Labouring the point? EPO dispute culture festers; the contagion spreads

The words "international", "labour" and "organization" are increasingly found in close proximity to one another in this moggy's mail box.  The reason for this has not been hard to identify: it relates to another set of three words found in close proximity to one another: "European", "patent" and "office" (yes, it's the Munich headquartered European Patent Office, which shares the initials EPO with the European Patent Organisation, with which it is sometimes confused). 

The successful functioning of the Administrative Tribunal (AT) of the Geneva-based International Labour Organization (ILO), like many dispute resolution bodies with finite resources, is inversely proportionate to the extent to which it is used. Thus with only a small trickle of cases at any given time, the AT can at least give them its best attentions and, even though the organisation is not known for its speed, it can be expected to deal with them within the lifetime of its complainants.  However, when faced with an unprecedented volume of complaints, it can do nothing.  

The AT can at present draw on the services of seven judges, whose remit covers some 60 international organisations which between them employ around 46,000 officials and former officials. It is in the context of a document published on 15 October, "Workload and Effectiveness of the Tribunal", that Merpel learns of the AT's woes:
"It is the number of complaints filed against a single organization, the EPO, rather than the rise in the overall number of organizations having accepted its jurisdiction, that represents the main challenge for its effective functioning. The Tribunal further considers that all its efforts are being compromised by the continuing increasing trend of EPO-generated cases and also indicates that the complexity of the problem may require the attention of the Governing Body."
This moggy is not the first blogger to pass comment on the problem. Many readers have already spotted "The International Labour Organisation Highlights Problems of Broader Dimensions at EPO", posted on Roy Schestowitz's Techrights blog, which summarises matters succinctly:
"The International Labour Organisation (ILO) is raising serious concerns about the situation at the EPO, where labour or workers’ rights are being gradually abolished and the number of complaints has gone through the roof".
The problem looks like this:
"Put briefly and in very simple terms, the International Labour Organisation recognises that there is something uniquely rogue in the EPO that causes a massive number of complaints to come from workers. There are so many complaints in fact that the International Labour Organisation finds itself drowning in them".
And here is the suggested solution according to the ILO's report:
"33. The Governing Body requests the Director-General: (a) to initiate without delay discussions with the European Patent Organization (EPO), in consultation with the Tribunal as required, in order to identify a solution to the difficulties caused by the number of complaints generated within the EPO and which threaten the ability of the Tribunal to serve all other member organizations, and to report to the Governing Body at its next session"; 
(b) to consider with the Tribunal, and in consultation with member organizations and their staff representatives, concrete proposals for possible improvements and to keep the Governing Body informed of any progress achieved in this regard; ..."
Paragraphs 10 and 11 are worthy of note:
3. The European Patent Organization (EPO) – A case apart 
10. The largest member organization, employing approximately 8,800 staff, accepted the Tribunal’s jurisdiction in 1978. The EPO’s membership has always been marked by significant level of litigation [true, and the EPO's current management cannot be held responsible for disputes that arose before the current arrangements came into operation -- but the earlier "significant level" did not threaten to flood the Tribunal's operational capacity]. EPO-related complaints have generated, on average, 21 judgments per year, the lowest number being ten judgments in 1998 and the highest being 69 judgments in 2015. In its 37 years of Tribunal membership, the EPO has been concerned by 761 judgments out of a total of 3,560 judgments delivered by the Tribunal since its creation. By way of comparison, the Tribunal’s second oldest member organization – the World Health Organization – with similar staff numbers has been concerned by 447 judgments in 66 years of membership, that is an average of seven judgments per year ... In the last five years, whereas the EPO’s staff represents less than 16 per cent of all officials covered by the Tribunal’s jurisdiction, the number of cases filed annually against the EPO represented on average more than 30 per cent of all the cases received by the Tribunal, with peaks above 40 per cent of the overall annual Tribunal workload [Merpel wonders if the members of the Administrative Council of the EPO, collectively or individually, have any comment on this remarkable statistic, or whether it is something that can safely be ignored on the basis that the real problem is the ILO's inability to process more complaints as efficiently as the EPO processes more patent applications]. This persisting pattern stretches the Tribunal’s resources and inevitably impacts on the processing time of complaints, including those filed against all other international organizations that have recognized its jurisdiction. 
Even worse: the distance from Munich
to Geneva is 287.58 miles
11. Despite the written exchanges between the ILO Director-General and the President of the EPO on this matter, and the measures taken internally by the EPO in recent years with a view to improve its internal remedies and reduce litigation [it would be good to receive a summary of these measures and their impact, adds Merpel: if, despite the success of these measures, the EPO's overflow of disputes is still so great as to drive the ILO's system to the brink of stasis, the real total of disputes and complaints must be considerably higher], no progress has been registered so far to contain the number of labour disputes which give rise to cases referred to the Tribunal. In this regard, it should be noted that out of the 193 cases filed with the Tribunal from 1 January to 18 September 2015, 112 (or 56 per cent) originated from EPO officials, while the remaining 81 complaints were filed by officials of 23 different international organizations. In addition, following important reforms introduced in the EPO in the past two years, the number of internal individual grievances has grown exponentially, a situation that may reasonably be expected to give rise to an even larger number of EPO-related complaints with the Tribunal in the very near future.  
What do others think?  It would be good to take careful note of what the EPO's sister organisations, which share the ILO with it, have to say:
Sad that all's not well
now, but still hoping for 
a brighter future
18. Member organizations expressed serious concern about the volume of complaints against the EPO, and most importantly about the fact that problems around the “litigation culture” and social dialogue in that organization are not conjunctural but are most likely to persist unabated for many years. The general sense is that, based on available information, the current situation is not sustainable and that measures such as the increase of the number of judges or the number of sessions will not have a lasting effect on, much less resolve, the current flow of complaints filed by EPO officials. While noting the explanations of EPO administration officials about their genuine efforts to improve the situation, member organizations agreed that this was a governance problem of broader dimensions which called for urgent action in the interest of preserving the Tribunal’s operation.

Merpel is saddened by the sight of the European Patent Office, once regarded as a jewel in the crown of European and indeed global intellectual property excellence, careering towards the precipice of disaster, its leadership obstinately failing to heed every warning sign and its Administrative Council apparently incapable of exercising decisive control. It would be wonderful to say "this cannot last". The tragedy is that it can.


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Labouring the point? EPO dispute culture festers; the contagion spreads Labouring the point? EPO dispute culture festers; the contagion spreads Reviewed by Merpel on Sunday, November 01, 2015 Rating: 5


  1. Interesting report. An organisation that does not match capacity to demand is scandalous

    8. As the average output of the Tribunal in the last ten–15 years did not increase proportionally to the number of new cases, this has inevitably led to an increase of pending cases – from 348 in 2012 they stood at 450 in July 2015 – and also to an increase of the average processing time per complaint.

    As is one that appears to operate by patronage

    23. Finally, some staff associations stressed the lack of transparency in the process of appointing the judges and considered that the “long-standing practice” of the ILO Governing Body appointing the judges upon the recommendation of the ILO DirectorGeneral should be revised. They further suggested that judges should be appointed for a single, non-renewable term so as to avoid any reproach of a real or perceived conflict of interest in case of reappointment.

    Someone should do something, and not necessarily blame the customer.

  2. 33. The Governing Body requests the Director-General:

    (a) to initiate without delay discussions with the European Patent Organization (EPO), [....]

    (b) to consider with the Tribunal, and in consultation with member organizations and their staff representatives, concrete proposals for possible improvements [....]

    Merpel, I agree that (a) is indicative of a worrying EPO-related problem. But if you read it in context, (b) is not. It's talking about the need for the Tribunal to improve its own internal working methods and procedures, in consultation with all member organizations and their staff representatives. Compare paragraph 27.

  3. How can one decently expect from EPO staff to reach timely and duly reasoned decisions founded in law and provide a fair hearing to applicants, when in matters concerning their own existence they are denied anything of the sort?

    Despite the effective suppression of staff representation, the atmosphere of fear permeating the place, the breathless succession of "reforms", and the downright farcical internal review process, some still cling to irrational hopes and dreams regarding the ILO, despite all the evidence.

  4. I think that Meldrew misses the point: the ILO is in trouble largely because the EPO is generating an abnormally large number of complaints, not particularly because of its lack of capacity (although this may also be a factor and certainly decisions have always taken too long). It would be particularly interesting to see the evolution of the problem over time (i.e. since 1978) and to see whether the most recent years have led to a surge in new complaints. A pity detailed figures by year are not in the document.

    The biggest problem, however, is undoubtedly that internal procedures have not really been improved: there is merely now an extra layer of bureaucracy, as follows:

    1. A disputed decision by the administration must first be challenged by a 'request for review' - these seem to be almost systematically denied;
    2. Only then may a complainant address the Internal Appeals Committee, a body which itself has a high workload, decisions often taking years rather than months - at this point, even decisions in favour of a complainant can be (and often are) overruled by the president;
    3. Finally, all internal procedures being exhausted, the complainant has the right to address ATILO; this can be some time later.

    Join the increasingly long queue...

    One questions whether the "measures taken internally by the EPO in recent years with a view to improve its internal remedies and reduce litigation" have been made in good faith (and are being applied in good faith) or whether they have just introduced yet more delay into an already tardy system.

    Furthermore, the system itself has become increasingly complex: in order to file a receivable complaint it is already necessary to navigate through a thicket of rules and regulations seemingly designed to discourage the complainant, although, to their great credit, the central staff committee have produced a detailed "How to..." guide on the subject.

  5. Of course the EPO version of this will be that the staff are the problem since they abuse the system and file frivolous complaints. It should be remembered that the ILO is the only external tribunal that staff can appeal to - no national court and no internal independent body exists. The president is the final arbiter on all matters, be it health, discipline or justice. Thus he has given himself the right to allow and refuse the union's actions such as holding a ballot or organising industrial action. It is a Catch-22 situation. Anything he does which is opposed is by definition an abuse by staff so that if staff complain that he will not allow staff to vote for strike action (when he didn't like the timing of it...) and they complain to the ILO, then they are abusing the system and he must act for their own good. I suspect the ILO's problems will merely act to give him further grounds for restricting staff's sole line of hope.
    Of course, one sensible line would be for the EPO to stop oppressing staff rights and to allow disagreement to be expressed without recrimination. And to have functioning review bodies within the EPO which are not overridden by presidential will. Sadly, I suspect that will not happen.

  6. Once can hardly compare the WHO with the EPO. WHO is paid for by governments, and increasing spending with the WHO can be marketed as spending on health and aid, things that populations and pressure groups are generally positive about. Increasing costs can be explained by the ability to "do more" with new therapies, or the need to respond to emerging threats. It is like defence spending in that respect. Increasing spending can be spun as a "good thing". Hence the WHO rarely needs to exercise cost restraint and pressure. In contrast, the EPO is paid for by user fees, and pumps money into national bodies. Increasing costs of the patent system are regarded as a "bad thing" by the relevant pressure groups. Hence, there is a pressure to cut costs and drive efficiency. Doing this always (temporarily) worsens labour relations. Hence, comparisons with the WHO are unhelpful. One would not, prima facie, expect the same challenges to arise in each.

    The problem at the EPO is simply that the efficiency reforms have been asymmetric across the organisation, have been pushed forward from within rather than as a response to an acknolwedged public need, and have not been consulted upon and then shaken out to arrive at a compromise acceptable to all. This is probably partially due to a lack of direct political oversight, which would require at least decisions of managment to be aligned to the public-policy needs of the day.

  7. Merpel,

    please, bring back the "reader's latest comments" ...

  8. Call the Midwife says...

    Quality, Quality, wherefore out thou.... Quality!

    Just received a third or fourth R94(3) :-
    MR - claim 1 not novel, claims 2 et seq none unity so not examined (not helpful)
    AR1- AR6,claim 1 not novel, claims 2 et seq none unity so not examined (also not helpful)
    AR7, some helpful comments re inventive step (so we know the Examiner is a clever soul and can make informative comments which are very helpful in moving matters forward).

    These "a prosteriori" unity objections (is that the right way round, should it be a priori??) are very unhelpful indeed.

    This on top of two phone calls to the Examiner a year ago, asking for a further conversation... yes... yes I shall ring back (and he never does) to discuss. The calls are not minuted by the Examiner on the official record.

    Knowing the difficulties at the EPO, and not wishing to make anyone's life harder, what do I do? I have been urged EPO officials to make complaint if I have a problem with quality of what is happening on a case. I do not feel able to.

    But back to the main post, justice that takes a long, long time is not justice. With this in mind I wonder what the EBA will do with the recommendation from the AC to dismiss the suspended Board member, knowing he has no recourse to a judicial system that will fairly and equitably review his case within a reasonable period of time. If the EBA are truly independent, and if it is within their remit, can they not address the disciplinary issue?

  9. Don´t Worry says:
    Why still worry about the functioning of the ILO in respect of EPO appeals? The next time ILO serves a decision adverse to the President he will simply rely on his alleged immunity to ignore it, as he did recently with a decision of a national tribunal. And there is absolutely nothing to be done against this, the EPO obviously operates outside any legal system, with the AC´s benediction.

  10. @Call the Midwife:

    Bit off-topic: perhaps if your applicant filed some even conceivably allowable claims, you might get a little further. If, as I suspect, the 'a posteriori' objections are justified (i.e. claim 1 not novel, multiple dependent claims depend directly on claim 1 and it is not clear which, if any, can form the basis of a new and inventive claim), your applicant has himself to blame. We are a patent office: not a claims drafting agent.

    8 requests and not one allowable? Forgive me, but it is also 'not helpful' when the applicant files multiple requests which are prima facie not allowable. What are we supposed to do with them? Choose one at random and grant it?

  11. Above is a whinge of "when in matters concerning their own existence they are denied anything of the sort? "


    The classic "man has a hard day at work , so it's ok for him to come home and beat his wife" logic...

  12. @The Pigs:

    Sorry? Could you translate that into normal for us? What's your point, exactly?

  13. @The Pigs:

    Aha, gotcha: it's a good idea to be explicit about which comment you are referring to, as that was not clear.

    I tend to agree that there is no reason why examiners should not do their job properly, despite the adverse conditions at present. That's a question of integrity.

    Poor examination should not be justified by a non-sequitur...

  14. Problem solution approach

    Proble: too many cases of the EPO block the ILOAT

    possible solution at the EPO

    when a complaint has been filed by a staff memeber

    inform said staff member

    - 16 weeks after filing
    -that a final decision against his complaint has been automatically generated
    -and published by public posting 15 weeks ago

    a) on the islands of Atlantis , Ponchatrain or Thule
    b) on the market of the city of Dunwich, , Rungholt or Reimerswaal *
    c) in the ballroom of the Titanic, in the subbasement of a Fukushima reaktor
    or in a canteen for IS fighters in Mosul

    and inform that staff member that the time limit for starting proceeding at the ILOAT ( 90 days) has expired .

    *all three coastal cities washed away in storms

    would the EPO implement such measures ?

  15. Things are not simple.

    The statistics are ambiguous.

    I have posted some analysis here that throws some dark on a messy situation.

    Suffice to say, if EPO is bad, WIPO looks worse.

  16. In the cited ILO report, passage 4.1 15 is a nice suggestion by the drafters of the report directed at the governing body of ILO.
    It may also be a veiled threat towards the EPO.

    I reformulate:
    "Back then, there was only ILO-AT, but now there are other tribunals, who are much closer to the topic of Europe and/or Intelectual Property. It may be worth considering whether some of our member organisations would not fit better into such an administrative tribunal than into this ours."

    I wonder what would happen if the governing body of ILO would decide that the EPO needs to leave.
    In absence of a tribunal, the national judges might be much more willing to dismiss immunity.... But if they grant immunity, the effect might be very disastrous in all directions.

    Other administrative tribunals may be much less dependent in formulating their opinions. It may even become viable to go "decision shopping", just as "opinion shopping" is being done until someone delivers the opinion you told them you need.

    I hope someone brings this to the attention of the EPO-Administrative Council, and that the honourable representatives there recognise the need for a swift and firm decision to actually actively solve the problems (e.g. by stopping all further reforms until courts have decided which reforms were okay, necessary, and/or well founded, and which ones were illegal (whether due to faulty consultation process, or faulty decisions in itself); or by having external lawyers scrutinise every single proposal for changes before putting them to vote and implementing them - and not relying on the legal opinion provided by the administration of the EPO led by the president).

    - a shocked examiner (actually more worried, but the name will stick for now)

  17. CA/21/15 is an official Administrative Council document, publicly available here:

    The document is the report of an audit on the EPO's internal appeal procedures.

    Paragraphs 14 and 61 are really interesting. In paragraph 61, we can read that in 49 out of 54 cases (in 2014), the President rejected the Internal Appeals Committee recommendation to allow the complaint.

  18. An old man with storm-cloud hair says…

    Ragged from the weight of time in the EPO ,
    And tirelessly escalating expectations to the ILO;

    Miles of light and tonnes of dark,
    That breathless unexpected spark;

    The AC hears his bite and feels his bark,
    BB's deceitfully attempts in the AC make a mark;

    I suppose my inhaler would be the cure,
    To my not so subtle breathing as it occurs;

    To escape the frenzied grey squirrel at my heels,
    What would be the most refreshing feel?

    Is to dive from the tenth floor into a fountain,
    and not hit the bottom,
    Simply because I am not supposed to be a fool,
    And red squirrels cannot swim in a pool;

    For all to fall and one to stand,
    BB never bows to touch the offered hand;

    BB falls unworthy to his knees,
    A dishonest smile with dishonest tears,
    Deafening offer to silent cheers;

    A begin begun the end it nears,
    Through longest hours and shortest years;

    When the last colours of the day,
    Have from their burning ebbed away;

    About that EPO ruin, cold and lone,
    The AC and ILO shrills from stone to stone.

  19. If you cast an eye over the ILO decisions you wonder why some of the EPO employees are filing such complaints other than perhaps to block the pipeline.

    Wrote H. Bosch

  20. Does anyone have statistics concerning the success rate of EPO complaints, compared to the other organisations?
    That's a good manner to judge whether or not the complaints are 'frivolous'...

    Just sayin'

  21. Certainly many complaints are "frivolous". So?

    Just consider the huge amount of changed regulations which all aim at deteriorating work conditions at the EPO.

    Career down (except for some French speaking). Salary down. Pension down and shift risks to staff. Tax compensation abolished. Internal investigations = Secret police. Spying. Attacking staff reps. Attacking DG3. Suppressing free opinion. Increase work pressure on examiners. Reduction of staff outside examination. Sickness reform. Invalidity. New contribution for health care for gainfully employed spouses. Cronyism. Information and communication monopoly.

    The next items on the horizon: relocate stubborn DG3 to Vienna and Patent Information to Munich. Who cares about the families? Or the BFC asks to review (=lower) the pension, although external actuaries confirmed that the pension reserve funds is covering 100%.

    Is ILO-AT the right body to solve these issues? Normally not. But as the AC is supportive to any measure that lowers EPO work conditions, there is no alternative for complaints.

    The sad truth is: deteriorated work conditions are not caused by finance, backlog, or quality problems. The President and the AC see them as a goal per se.

  22. "Does anyone have statistics concerning the success rate of EPO complaints, compared to the other organisations?
    That's a good manner to judge whether or not the complaints are 'frivolous'.."

    See my comment above and the page it links to for a statistical analysis of success rates.

  23. Is is stated in CA/21/15 Paragraph 31 that "The Appeals Committee consists of one chairperson and four full members. The chair and two members are nominated by the Office, the other two members by the Central Staff Committee."

    However, tha Statute makes it clear that the President names the chairman and menbers of the Appeals Committee, and, presently, there are no members nominated by the staff committee on said Appeals Committee, only the President's men....

  24. We are the Office said:
    The reason for this is - again - the EPO.
    When in former times an employee of the EPO was successful with a complaint in Geneva the EPO administration applied this ILOAT decision to ALL employees in the same situation.
    Now this is different. For the EPO a successful ILOAT compaint is only valid for the one employee concerned.
    Thus in case of EPO decisions applying to all employees each and every employee has to file a complaint separately.
    And after the recent decisions of the EPA regarding invalidity insurance, salaries and the career system you can be assured that there are thousands of new individual compaints to come.


  25. According to the site of SUEPO, members of the Dutch House of Parliament (Tweede Kamer SP and PvDA) have proposed a motion concerning adherence by the EPOrg to international legislation. The motion was adopted on 15 October 2015:

    "The House, having heard the deliberations, is of the opinion that the conduct of directors of international organisations which has no relationship to their international representation but which does result in a breach of national rules, should not be covered by diplomatic immunity; finds that in April 2014 the government presented a Plan of Approach with measures for taking more severe action against persons with diplomatic immunity who have breached the law of the Netherlands, finds that those measures only address traffic fines and criminal offences and do not address breaches of employee rights as established at the European Patent Organisation by the Court; requests the government, within the limits of the treaties, to do all that is possible to force the European Patent Organisation to adhere to international legislation, and proceeds to the order of the day."

    Go on like this, Mr. Battistelli, and the only immunity that will be left for the European patent Office will be the one that its employees acquire by vaccination ...

  26. Amicus Curiae

    The European Patent Office has done several huge reforms in the last years (career, invalidity, healthcare, ...), and also introduced several new provisions, in particular the Investigation Guidelines and the Strike Regulations. To my best knowledge, none of these reforms has been explained or "sold" to staff, it seems that this was not even tried.

    Combine that with the fact that the Strike Regulations were found to infringe on international legislation (see above post concerning the Netherlands). The EPO upper management does not care, they qualified the Netherlands judgment as "rumor". And we have the discussion about the independence of the Boards of Appeal (DG3), which arose from the Investigation Guidelines. We also have the running investigations against staff representatives.

    These are clear indicators that the EPO upper management is not interested in arriving at an amicable solution. It is not surprising that the number of complaints goes through the roof.

  27. We shouldn't forget a surprisingly similar parallel organisational problem:

  28. No point in having logical discussions about the EPO any more.

    Some observers could comment that that the EPO appears to be

    "So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

    Bottom Feeder

  29. I speak with candour one night in slumber,
    My mind did wander near to Munich town,
    To that centre station of the Eponian nation,
    Where a congregation unto me was shown,
    Beyond my counting upon a mountain,
    Near to a fountain that clearly ran,
    The earth did tremble I'll not dissemble,
    As they assembled for the Rights of Man.

    All clad in green I thought I seen,
    A virtuous Queen that was grave and old,
    Saying children dear do not fear,
    But come and hear what I will unfold,
    This fertile country for many years now,
    Since Ubustelli's entry into our land,
    Has been kept under by foes outnumbered,
    And robbed and plundered of the Rights of Man.

    My cause you chided and so derided,
    When all divided alas you know,
    And in disorder round Eponia's border,
    Strife, grief and lawlessness has laid you low,
    Let each communion detest disunion,
    And in love and union join hand in hand,
    Believe in SUEPO and proud Ubustelli,
    No more shall rob you of the Rights of Man.

    Through the azure sky I then did spy,
    A man to fly and he fast descends,
    Straightway comes down upon the ground,
    Where Eponia round had her bosom friends,
    His dazzling mitre and cross was brighter,
    Than the stars at night or the midday sun,
    And in a Dutch accent rare I do declare,
    He prayed success unto the Rights of Man.

    When his prayer was ended he condescended,
    His hand to lend it in freedom's cause,
    He said I'll aid you and always lead you,
    And still persuade you to adhere to the rule of law.
    When in affliction or sad restriction,
    My benediction with uplifted hand,
    I may explain it you shall obtain it,
    And always gain it with the Rights of Man.

    Then the population and congregation,
    In exultation agreed to part,
    They shook hands like brothers and kissed each other,
    While friends did smother each Eponian heart.
    They separated, exhilarated,
    And animated at what went on,
    And as day was breaking and poor examiners awaking,
    Cried still be true unto the Rights of Man.

  30. To H. Bosh

    If you cast an eye over the EPO applications you wonder why some of the applicants are filing such applicaionns other than perhaps to block the Pipeline.


  31. Worth reading for background to the EPO investigation procedure. Usually, that member of the parish's comments are a bit OTT for my tastes but this time the last contribution seems to explain clearly the power grab by the President which has basically given himself the right to override everybody else's 'rights' and which is one cause of the number of ILO appeals since there is no other way to seek even the slightest hope of justice.

  32. The Revelations Continue ...Thursday 5 November 2015 at 13:25:00 GMT

    Part III has just been published.

    The EPO’s Investigative Unit Exposed: Part III

    Looks like there is more to follow ...


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