Rumours from the AC, and four remarkable letters

The EPO Administrative Council met today and its meeting continues tomorrow. As regular readers of the blog will know, one of the most important items on the agenda is a proposal from the President, Mr Battistelli, to reform the Boards of Appeal, move it out of Munich, and create a new oversight structure.

Breaking, but unconfirmed, news
Unconfirmed reports are that Mr Battistelli's reform proposal has been rejected outright, which if true would be a major defeat for Mr Battistelli in his ongoing conflict with the Boards. Merpel will post again when she has confirmation of this news, or anything different emerges.

Another report, also unconfirmed this evening, is that the AC has told Mr Battistelli to remove the freeze on recruitment which has progressively crippled the Boards to the point where they are now missing about 20% of their full complement.

Four letters, one worrying theme
  1. Merpel learnt today that the President of epi -- the body which represents all European Patent Attorneys -- wrote to the Administrative Council detailing several fundamental criticisms of the reform proposal, and contradicting the narrative from Mr Battistelli, that there was broad support for his reforms. The letter is here, and is remarkable in that it appears to tell the AC that if it wants to know what was said by respondents to the consultation run by Mr Battistelli, they should read the responses for themselves rather than trusting the synopsis written by Mr Battistelli. There is far more to the letter than that, however, and all European Patent Attorneys at least should read it so that they understand the issues on which their body wants to be heard.
  2. Merpel also learnt of a letter from the Dutch group of AIPPI criticising Mr Battistelli in similar terms as regards the consultation and his presentation of the results to the AC, but going further, criticising his approach to the “increasing number of conflicts” emerging from the EPO, an approach which, it says, “tends to aggravate [the issues and conflicts] without necessity.” There’s plenty more in similar vein, which you can read here.
  3. Merpel previously reported that the Praesidium of the Boards wrote to the AC over Mr Battistelli’s head, complaining that it had not, contrary to what was presented to the AC, been properly consulted, and nor had its criticisms of the proposals been reflected in Mr Battistelli’s latest proposal.
  4. Then, a few days ago, the Association of Members of the Boards of Appeal (AMBA) which represents “nearly all” Board members wrote to the AC, also over the head of Mr Battistelli, to endorse what the Praesidium had said and to add some additional observations and criticisms of their own. Again, well worth a read if you want to understand the issues (but maybe you no longer need to, if the proposal is really dead in the water).

What to make of all this? It is worrying that four different but highly respected groups, most notably epi which is usually tactful and understated to a fault, feel the need to tell the AC directly that they cannot trust what Mr Battistelli has said. That the Boards of Appeal had to address the AC directly has been noted also in rather strong terms by the usually rather reserved Kluwer Patent Blog, in an excellent piece by German and European Patent Attorney Thorsten Bausch.  It is, however, encouraging if the AC has in fact turned down the proposal, as it means the AC is taking its responsibilities seriously and is listening to views other than those presented to it behind closed doors. Merpel has seen false dawns before but hopes that the AC is stepping up to its responsibilities, something she has long called for. She will be the first to applaud them, and loudly, if this marks a turning point. The EPO needs a strong AC, as do all who interact with the EPO, whether as parties to proceedings, as attorneys, or as employees of the organisation.

It’s anyone’s guess where this will go next. Merpel’s guess, based on another rumour she has heard, is that the AC will take the reform of the Boards entirely out of the hands of Mr Battistelli, and will develop its own proposals, perhaps through a sub-committee or within Board 28 (its internal management committee).

Interestingly, Merpel notes that it’s just over a year since the “House Ban” story broke. What a turbulent twelve months they have been for so many people.

Rumours from the AC, and four remarkable letters Rumours from the AC, and four remarkable letters Reviewed by Merpel on Wednesday, December 16, 2015 Rating: 5


  1. Minor point re. last paragraph - of course, the President is still one of the members of the Board 28.

    But thank you for your summary. Oh what a tangled mess. How could the boards recruit when their future location is still unknown?

    PS 880k euros well spent?

  2. An old report was that the AC has told Mr Battistelli to negotiate unions recognition with SUEPo
    resulT: suspension of 3 senior Suepo members

    Merpel wrote: Another report, also unconfirmed this evening, is that the AC has told Mr Battistelli to remove the freeze on recruitment which has progressively crippled the Boards

    How many members of the BoA will be suspended ?


  3. Clooney remarks:
    AIPPI and Epi finally woke up from their long sleep. Better, because more courageous and complete, is the letter of AIPPI. Now BB will get slaps from all directions on all issues: wrong on DG3, unrespectful of rules of law, disregard for due process, harassment of employees etc. He will have to get out of here with his team, and quick. At last...!

  4. Bringbackalib. said.....

    The contract extension last year of Batters has turned out to have been a huge misunderstanding.Due to an administrative error he was urged to re-sign and not resign!!

  5. The Board 28 is composed of five of its members (Art. 28(1) EPC). They are the Chairman and Deputy Chairman of the AC and three other members elected by the AC (Art. 28(2) EPC).

  6. The president is not actually a member of Board 28 although he does traditionally attend its meetings (not to mention drafting its agenda ... :-)) ...

    However, unless I am very much mistaken, the rules of procedure would allow him to be politely asked to leave the room.

    Whether or not he would in fact agree to do so without throwing a hissy fit remains to be seen.

  7. Check,
    BB attends each meeting and is required to agree to adoption of the agenda. Other than the AC members he is the only other addressee of the invitation with the agenda.
    I think you'll find that, not really surprisingly, he (like all other presidents since the beginning of the B28) is an integral part of the body that decides the AC meetings.

  8. In the Comments thread, the first thing we see is wishful thinking, that the days of the President are numbered. Get real, people.

    All I see is that the AC's period of "wilful blindness" has come to an end, marked by a Meeting that recognises that the AC "has a problem" but then addresses the problem by "kicking it into the long grass" by delegating to a committee the discussions about a solution.

    Imagine in a real world corporation, when the Board finally finds out that its CEO has been so seriously misinforming it as BB has the AC. That CEO would be out on his ear faster than you could snap your fingers. But the AC is not business. It's politics. And in politics, the behaviour is different. Every AC Member has a vested political interest in not rocking the boat. None of them has any appetite to bell the cat or answer to the Elysee Palace or propose a Motion of No Coninfidence in BB, far less fire him.

    BB will serve his full term, I'm sure. Is the AC capable of imposing on him any meaningful restraints? If so, how? Who is going to police him?

    Political fix? Can the Government of France pull BB out of Munich, find him a more important role in Paris?

  9. I heard through the grapevine that feathers were flying at last week's B28 meeting, but without any further details.

    At long last, a faint shimmer of hope! What took epi so long?

    But remember, as American philosopher Yogi Berra could have said, "it ain't over until the fat lady sings" [in fact, he actually said something else], and the EPO is deeply scarred.

    What's next? Le Président discovers an hideous conspiracy within the AC, and revokes it?

    That would be hardly crazier than the latest story circulating.

  10. If the news of the end to the recruitment stop in respect of the boards of appeal is correct, this is good news. However, any appointees will be subject to the new service regulations which allegedly impose a one year probationary period. I would suggest that appointees serving this probation cannot act as members of a board of appeal since A. 23(1) states that members may not be removed from office during the five year term of appointment unless the AC has decided on this following a proposal from the EBA. If I am losing my appeal and a member is a new recruit I will be sure to file an objection in respect of the board not being properly constituted pursuant to A. 21.

  11. BB will serve his full term, I'm sure.
    I tend to agree that the AC is unlikely to dismiss BB.
    That would be far too radical a step for those little lapdogs, ahem I mean, pussy Kats.

    Is the AC capable of imposing on him any meaningful restraints? If so, how? Who is going to police him?

    Therein lies the crux.
    BB is congenitally capable of tolerating any restraints.
    Certainly not from his "subordinates" on the AC.

    When anyone tries to restrain him he is famous for throwing a hissy fit and threatening to resign. So far it has worked a treat and the AC has always backed down and said "Yes Massa!".

    But the question is what would happen NOW if he throws such a hissy fit.
    There is a very real risk that his bluff could be called.

    Thus as the dialectical system immanent contradictions become ever sharper and the integument reaches the point where it is ripe to burst asunder, it may be that BB jumps thereby sparing the AC the trouble of having to push him.

    The key issue here seems to be "psychological" rather than "political":
    How much restraint can such a super-size ego endure before it cracks?

  12. "If I am losing my appeal and a member is a new recruit I will be sure to file an objection in respect of the board not being properly constituted pursuant to A. 21."

    That will never work.
    See Article 24(4):
    "An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. "

    You have to file the objection at the start of the procedure not after you have lost !

  13. If BB *does* resign (or is pushed), who takes over? The heir presumptive is surely none other than the Chairman of the AC, Mr Jesper Kongstad, who so far appears to have been in cahoots with BB. Or would the demise of BB discredit Kongstad sufficiently to prevent him ever having a realistic chance of inheriting the role?


    The Link is a timely reminder of the perils of protesting against something you think is wrong. And of what we treasure, here in Europe, namely, the Rule of Law, under a secular State.

  15. Of Kongstad, what does "in cahoots" mean. Was K urging the President on, or doing his best to restrain him? Illuminating would be which horse K chooses to ride, in AC Meetings, as from now. In this, as in everything else, we depend on the competence of the Members of the AC to get on and do their job.

    After all that JK has been through, and learned on the job, he might make an excellent EPO President. Or at least, a better one than any other available candidate.

  16. Disgusted of Tunbridge WellsThursday 17 December 2015 at 12:14:00 GMT

    I am appalled and "disheartened".
    This has all the hallmarks of an orchestrated smear campaign designed to discredit CA/98/15.
    The irresponsible behaviour of AIPPI and EPI is clearly being steered from behind the scences by a mafia-like entity.
    The AC must immediately approve a massive increase in the investigation budget for 2016.

  17. I tell you what "cahoots" means.
    B has just persuaded the AC to agree to a change in Article 95(3) of the EPO Service Regulations. Henceforth members of the Boards of Appeal can be suspended on half-salary by the AC (in cahoots with the President) for - wait for it - up to 24 months.

    If this is true, then bye bye judicial independence at the EPO ...

  18. Not quite true Ms. A - under 24(3) members may only be objected to for one of the reasons mentioned in 24(1) which do not include an objection that the board is not properly constituted.

  19. " To Rumour.."

    Is this true? Has anyone more information?

  20. The Cat that Walks by HimselfThursday 17 December 2015 at 16:41:00 GMT

    Article 23 EPC
    Independence of the members of the Boards
    The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term

    I would read this provision as removal or measures having an effect equivalent to removal.

  21. The AC is actively prossecuting the case of a member of the BOA. In what civilised country can the prossecuting body change the lwas of the pressecution to the disavantage of the prossectued and to the advvanatage of the prossecuting body? Should the AC not wait at least untill this case is closed?


    1. Barbi,
      They had to change it since the suspension had already lasted a lot more than 4 months? That's their thinking. Of they break the law - change the law. Because they can

  22. Folks,

    let's celebrate today's outcome of the AC.

    Battistelli lost several battles - he wanted to take off the DG3 paper - but was informed by the Chairman that this paper was approved on the agenda by the AC, and that it was not in his powers to withdraw it.

    Then the Swiss made some "administrative" remarks. They all were very clear that the President overstepped his powers to make such proposals. The reform of DG3 will not be a matter to be proposed by the President, but the AC will have to do it on his own.

    The tax adjustment proposal was dismissed.

    When praising his own work in the report of activities, the German delegation interrupted him. They told him that the report was 95% on technical matters and only 5% on social matters. They expected something else. The proposal for a social study was dismissed, again the AC takes this task on his own.

    The President told the AC what majority they need if they want to get rid of him - if you ask for it?

    I saw many smiling faces today at the EPO, some even were sipping champaign.

  23. Merpel was right about the AC saving the BoA but unfortunately the AC approved BB´s proposal of a 2-year suspension (from 4 months). Very disappointing ...

  24. By the way, next year a new AC chairman needs to be elected - maybe time for a DE-CH tandem when another position is emptied ??

  25. to the old man of epo...

    I understand that the AC is in trouble, but why dig deeper into the trouble? If it is ture, then the AC put itself now in a manifestly apparent conflict of interest!
    This does not help the prescetion of the EPO as a mess.


  26. By the way, next year a new AC chairman needs to be elected - maybe time for a DE-CH tandem when another position is emptied ??

    Hopefully they will have ditched Kotzenbacher before that happens.

  27. at maxdrei who wrote "After all that JK has been through, and learned on the job, he might make an excellent EPO President. Or at least, a better one than any other available candidate. "

    you have no idea of all what JK has seen or done since he was the closest ally of BB during all these years....

    this is the last one you wish to see taking the AC at this stage

  28. JK was always ¨his masters voice¨. Therefore he would be not my choice. He should follow his master. He accepted all the cruelties BB initiated fot the union and in particular Mrs Hardon. She could be in the top management as e very honest and intelligent person with a lot of experience.

  29. Whispers,
    Perhaps the AC could suspend him for 2 years on half pay, ban him from other IP work for another year and tell him to go to the ILO if he doesn't like it?

  30. @Whispers

    Indeed, encouraging news, but still too early for a celebration.

    BB seems to cling on. Even if he would leave early, his team will remain.

    And at least 4 wistleblowers are suspended. They'll either loose their job or get a 50% salary cut.

  31. Please, cheer up!

    There are well founded rumours that BB and his team are going to be sent to Miquelon-Langlade ( administrate this overseas French territory. What a dismay when they'll learn that they wouldn't retire in Porticcio (Corsica).

    All nightmares come to an end....

  32. Could it be that BB has in his contract, secretly negotiated with JK on behalf of the AC, a very generous severance agreement in the event that the AC shows him the door?

    Aliens still in underpants

  33. The AC swallowed a lot in the last years: a President constantly showing them that he is more intelligent than them, that they only should say yes, that anyone showing a different opinion is a stupid enemy. But once they said yes for a very political case involving highly regarded principles (separation of powers), and looked stupid in the public by the EBoA rejection and the letters from all sides. And then they remember the dirty tricks like spying and suspending several staff reps at the time. They slowly realised that the internal investigation unit is worse than some secret police in totalitarian states.

    Now they have a perfect solution: get rid of Battistelli, which makes them popular at the EPO staff, but not correcting any reform, except maybe the investigation unit.

    Instead of firing him, they apply a more sophisticated scheme: ask him to do things he really hates, such as asking for real negotiations with staff reps.
    And make him look silly and powerless by saying no to his proposals, and explain publicly why his proposals are silly or unlawful.

    Why should they get their hands dirty? France will find a place for him somewhere.

  34. The president has not yet gone and his power of nuisance is still intact.
    Should he however go, his minions will not stay for very long as having lost their protector they might experience exactly what they thought fit to impose on others.
    In any case, the sooner the better the president and his cronies go, the better it will be for the office.

    CA/98/15 might the document too much. Saying for instance, that it is because the local authorities in Berlin were not helpful that the transfer of the boards to Vienna has to be implemented is a slap no government can accept. Simply lying to the Council about the results of the consultation was something he should not have done. Mixing the independence of the boards with a cooling off period was outrageous. One could rather say, that himself and better his minions will never get a job in IP. So it would be nice to continue being fed by the office for a year or two....

    CA/98/15simply shows that is so full of himself that he is even stupid to come up with a gross misrepresentation of the facts.

    Why did epi, AIPPI not react earlier? Precious time could have been saved.
    Having lost on the side of the boards, his revenge and wrath against people directly under his control, i.e. all staff other than that of DG3, will be terrible.

    À propos cooling off:
    Cooling off might not be an absolute necessity for normal staff, but should have been necessary for a former French VP1 and his associates who opened a company doing inter alia searches, i.e. going in direct competition with the office. The company is called Europatis, and does attorney work without qualified representatives. It brags about its network of recently retired directors and examiners :
    - having a long experience in patent searching
    - competent, thoroughly familiar with the most advanced online research, which were often developed according to their specifications
    - with a thorough knowledge of classifications IPC, ECLA...
    - justifying a perfect knowledge of patent and non patent databases.
    Among the services offered are:
    - Help in defining the content of the invention and the formulation of claims
    - Novelty - Patentability
    - Oppositions, appeals, litigation
    - Bibliographic search to determine a possible freedom to operate
    - Geographical Freedom to operate
    - Technological and / or legal patent watch
    BB might have overseen the harm he could do for a former French VP1 when proposing his cooling off.
    How come that a former VP1 can propose services which are normally the privilege of qualified representatives?

  35. @whispers
    I submit it is very unlikely that BB may get a n honourable fall back job from the French government. He is on the wrong politic side, anyway, but above all he made such a display of his charming side with them since Hollande was elected that every goodwill is likely suspended now if not already dismissed. For BB it is now rather now
    Vaincre ou mourir.


  36. HelloKitty says:

    Battistelli was told by the council to renew social dialogue and stop harassing the representatives of the personal and he was, apparently, told privately by the French and Dutch delegations to stop the ongoing disciplinary procedures but he is still in post. What will he do next?

    There are 3 members of the staff union who are attacked in Munich. I think that all 3 hearings have been rushed through this week, so that the president can publish his 3 decisions before the end of the year. From what has been published from the procedure, it is obvious that this is a mock trial. There are simply too many procedural violations for the procedure to be believable.

    Will the president do what he was told by the council, stop the disciplinary procedures and reintegrate the 3 representatives? Or will he show the council that they are powerless to stop him and fire all 3 nevertheless?

    He can stop the disciplinary procedures, the service regulations allow him to do so. The disciplinary committees can find all 3 guilty, the president is still allowed to ignore their findings and reintegrate the 3 representatives. This is what he was explicitly instructed to do so any other decision will be contrary to the instructions of the council.

  37. Whispers,
    Are you referring to the incident when BB refused Hollande the use of the EPO building for an event on a state visit to the Netherlands? If so, how long till the next French presidential election?

  38. The outcome of the latest AC meeting was a half victory - half defeat for BB, which seen with the eyes of BB must´ve been a very bitter pill to swallow. The victory he´s gained, by having the AC accept the prolongation of the suspension period from 4 months to 2 years, may though be legally overturned by ILOAT.

    As I said before, one should count on the self-destructive abilities of BB. He won´t be able to change his ways now, at the zenith of his career, and he will certainly continue to annoy staff, attorneys and the AC. He´s also not ready to purr before the AC like a domestic pussycat and it will be interesting to see/hear his reaction to the latest AC meeting.

    There was a time when the presidents showed themselves before the staff at the end of the year. BB has only sent a congratulatory video with his Allo Allo René Artois impersonation but is nowhere to be seen down below, in the netherworld of the staff. In a true Christian spirit let´s wish him a happy Christmas and plus de sagesse dans la nouvelle année!

  39. Old Sad Man

    "How come that a former VP1 can propose services which are normally the privilege of qualified representatives?"

    Search and opinion services are not restricted by the EPC. It is only representation (activity before the EPO) that is restricted.

    Although the web site you point to mentions opposition and litigation, this is in the context of search and opinion services: and as any examiner should know, context affects meaning.

    Anyone can search, and anyone can have an opinion.

    People frequently tell me how little my opinions are worth....

    Apart from the somewhat boastful and dangerous assertion of "une parfaite maîtrise" I see nothing objectionable in the web site: however national law may see differently.

  40. France will find a place for him somewhere.

    Let us hope so.

    Is the Bagne de Cayenne still in French hands ?

  41. What a pity that Merkel has failed to report on a fifth "remarkable" letter:

    Namely, the "warning letter" sent by the President of the EPO to the Chair of the Presidium (VP3) telling him to be careful about contacts between the Presidium and the AC which had not received prior authorisation from the President of the EPO.

    Now that's a letter that would make interesting reading.

  42. As to the notorious disciplinary cases, thus far BB has trashed every recommendation from every instance. So, in each of the current cases of course the Head of State can cancel, waive, rescind, as he pleases. And he knows it well. He's an Absolute Ruler, up to now accountable to nobody, certainly not to the Rule of Law.

    Question is though, will he? Does he suddenly now start to do what he's told by the AC? Why should he? Will he turn to Herr Lutz for advice? Why should he? What's the point? What has he got to gain? What's in it for him?

  43. @MaxDrei
    "... Will he turn to Herr Lutz for advice? Why should he? ..."
    Yes, he will do so as he has done in the past, because Herr Lutz gives him the answers he likes to hear. Even though Herr Lutz as a German civil servant and former German judge should know better, he apparently never considers that there would be any objections to BB's proposed course of action under German law ...

  44. Thanks Dilbert. But "up to now" and "from now on" are two different things for Herr Lutz. He is a citizen of Germany and, presumably, wishes to live in Germany, so he might want to stave off any further loss of his reputation as a professional jurist, in Germany.

    When the long-standing schoolyard bully is suddenly smacked down, it can prompt his hangers-on and toadies to reflect on where their loyalties might lie. Not unknown for them, at a point such as this, to change their stance.

  45. Not that the trainwreck which is the EPO management debacle is not interesting or important, but does the topic really need to consume what I would guess to be 90% of this blog's comments?

    Is the matter affecting substantive patent law to that extent?

    I learn very very very little from the squabbling commentary, even with a mind willing to learn. I would much rather read this blog to learn something of intellectual property law outside of the US.

    Can we get back to that?

  46. To US Anon
    You don't have to read this particular thread if the O doesn't nterest you - there are plenty of other threads here on the IPKat that should be of interest to you. For Europe it IS imortant what happens at the EPO, don't you think, and this is an European blog, after all

  47. Dear THE US anon,

    I'm sorry that our little spot of local business over here is getting you down a little.

    (I) I would say that, yes, executive pressure being brought to bear on a supposedly independent appeal instance would affect substantive patent law, since the practice of the BoAs is eventually handed down to the Examiners for everyday use in the Guidelines for Examination.

    When it's your client's case going down, because (to pick an entirely hypothetical option) DG3 has been "leant on" to be more mean in their tolerance of Auxiliary requests, so to improve throughput, get back to us and join in with our squabble, m'kay?

    (II) Until that eagerly awaited moment, if you want to learn about EP intellectual property, there are lots of articles with lots of other threads awaiting your thoughts. Don't blame us if your position is akin to that of a person who goes to watch a poorly rated B-movie, only to emerge from the film theatre (ok, I'll do it just this once: movie theater) chiding the directors for their lack of taste. Happy Christmas!

  48. If it is true that the EPO´s staff regulations have been amended to the effect that members of the Boards of Appeal can be suspended on half-salary for up to 24 months by the AC, this would be a wonderful X-mas gift to those who contest the constitutionality of the EPC before national courts, and to all the opponents to the Unitary Patent in general.
    And how could Board members accept to seeing a colleague so punished after the EBA has considered the charges raised against him by the AC to be unsubstantiated, but still pretend to be "judges in all but name"?

  49. Anonymous Ketamin asked: "Where's the communiqué?"
    The Communiqué is in preparation but several standard clauses like "The Council congratulated the President, his management team and the Office staff for excellent results achieved in the period under review" unexpectedly appeared to require slight reformulation. Publication is expected early next year at the soonest.

  50. @Dear US Anon,

    I fully understand your issues with the derailment of all EPO related threads.
    The problem for us EPO employees is, that we cannot discuss these things elsewhere.
    If we do discuss it on union sites, this causes the unions to be attacked even more.
    We cannot discuss this on EPO Internal sites, as thoose would be removed as soon as management finds them, with corresponding problems for those who participated on those sites.

    Yes, it does not relate to substantive issues, but currently it is my main source of information, as otherwise I would have to try every day to find someone over in the unions rented rooms (while being observed to do so).
    And I do not want the union officials to have to explain everything several times a day to several others, they currently need their time to prepare their defenses, and their answers on further proposals from management.

    I am currently grateful to the kats for allowing this, and respectfully ask your understanding for this issue.

    Feel free to ask questions you may have, if you want in less "populated" threads. In EPO related threads I'll be hanging around and might even have an answer to any of your questions.

    Best wishes,
    one of those EPO examiners

  51. Anonymous 1501,
    Actually the Communique is out internally. Basically all went well and apart from needing to give further consideration about DG3, all went exactly as planned. The AC congratulated me for being so wonderful. Enough to make me wonder if all these reports are anything more than wishful thinking.

  52. @Crazy Santa Claus

    Well spotted, Santa.

    Once again, the President - and the AC - have shown that they are unable to see the consequences of their actions in the broad contest and in the long term.

  53. There is a very strange new trend of webpages suddenly disappearing.

    I just turned up the following in a Google Search:

    epi intervention before the Administrative Council of the European ... Proxy Highlight
    Reform of the Boards of Appeal- epi intervention before the Administrative ... 2015, Mr Battistelli presented a proposal for a structural reform of the EPO Boards of ...

    And then I went and clicked on the link:

    And what did I get ?

    Oops! An Error Occurred
    The server returned a "404 Not Found".
    Something is broken. Please let us know what you were doing when this error occurred. We will fix it as soon as possible. Sorry for any inconvenience caused.

  54. Dilbert et al,

    While what you say is indeed true - that I do not have to read this thread, the volume of comments (and even of threads dedicated to the subject) STILL drown out other aspects of my desire to learn.

    Pushing other threads that teach the merits of foreign IP law positions, both in threads and in the feature of "What you've been saying: readers' latest comments" does in fact steal away from the limited bandwidth.

    Partaking in blogs is necessarily a zero sum game, and even if I abstain from this topic, some bandwidth is indeed lost. I do not begrudge coverage of this item, as I do recognize that it is indeed important for those most intimately involved. But nonetheless, I do question the scope of coverage, and the inordinate emphasis that this is receiving.

    I ask again (plainly), does this item impact the substantive patent (and IP) law coverage of the EP to the same level of coverage that it has been receiving?

    The answer is one that - objectively - must be supplied in the negative.

    bottom-feeder - THANK YOU for posting a different - and thus meaningful addition (your inappropriate condescension aside). Your is exactly the type of post that is largely missing and beneficial. But must I have to sift through the repetitious (dross) of the typical back and forth that MOST of such threads contain to reach your jewel? In truth, that will just not happen.

    one of those EPO examiners,

    I think that you too miss the point that sheer volume of (repetitious) back and forth reduces any sense of concern for your position. I do "get" that the item is important. Being buried in the same types of posts for months on end simply reduces any sense of "sensitivity" that you might be attempting to gain. Like it or not, it all just becomes noise, and any valuable tidbit buried in the thread comments is simply lost in that noise.

    Sometimes, less really is more.**

    **and sadly, I am fully aware that sometimes less is not more. This realization comes from my own experience on this side of the blog when a certain viewpoint is placed so voluminously as to be a clear attempt at the rhetorical tool of "repeat a falsehood often enough that it garners a semblance of truth." If that is the case, then the blog moderators have a duty to step in and prevent the over-running of the blog for such propaganda uses. Even in the US, certain blogs (but critically NOT all blogs) still do not quite realize that duty.

  55. To THE US anon,

    you may report now, but not to the POTUS but to the POTEPO that you have delivered the message that POTEPO is not amused loud and clear, because, even Barbi got that.
    You may also report that Barbi thinks that POTUS and POTEPO are equla in some respects, namely both have nothing to say about what topics on this blog are or are not being discussed.


  56. For the person who saw information disappear from the EPI website:

  57. Barbi,

    Did you even bother to try to understand my post? I think not.

    I am not sure why you think my request (note: request - NOT demand) that some level of moderation as to volume (note: moderation NOT elimination) warrants your response.


  58. @Mysterious goings-on

    Here you are. Google does not forget...

  59. I have no quarrel with you, good Sir KnightFriday 18 December 2015 at 22:38:00 GMT

    To THE US anon,

    the IPKat: "Most Popular Intellectual Property Law Blawg" of all time according to Justia rankings ".

    I rest my case.

  60. No quarrel,

    That entirely depends on how that "popularity" is measured, eh?

    Trainwrecks always gather rubberneckers.

    Your case in rest may in fact prove MY point.

  61. US Anon,

    I note your desire to learn about European affairs, and suggest that instead of making ill-informed comments, you try reading.

  62. The US anon,
    Well, you have identified a problem, but what is the solution? Obvious solutions are:
    a) more responses or comments in the many other stories (I briefly calculated that only 2 of the last 25 postings from the various Kats have been about the EPO)
    b) nobody comments about the EPO social problems
    c) we ration the number of comments allowed about the same.

    Let me know if you have an idea about c) and how to put it into practice.

    PS You do realise that you are only contributing to the number yourself?

  63. Clooney says:

    When reading the report on the 146th AC meeting produced by the President's office, one realizes the perverted state of the EPO. The "excellent" results are obtained at the expenses of the health of the examiners who are in working now in a poisoned atmosphere and cannot longer enjoy their pedantic intellectual work. Using a metaphor, there is a difference  between egg production in a cage-free system and that in battery cages. In the latter, the hens get exhausted even if you feed them the best grains. 
    The working atmosphere at the EPO is no doubt poisoned by the management style of BB and his team. Ironically, their report refers to the need to"improve" the social dialogue and to "finalise the on-going negotiations". Social dialogue did not even begin! There are no on-going negotiations!
    On the contrary, staff representatives are being crucified and some will be sacked soon.
    The AC and the President have received several critical inputs on the present desperate situation, but they do as if nothing happened and go on with their absurd politics. The EPO has become a madhouse.
    BB should go, quick!

  64. Now BB has allegedly been advised by the AC not to fire the susspended staff reps. He does not usually take this sort of advice. However, I wander whether, in case that BB fires them despite this advice, the AC will prossecute then the charges of institutionalised abuse put before the AC by the staff rep in questoin.


  65. to Barbi

    I have no hope , whatsoever, that the AC will intervene in any prosecution of ordinary staff (prominent SUEPO or else)

    there was a cynical, ironical earlier remark concerning (a totally improbable) disciplinary action against BoA members for contacting the AC,
    sadly , however , a warning letter (ABMAHNUNG ??) may have beem sent on behalf of Mr. BB in this matter ( to VP3 ?)

    independence of the BoA ?

    Union rights ?

    free speach ?

    human rights ?

    gone into a black hole

    does EPO equate to Dante Alighieri
    "Lasciate ogne speranza, voi ch'intrate", most frequently translated as "Abandon all hope, ye who enter here." ?


  66. To THE US anon from Barbi.

    I read your contibutions and, perhaps, I understand them better than you might wish.

    Your chosen pseudonim and your comments project the air of someone not involved in European afairs and therefore objective.

    Having established that you go on to project the feeling of guilt on the users by complaining that they deprive you of opportunities to learn.

    Furthermore, building on the feeling of guilt you demand changes.

    Well, I do not feel any guilt.
    I do not see a need for any change.
    I susspect that you are not as univolved as your pseudonim and comments suggest.

    A person from the USA who is not involeved and objective does not need a pseudonim. Bill from Alaska would do just fine. However, by using a pseudonim you present yourself as one of those who do need a pseudonim. Thus you project the immage of belonging to the same group of peaple.

    I do not feel that you belong to the same group of peaple as I.


  67. @Cloones: there are negotiations ongoing.
    FFPE-EPO is about to sign a MoU with the office, which will include a passage about the strike regulations needing to be amended.

    That will be a huge victory for the management, even though FFPE-EPO is only local in The Hague, and based on the last election results published, have only about 90 members. But the election details were from 2009, the 2011 results did not include numbers of eligible votes, and apparently there have been no elections since.

    Best wishes,
    one of those EPO examiners

  68. With all due respect, Meldrew, for your own ill-informed comment, you get an F. U really need to understand that there is NOTHING in my comment that is "ill-informed." I spoke nothing out of turn, and the CONTENT of my comment is dead on.

    Old man of EPO, Thank you for corroborating the frequency, and yes, I have identified an issue (not sure exactly if "problem" is the best descriptor). As to your proposed solutions, you run into the problem of what one can and cannot control. You cannot force people to comment on stories, so the idea of "more" is out of your control. Your suggestion of b) is expressly NOT what I am talking about (as I have already made clear above: "note: moderation NOT elimination"). I imagine that c) comes closest, although I would posit that it is less "ration" and more merely editorial control to not let volume or back and forth overrun the thread.

    One solution that I have provided to a certain blog in the States is that certain sAme posters who are clearly intent on monologue as opposed to dialogue not be allowed to post a message that has already been posted, AND that does not take into account valid counterpoints raised for discussion. To end the internet-style "shouting down," one needs to realize that in this type of forum, "shouting down" may occur OVER many threads and is indicated by the lack of true dialogue. The editors of blogs DO have more information than the readers and CAN see if in fact it is the sAme ones engaging in mere propaganda and attempting the rhetorical tactic of "repeat it often enough to gain the appearance of 'truth'."

    PS, yes, I am contributing to the number, but no, I am not contributing to the "problem," as my posts seek to end the "problem." This should make clear that volume alone is not the problem - read again my posts, as I clearly state that elimination is not the goal, but instead, achieving a more balanced ratio with substantive law discussions.

  69. Be assured, US Anon, I do give you all due respect, and no more.

  70. Could we not simply ignore a troll that curiously wishes to learn about substantive patent law in a thread dedicated to the failure of the EPO's management?

    If that person wishes to complain about this blog's moderation policy, I advise him to look up the section "Want to complain?" in the sidebar. There he can find an email address to which he can direct his frustrations.

  71. Oh purrr-lease, give over. There are enough personality clashes around without manufacturing another. To a good many people at the EPO this really is of the utmost seriousness. That dirty washing is being wrung out so publicly is hardly a nuanced indication that all is not well in Eponia. The forseeable consequences deserve considered debate, wherever that has to take place , not anonymous trolling. Especially by those whose careers will not suffer retaliation by their employer if they are identified.

  72. To US Anon, Barbi and several others:

    There is a saying:
    Never discuss with a fool, bystanders may not notice the difference.

  73. Clooney remarks:

    When reading the pathetic report of the 146th AC meeting prepared by the President'office, I ask you to observe the subtle strategy underlying the report:
    In every point mentioned you'll find a negative or threatening remark with a specific aim.
    A) In relation to the unitary patent:
    "landmark achievement" but "after decades of discussions and negotiations" (ie only BB, the greatest of all Presidents, could bring it to conclusion!);
    B) In relation to the exceptional results:
    "stakeholders were asked to reinforce their effort to improve the social dialogue" (ie message: trade union stop boycotting the enormous efforts by BB who'd love to recognise you!)
    C) In relation to the injection of €200 million into the PRF,
    "without any contribution from the staff" (ie yeah, just a generous cadeau! P.S. Mr BB please remember that the staff earned that money for the EPO with their hard work!)
    D) In relation to the rejection of the absurd new scheme for national tax adjustments,
    "with some delegations expressing their opposition against the principle of the reimbursement of national taxation" (implicit message: attention! the EPO might abolish it in the near future)
    E) In relation to the comprehensive social study,
    it "will be launched in 2016, in parallel with a financial study (implicit message: further reduction of alleged privileged and high salaries in sight!)

    Do you see BB's strategy? That's how he fools the representatives in the AC and the press and remains on his post.

    BB, please, get out of here. Go back home and leave the EPO in peace. 

  74. @one of those EPO examiners:
    the public website shows the results of 2008 (blog date), there has been a vote in 2015 (no change in committee members).
    According to the minutes of the 2015 general assembly, 13 members were present, representing 14 votes (1proxy).

    I understand their reluctance towards the SUEPO, which does not use favourable terminology when refering to FFPE in most of their communications.
    The TH committee of SUEPO is luckily much less conflict searching when I heard them speak about FFPE.

    BTW, the link from FFPE-EPO to FFPE leads to a url which is for sale... [grin].

    Feliz Navidad!

  75. To US Anon,

    You would help by stopping your whining comments, "I want to learn more about European IP matters". You simply took the wrong blog. The present blog is a blog about problems at the EPO. That such problems night have an influence on the IP scene in Europe goes without saying, but is indeed not the prime subject of it. The production pressure put on examiners will be such that soon the quality of the granted patents might be the same as in the US. But now you will have the UPC to enforce them. May be this is what you want? Wait until IPKat deals with case law and then you might learn about European practice. There are other blogs dealing as well with case law. Look at those and leave the present blog in peace.

    It is to be feared that with the distorting prism of his own ego, the president might not even have realised that the AC was not ready to follow him on every idea he and his minions come up. Just a few adjustments are to be done here and there. Just minor points. His wrath will be terrible. The sacking has only begun. I take bets that there will be more to follow.
    If he would be an intelligent person, he would take the rebuff as a good pretext to leave. He has a wonderful excuse: I wanted to clear the mess at EPO, but you, AC, did not let me do as I wanted. Do not complain if later it backfires at you!

  76. Old sad man,

    If indeed what you say is true ("You simply took the wrong blog."), then THAT is what is truly sad.

    My apologies then and enjoy, fully and WAY out of balance, the soap operas that this blog caters to. It is indeed my mistake as I was looking for a genuine LEGAL intellectual property forum.

    Do you have any suggestions for such?

  77. ..and let me note in parting the irony of those that would label my call for LESS whining as itself some type of "whining."

    Sadly, that TOO might be beyond the grasp of those doing such accusing.

  78. To Horza

    Dear Friend, be careful what you quote:"does EPO equate to Dante Alighieri
    "Lasciate ogne speranza, voi ch'intrate", most frequently translated as "Abandon all hope, ye who enter here." ?"
    I used the same quote in the thread "Merpel pays a brief visit to Eponia".
    You might get a reaction such as "stupid thoughtless comment" from a total Anonymous (not even a nick name given) then your post gets deleted by Merpel for its content. At least that happened to my post.
    Do not waste your time crying for EPO liner, it has been damaged beyond repair long time ago. The result of the last AC meeting was that the first class passengers (BOA members) just got a sit on the rescues boats. The rest of 2nd and 3rd class passengers (examiners and formalities officers) will still go down with the liner. So, as a friendly advice, instead for crying for the EPO liner you better think for a personal/individual rescue plan before the water gets to your mouth. At least this is what I do.



  79. Do you have any suggestions for such?

    Much can be learnt from a study of Federalist Paper No. 51

  80. Here is a Link to the Story of another clever Frenchman who thought that the Rules that apply to everybody else certainly do not apply to him:

    But Michel Platini has now crashed to Earth, rather like Icarus. Banned for 8 years, no less.

    The higher they might easily suppose.

    The thing is, what do you do if you are flying high, pulled along on the coat tails of Icarus? Time now to organise your own soft landing perhaps?

  81. I presume the communique writing department is now on its winter vacation so the results of last weeks AC meeting can quietly be forgotten or at least be put off until mid-January

  82. Dearest Max,

    The difference between FIFA and the EPO can be summed up by the famous words uttered on 4.10.1981 to the Sunday Times by Bill Shankly (1913-1981):

    "Some people think football is a matter of life and death. I don't like that attitude. I can assure them it is much more serious than that."

    (I believed until today that it was a German saying, like "Der Ball ist rund". Good thing I checked.)

    As to patents, well... I very much doubt that "they" (I mean the AC and the EPO "management") actually believe their own verbiage about progress, growth, a knowledge based economy, the "citizens of Europe", the "world's premier patent office" (whatever that means), etc.

    Do you?

    Since you quote the Grauniad, I'll jump on the opportunity. From you presence in the CIF section, I thought that rugby was more your topic of predilection, but I saw this titbit on general politics you wrote last June:

    But investment comes only with the confidence to invest. When a country (here: Greece) has politics but no functioning courts and no functioning government administration, and no prospect of such, who is going to find the confidence to invest there?

    I am very tempted to transpose your statement to the governance at the EPO, and of the European IP system in general, from the NPOs to the UPC...

    Season's greetings,


  83. It seems that not all of the EPO is on vacation. The communique of the AC's meeting has been released.

    "After the Chairman's activities report, covering in particular the last meetings of the Board of the Administrative Council, the President of the European Patent Office Benoît Battistelli gave an update on developments at the Office since the previous Council meeting. The Council was particularly pleased with the remarkable results achieved by the Office in terms of production, productivity and quality. It nevertheless again expressed concern about the deteriorated social climate and called for initiatives and genuine efforts from all parties involved to seek compromise solutions to end a situation detrimental to the proper functioning of the Office and the public image of the whole Organisation. The Council hoped that the independent, external social study to be launched at the beginning of 2016 would be a significant contribution to improvement."

  84. The official Communiqué on the last meeting of the AC is now online:

  85. I am struck by the exhortations in the Communique for "compromise" on all sides. More useless hand-wringing and more futile expressions of disappointment.

    I defer to commentators here with better inside knowledge than me, but I wonder, do general readers (or even the political masters of those who sit on the EPO's AC) realise how remote the EPO is from the Rule of Law, when it comes to disciplinary proceedings against EPO employees?

    As I understand it, any unfortunate employee who comes to the attention of the authorities in Eponia faces disciplinary proceedings in which the EPO President is the prosecuting entity. Not only that, the President's men form the tribunal that hears the case and passes judgement on it. Not only that though. It is the President that enforces the judgement.

    And if the President of Eponia does not like the judgement, he is free to ignore it, re-write it, and enforce the judgement as re-written to his liking. There's nobody (except the AC) to stop him.

    Here in Germany, there are great expectations placed on adults, to set a good example to the children. Woe betide anybody who zips across a street in the presence of little children, before the pedestrian traffic light has switched from a little red man to a little green man. Rules are to be obeyed, not broken. Officious bystanders do more than wring their hands. They inform the police that you have committted an offence.

    But whenever there are no Rules, why then you can behave as you like. Speed down the 2-lane Autobahn A 92 to Deggendorf at 250 km/h? Even when the inside lane is full of slow-moving traffic and the road is greasy. No problem!

    So imagine The President's Chief General Counsel, his German Consigliere, Herr Lutz, giving advice to his boss, whispering in his ear. Boss, ignore the AC. You break no law, you offend no Rule. There are no police. Ergo, you do no wrong and there is nothing to stop you continuing, boss, to your heart's content.

    In truth, the only thing that can stop the reckless vehicle is the AC. And all the AC seems capable of doing is wringing its hands and calling on the parties to "compromise". Is that the best they can do? Is that all they've got? The faceless members of the AC ought to be ashamed of themselves.

    As for the political masters of the AC members, politicians have this great ability to see things in a way that no shame ever attaches to them. They all fancy themselves as Teflon Tony. They distance themselves, don't they, and deny any responsibility.

    On mainland Europe, nobody understands the English notion of equity/fairness. English readers just do not grasp how offensive it is to the Rule of Law, what goes on inside the EPO. The villain is a Frenchman that looks like Napoleon Bonaparte and the season of pantomime is upon us. When the English yellow press runs the story though, it will be another reason for English voters to decide to walk away from the EU.

  86. Just in - an interview with BB on the Managing IP website.

    The section on the Boards of Appeal, in particular, is full of what can only be described as complete and utter rubbish:

  87. After the AC itself has come to publicly acknowledge "a situation detrimental to the proper functioning of the Office and the public image of the whole Organisation" (see its recent Communiqué), the President´s continued denying in the Managing IP interview sounds abolutely pathetic.
    Clearly James Nurton, the interviewer, got remarkably well informed of the situation at the EPO, and some of his apparently innocent questions are just as many hits (e.g. "Can you do things better or are you resolutely sticking to the path you are on?")

  88. Slartibartfast...
    I see we have the repeated 'quality is ever better'. My sources tell me that EPO staff can see that their balanced scorecard shows all quality numbers for DG1 are worse in 2015 than in 2014 and those are BB's own figures. Perhaps someone can confirm? Certainly the motto that if staff reach my targets I can't be doing anything wrong is a bit sickening. And the 'it's only a minority' must surely be wearing thin...

  89. In the interview, President Battistelli characterizes DG3 as an administrative unit of the EPO, composed mainly of EPO examiners. He tells us that the EPC Member States deliberately chose not to create a judiciary body under the EPC but, rather, a mere administrative unit of the EPO.

    Is this what the AC now thinks? Does this explain the unseemly rush to bury DG3? Has the thought taken root, at AC level, that all of the 38 EPC Member States are failing, still, even after more than 40 years of trying, to comply with GATT-TRIPS?

    I don't understand. I thought it was well settled, that DG3 is a judicial not an administrative instance. Is the EPO President so almighty that he can by fiat declare DG3 to be administrative and NOT judicial?

    Or is all this just a manifestation of the pan-European political imperative, to jump start the UPC?

  90. The President´s public statement that the Boards of appeal are an administrative and non-independent unit of the office amounts to a complete reversal of the position which had been successfully maintained for more than 40 years and had been absolutely paramount to the recognition of the European Patent System by national jurisdictions.
    This is indeed a disastrous move, which might have dramatic consequences.
    It looks as if the President, after having been discharged by the AC at its last meeting of any further responsability in the necessary institutional reorganisation of the Boards, had in his rage decided to broke the toy altogether. And beyond the Boards, it is now the AC which he attacks.

  91. I don't understand. I thought it was well settled, that DG3 is a judicial not an administrative instance. Is the EPO President so almighty that he can by fiat declare DG3 to be administrative and NOT judicial?

    BB's interpretation is not consistent with what is recorded in the Travaux Preparatoires:$File/Art23eTPEPC1973.pdf

    Quick ! Make a backup copy before they disappear online ...

  92. Why should BB and the AC trash DG3 like this? Do not underestimate the political influence (in Davos and Brussels) of the giant international Anglo-American patent litigation law firms, by lobbying to bamboozle Euro pols into supposing that the UPC will be an improvement, and by inducing BB to join their cause.

    Fact is, that disputing patent validity at the EPO (for 38 jurisdictions) is cheaper by a factor of from one to a hundred thousand than litigating validity in the USA. For more than 35 years, these law firms have been spitting in frustration, that the work is done not by them but by European patent attorney firms. They want their full wad and, with the advent of the UPC, they're gonna get it, OK?

  93. 1/2
    It is my impression that the present and in particular the future legal situation concerning patents in Europe is becoming extremely uncertain. In a world where we thought that responsible persons would cooperate to maintain a legal framework that is predictable, we see massive attacks on integrity and a future situation akin to those states that merely registered and did not examine patents and left all patent construction to the courts. All the good words and the work to preserve the balance between those who invented and those who could afford to litigate is now being put in question and deliberately destroyed.

    A legal attorney, registered to practice as such in one of the member states of the EPC, is permitted to represent before the EPO without any proof of competence. Those attorneys who do precisely that will nevertheless have studied the EPC, the Guidelines, and the "Case Law of the Boards of Appeal of the European Patent Office" anyway. However it now turns out that these texts are not to be valid anymore. In the future it will be absolutely useless knowledge, because attorneys will begin to represent holders of doubtful patents against possible infringers, and they will need to transfer to litigation and the rules being developed there in order to assist clients. A European Patent Attorney does not have the same possibilities.

    The massive reduction in the intellectual effort permitted by production goals in the EPO for examining applications will be felt in the Boards of Appeal as an extra workload in cases of opposition, which will become more frequent as individual companies and patent defiance associations will need to file them to match the onslaught of accepted but inherently defective European applications in their Unified Patent form. The present proposed change of status of the Boards of Appeal is in flagrant contravention of the EPC. But with the proposed changes it will administratively be made very difficult for the BoAs to reject an appeal, because that would be the end of the story. And it is definitely desired for the story to continue, and only an acceptance can ensure the survival of a patent that is useful for the UPC system. Alternatively, the time for opposition will be reduced to 3 months and the fee will be set at such a high and rising level that it may become cheaper just to give up the possibly infringing product line. Observations during examinations will be abolished because they endanger the patentability.

    This is not the way to increase competition between the SMEs and big transnational corporations!
    end 1/2 by George Brock-Nannestad

  94. 2/2
    This type of development was already visible (or at least envisageable) in Peter Drahos' book "The Global Governance of Knowledge. Patent Offices and their Clients", Cambridge University Press 2010. Highly recommended reading for anybody who can afford to take the longer view. In all the discussions on IPKat on the EPO situation I have not seen one post or comment that has taken its inspiration from this perceptive book.

    Actually one may see an outline also from a 2008 response to Joff Wild (an apparently unabashed promotor of all undertakings from the EPO administration), by SUEPO (document No. su08163cl), which was recently made instantly available by the Techrights blog. But as the Boards of Appeal have until now been independent, it was not in 2008 possible to envisage that they and their legal framework would be so completely degraded.

    The system is beyond help -- there is nobody to change the course. It is truly a situation where the foxes are in charge -- or should we say we have an Orwellian 'Animal Farm'? All the suggested admininstrative changes are doable because there is nobody to complain to.

    The only way to combat the system would be for a united front to avoid using the UPC at all so that it dies of lack of funding. As we cannot expect conflicts to disappear, this would sadly lead to the general application of arbitration, which is characterised by not creating any jurisprudence others may learn from. However, in a rotten system, what good is jurisprudence anyway? And how do we re-create a good European examination system from the shards left over?

    All the best from an observer of massive decline,

    George Brock-Nannestad
    end 2/2

  95. MaxDrei, the reason is simple - DG3 is a cost burden on the EPO budget. The only way to reduce it is to reduce the size of DG3, either through not appointing new members, encouraging current members to leave, or "disciplinary" measures.

    ps: I assume maxdrei and MaxDrei are one and the same ...

  96. Surely for the UPC to be a success the EPO needs to be granting strong patents. With the possibility of a UPC patent being revoked in all territories agents will need to consider whether to file for a single for a single UPC patent or several national patents. If the quality of a a UPC patent is poor national paten ts may be more appealing. Or is invalidating a UPC patent so expensive the quality doesn't matter?

  97. GB-N,

    One man's decline is another's rise.

    After all, we are all created equal, just that some of us are more equal than others.

  98. Thanks George. As usual, the Americans do it better. When they say their patent system enables Little David to triumph over the Giant Goliath, they are correct. It does, every so often. I know. My small client won an injunction and 40+ Million USD damages from a Big Corp infringer of his US patent. His lawyer worked on a contingency fees basis, of course, betting on getting a cut of the 40 mill.

    But when the Commission in Brussels sets up a pan-European patent litigation system, there is no way an SME can get anywhere with it. When was the last time an SME in Europe pulled 40 mill in damages?

    The Commission's answer? We know. But we need to set up a system by which an SME can insure against the costs of patent litigation. That will fix the problem.

    If you don't laugh, you would cry, at the level of ignorance and wilful blindness. At the moment, some national jurisdictions (NL, DE, GB) have systems that allow the Little Guy to prevail. That is not going to survive the advent of the UPC though, is it? Big Corp and ist lackeys are delighted. For them, it's Mission Accomplished. Special thanks to BB and the AC.

  99. Maxdrei,
    Being an Ena-teque, I suspect BB sees everything as an administrative task with technical/judicial support functionaries. That reflects his treatment of staff in general. DG4 (HR et al) is the core and DGs 1 and 3 are support acts for the successful operation of DG4. While HR, IT etc. were previously the support, the system has changed and now examining and boards of appeal are downgraded to simple tasks which any non-ENA person can do.

  100. Some of the more significant member states have told BB to behave. It is only natural that he decided to infuriate those member states even more.

    Apparently he is confident, or gambling, that the three-quarters majority that is necessary to remove him will not be reached.

    The EPC is on the verge of turning into a failed project.

  101. Here is a well documented article by Juve on the loss by the President of the AC´s support for the reforming of the boards of appeal

  102. A short summary of the managing ip interview is here:
    Battistelli defiant in interview about EPO reforms
    The part about the BOAs only forming an administrative unit is not included.

    BB suggests that the appeal fee should cover 20-25% of the cost instead of 4% as is the case now. (A similar if not much larger increase of the opposition fee is not difficult to predict. To justify such increases one only needs to compare with the UPC fees!)

    BB says it is "short-sighted" to suggest the backlog of appeal cases has been created in the past few months due to positions being vacant ("few" being 18).
    Yet another sign of intellectual dishonesty, as no one has suggested that the recruitment stop has created the backlog. The backlog was there already, but how is that an excuse for stopping recruitment.

    BB appears to be not completely unwilling to make new nominations next year. We'll have to wait and see what kind of surprise he has in mind.

    BB still wants to move the BOAs out of his sight and to prevent BOA members from working in private practice after leaving their position. How is he going to do that, now that the AC is said to have taken the reform out of his hands? But of course he still controls whoever will draft the new proposal.

  103. We understand that you and the Administrative Council believe that the efficiency
    of the Board needs to increase, and the independence needs to be assured. Can
    you reassure people about that in the long-term but also in the short term, given
    concerns about the number of members of the Boards?

    The first thing to bear in mind is that when the EPC was discussed, signed and ratified the member states decided not to create a judiciary body that would be separate from the EPO. They decided to create an administrative unit within the EPO with the task of reviewing EPO decisions on granting or not granting a patent. It is recognised there is some ambiguity there but this was the choice made at the time. There have been several attempts over the past 40 years to change the situation, and they have never succeeded.

    So the situation is we have an administrative unit, composed mainly of former patent
    examiners, who are independent in the decisions they make but not in their legal nature.

    In spite of the ambiguity during the past 40 years, the Boards of Appeal have built strong reputations for independence and expertise and have fulfilled their roles to everybody's satisfaction.

    Second, on independence, this has never been questioned. None of my predecessors or
    myself have interfered in any specific case. But there was a decision of the EBA [R2/14] that said because of the links there was a risk of partiality.

    This decision obliged us to reconsider the links between the Boards of Appeal in general and the Office, so we started to reflect on a situation where we could increase the independence and the efficiency. I made some proposals to the Council, one of them to create a fully separate organisation, but this would imply a change to the EPC. The Council clearly indicated they cannot consider this option and asked me to make some proposals within the framework of the EPC.

    It's not easy because the EPC clearly gives the responsibility for the management of the Boards to the president of the Office. How can the president delegate this authority to someone else? We looked at creating a person with a new function of president of the Boards of Appeal, who would be the highest authority but also in charge of administration, like in many national courts. Somebody has to manage the Boards, and it cannot be the president of the Office as this would be understood as interference in their functioning. It's legally not easy because it has to be compliant with the EPC.

    We are also proposing to help the Council fulfil its duties by creating a subsidiary body composed of members of the Council and high level judicial people. This body will be consultative and will help the Council to fulfil its duties for the Boards of Appeal.

    I'm confident that we could make some proposals in the first months of 2016 in order to go forward.

  104. Platini,
    Battistelli seems to want be BoA to be self-financing and yet they are only an administrative organ rather than a judicial body. Will HR be equally self-financing? And, if so, how? Make your mind up!
    Is sing members - 18 now but how many after end of year retirements?
    New nominations? But no posts have been advertised for more than a year. There can't be anybody ready beyond personal nomination by him?
    Preventing from working by attacking their pension (rights)? Delaying payment of final allowances? Going to court - a single case would frighten a few? Playing hard ball with their new employers? You think he wouldn't be creative?? (See you at the ILO in 10 years...)

  105. 2016 budget

    Board of Appeal planned to decrease in budgeted size by over 1%.

    President's Office planned to increase in budgeted size by nearly 20%.

    What more need be said?


  106. @Cynic:
    Will HR be equally self-financing? And, if so, how?

    Not even DG1 is self-financed. Searches cost money, examinations cost money, oppositions cost money, appeals cost money. DG0/2/4/5 cost money. The AC costs money. It's all funded by renewal fees.

    Missing members - 18 now but how many after end of year retirements?

    According to this post, there will be 27 missing members at the end of this year.

    There can't be anybody ready beyond personal nomination by him?

    Yep. It is almost surprising that it has not happened earlier.

    Regarding "how is he going to do that", I was mainly wondering how he is going to decide what the new proposal will contain if the AC has taken the task of drafting the proposal out of his hands. But the exact situation at the moment is not clear to me. If the recent interview is anything to go by, we're simply back to March this year... BB gets another try but this time without a user survey, so without the need to misrepresent input from users.

  107. BB appears to be not completely unwilling to make new nominations next year. We'll have to wait and see what kind of surprise he has in mind.

    What do you mean? Jobs for the in-laws, second cousins, and hairdressers of his garde rapprochée?

    Perish the thought, I'm outta here.

  108. How could the EPO even enforce the ban on a new work? This he would have to do under the national law of themember state where I would want to work, as only those courts apply to me then. And these court cases arenearly always lost, thus the employee may do the desired work.
    I see more an issue finding sn employer who is willing to take the risk, as he could influence a proceeding revoking them their representative status, or as suggested above by Cynic..
    Anyway, he should then also prevent any external ones from applying for posts at the BoA, as their previous colleagues could try to influence case in their client's favour.

    - one of those EPO examiners.

  109. @ one of those epo examiners. How? The same way the investigations into the suicides were stopped: by not paying the pensions. That is, even though illegal, a mighty good weapon in view of the fact that it takes 14 years to gain your case.

  110. Will the AC ever see it their duty to exercise their powers under Article 11(4) EPC, in view of a failure by He-Who-Must-Not-Be-Named to properly exercise the powers given under Article 10(2)(a) EPC? Ensuring malfunctioning is not part of the job description.


  111. @SadCat: well, it would be unlikely to change jobs that "short" before pension.
    If I'd change now, my worries would be to find an employer willing to go confrontational if necessary.
    The pensions can be sorted later, in my personal case.
    In the case of the withheld allowances you mentioned (widowers, half-orphaned, ...) it is a different story, but these would not be hampered by a cooling-off period anyway, as the former EPO employee, for whom this clause would have applied, did not take up a new job...

    But in my new job, the national rules would apply, and then the administration of the EPO could only try to enforce the non-consented amendment of my working contract through national courts, which take such rulings only in extreme rare cases.
    And in most member states, such non-consented amendments limiting personal freedom are not taken favourably by the courts. In Germany and the Netherlands, every single employee would have to agree to such an amendment if her/his working contract. Agreement of the staff representation would not be sufficient, mere consultation even less.

    -one of those EPO examiners.

    PS: merry Christmas everyone!

  112. JIT-LawMaker

    Best wishes, everyone!

    Some new CA-Docs are out. Among them

    Nice one that is: Taylormade, just in time and retroactively applicable!

    I guess NL and D abstained in view of the law suit(s) that creates ?

  113. From what I heard, NL and DE did not abstain.
    They voted against.
    According to available information FR, GR, SE and SK abstained.

    But yes, it seems that NL and DE saw the legal implications.

    The ones who voted in favor were apparently smooth-talked into it by VP5 who seems to have assured them that it was completely unproblematic.

  114. Anonymous said...
    JLT-LawMaker said,,,

    "Some new CA-Docs are out."

    Self-serving and to be expected. "On a proposal from the President,," nuff said?

    This is why many of us (who have been here for a long time - and admittedly - know that it is difficult at this stage of life) are looking for a way out of the shambles that the EPO is becoming.

    These people who are running (used jocularly) this place are beyond comprehension - they have no terms of reference - and yet they are given carte blanche. It only makes sense because the people that really count (elected politicians) are not just not interested enough or fail to see the bigger picture.

    Luddites had the same problem back in the 18th century,,,,

  115. A firefly on the firewall says…

    2016!.. another year of “Esprit de service” among the BB goon squad, a group that is amiable in the extreme, looking for full concurrence on every topic, with a complete absence of upsetting bickering that could ruin their cosiness. A comfortable consensus built around an illusion: that everyone in the squad had a perverse addiction to power. Yet no one questioned it. The main victim of the EPO’s “Esprit de service” is critical thought, which leaves behind a muddy trail of irrational…actions.


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