Why the Enlarged Board rejected the AC in September

Merpel has finally had sight of the written decision of the Enlarged Board of Appeal (EBA) in which it rejected the request made by the Administrative Council (AC) chairman, Mr Kongstad, seeking the dismissal of a Board Member for the events leading up to the House Ban.

We knew that the EBA had rejected Mr Kongstad's request, for Mr. Battistelli was driven to write a memo to the AC asking it to bypass the EBA and simply fire the Board Member, since the EBA had (he said) shown itself to be incapable of fulfilling what was a simple administrative request. In other words, the EBA's only job (he believed) was to rubber stamp the AC's request (see Merpel's post "Ignore the Enlarged Board, EPO President tells Administrative Council" if you want a fuller reprise). 

Merpel has only had time for a quick read of the written decision, and hopes to publish the full text shortly, but can tell readers the following:

1. The EBA said in no uncertain terms that far from rubber-stamping any request to remove a Board Member from office, it must satisfy itself in adversarial proceedings conducted in proper judicial form, that the allegations made against the Board member are true and warrant the most serious sanction available, i.e. removal from office.

2. Contrary to what Merpel had understood, the request was NOT rejected for the procedural reason that Mr. Kongstad had made the request rather than the AC making the request as Article 23 requires. Indeed the EBA found that Mr. Kongstad was authorised to make the request on behalf of the AC.

3a. The request was rejected because it was not properly substantiated. The AC had commissioned a report from a specially constituted Disciplinary Committee (DC). That DC's report formed the substance of the case, and was accompanied by a USB stick containing a mass of documents and files, which were said to be the evidence against the Board Member.

3b. The EBA held that the DC report did not sufficiently document the facts and evidence for two of the five allegations it held to have been proven, and nor did it express a view on the reliability of the evidence itself. This meant that neither the EBA itself nor the Board Member being accused was able to preoperly understand and respond to the case being made and it was not reasonable for the EBA and the other party to trawl through the USB stick to reconstitute the evidence.

3c. For the three other allegations, the DC report stated conclusions but did not even set out the facts and evidence leading to the conclusions. Accordingly, for all five allegations, there was insufficient substantiation to allow proper, adversarial, judicial proceedings to be fairly conducted.

4. The EBA refused a request from Mr. Kongstad that the EBA tell him what he needed to do to make out a proper case. No surprise there, it would be extraordinary for a court to assist one party in this way.

5. The EBA made an award of costs to the Board Member for his legal costs in the proceedings to date.

As indicated above, this is Merpel's very quick initial impression of the Decision. She hopes to return to it before long. Readers will undoubtedly ask that she post a copy of the decision, and she will do so, but not immediately and hopes that readers will bear with her patiently in this regard.

Reminder for commenters: As has been true with Merpel's EPO posts for some time, and as is now the general IPKat policy, comment-posters are required to identify themselves via a pseudonym if they don't want to use their own names, since there are far too many people called "Anonymous" and it can be difficult-to-impossible to work out which Anonymous is which [if any anonymous posts get through, it's by accident -- not a change of policy]. Also, Merpel moderates EPO-related comments quite heavily, knowing that some readers get so exercised that they forget the normal standards of comment etiquette (or even of libel laws).  
Why the Enlarged Board rejected the AC in September Why the Enlarged Board rejected the AC in September Reviewed by Merpel on Thursday, November 19, 2015 Rating: 5


  1. Merpel is very wise and will not let an allez cat pull the wool over her eyes.

  2. Overruled quotes….

    Some are glad today,
    They were never over-ruled by doubt,
    And made mistakes they did to admit.
    For themselves to figure out and not to quit.
    Many times they fel but got up to walk tall.
    So many today have betrayed themselves.
    With a seeking for answers from someone else.
    To awaken to realize,
    Those they followed had a preference for dead-ends.
    And sought to beat their heads up against brick walls.

  3. Wow.

    Many thanks: we at the EPO await as many further details as you can give us.

    This is already more than we have ever received from the EPO administration, apart from the propaganda and smears, of course...

  4. Battishenko will not be amused. I guess in a next step, Russia will become member of the EPC (if needed) and DG3 is transferred to Siberia.

  5. Maybe the full decision will make it clearer, but I'm surprised that a committee led by an eminent UK judge and having BoA members could not formulate a prosecution case or an explanation of the facts sufficiently to satisfy the EBoA. VP Lutz told us in the By Juve article that the AC organised disciplinary committee had come to the conclusion that the procedure had been carried out in a legally correct way. Perhaps they forgot to check if the conclusions were also correct? Or were they only there to rubber stamp BB's case as to the procedure and not to actually consider the disciplinary issue on its own merits?
    Looking forward to some illumination.


  6. In his internal communique dated 16.10.2015 ("Defending our values"), Battistelli referred to the "Disciplinary Committee [...] chaired by an eminent UK judge and former judge at the European Court of Justice".

    So "eminent" this UK judge was that all that the Disciplinary Committee was able to provide was "insufficient substantiation to allow proper, adversarial, judicial proceedings to be fairly conducted"????

    After the case of Mr. Rutz and his answer to Professor Broß, one really asks if Mr. Battistelli specially select these people between the clowns of the Circus passing in town ...

  7. Merpel stated "4. The EBA refused a request from Mr. Kongstad that the EBA tell him what he needed to do to make out a proper case".

    This request speaks for itself what legal knowledge and legal qualities the executive and legislative appear to have. It is the same legal quality level on which almost all the reforms were based that have been carried out by BB during the last years. As a consequence thereof the ILO in Geneva will have to deal with a huge number of internal appeals in the near future.

  8. "It is the same legal quality level on which almost all the reforms were based that have been carried out by BB during the last years."

    Well spotted, Executioner.

    We can also add that the only people who tried to point out the deficiencies in these reforms have been just suspended on trumped-up charges ...

  9. The following article in the French newspaper Les Echos presents a seriously biased picture of what currently happens in the EPO.
    They should read and re-read it again and again until they have got enough for their money: as pointed out some months ago by IPKat, Les Echos is a privileged "media partner" of this office, which actually means that applicants are paying for such stories.

  10. HVA said...
    Waiting for this important and wise decision to be published in the OJ with a glossy picture of an eminent (and failing) ENArque. Vive le ROY.

  11. Je-ne-suis-pas-benoit says:

    A subsidiary question to the decision points 7.4 (fundamentals of adversorial inter parte proceedings), 7.5 (EBoA must be presented clear facts and exhibits), 7.6 (AC request did not present any fact) and 7.7 (Kongstadt's representative went on with his allegations and said exhibits are all on a USB stick): how can one rely on digital evidence provided by the EPO since its powers are absolute?

    Every single piece of digital evidence it produces comes from systems and networks it (allegedly) fully controls and there is no independent authority able to check whether the ruly "investigation" unit is actually collecting information or planting future "evidence" to advance the case. Too powerful to be worth trust?

  12. Most probably the report of the Disciplinary Committee was not intended to provide a substantiated case but merely to advise the AC.

    Relying upon it and placing all the evidence in front of the Enlarged Board without a substantiated case was, as anybody who appeared in court proceedings knows very well, a recipe for disaster. Apparently the representative of the Council were unfamiliar with court proceedings.

    The request that the Enlarged Board essentially formulates the requests at their place speaks for itself and is extremely embarassing. I imagine that the external judges were, if possible, even less amused than the internal members of the Enlarged Board by this procedural conduct.

    I only hope that the Council takes the lesson that it should seek a sound legal advice independent from the (clearly low-quality) advice provided by the President. This story, like the problems with the trade union, is extremely damaging for the EPO and the Council should seek professional advice and act swiftly.

  13. Some people have complained that the President is a mere politician. But real politicians only pick fights they can win, so it's unfair to accuse Bashar al-Istelli of political competence. He deserves some acknowledgement for his consistent strategy of blundering blithely on, digging himself deeper and deeper into a fight which nobody will win.

  14. Does "ennemis de l'intérieur' not ring a bell?
    Look back towards USSR or Cambodian sad epuration history sequences

  15. Clooney comments:
    1) Good that the decision was published notwithstanding the enormous pressure and intimidations by "you know who" (DG3 will have to expect retaliations);
    2) in the light of this decision, it will be impossible for the EBA to simply provide reasons for the dismissal on behalf of the AC which, based on the report of DC, has already taken the decision. A courageous denial by the EBA will cause the next hysterical reaction by the mad Organisation management and furthe retaliations.

  16. Clooney adds further:
    Guess what BB could do with the stick ......

  17. Pseudononymouse says

    My understanding from reading this is....

    The case brought to the EBA was incorrectly formed and unsubstantiated so as not to allow for proper adversarial proceedings, and that was the reason the EBA rejected the AC's request. So a procedural reason in essence? Is that a fair deduction?

    Procedural Question: Can the AC ask again to the EBA to dismiss the Board member. How many times does the AC get to do this? How many times is fair in terms of accepted legal principles?

    Substantive Question: What happens if the AC presents a suitable case next time? Does the EBA get to rule on the merits of the issue at the heart of the matter, namely, whether the disciplinary issue amounted to enough to suspend the board member? It seems to me the EBA will be educating itself around employment law according to international organisations, and constitutionally that it is right to do so given A23. If it does and is allowed to do so without interference, due process has been followed and so be it, whatever the outcome.

    I have to say I hope the EBA does answer the procedural question above. Also, I am impressed that the EBA, appears to be level headed and dealing with matters in front of it according to the law, rather than rumour and hyperbole. I would expect nothing less, and even though this mouse gets caught up in gossip sometimes, he recognises that judges in their day job should not do so. On that point at least well done EBA!

  18. Dear Pseudo...,
    Should run for years as there may need to be debated what the grounds for dismissal are. Is it because the statements and docs involved for distribution (allegedly) were defamatory and under what law? Or because the acts were against EPO interests? If the latter, there is the independence of DG3 from EPO 'interests' to be determined or considered. Could be a mine field?

  19. My understanding is that this is the 17 September decision and not the decision following the meeting of the AC of 14-15 October.

  20. Hellokitty says:

    Sorry, but I don't understand at all what is going on in that case. We have 5 allegations, 3 of them do not set facts and evidence and 2 are not substantiated? Did the member of the board of appeal do anything at all? What is he accused of? This starts to look as if the president picked out somebody he does not like (for personal reasons, maybe) and is trying to mount a case out of thin air.

    Now, I know that the decision does not explicitly say that. But the whole story has been running for a year. Surely, if the suspect had really done something wrong (I don't know, maybe selling confidential information), the investigation unit would have found something convincing, wouldn't they? I mean: they have the guy, they have a load of data on a usb stick, they searched his office and they interrogated him. And they find nothing to convince the board?

    This just does not make sense. Or, rather, it does not make sense unless the whole affair is a set-up. But then, it does not make sense either: if the accusation is a set-up (which would be a very serious matter, but let just ignore the implications for the exercise), why did they pick a board member? Why did the president pick such an absurd fight? What can he possibly have to win?

  21. Can there be due process any more after the President's allegations about the case which appeared in the press in The Netherlands and Germany? These were enormously prejudicial and libellous (does anyone seriously believe that the Board member is a neo-Nazi who keeps weapons in his room, the better to overthrow the office?). They also revealed enough information to identify him.

    I can't see how the AC and or the President can row back from this.

  22. I see two outcomes to this saga.

    1) At the next AC meeting the suspended DG3 member will have his salary cut again (reduced to 50% after the last AC meeting) with some kind of deal/threat circulated in the background to make sure he takes retirement. Problem solved.

    2) The suspended DG3 member will not be renominated (like so many others) when his renomination is due. Problem solved.

    Aliens in underpants

  23. Or not,
    2 more years of house ban is an harassment!

    It is now official that B. lied to the AC
    and defamed the guy
    and made an unlawful disciplinary measure.
    The next AC will be surprising!

  24. re:superman

    how can the président survive this ?

    to quote somebody polpuar , he is allegedly using that sentence extensively

    "je m´en fou "


  25. Mr L. Rutz, EPO Vice-President for Legal and International Affairs explains: "The European Patent Convention is the Constitution of the EPO. The Board and the EPO President are bound by this Convention, and not by national rules". But why did Mr.L Rutz not warn the president Benoît Battistelli that it was very wrong to ask the AC delegates to disregard a key provision of the European Patent Convention, and to bypass the Enlarged Board of Appeal (EBA)? In June of this year the Enlarged Board was asked by Mr K. Jongstad, Chairman of the AC, to propose dismissal of the Board of Appeal member. Did Mr K. Jongstad not realize that that question to ask for a particular decision (dismissal of the Board of Appeal member) is impossible. EPO Board members are given special protection in the European Patent Convention. Article 23 contains a dual safeguard, in that removal from office can only be
    decided on by the AC -- and even then only when this dismissal has been proposed by the EBA: Article 23 Independence of the members of the Boards. Did Mr. L Rutz and Mr K Jongstad not felt bound by the Convention? The ¨team Battistelli¨ does not seem to be bound by any law at all. Not the Convention, no national laws, no human rights, not the general principles of law protected by the Community legal order. Mr. L Rutz and Mr K Jongstad should, as advisers of the president, have warned president Benoit Battistelli for infringement of general principles of law and, in particular, of the principle of sound and human administration. Moreover, I believe it is an important principle of law that political authorities or bodies, such as parliaments, AC, president should not at all express general disapproval of judges, in particular in order to try to get them to resign their posts voluntarily.
    See you at the diplomatic conference.........

  26. @Kilroy was here: Seeing how the current management and its predecessors are avoiding at all costs to have to call for a diplomatic conference, although they plan to do major reforms (BoA, Community Patent, thinking about relocation of the BoA to Vienna, recognition of the Unons WITHIN the current framework, ...), although the EPC is extremely clear on this subject (Article 4a EPC).
    It seems to me that they do know what will happen if full-time politicians, who breathe democracy much more than the average person, get involved, but that may just be my impression.

    - NotAFanOf1984Anymore

  27. Superann,
    I'm sure M Battistelli hasn't intended to influence proceedings by making inflammatory statements about the BoA member. And if he did, I'm sure he'll have been advised not to accidentally repeat them, let alone amplify them.
    Maybe I was wrong

  28. Gobsmacked thank you for the URL:http://www.pyleborgn.eu/2015/11/crise-a-loeb-reponse-du-president-battistelli/ `Crise à l’OEB : réponse du Président Battistelli | Pierre-Yves Le Borgn' The letter of Benoît Battistelli to Pierre-Yves Le Borgn in answer/comment to the letter Pierre-Yves Le Borgn has send begin of this week to Ministre de l’Economie, de l’Industrie et du Numérique Emmanuel Macro shows the sick way of thinking of Benoît Battistelli clearly.Pierre-Yves Le Borgn writes ¨Je pense que il(Benoît Battistelli) peut comprendre aussi que l`on puisse être en désaccord avec lui¨. Benoît Battistelli is not able anymore to accept different opinions of Unions, journalists, politicians. When you do not agree with him or have critics he becomes agressive and you soon will have a visit of the Investigation Unit. I am afraid that the protest this week with a few thousend participants inclusive directors does not imprees him at all. Benoît Battistelli believes in a conspiracy against him.Read his letter. Nice foot for a couch doctor.

  29. Maybe Kilroy could have a look at article 10 EPC before ripping article 23 EPC out of context?

    See point 2 of the blog.

  30. For those who have never seen article 10 EPC, such as (apparently) Kilroy, it states

    (1) The European Patent Office shall be directed by the President who shall be responsible for its activities to the Administrative Council.

    (2) To this end, the President shall have in particular the following functions and powers:

    (a) he shall take all necessary steps, including the adoption of internal administrative instructions and the publication of guidance for the public, to ensure the functioning of the European Patent Office;

    (b) ...
    (c) ...

    (d) ...

    (e) ...

    (f) he shall exercise supervisory authority over the personnel;

    (g) ...

    (h) he shall exercise disciplinary authority over the employees other than those referred to in Article 11, ...

    What is unclear about this?

  31. Dear Anonymous. Kilroy has seen all the articles of the EPC so also Article 4a,10 and 23. Article 10 is very clear to me. Anonymous mentions Article 10(1)and(2)(a)(f) and(h) and asks ¨What is unclear about this?¨ The answer is nothing is unclear. Of course the president has functions and powers according to Article10. However the way he is filling in his functions and misuses his powers is in many many cases wrong and criminal. The president, or better the maffia-team Battistelli does not seem to be bound by any law at all. Not the Convention Article 23, Article 4a (when was the last obligatory diplomatic conference?), no national laws, no human rights, not the general principles of law protected by the Community legal order. According to the by you cited Article 10 the president ¨shall exercise disciplinary authority over the employees¨. Even that president Battistelli is doing wrong because the disciplinary committee concluded that Hardon is not guilty of any wrongdoing and Battistelli does not consider himself to be bound by such findings. The maffia-team Battistelli has no respect at all for people and any law. Benoît Battistelli is not able anymore to accept different opinions of Unions,journalists and politicians. I repeat, when you do not agree with him or have critics he becomes agressive and you soon will have a visit of the Investigation Unit. I am afraid that the protest this week with a few thousend participants inclusive directors does not impress him and the biggest part of his maffia team at all. Benoît Battistelli believes in a conspiracy against him. Ill people often have such thouhts. Read his letter in reply to the letter that was sent earlier this week to the french Minister of the Economy, Industry and Digital Economy, Emmanuel Macron, and which Pierre-Yves Le Borgn’ had published on his website http://www.pyleborgn.eu/2015/11/crise-a-loeb-reponse-du-president-battistelli/. See for the letter of Battistelli:
    http://www.pyleborgn.eu/wp-content/uploads/2015/11/R%C3%A9ponse-Pr%C3%A9sident-OEB.pdf This letter is worth te be analysed by a psychiatrist.

  32. I can only deplore most profoundly this adoption of a public stanceSunday 22 November 2015 at 12:48:00 GMT

    And we even have an english translation of the letter of Battistelli to the french politician:


    (a little down the page)

    My favourite passage:

    "[...] the Investigative Unit of the Office, composed of mothers and fathers dedicated to a task which is often difficult but which is indispensable in the fight against fraud, harassment and other offences which could destabilise our organisation".

    It looks like even the Communication Department with their new employee has no control over this guy anymore ...

    Better so.

  33. Dear Kilroy, Mr. Batistelli says in his letter that he is willing to enter into a discussion with any willing union, including SUEPO, in order to come to the signing of an accord-cadre. I understand that SUEPO is not willing to participate in this project. An accord-cadre might be the proper way of normalising the relationship?

  34. In ipkitten of Tuesday, 17 November 2015 I read the following very clear and well and to the point for the representatives in the AC formulated two passages.:

    ¨The institution for the governance of which you are legally responsible is teetering between malfunction and dysfunction. From being a highly praised and much-admired organisation it has become a hotbed of suspicion, rumour, allegations of corruption and insurgency, accusation and counter-accusation. It has lost the respect of a substantial number of users, employees and officers. Its public relations policy -- if indeed it has one -- has failed to engage with the issues that concern the intellectual property community and which form a large part of its
    current agenda. Its apparent inability to stem the exponential surge in staff disputes has all but brought the International Labour Organisation's mechanisms for dispute resolution to a grinding halt. Its integrity has been increasingly questioned and its image has become a laughing stock and a byword for a dictatorial management style that has no place in an open, democratic Europe.

    You,as members of the Administrative Council, are responsible both for the approval and formation of EPO policy and for its execution. How many of you have sought and been given advice from your respective governments with regard to current events in Eponia? How many of you, in the light of your other commitments, have the time, the resources and the information to enable you to play an effective role within the Administrative Council? How many of you can honestly say that you are happy with the present state of affairs? And how many of you are simply too scared to be able to stand up to the EPO's management?

    If you agree with this, please feel free to cut and paste the two paragraphs above and email them to your country's Administrative Council representatives, whose identities are listed here.¨

    I fully agree with this, I cut and pasted it and have send them to my country's Administrative Council representatives. Perhaps much more people should do this. Does anyone already have any reaction of a representatives ? I am afraid that the majority of the AC members are too scared, ashamed and cowardly for a reaction. Perhaps Pierre-Yves Le Borgn’ could inform the french Minister of the Economy, Industry and Digital Economy, Emmanuel Macron, that the french representatives got these information and questions.All goverrnments should be informed about what their representatives are doing and not doing in the AC under chairman J.Kongstad.

  35. Grand Conseil de l’Ordre des Compagnons du Beaujolais says to BB as a member….

    “One should always be drunk. That's all that matters...But with what? With wine, with poetry, or with virtue, as you chose. But get drunk.”

    ― Charles Baudelaire-

  36. @ Kilroy was here: "I cut and pasted it and have send them to my country's Administrative Council representatives."

    If you are an employee of the Office, may I ask you if you dared to put your (real) name on it?

    It's not an ironic question.

  37. "If you agree with this, please feel free to cut and paste the two paragraphs above and email them to your country's Administrative Council representatives, whose identities are listed here"

    @ Kilroy was here

    The idea of Merpel is a very laudable one, but just imagine if one of the country's Administrative Council representative arrives at the meeting of the AC with a bunch of emails with the above two paragraph and somehow they fall into the hands of the President ("Dear Representative, we are very open to criticism and we will duly take you suggestion into consideration. Btw, may we have a copy of these emails? You know, to check if they were not sent by the same person ...)

    You can rest assured that in the office of any EPO's employee who has sent an email the Investigative Unit will find further arms and nazi propaganda.

    I would really like to hear some comments here (Merpel?)

  38. In such situations you should always encrypt your browsing and mail activity and hide your location. There are plenty programs which can do that for you. It seems for an investigator that you are not in Frankfurt but your server is in Australia or the country of Vice-President Mr Topić. Your sign your mail with another name, for example Benoît and apologise for not using your real name because of ControlRisks, IU etc. Further tell your representative that you hope that in the near future you can use your own name again without ControlRisks.

  39. It is never a good idea to post something anonymously, even under the present circumstances, because it can be easily disregarded. The President has already accused the Board member of masquerading under different identities, so the only remedy is to use one's own name, which I intend to do. After all it is not bringing the Office into disrepute, it is simply expressing concern, and it is an internal communication to one's own AC member, so I fail to see how it could give rise to any disciplinary measure. Anyway, if enough people do it there is safety in numbers.

  40. I am working at the EPO and discussed sending Merpel's (excellent!) statement to our AC representative with a colleague of mine. We both agreed that we would never dare to do this in our own names.

  41. Epanimous says:

    According to the rules staff is not allowed to contact their AC delegates, as far as I understood. Superann, you are overly optimistic: you do bring the office in disrepute because you give voice to criticism of our holiness.

  42. I seem to remember BB allegedly personally removing notes left for AC members by the staff committee so I presume he doesn't consider it allowable. You can expect to be investigated re. harassment of any identifiable members of mgt and possible defamation.

  43. Yes, you have to be a bit careful about how you word something, and avoid accusations, but merely stick to facts in the public domain (damning enough). Could someone please let me know where it is said that you are not allowed to contact your delegate? I'm sure BB does not like it, but that is not the same as it being against the Service Regulations. I have already done so a while ago on another matter. So far no comeback.

    Anyway, I'm doing it and I'll let you know if there are any consequences.

    By the way, where are the patent attorneys in all this? They, or their professional organizations, should get active. Politicians cannot ignore representatives of industry as easily as they can civil servants.

  44. ILOAT Judgment No. 2114 in re Vollering.
    According to this Judgment staff of an IO should not contact members of a national Parliament in relation to matters affecting the IO.

    However, this does not seem to be the same thing as bringing matters to the attention of members of the governing body of the IO.

  45. From judgment 2114:
    "12. In expressing his opinion regarding developments within the EPO to a member of parliament, the complainant seems to assume that it is the role of national parliaments to control the actions of international organisations. This betrays an attitude on the part of the complainant which undermines the independence of the international civil service of which he is part."

    It seems to me the ILOAT got this completely wrong. In the case of the EPO and most other international organisation, of course it is the role of national parliaments to control their actions...

    The delegates forming the Administrative Council control the EPO and who else controls the delegates than their national parliaments?

    The ILOAT mixed up the concepts of host state and member state. It is certainly not the role of the host state to control the international organisation (though there may be limits to that principle, as confirmed by art. 20 PPI). But member states, through their delegates, very obviously can and should keep check on the EPO. After all, the EPO does not exist for its own sake, but for the sake of the member states. Incredible how the ILOAT could overlook that.

    On the other hand, in my view an international civil servant does misunderstand his own position if he feels that he stands in a special relation to the delegate of his country of origin or to the national parliament of his country of origin. An international civil servant must serve the interests of the international organisation, not those of his country of origin. And the delegate serves the interests of his country and not those of his compatriots working for the organisation. (Obviously it is in the interests of each member state that staff of an international organisation is treated decently.)


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