tag:blogger.com,1999:blog-5574479.post1024787858850685807..comments2024-03-29T18:50:54.085+00:00Comments on The IPKat: Does the UPC spell disaster for the EPO Boards of Appeal?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger55125tag:blogger.com,1999:blog-5574479.post-57441037677150620052016-06-01T10:22:18.333+01:002016-06-01T10:22:18.333+01:00From: HelloKitty
The problem with the proposal, a...From: HelloKitty<br /><br />The problem with the proposal, as usual, is that it lacks checks and balances. If someone leaves the Office or is fired and seeks another occupation, even without pay (say being the head of the local Union...), the President can say no. He just has to say it is against the interest of the Office. The person can only complain to the ILO-AT tribunal In Geneva who, in practice, only checks whether formal conditions are met. ILO-AT will then obviously agree with the decision, as all recent jurisprudence shows.<br /><br />Furthermore, in the new system, the personal member getting a new job must first inform the President and wait two months before accepting a new job. In the present system, there is no such obligation.<br /><br />There is a new paper about the Paris criteria explaining that the Office will hire massively in the next 3 years, creating redundant examiner posts once the backlog is processed. I understand that hundreds of "redundant" examiners will be fired then. All this is very worrying.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80681255591057118632016-06-01T09:22:19.070+01:002016-06-01T09:22:19.070+01:00The Register article about an AMBA letter to the A...<a href="http://www.theregister.co.uk/2016/06/01/epos_boards_of_appeal_rail_against_king_battistelli/" rel="nofollow">The Register article about an AMBA letter to the AC regarding the proposed reforms</a>.<br /><br />If that is true, then our President follows his targets to the minimum letter.<br />He has been told to consult. check. Nobody told him to listen to the arguments and come to an agreement regarding a proposal during these consultations.<br /><br />I wonder what DG3 would say if I came to Oral Proceedings in Examination or Opposition and have the decision already on the table. Efficient procedure, yes. But....<br /><br />I would be doing what our President is doing. yet I could be charged with professional incompetence and be fired over this.Listening to the construction machines with a headache....noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-92089088678073064432016-05-31T18:25:55.913+01:002016-05-31T18:25:55.913+01:00Potp,
No.
So far the document has been supplied to...Potp,<br />No.<br />So far the document has been supplied to the internal GCC for consultation and is visible to all staff - it isn't a final document but has a CA number in preparation for submission (in amended or unamended format) to the next AC meeting. I think it also goes before the Budget and Finance Comm. There's a formal procedure so it isn't public yet. In practice the GCC (10 mgt, 9 staff) will not change a comma. Thus you have to wait a couple of weeks yet.Patiencenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-76477124237413573162016-05-31T10:37:19.006+01:002016-05-31T10:37:19.006+01:00epoleaks and anon
I have no reason to doubt the a...epoleaks and anon<br /><br />I have no reason to doubt the accuracy of what you are reporting, but is there anywhere that I can get my hands upon my own copy of CA/29/16 (and the document from which epoleaks quotes)?<br /><br />Having considered the detailed proposals, I have to say that I struggle to see how a conflict of interest could arise simply by an ex-EPO employee taking up a new position in the world of patents. Sure, it might make sense to have a "cooling off" period, during which an ex-employee's interactions <b>with the EPO</b> are strictly limited. However, given the ruling in G2/94 (placing limits upon the ability of ex-Board members to make oral submissions), I would say that there is currently very little in the way of even a <b>perceived</b> problem in this area.<br /><br />Even if the EPO management was minded to deal with this perceived issue, then the best way of doing that would surely be to place a temporary (i.e. time-limited) ban upon certain categories of ex-employees <b>making submissions to the EPO</b>. There would appear to be no justification whatsoever for any kind of ban on taking up new employment. Such bans are simply unnecessary (and would, in any event, be totally disproportionate in the circumstances).<br /><br />With this in mind, I fear that adoption of the new proposals would expose the Boards of Appeal to yet more allegations of perceived bias - on the grounds that not only the conditions (or renewal) of their current employment but also their future employment and/or retirement conditions could depend upon keeping the President happy.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-54823999771750750172016-05-30T22:24:50.436+01:002016-05-30T22:24:50.436+01:00Proof of...
Strict limits? Anon quoted para 2 of ...Proof of...<br /><br />Strict limits? Anon quoted para 2 of the new article. Para 8 of it states:<br />"The appointing authority may lay down further terms and conditions for the application of this Article to the respective employees; these shall cover in particular the form and content of the information referred to in paragraph 2"<br /><br />Limited enough? Perhaps not if you consider the non-exclusive nature of 'in particular'.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-64475506171925148832016-05-30T22:09:09.875+01:002016-05-30T22:09:09.875+01:00E. CONFLICT OF INTEREST RULES
...
62. In order t...E. CONFLICT OF INTEREST RULES<br /><br />...<br /><br />62. In order to foster the public’s trust in the integrity of the services provided by the EPO, it is proposed to introduce a system for monitoring and preventing<br />potential conflicts of interest after termination of service with regard to all<br />employees of the Office, including the members, Chairmen and the President<br />of the BOA.<br /><br />63. The BOA themselves addressed this issue in their case law. In decision G<br />2/94, the EBOA held that it would be desirable in the interest of legal certainty<br />for the Administrative Council to specify an exact period of time following<br />termination of a person's appointment as a member of the BOA during which<br />such a person may not appear in or conduct oral proceedings before the EPO.<br /><br />64. As the regulation of potential conflicts of interest in post-service activities is not limited to the BOA, which is the scope of the current document, it is submitted in a separate document (CA/29/16), although its adoption is part of the current package of measures.epoleaksnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-34811697187357037002016-05-30T18:41:25.235+01:002016-05-30T18:41:25.235+01:00@anon
Thanks for the heads-up. Is there any publ...@anon<br /><br />Thanks for the heads-up. Is there any publicly available (official) document showing the proposed wording?<br /><br />Also, are there any detailed definitions of / limits placed upon terms such as "related to the work he carried out", "legitimate interests of the Office" and "the interests of the permanent employee or former employee"? If not, then I agree that there is considerable cause for concern.<br /><br />At least at first glance, it is very easy to see how an unscrupulous individual who was granted powers as specified in the proposed regulation could abuse those powers. For example, unless strict limits were placed upon the use of those powers, and an impartial overseer were appointed to ensure that they were applied fairly and consistently, then there would appear to be ample scope for the new powers to be used in a threatening and/or vindictive manner.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12707389831421831482016-05-30T08:54:16.386+01:002016-05-30T08:54:16.386+01:00@ Proof of the pudding.
The new regulation would ...@ Proof of the pudding.<br /><br />The new regulation would read as follows:<br /><br />"A permanent employee or former permanent employee intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service, shall inform the appointing authority thereof.<br />If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the legitimate interests of the Office, the appointing authority may, having regard to the interests of the permanent employee or former permanent employee and the service, either forbid him from undertaking that activity or give its approval subject to any conditions it thinks fit."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-51910420383035749502016-05-28T12:47:50.020+01:002016-05-28T12:47:50.020+01:00From Concerned examiner
The validity of patents i...From Concerned examiner<br /><br />The validity of patents is already subject to a yearly tax, but what I meant is that patent attorneys are just as dependent from the Office as examiners are. We could imagine that in a year or so they would also be asked to prove their "loyalty", could be asked to renew their exams or whatever. If Battistelli decides to cancel one's accreditation, there is no real recourse, is there?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-63054196272466046042016-05-27T17:21:30.792+01:002016-05-27T17:21:30.792+01:00"In the context of this hypothesis, I see no ...<i>"In the context of this hypothesis, I see no reason why European patent attorneys would enjoy a lifetime license, BTW."</i><br /><br />Well said old chap.<br />And a twenty year patent monopoly sounds so 1970s.<br />Let's have the validity of all granted patents subject to review on an annual basis.<br />Sauce for the goosenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-9299235750228155442016-05-27T15:40:59.835+01:002016-05-27T15:40:59.835+01:00"As you have probably heard in the news, Fran..."As you have probably heard in the news, France is on general strike because of new work laws."<br /><br />That would never have happened if Hollande had followed the example of "President" Battistelli and enacted new strike laws.<br /><br />On yer bike !<br />(But make sure to check the brakes first ...)On yer bike !noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48091164233901959952016-05-27T11:33:05.130+01:002016-05-27T11:33:05.130+01:00From Concerned examiner
Maybe we should not forge...From Concerned examiner<br /><br />Maybe we should not forget that Battistelli is French. As you have probably heard in the news, France is on general strike because of new work laws. If I have understood correctly, the new law will make it easier to fire employees. A few months ago, a minister also said that he saw no reasons why civil servants should have a permanent contract. And just like Battistelli salary is a scandal, the salaries of managers is presently a scandal in the French press.<br /><br />Maybe this is also the future of the Office: examiners on 2 years contracts, automatically fired at the end of the period and prevented to work afterwards. After a year of unemployment without benefits, they would be glad to sign for another two years fixed period, at a reduced salary. Seems like a win-win situation for Battistelli.<br /><br />In the context of this hypothesis, I see no reason why European patent attorneys would enjoy a lifetime license, BTW. Maybe they will also need to reapply as a representative every two years as well.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-77715945560439969672016-05-26T09:31:23.341+01:002016-05-26T09:31:23.341+01:00@Et sinon...
Well, show me the detailed proposal ...@Et sinon...<br /><br />Well, show me the detailed proposal and concrete proof that it will be put before the AC and I will see what I can do about my complaining to my country's representative to the AC.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42766202513006588942016-05-24T08:44:20.014+01:002016-05-24T08:44:20.014+01:00Don't forget the hypocritical little weasel in...Don't forget the hypocritical little weasel in Berlin who preaches to the world via Twitter that there should be no "legal vacuum" at the FIFA.<br />https://twitter.com/heikomaas/status/603511634334720000<br /><br />But when it comes to the EPO where he derives an income of millions per annum he is completely silent.Name them and shame them !noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80604429145004925882016-05-23T21:33:39.670+01:002016-05-23T21:33:39.670+01:00@Proof of the pudding:
Yes, it could be a reason ...@Proof of the pudding:<br /><br />Yes, it could be a reason to fire Mister BB....<br />But! His immunit can only be lifted by the AC.<br />Any disciplinary measures can only be started and decided by the AC.<br />Any decission to fire, replace, send on "garden leave" with pay, ... of the president of the EPO can only be taken by the AC.<br /><br />The same people who either vote yes because they want the money for their country/office, or because "we are only one vote, despite being one of the big three".<br /><br />There was a time, not long ago, where it was diplomatic standard to not vote against the "big countries", especially not against the host countries.<br />BB played that card by pushing the smaller ones to show a "we do not like you and vote out of spite against you" vote.<br /><br />What does the Dutch Hoge Raad? The current situation shows they cannot hope for the problem to solve itself, witho the SUEPo having been destroyed. They are facilitating the "Justice denied" by taking their time....<br />The Dutch givernment is getting in a really difficult situation here by not demanding more respect from the other member states, who outvote the Netherlands and telling the Netherlands to deny citizens their Dutch rights when going to work.One of those...noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-41636968639205252672016-05-23T20:04:51.941+01:002016-05-23T20:04:51.941+01:00@ Proof of the pudding
listen mate, all your erud...@ Proof of the pudding<br /><br />listen mate, all your erudite arguments here to explain us how all these rules that are enacted by BB at the European Patent Office could never be in the ... - shall I say, civil society: why don't you put them in a letter and send it to the Representative of your country at the Administrative Council?<br /><br />Because either he/she is as dumb as you get or he/she does not give a shit about what happens at the European Patent Office - as long as the money keeps flowing.<br /><br />Thanks!Et sinon je reprendrais bien des croquettes ...noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55940160207776046672016-05-23T11:39:53.545+01:002016-05-23T11:39:53.545+01:00@HelloKitty
Confidentiality restrictions are one ...@HelloKitty<br /><br />Confidentiality restrictions are one thing, restrictions upon the freedom to choose one's own employment is a completely different matter.<br /><br />An employer might reasonably take action to prevent misuse of confidential information gained by an ex-employee. However, for an employer to impose a "ban" on an ex-employee taking up new employment with certain organisations represents an infringement of the civil liberties of that ex-employee. Such infringements are typically either not permitted or, if precisely defined in a contract of employment in a manner that protects only the <b>legitimate</b> interests of the employer (and no more), are permitted for only a very limited duration - certainly no more than 1 year. However, even in those exceptional circumstances, what is permitted is rarely a total "ban" on taking up new employment, but more frequently a limitation (for a short duration) on the permitted activities (e.g. a ban on contacting ex-clients) of the ex-employee in their new role.<br /><br />If any employer wants their employee to not take up a new role for a set period after handing in their resignation, then they have to pay them to stay at home (i.e. put them on so-called "garden leave"). <br /><br />What are the precise proposals from BB? I recall a period of 2 years being mentioned, but that seems way over the top (especially if those 2 years are not paid garden leave). And is there any precise definition of what "bans" can be imposed and for what reasons? Also, is there any scope for discretion in how or whether any "bans" are imposed? If so, are there any checks and balances that prevent such discretion being misused?<br /><br />Finally, I note that there have been several references to BB "buying" votes at the AC from some of the "smaller" countries. Such a tactic would certainly be a "political" response to the fix that BB found himself in at the last AC meeting. However, is there any real <b>evidence</b> of such Machiavellian tactics being employed? If so, could that count as grounds for immediate dismissal?Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70014235951432807232016-05-21T12:33:43.070+01:002016-05-21T12:33:43.070+01:00From HelloKitty
To Proof of the pudding
The idea...From HelloKitty<br />To Proof of the pudding <br /><br />The idea that some restrictions were applicable to employees after they left the EPO has always been in the service regulations. It makes sense: the EPO is dealing with confidential matter (unpublished applications), the employees are bound to confidentiality even after they left.<br /><br />All these have always existed and have always been a potential problem: confidentiality, lack of independent justice, internal sickness insurance, lack of control on spending, etc... But it has never been an acute problem because it was never systematically abused (although some limited abuse was already there). The EPO has functioned quite well for the last 30+ years.<br /><br />The problem today is that someone is systematically (ab)using the regulations and even strengthening them. That is why the EPO is suddenly in the Press.<br /><br />Quite frankly, I don't see any way out. Battistelli will manage to get the council at his side, because he is literally buying the votes of the small countries. Countries with the most economic weight: Germany, France, UK, Italy, Netherlands, Swiss, etc... want him out but will be outvoted by a coalition formed by, maybe, Greece, Cyprus, Macedonia, Romania...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55024764732948506532016-05-21T11:36:13.314+01:002016-05-21T11:36:13.314+01:00"they would really have no excuse for making ...<i>"they would really have no excuse for making the same mistake on this occasion."</i><br /><br />Very true. They would have no excuse.<br />But if they made the mistake, who would call them to account?<br />Remember, they enjoy "immunity" for their actions.<br />Some court or tribunal might at some far distant date find the measure to be unlawful.<br />But even that is my no mean certain.<br />Do you think they will loose any sleep over such trivia? <br />Remember Wille Minnoye's famous words on Netherlands television.puppet on a stringnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-44798046049832932552016-05-20T14:08:06.903+01:002016-05-20T14:08:06.903+01:00@puppet
Fair point.
Still, imposing restrictions...@puppet<br /><br />Fair point.<br /><br />Still, imposing restrictions upon someone who is no longer an employee of the EPO is a significant step further than everything that has gone before - even the retroactive extension of the period by which an employee may be suspended before a final decision is taken on their case (or, if we are speaking bluntly, extension of the period by which an employee might be "detained without trial"!).<br /><br />As I understand it, the deal that every EPO employee signed up to was that the EPO would have no claim to infringe or limit the liberty of the employee after they left the employ of the EPO. It would therefore simply be <b>impossible</b> for any court of an EU Member State to validate a "condition of employment" that was unilaterally imposed (i.e. without consent of the employee, or even any form of additional compensation) and that purported to limit the liberty of an individual beyond the term of the contract of employment.<br /><br />I know that we are operating in Eponia here, and not the EU. Nevertheless, the fact that the above is such a blatantly unarguable point means that, even if the AC erred in rubber-stamping previous proposals, they would really have no excuse for making the same mistake on this occasion.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14950037574079383622016-05-19T13:29:25.879+01:002016-05-19T13:29:25.879+01:00"With this in mind, how could the AC even con...<i> "With this in mind, how could the AC even contemplate rubber-stamping the unilateral imposition of such restrictions by way of "new rules" that have not received the consent of the employees that they affect?" </i><br /><br />Very easy. The same way that they rubber-stamped CA/D 18/15 in December.<br />http://www.epo.org/modules/epoweb/acdocument/epoweb2/194/en/CA-D_18-15_en.pdf<br />Was there any consultation on that ?<br />No there wasn't but, hey, that didn't stop the AC rubber-stamping it.<br />Does that answer your question?<br /><br />FIFA here we come ...<br />puppet on a stringnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-62934947243933661762016-05-19T13:28:52.702+01:002016-05-19T13:28:52.702+01:00From HelloKitty
To Proof of the pudding
Imposing...From HelloKitty<br />To Proof of the pudding <br /><br />Imposing restrictions on future employment does not require the consent of employees to be bound by such restrictions. That is what people do not understand when they sign up: they think the EPO is bound by its regulations. But the regulations can be changed at will and they already were: the staff were imposed new career regulations, new sickness regulations, and their invalidity insurance (paid for years) was simply canceled. It is not the conditions of employment they agreed to any more and indeed less and less people are willing to sign (the EPO did not find suitable candidates for more than half the post they wanted to fill). But the people who have signed have a single choice: accept the new regulations or find another work. It is a one-way contract: the staff have to respect it, the EPO can change the rules at will.<br /><br />Also: Battistelli was told by the Council to reverse the judgement concerning 3 people, he paid lip service by reinstating the 20% pension cut. No legal reasons were at play. In the mean time, he his busy courting smaller countries to make sure the delegates who voted against him will be replaced. The June council will be massively in his favor, at least from the small countries and countries like Germany, NL, UK and France will realize that they only have one vote. Battistelli will then control the administrative council.<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-23434668865268675952016-05-19T10:13:01.770+01:002016-05-19T10:13:01.770+01:00@proof:
First, very good reasons have not been the...@proof:<br />First, very good reasons have not been the guidance followed by the AC for a long time, even less so under the Batistelli administration.<br />Second, Batistelli has recently denied the AC the power to tell him what to do. <br />So what is the sum total of this picture? <br />Disaster for the EPO.Fritznoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-28688569428364799452016-05-19T09:37:36.634+01:002016-05-19T09:37:36.634+01:00Hellokitty - you may well be right. However, the ...Hellokitty - you may well be right. However, the only pension that I am aware of having been "cut" (that of Ms. Hardon) was apparently restored. I doubt that Monsieur le President reversed his decision purely out of the kindness of his heart... which might mean that there were other (e.g. legal) reasons that left him with no choice but to hand over what, in any event, were acquired rights.<br /><br />The question of whether the EPO respects the judgement of a national court is, ultimately, a matter for the AC. That is, they have the power to order the president to respect any judgement - and to eject him if he refuses to do so and/or to lift his immunity. I guess that whether the AC decides to take any action depends upon how much political pressure they feel under from their bosses back home. Not the most ideal set-up for ensuring that fundamental rights are respected at the EPO, but not entirely hopeless.<br /><br />Here is another interesting point: the proposed, new conditions of employment (including what those in private practice might see as an equivalent of a restrictive covenant for DG3 members... and perhaps others) were not those that EPO employees agreed to when signing up. Imposing restrictions on future employment is a <b>very</b> serious matter, and so requires the explicit (and informed) consent of any employee to be bound by such restrictions. With this in mind, how could the AC even contemplate rubber-stamping the <b>unilateral</b> imposition of such restrictions by way of "new rules" that have not received the consent of the employees that they affect?<br /><br />That alone would appear to be a very good reason for the AC to simply dismiss the proposed rules out of hand.Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-71434977447195573922016-05-19T09:33:08.254+01:002016-05-19T09:33:08.254+01:00From HelloKitty:
About the boards of appeal and t...From HelloKitty:<br /><br />About the boards of appeal and the UPC: the UPC, as the EPO board of appeal and the German "Bundespatentgericht" foresees legal and TECHNICAL members. Finding legal members should not be too much of a problem (although the language requirements may prove to be a problem), but finding technical members will probably be. The technical members need to be:<br />-trained technically, basically they should have an engineering diploma<br />-fluent in the 3 official languages and<br />-trained legally (although not as much as a legal member).<br />Basically the idea is that the courts should have specialists able to understand in details what the Patent is about (especially important in difficult subject matter like chemistry, biotech, computers...).<br />In the EPO board of appeal and the Bundespatentgericht, the technical members were recruited from examiners.<br /><br />The EPO board of appeal is the single largest collection of people filling the requirements of TECHNICAL members (especially when one considers language requirements).<br /><br />Now Battistelli, being motivated by his personal vendetta against the board of appeal, has caused a major problem. In a well run office, the board of appeal would be sufficiently staffed, so that a fraction of their members could be sent to the UPC to train future staff and deal with the first cases. Battistelli closed that route twice: by making sure that they will be legally excluded to do so and by refusing to staff the EPO board of appeal for years. None of this is proper management: every manager knows that when a new branch is started, training new staff is a bottleneck. It is in all the management books.Anonymousnoreply@blogger.com