The ILO rules reinstatement of Board of Appeal member, but EPO resists

There was a major development last week in the saga of the suspension of the member of the Boards of Appeal of the European Patent Office, which, however, still has failed to bring the affair to a conclusion.

To recap the tale which has been dragging on for three years now, a member of the Boards of Appeal was suspended in December 2014 by the President of the European Patent Office, M. Battistelli, pending investigation of various allegations, including dissemination of defamatory material. This caused an outcry, because it is not the President, but the Administrative Council, that has disciplinary supervision over Board of Appeal members. The Administrative Council however confirmed the suspension, and then in October 2015 additionally decided to reduce his salary by half. 

The IPKat, in common with most news sources, has up until now not named the Board of Appeal member concerned, although the EPO briefed his nationality some time ago, enabling his identification as Patrick Corcoran – who was apparently the only Irish member of the Boards of Appeal. This has now been widely reported, and so the IPKat sees no need to continue with the anonymity. 

Mr Corcoran requested a review of both the original suspension decision, and of the decision to reduce his pay. Both requests were rejected, and these rejections were appealed to the Administrative Tribunal of the International Labour Organisation (available here). The ILO-AT is the only body competent to hear employment disputes from the EPO, which, as an international organisation, is generally exempt from national jurisdiction. Partly because of the large number of the EPO-related cases, the ILO-AT has a huge backlog, and so can take many years to reach decisions. 

It was therefore rather surprising that last week the ILO-AT released its decisions relating to the two suspension decisions taken by the Administrative Council (here and here). 

The decisions are in substance very similar, and are worth reading in full. Operating on principles of procedural economy, the ILO-AT has only ruled on matters sufficient to dispose of the cases. Therefore, while taking no decision in relation to many of the aspects raised, the ILO-AT has considered that the decisions taken by the Administrative Council were fundamentally flawed, because they were based on an Opinion prepared by the President of the EPO, pursuant to Article 18(1) of the Rules of Procedure of the Administrative Council. However, since M. Battistelli was one of the people allegedly defamed by Mr Corcoran, he had a conflict of interest in the matter, according to the ILO-AT, and should not have been involved in the disciplinary proceedings. 

The ILO-AT therefore concluded: 

“In the present case, there is a conflict of interest on the part of the President. It stems from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the President specifically, directly and individually. This situation, by itself, casts doubts on the President’s impartiality. Considering the whole situation, a reasonable person would think that the President would not bring a detached, impartial mind to the issues involved. The argument raised by the President in his opinion to the Council (CA/C 6/15), quoted above, namely that pursuant to the applicable rules the President was acting within his competence and had the power and duty to take all necessary steps to ensure the smooth functioning of the Office, is immaterial. The question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest. Hence, the Administrative Council erred in not finding that the President had a conflict of interest in the matter. In this situation, in accordance with the provisions in force, the Administrative Council should have sent the matter back to the next most senior official to exercise authority instead of the President, who was precluded from exercising authority because of his conflict of interest.” 

The ILO has therefore set aside the suspension decisions, and, in addition to ordering payment of lost pay plus interest, payment of moral damages (€25,000) and costs (€10,000), has ordered that “The complainant shall be immediately reinstated in his former post”. 

This has already been extensively reported (here, here, here and here). 

The problem is, however, that Mr Corcoran has not been reinstated. As further reported by the Irish Times, when Mr Corcoran went to the EPO “last Thursday afternoon he was refused admission and was told the ILO’s judgments had not yet been implemented”. 

This is however perhaps not as simple as it may appear. Because the appealed suspensions were not the end of the matter. The Administrative Council repeatedly sought, and failed to achieve, from the Enlarged Board of Appeal, a proposal for Mr Corcoran’s removal from office. That is the only manner, according to Article 23(1) of the European Patent Convention, that a Board of Appeal member can be sacked while in service. But Board of Appeal members are appointed for 5 years, and their appointment can be not renewed. Tucked away in the Report on the 152nd meeting of the Administrative Council of the European Patent Organisation (available here) from 28 and 29 June 2017 is the innocuous-looking paragraph: 

“The Council also decided to reappoint 12 members of the Boards of Appeal, and not to reappoint any other person, hence following the reasoned opinion of the President of the Boards of Appeal. It further agreed to the procedure for designating the deputy of the President of the Boards of Appeal in the future, and took note of the intended procedure to handle after-service activities of former board members.” 

The phrase “and not to reappoint any other person, hence following the reasoned opinion of the President of the Boards of Appeal” is understood by Merpel to mean that the new (and first-ever under the new arrangements for the governance of the Boards of Appeal) President of the Boards of Appeal has proposed Mr Corcoran’s non-reappointment and the Administrative Council has accordingly not reappointed him. This seems to leave him in legal limbo – if the EPO declines to readmit him, Mr Corcoran may have to appeal yet again to the ILO-AT in regard to this latest decision. 

The EPO’s reputation continues to be tarnished by a number of employment disputes, of which this is only the most high profile. The IPKat hopes that under the next President (António Campinos, currently President of the EU IPO takes over as President of the EPO next year) a more orderly work environment conducive to the examination of patents will be established.

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