Six more judges criticise Battistelli's actions

The EPLAW Patent Blog has just posted a further very significant development, showing that the chorus of condemnation (discussed also here and here) about the "house ban" of an Appeal Board member continues to grow. This latest development follows last night's major news that two of Europe's leading judges have lent their support to the EPO's Enlarged Board of Appeal (who have asked the EPO's Administrative Council to curb the interference by the President in their work),

The Enlarged Board's chorus may not be as fresh-faced, but
they have a gravitas and harmony rarely heard in IP circles

Photo credit
EPLAW Patent Blog's post consists simply of a link to an email sent by the Registrar of the Enlarged Board of Appeal to the delegates of the Administrative Council. As the email informs the AC, the position taken by Sir Christopher Floyd and Robert van Peursem yesterday has now received the support of the following additional national IP judges, all of whom also serve as external members of the Enlarged Board of Appeal:

Per Carlson, President of the Market Court

Katherine Klett, Swiss Federal Supreme Court

Stelios Nathaniel, Judge Supreme Court of Cyprus

Henrik Rothe, Chief Justice the Maritime & Commercial High Court

Octvia Spineanu-Matei, High Court of Cassation and Justice

Ari Wiren, Judge
Attached to the email are facsimiles of the original letter from Sir Christopher and Robert, as well as the supporting letters from Per Carlson and Ari Wiren. At times like these, Merpel can sit back and let the real heavy-hitters from across Europe step into the ring. However, she wonders, following some comments to earlier posts, whether representatives of the large industry organisations (or indeed individual large users of the EPO) have and plans to make their views known to the AC? She does hope the momentum lasts.

Finally, this post would be massively incomplete without Merpel expressing her admiration and thanks to her colleagues over at the EPLAW Patent Blog.
Six more judges criticise Battistelli's actions Six more judges criticise Battistelli's actions Reviewed by Merpel on Thursday, December 11, 2014 Rating: 5


  1. C ouncil debate indicates trouble at mill
    L unch now over,discussing still
    I n come the heavy-hitters,not too late
    N ow he has to punch above his weight
    C ould it be they want a new broom?
    H as he lost the dressing room?

  2. The members of the AC will by now understand that it was a mistake to re-elect Mr. Battistelli as president of the EPO. Mr. Battistelli not only is seen to ignore basic principles of law, but he is also increasingly showing irrational behavior, such as the latest house ban of a member of the Board of Appeal of the EPO.
    There is absolutely no need for such a heavy sanction, it just serves to show off his power and intimidate his opponents.
    If the AC are serious about reforming the EPO, they should select a President that is able to communicate his vision to all stakeholders and to implement the changes in full compliance with the law.
    Mr. Battistelli will leave a total mess behind him, with a huge pile of complaints that will drag on for years.

  3. Let us assume Mr Battistelli is not stupid. How will he present this to the AC?

    If I were him, I would have started preparing a report for the AC last week, as soon as the BoA member was given a house ban, and before the sh*t hit the fan in the blogosphere.

    This report would start out by acknowledging that disciplining a BoA member is a matter for the AC, on a proposal from the President (Art. 10(2)(h) EPC). This report therefore proposes that the AC should investigate BoA member NN, against whom certain serious allegations have been made.

    Of course, the allegations are sensitive, so it would be inappropriate (and unfair to the BoA member concerned) to discuss them in a full session of the AC. The President therefore suggests that the AC should set up a sub-committee to investigate and report back to the full AC, making whatever disciplinary recommendations it sees fit. The President will be pleased to cooperate in full with such a sub-committee. Naturally, the BoA member concerned will also have the full right to defend himself.

    Meanwhile, the evidence was so serious as to warrant the temporary removal of the person concerned. The President's duty is to protect the reputation of the EPO and its staff members. This temporary house ban is of course without prejudice to the outcome of the AC's disciplinary investigation, as the AC alone has the power to make the final decision. [1]

    How should the AC view such a report? In my view they ought to question the need for an immediate house ban. Would the alleged reputational damage to the EPO and its staff really have been that great, had the President delayed matters for one week until the AC meeting?

    It would have been open to the AC itself to order such a ban at today's meeting, if it thought the allegations warranted it. It could then set up an investigational sub-committee and the separation of powers would have been preserved.


    [1] Compare Mr Battistelli's Managing Intellectual Propertyinterview for some of these statements.

  4. With the current set-up, no one will be able to stop the President continuing his wrecking spree for the next five years, at which point BB will disappear like (an un-typically unpleasant) Cheshire Cat.
    Governments apparently could not care less, the general public lacks interest, industry has other options, and the members of the Admin Council are generally career civil servants who at home are used to have to do what their bosses tell them to do. So why stick their necks out for something that is hardly likely to affect their career?



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