EPO, SUEPO and a question of governance: why a word from the Baroness would be welcome

These are troubled times indeed in the annals of the European Patent Office.  This moggy understands from a SUEPO notice (reproduced in material part, below) that the union has called off its proposed march on the British consulate in Munich this Wednesday in the face of potential liability for breaches of obligations under the European Patent Convention and Service Regulations. SUEPO, besides taking legal advice, has called for a fresh demonstration on Tuesday 25 March.

Readers' comments on earlier posts on this increasingly bitter dispute have raised many issues, including the propriety and legality of EPO staff members reaching out beyond the EPO to communicate their concerns to national representatives who form part of the EPO's Administrative Council (AC), to national parliaments or indeed to any source other than the EPO itself.

One organ of the EU that seems to be
working fine is in the Royal Albert Hall

It seems to this moggy that there are various issues causing friction right now. These include the independence of those who perform judicial functions, the conditions under which staff are employed, human rights violations and the apparent degeneration of staff morale. While each of these issues must be separately addressed, there are also wider questions hanging over the EPO which relate to the effectiveness of its governance and the extent to which the organs of the European Union can influence and control the operation of the body that will be responsible for the hoped-for success of the unitary patent system.  These are questions that are asked not so much in the streets of Munich and The Hague but wherever patent owners and their professional representatives are to be found across the length and breadth of the innovating parts of the European Union.

Enough people have now asked whether the AC is a truly effective body for overseeing [not "overlooking"] and controlling the operations of the European Patent Office for the patent communities across Europe and beyond to expect some sort of answer.  The AC cannot answer this question themselves since it has political ramifications but the AC is made up of civil servants who cannot compose and deliver a political answer.  The John Altys and Sean Denneheys of this world are there to participate in the activities of the AC but they are there as representatives of their national governments and it is difficult for anyone in their position to take initiatives without instruction or guidance from above.

When the fur starts to fly, call for the Baroness

This moggy would however love to hear from the politicians themselves.  The United Kingdom, for example, has a Minister for Innovation, Baroness Neville-Rolfe (full title: Parliamentary Under-Secretary (Department for Business, Innovation and Skills) (Intellectual Property)).  A word from the Baroness would be so welcome. Something along the lines of "The British Government is aware of the concerns that have been expressed with regard to the governance of the EPO and ... is content that these concerns are being adequately addressed/is taking active steps to deal with them/is confident that the AC has the matters in question well in hand/is in discussion with representatives of other countries".  As it is, the less the patent community hears from Europe's political leaders, the more they fear that they are not being heard at all, which is why they not unreasonably seek to carry their complaints and their anxieties beyond the four walls of Eponia.

So, dear Baroness, and your colleagues and equivalents in other countries represented on the AC, can you offer any words of assurance and comfort to your own patent-based industries and professionals, as well as to those of your own nationals who work at the EPO, that your governments are aware of the issues and understand them, and that everything is either already all right or will be so once you have fixed it?  This moggy knows that some of your colleagues and advisers are reading this since they are regular followers of this blog and have sometimes corresponded with her and the IPKat. Perhaps they will be so kind as to draw this plea to your attention.

Meanwhile, here's the SUEPO statement:

Wednesday 25 February – The British consulate

SUEPO Munich planned and announced a march from the EPO Isar building to the British consulate in Munich. The local authorities have granted approval for this demonstration .

With an open letter dated 20.02.2015 Mr Battistelli informed the Chair of the Munich SUEPO Committee that: “the planned demonstration is considered contrary to the interests of the Office and likely to damage its image. (…) Should the planned demonstration actually take place, this would constitute a breach of the applicable legal framework and those concerned would be held liable for the breach of their obligations under the EPC and the Service Regulations.”

Mr Battistelli takes offence at a letter dated 11.02.2015 and signed by the Munich Chairperson that allegedly entails “derogatory comments about a national delegation and accusations against its individual members”. The allegedly individual attacks are the purported reason for forbidding the demonstration. The “offensive” letter of SUEPO can be found here. It is not significantly different from those previously sent to the French and Danish consulates .... Mr Battistelli’s letter reveals, better than any demonstration could, the extent to which EPO staff and their representatives are being denied fundamental rights such as the right to freedom of association and to freedom of expression.

Mr Battstelli’s letter comes only 3 days after a judgment by a Dutch court that criticised the EPO for limiting staff’s right to strike and for refusing collective bargaining. Under point 5.3 the Dutch court stated: “It lies in the nature of the activities of a Staff Union like SUEPO that they are allowed to criticise the (representatives of) the employer, also via internal channels.” But maybe a French translation was not yet available when Mr Battistelli signed his latest letter.

What next?
Not wishing to take any unnecessary risks SUEPO has decided to cancel the planned demonstration and, before taking any further action, will seek legal advice about how to handle the present situation. The battle is, however, not over. The EPO Administrative Council meets on 25 and 26 March in Munich to discuss the planned health reform which would seriously weaken the position of our most vulnerable staff, namely those on long-term sick leave or on invalidity. Moreover, by obliging staff unable to work to remain at the place of employment for at least 10 years it breaches another fundamental right, namely the right to freedom of movement.

NEXT DEMONSTRATION

TUESDAY 25 MARCH IN FRONT OF THE ISAR 

[Katnote: 25 March does seem to be a Wednesday ...] 

As the host country of our biggest place of employment, Germany has a special responsibility towards the EPO and its staff. The March demonstration will therefore be aimed in particular at the German delegation and the German government with the question whether Germany is content to allow all of this to happen on its soil.