The European Patent Office

This moggy has been reading, with some alarm, the emails that have been reaching her with increasing frequency over the past couple of days with regard to some recent developments at the European Patent Office (EPO).

She will be posting a feature based on the information received, either tonight or tomorrow morning.

Again, she invites the EPO to contact this weblog so that our readers may at least have the chance to hear and consider an official account or explanation of the latest activities regarding the organisation's staffing, disciplinary and union recognition issues.
The European Patent Office The European Patent Office Reviewed by Merpel on Tuesday, November 17, 2015 Rating: 5


  1. By the way, has it been noted that the Service Regs and the Guidelines for Investigation have been posted to the EPO's home page,

  2. Attorney in private practice here. A colleague received an (as far as I know) unprecedented communication from a Board of Appeal a few days ago saying - and I quote:

    "the Board's specialists in this field are [person A] and [person B]. [person A] is retiring from [this Board] by [date]. Since the Boards of Appeal are confronted with a complete stop on the recruitment of new members, it is not foreseeable if and when a new member will take the place of [person A].

    Other specialists in this field are presently not available or are, due to the aforementioned circumstances, also in Boards with limited capacity.

    The result of the above is that the pendency times of cases in this technical field will increase."

    (Highlights in bold are mine.)

    I find this astonishing. Astonishing not only that this is happening (as any reader of this blog has known for months) but also that the Boards are now officially acknowledging the problem and its impact on users. This communication reads to me as a none-too-subtle criticism of the management. Is this a signal that they now feel they have nothing to lose?

    Has anyone else seen such a thing?

  3. Currently available vacancy, related to this issues:

  4. I assume that cryptic article is a reference allude to these events (alleged)?

  5. No, Dave, the cryptic article will be referring to events which occurred more recently (notably, last Friday).

    Watch this space...

  6. Some weeks ago, the EPO Central staff Committee (hereafter CSC) published on its intranet site a document “Questions on the European Patent Office - a discussion paper”
    This document presents 23 questions based on cases which all have a background in real life. I suppose that Merpel will get soon (or later) a copy of this document.
    Personally I like the question 13:

    The entrusted member has placed a report in the internal post to be sent to the applicant. After reading through the report, the superior, known as the Director, is of the opinion that the arguments presented therein are incorrect because the closest prior art is document D1 and not – as stated in the report – document D2. He asks the entrusted member to revise the report accordingly.
    a) What is the legal position?
    b) When and how does the public find out about this occurrence?

    The entrusted member then consults with the other members of the Examining Division. Following this consultation, the Examining Division decides that the report should be sent out unchanged. The Director refuses to approve the report for sending out to the applicant. Instead, he instructs the entrusted member in writing to revise the report in accordance with his stipulation (D1 instead of D2 as closest prior art) and to sign it in the name of the entrusted member. The entrusted member fears a disciplinary penalty and revises the report as requested, but does not sign off on it.
    The Director approves the revised report for sending out. The report is provided with the authentications of the Examining Division and of the entrusted member and is sent to the applicant as a report pursuant to Article 94(3) EPC.
    c) What is the legal position?
    d) When and how does the public/the applicant find out about this occurrence?
    e) What options do the members of the Examining Division have for defending themselves against the Director’s actions, if desired?

    The Examining Division would like to place its decision regarding the originally compiled report and the written instruction of the Director to the entrusted member in the electronic file as an internal file note that is excluded from public inspection of the files. The Director issues an instruction that this must not be done, and so no one plucks up the courage to place the file note in the electronic file.
    f) How does the public/the applicant find out about this occurrence?

    The CSC document doesn´t indicate if the director is a DG1 director in direct contact with the ten major applicants.

  7. 'concerned said'... As you say, this is astonishing. Please could you quote the application number so we can all see this communication?

  8. For reasons of anonymity, I will not provide the application number. I have emailed a copy to Merpel and have asked that, if uploaded, this should be suitably redacted to protect the identities of those involved.

  9. To fair play : this looks like a batant violation of the EPC;
    What would happen if the BoA would have to deal with such a case (and some little birdy would tell them ?

  10. The fathers of the EPC envisaged that EPO will be run by reasonable peaple who have interest in everything other than profit. To ensure this the fathers of the EPC provided for that the budget of the EPO must be ballanced. How naive of them!


  11. Three leading members of the EPO Staff representation and the SUEPO have just been suspended. Two other members sought medical treatment immediately after having been subject to special treatment by the president's emmissaries last Friday.

  12. Three members of the Staff Committee are suspended and this splendid piece of literature is published:

    "Each staff member deserves to benefit from the duty of care of the Office
    The EPO is deeply grateful for the hard work, commitment and loyalty of its 7,000 strong workforce who
    have helped make us the leading IP office in the world for both quality of patents issued and the level of
    service offered.
    Unfortunately, the EPO has recently uncovered instances of anti-social and unlawful misconduct
    concerning few employees. These matters are being investigated and dealt with according to a set of
    publicly available mles, designed to ensure the fair treatment and protection of employees (Code of
    Conduct; Circular 342).
    In some cases, those under investigation have attempted to disrupt this proper process through the
    making of false allegations and personal attacks against EPO colleagues. Such conduct constitutes a
    breach of both our Service Regulations and our Public Service Values.
    The EPO - like any other responsible employer - will not tolerate any form of harassment by any of its
    employees, regardless of their status, against their colleagues and is taking these matters very seriously
    Each staff member deserves to benefit from the duty of care of the Office. It is for this reason that
    disciplinary procedures are being launched.
    The Office is convinced that these incidents will not overshadow our common good: our reputation of
    excellence due to the dedication of the staff. Together. we can continue to make the EPO the successful
    organisation to which we are proud to belong."

    It's so outrageous that I am missing words ... and NO I am not anymore proud to belong to this organisation which apparently only serves to nurse the egomania of a psychotic and his acolytes.

  13. @Anon15:46
    Which BOA? The same mentioned in the comment of @concerned?
    It all fits together.

  14. by Disgusted

    Battistelli has successfully destroyed the EPO. Congratulations.

  15. Dear examiners:

  16. Clooney said:
    What else must happen before the EPO host countries (Germany, Holland) finally take action to stop these people?
    Shame on them!

  17. This isn't normal. Even in the BFC he could only get 18 votes out of 38 for his pension payment reforms (no DE, UK, FR...). The next AC should be interesting. Unless he bans them too?

  18. @snoop 20:48:

    I think the BoA referred to in Anon 15:46's comments was a hypothetical BoA overseeing an appeal involving the application/patent which was the subject of the hypothetical discussions in the discussion paper.

  19. I would be interested to learn where, in the EPC, it is specifically provided for the intervention of a line manager to change the substance of an Examining Division communication when that person is not a member of said Examining Division.

    The fact that line managers, or Examination Directors, intervene in Examiner communications issued by Examining Divisions is not new - it was already happening many, many years ago. If the Examiner was a junior, then pressure could be put on him/her by their Director to change the substance of the communication, but almost always with the assent of the other two members, or at least the Chairman. If the dissent was that of the whole Examining Division, the Director would either simply re-assign the case to people more inclined to accept his/her opinion, or else put their necks on the line and assign themselves as primary examiner or chairman on the case, and sign in their own name.

    It appears from the CSC question that things have "moved on" (dare I say, "progressed" ?) from those days where now a line manager can not only exert influence on the substance of a communication, but also get away with not even being remotely identifiable as the cause of such influence. Interesting, very interesting - but also, very worrying for a whole range of reasons.

  20. concerned said...
    @snoop 20:48:

    I think the BoA referred to in Anon 15:46's...

    Sorry the cases were said to have (some) background in reality
    I have experienced attempts of changing decisions of the examing divison by superiors (their names and their actions were not mentioned anywhere in the written parts of the dossier).

  21. Board B28 of the Administrative Council meets today.

    No doubt they will receive a report from the President about his "close co-operation" with the "independent external social study" that the AC requested at its meeting on 14-15 October 2015.

    Just sayin'

  22. Falsifying documents

    Austria , up to 1 year jail
    Germany , up to 10 years

    being a member of a criminal organisation , 2 Years

  23. Why does anyone expect the president or administrative council to follow any article or rule of the EPC (or any other law) if they can not be bothered to follow even a simple Article 4a of the EPC?

  24. TheFedsAreWatching


    I cannot find the "publicly available rules, designed to ensure the fair treatment and protection of employees (Code of Conduct; Circular 342)" on Anyone? Or are they only "publically available" to staff as disclosing them would trigger an internal investigation with the known consequences?


    I sincerely fear that at least some staff of the EPOrg might sooner or later be considered as members of a (international) criminal organisation if things go on like this.

    We need answers, aber: Ein Teil dieser Antworten würde die Bevölkerung verunsichern...

  25. Soon we will welcome the Virgin Islands, the Cayman Islands and Columbia as Member States. For the sake of strenghtening BBs position in the AOC.
    Same error in the construction of regulations as with the Fifa. When will the number of votes adjusted to the filing numbers of countries?

  26. @TheFedsAreWatching: You are right. This particular circular, as any other circular in this regard and all circulars regarding our strike regulations are deemed to be EPO-internal only and are therefore of absolutely no interest to the piblic, and as such their exitence should not be disclosed to the public.
    They are public to EPO-personnel, but include a reference to non-public elements of the case-files, which may include the results of the discussions with the EPO department having started the investigation.

    Today I saw a lot more than usual security in The Hague standing at choke points of the hallways, apparently searching for some specific employees of the EPO who may be too sick to go to their office and formally receive letters signd by the head of the personnel department.
    (usually I see one at the public entrance, today I saw at least three between the lifts and the cantern, and I did not pass the public entrance. In the carport entrance there was also one waiting, where ther's usually none.)

    - NotAn1984FanAnymore

  27. The president stated several times that the opponents to his plans are just a few disgruntled examiners. The SUEPO should insist on having a vote on whether the staff agrees with the reforms and in particular a vote of confidence in the president. That would be a nice one to see. I would guess single digits, fewer than the fingers of a hand!

  28. The last time there was a strike ballot, the 'few' turned out to be about 90% - which meant even more than just all union members had voted for the strike (BB only allows himself to organise the union strike ballots and he chooses who can vote in order to try to scupper the vote - it was touch and go whether he would insist that he got a vote himself...). Either he forgets or he misspeaks.

  29. Seriously Delirious says….

    We see these days the union guys e-mailing and tweeting and texting so much, will it this time be a massive flash mob dance, a graffiti attack or EPO flags replaced by pirate flags as a new fresh surprise? ….VP1 is getting bored!!

  30. Not only letters to applicants are changed.
    I was involved in a case where the division had decided to grant, and all members had signed. The director went to the second examiner and the chairman and stated that he did not agree, and that they should have consideration for their staff reports.
    He then went to the entrusted examiner and said that the grant would not go out and a refusal should be written.
    When the first examiner went to consult with the other two members they said that the director had already been to see them and please do the refusal (obviously in fear of reprisals).
    So what does the poor first examiner do? Write a refusal (keeping the original signed and dated grant, since Mr. Director was swiftly before pension and the examiner feared a rebuke from DG3 if the file would be appealed). Yes, strange happenings in EPONIA.

    Yours truly Snowhite

  31. Have you seen this?
    Battistelli: Many Apple patents would not have been granted in Europe

    In response to a question regarding "patent war" litigation between tech companies such as Samsung (a closer-contact-with-major-applicants-pilot-project member) and Apple (NOT a closer-contact-with-major-applicants-pilot-project member), Battistelli states that the reason this 'patent war' is "happening mainly in the US and not Europe" is "because there are many patents in the US granted to Apple which would have not been granted in Europe because we are more rigorous and more selective than in the US. In my [Battistelli's] view, this 'patent war' is largely due to dysfunction of the US system."

    What a remarkable statement!

    Battistelli manages - in fewer than 50 words - to appear not only to defame Apple's patent portfolio, but also manages to pooh-pooh the US system as "dysfunctional"!

    I guess Battistelli doesn't remember that the infamous "slide to unlock" patent (EP1964022) was granted by the EPO, and only later invalidated by the German Bundesgerichtshof...

    He probably also doesn't recall that the reason the Apple-Samsung 'patent war' is fought mainly in the US is because Apple and Samsung have agreed to end all patent lawsuits outside the US between themselves.

    I wonder if Battistelli would be willing to identify individual Apple patents granted in the US that would-not-be or were-not granted in Europe?

    How should Apple feel about such statements..?
    How should Apple investors feel about such statements?


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