understand the difference between technical fields. So why not ignore the concerns of applicants? After all, only a minority complain...
It must clear that good search and good examination need adequate search and examination time. For the time being, the time allocated for searching and examining an application till its grant or refusal (oral proceedings, decision writing, Chairperson and Second Member work included) is comprised between 1,5 and 2 days, exceptionally 2,5 days, depending on the technical field. By increasing pressure on examiners to achieve a certain and from year to year increasing production target, it is more than doubtful that the search and examination quality which made the EPO reputation and provided the applicant with a reasonable legal certainty can be maintained, in particular if the examiners' remuneration and professional perspectives are reduced at the time when they are expected to come faster to a conclusion and to do more whereas the prior art documentation exponentially increases from year to year. Battisteli wants to have the cake and eat it, and that's unacceptable, if not impossible. The "new" quality, he likes to hold high, is no more than a bluff package: ISO9001 certification is claimed as being the panacea for all ills. Simultaneously, the time to provide the so hold high quality is reduced. Does anybody seriously believe that these measures will help to improve the system? Applicants will get their search reports faster, maybe, but they should not expect to get the same quality. By the way, as far as quality is concerned, independency in the decision making process is not only an issue relevant for the Boards, but also for the Divisions, in particular in opposition proceedings.
ReplyDeleteIt looks like Anon at 12:27 was telling a lie. One of many "examples" provided in a similar tone and probably by the same EPO employee.
ReplyDeleteThe EPO has become an uncontrolled organisation where everyone exists for their own benefit. Struggles against the President are not for the good of the parties the EPO was set up to serve, but purely for reasons of self-interest.
The EPO is a little like the computers that ave been predicted to take control due to a little AI programming.
The EPO was set up to examiner patent applications to a certain standard on behalf of the member states (several hundred million real people. Patents granted provide monopolies which have a real effect on business which is beneficial if the patent was deserved (fulfils EPC requirements) and detrimental if not.
It is most unfortunate, but perhaps inevitable, that such an organisation would run out of control and fail to meet its obligations to its creators. The only answer now is to shoot the sick animal and start again.
The EU would not allow the creation of the EPO if it was being considered today.
In the above the point of long delays was raised. The highest management of the EPO in her eminent wisdom (and to achieve the highest production which BB can present to the council) has decided that searches will be processed as first priority together with oppositions, then as second priority files which have already had a first communication and finally files which are awaiting a first communication.
ReplyDeleteThe examiners are not free as to which file they start (especially since deviating from this will get them a bad quality rating under the new performance management system).
One of the big points that has been snowed under in recent times is that the time made available for an examiner to process a file has been drastically reduced over the last 15 years especially. The examiners want to provide a good service to the applicants but are stopped from doing this by internal regulations. Only one communication, two is seen as bad quality, then invitation to oral proceedings with either a grant (preferably) or refusal as result (and another production point achieved for BB to present to the council). This squeeze for production has a big risk of reducing quality.
Examiners upholding high quality standards achieve less production and as such are penalized since they get measured to their peers (this will certainly not get better under then new performance management system).
The new tools are inefficient, for example the tools for preparing the printing copy, so much so that applicants can now expect letters from examiners for correcting/removing trivialities like about, and the like since this costs far too much time using the new tools.
Also consider the new electronic file. Even now the system regularly crashes and examiners are sitting, unable to search, they then turn to a paper file of an examination to fill the downtime. This will be impossible as soon as the fully electronic file is introduced.
Every decision is made to make the highest managers look good so they can go on to other lucrative positions after they leave the EPO (In this they are no different from CEOs of large companies). The only difference that in the outside world they are held accountable by their shareholders, the EPO is not (in any real sense) accountable to anyone. If anything, rather than making things better the AC makes things worse, which is understandable if one considers that they are in part the EPOs competitors. Just imagine what would happen if the supervisory board of siemens was constituted from the CEOs of SONY, SAMSUNG, PHILIPS, and the like....