Merpel ended 2014 with an attempt to summarise
the various developments occurring in the last three months of that year,
which is as good a place as any to start reading.
How things looked on 1
January 2015
When 2015 dawned, EPO President Mr Battistelli and the Staff Union
(SUEPO) were engaged in running hostilities over controversial “social reform” plans
to alter career and promotion structures, and to change the health care
and invalidity plans. In addition, several commentators had noted the atmosphere
of fear pervading the EPO due to the draconian Investigation Unit operating
under Mr Battistelli’s regime and the perceived ineffectiveness of safeguards
for those investigated or disciplined.
There was a “constitutional crisis” concerning the Boards of Appeal.
This crisis had two elements: the narrower issue of the “House Ban” affair,
i.e. the President suspending a Board of Appeal member in apparent breach of both
his powers and the principle of judicial independence; and the broader issue of
whether judicial independence could be said to exist in any event given the
structure of the Boards of Appeal within the European Patent Organisation.
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| The AC: a current hope for some direct intervention? |
While the President is answerable to the AC, in January 2015 the
tail often seemed to be wagging the dog, at least to outsiders. The most
controversial of the social reform plans were voted through without a whimper
of dissent -- usually accompanied by expressions of strong support for the
President, notwithstanding attempts by SUEPO to convince AC delegates to see
their side of the story.
So against that background, here’s what Merpel found to write about since
then (with one or two contributions from the IPKat when needed for the sake of coherence).
Merpel’s posts since 1
January 2015, as they happened
Several developments from the Christmas and New Year period are
reported: (1) the EU Parliament rejects a petition to investigate the EPO; (2)
EPLAW writes a letter of protest to the AC delegates on the House Ban affair; (3)
the UK government answers a parliamentary question assuring the MP that it
stands over the independence of the Boards of Appeal; and (4) Mr Battistelli
sends SUEPO a cheery Christmas message threatening dismissal of any employee
who is found to have encouraged attorneys to cancel oral proceedings during their
strike action, and takes the opportunity to emphasise that nothing has changed
on the social reforms, which will continue apace. 6
January 2015
It emerged that the President had not taken the necessary action to replace
retired Board of Appeal members, or to reappoint members whose term was nearing
its end. This has left 8 out of 28 Boards under-strength, and several very
nervous BoA members. Merpel wonders if this is a deliberate strategy to exert
pressure on Board members whose term is almost up. 7
January 2015
The IPKat reports that Sir Robin Jacob has written to Mr Kongstad on
behalf of patent judges across Europe, expressing their collective disquiet at
the actions of the President in the “House Ban” affair. 7
January 2015
A summary on what we do and don’t know about the proposed reform of
the Boards of Appeal. 8
January 2015
EPO Vice-President Minnoye writes a stinging (eh, not really)
rebuttal of Robin Jacob’s letter in an email to his
cadre of examiners. With lots of exclamation marks! Sir Jacob doesn’t understand
the facts or the law! And nevertheless he writes this letter! It's crazy! Worth a
read if you’re feeling down. 21
January 2015
Catarina Holtz, a former Board of Appeal member, writes a legal
analysis of the “House Ban” situation. 27
January 2015
The New Scientist publishes an interview with a patent examiner, which
it appears was paid for by the EPO as a promotional or recruiting tool. 27
January 2015
The IPKat posts a clarification and apology for having allowed readers
to post comments on the “Life as a Patent Examiner” post, in which those readers wrongly stated that the subject
of the piece was not a patent examiner. 3 February
2015
The composition of “Board 28”, a powerful sub-committee of the
Administrative Council, is disclosed, along with news that they are ready to
consider a proposal to reform the structure of the Boards of Appeal. The post
also includes an analysis of the new career structure for employees, including Board
members. 5
February 2015
Merpel posts a round-up of various minor developments at the EPO,
including a first glimpse of the proposals to reform the Boards. 13
February 2015
CIPA shows some leadership by proposing an interim solution, penned
by Jim Boff, to guarantee independence of the Boards of Appeal. 18
February 2015
The Appeal Court of the Hague finds the EPO to have breached
fundamental rights of employees and orders the EPO at the Hague to stop
blocking union emails, to stop dictating the terms under which strikes may take
place, and to enter into collective bargaining [an order which the EPO President
blithely ignored, with the support of the Dutch government, as it turned out]. 19
February 2015
In the lead-up to a demonstration by SUEPO at the British consulate,
Merpel called on Baroness Neville-Rolfe to issue a statement demonstrating that
the UK was aware of and was taking the lead within the AC on resolving the
unhappiness at the EPO. 23
February 2015
Mr Battistelli explains why it’s not just a question of immunity ...
it would actually be wrong for the EPO to obey the court order imposed by the Appeal
Court of the Hague. 24
February 2015
The UK IPO responds to the Merpel’s post, assuring readers that the
UK takes its responsibilities on the AC seriously, that it is monitoring the
social unrest, and that it is willing to respond to particular concerns that
users of the Office might want to raise [posted by the IPKat, but it’s a
response to a Merpel post]. 24
February 2015
Showing governments everywhere how the executive branch of a country’s
government can most effectively interfere with its judiciary, the Dutch
Minister for Justice, Ivo Opstelten, instructs bailiffs not to execute the Hague Appeal Court's order against the EPO. 26
February 2015
The Enlarged Board of Appeal uses decision R 2/14 as an opportunity
to tell its own chairman to disobey the EPO President when any instruction
given to him in his management role would conflict with the perception of independence of the Boards. 2
March 2015
Management representatives write an open letter to staff about the “outrageous”
behaviour of staff representatives at the meeting where the health care reforms
were voted through. 5
March 2015
The IPKat and Merpel set out some ground rules for the increasingly
vitriolic comments on EPO matters. 8
March 2015
The Central Staff Committee responds to the March 5 letter from
management. It turns out that their numbers have been deliberately kept under-strength by the President. His refusal to sanction a replacement staff member
has engineered a built-in majority for the management (10 - 9) when voting through the
health care reforms, a point which Vice-President Topic, chairing the meeting,
refused to acknowledge. The rules of the committee mandate equal numbers. 9
March 2015
The plans for reform of the Boards of Appeal, part I (the proposal).
9
March 2015
The plans for reform of the Boards of Appeal, part II (the annexes).
9
March 2015
The plans for reform of the Boards of Appeal, part III (Merpel’s
comments). 9
March 2015
The EPO reveals its proposals for renewal fees for the Unitary
Patent. 9
March 2015
What really happened at the December Administrative Council meeting,
part I. 12
March 2015
What really happened at the December Administrative Council meeting,
part II. 12
March 2015
The EPO reacts publicly to the Dutch decision, denying that it is
violating human rights and insisting on its immunity from such court decisions.
18
March 2015
An open letter from Merpel to the delegates who are about to attend
the Administrative Council meeting, imploring them to deal decisively and with true independence on the major topics facing the organisation - BoA reform,
healthcare, strike regulations, staff representation, and so on. 23
March 2015
AMBA, the Association of Members of the [EPO] Boards of Appeal, launches
a website to give itself a clearer voice on the reform proposals for the
Boards. 25
March 2015
The Administrative Council announces, following the March AC
meeting, a renewed “social dialogue” with the staff union, aiming to secure
industrial peace and win formal union recognition. 26
March 2015
Merpel calls on all involved in the renewed social dialogue to grasp
the opportunity to set matters right. 27
March 2015
French newspaper Le Monde runs an article reporting on several suicides among EPO
employees, and on the conflict between the President and the staff. 17
April 2015
A demonstration is organised by the staff union at the Dutch Consulate,
in protest at the Netherlands having voted in favour of reforms to the health
care package at the EPO (which the union believes to infringe fundamental
rights), despite the Dutch courts having held that the EPO was already
violating such rights. 28
April 2015
An online consultation is launched on the proposals for the reform
of the administration and structure of the Boards of Appeal. 30
April 2015
The EPO’s sick leave policy is compared to those of comparable
international bodies, and this reveals a level of mistrust and a punitive
regime for staff taking sick leave. 30
April 2015
At the same time that the EPO President is engaging in social
dialogue with a view to recognising the staff union, it emerges that an outside
investigative agency, Control Risks, has been engaged to investigate staff
representatives. 22
May 2015
Merpel calls for financial transparency, without which the renewal
fee levels cannot be properly set (by law they must be just enough to provide a
balanced budget, but the EPO is running surpluses of several hundred million
euro per annum). 26
May 2015
The EPO confirms that it has appointed an outside firm, Control
Risks, to beef up its investigations unit,, but insists that it has simply been
done to make up for a shortage of staff in that unit. 27
May 2015
Two associations of lawyers -- EPLAW and CCBE -- suggest that revision
of the EPC may be inevitable to secure the independence of the Boards of
Appeal, and comment critically on the current reform proposals. 5
June 2015
The EPO is reported to have installed spyware on computers made available
to members of the Administrative Council and visiting attorneys. 9
June 2015
More than five months into the year, where do things stand?
The House Ban affair drags on. There is still no word on the outcome of the
investigation into the suspended Board member, though it has emerged through the course of the year that the
reason he was frogmarched from the office and his computer confiscated was that
he was alleged to have distributed defamatory material.
The proposals for reform of the Boards of Appeal are problematic,
and progress is much slower than originally announced. It is clear to every
neutral observer that the correct solution is to amend the EPC and set the Boards up as
a third branch of the Organisation, distinct from the Office and the AC. It seems unlikely that the AC has the stomach for such a revision which would necessitate a diplomatic conference.
The social reform programme is being pushed through, just as Mr
Battistelli announced at the end of
2014. However, given that Mr Battistelli has refused to authorise a
full complement of staff representatives on the committee that oversees such
proposals, it’s hardly surprising that the 10 loyal managers voted his
proposals through over the heads of the 9 staff members and an empty seat.
The AC has not yet stepped up to the mark in terms of governing the
EPO, but Merpel is eternally hopeful. The AC has shown some signs of independent thought,
but there's a lot more to do if it is to bring the EPO into line with the standards
of the national patent offices whose heads make up the AC. The delegates know
full well that if they tried to subject their own staff at home to the same
regime as in the EPO (i.e. the investigations, the unilateral changes to promotion structures and invalidity benefits), they would find themselves in court and probably out of a
job due to the revolt of civil servants. But when they board the plane to
Munich, somehow the standards slip. The AC continues to approve proposals for social
reforms when it knows that the staff’s input into these proposals have been deliberately
silenced. They are aware of the atmosphere of fear pervading the office, and
now they know that someone in the EPO is spying on attorneys and potentially on
themselves. Will this be enough for someone to cry “halt”? Merpel is, as she
said, eternally hopeful.
As ever, Merpel welcomes comments, but begs to remind readers of the following:
Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous". Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person). The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning of the comment itself (for example, start your comment with "Descartes says: You forgot one point ..."). This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string. Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.
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