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Monday, 7 November 2016

Firings will continue until morale improves - Merpel revisits the EPO

Merpel was extremely disappointed and dismayed to hear that Laurent Prunier, the Secretary of SUEPO The Hague and a member of the EPO's Central Staff Committee, has been fired by the EPO President, Benoit Battistelli.

Readers will recall that in January, Mr Battistelli dismissed the Union's chair and a former chair, and downgraded its treasurer. In March, responding to the extreme unrest and disquiet over his heavy-handed and seemingly vindictive disciplinary approach, an unprecedented communique was issued by the Administrative Council -- the body to which Mr Battistelli is nominally answerable, but which more frequently plays the role of a rather supine dog being wagged by a highly bellicose tail. 

The Communique is worth reading in the light of the most recent dismissal (it's appended to the Minutes of the March AC meeting). In it the AC emphasised its authority as the ultimate supervisory organ, repeated its concerns about the social unrest and that it had repeatedly urged the President and unions to reach a consensus, and noted "that disciplinary sanctions and proceedings against staff or trade union representatives have, among other reasons, made it more difficult to reach such a consensus". It then requested Mr Battistelli:

- to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation 
- pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions;
Merpel does not believe that any external review, arbitration or mediation was considered in the most recent dismissal. Without breaking confidences she cannot comment on the details of the reasons advanced for dismissal, but suffice to say that Mr Battistelli probably had very good reasons not to expose the procedure to external and independent scrutiny. SUEPO, organising a demonstration in protest today, has told its members that the dismissal is based on an allegation of harassment. As with the dismissal of Ms. Hardon in January, the alleged victim of harassment does not appear to have filed a complaint, but rather Mr Battistelli's closest associates have made the complaint on behalf of a staff member.

Long experience suggests that whatever concerns AC members might have about this latest development, they will not actually do anything concrete to take control over the ever-worsening situation in an organisation they purport to oversee. There is a very straightforward step that the AC could take if they in fact wished to restore confidence in the Office and themselves. Quite simply, they should invite a review and inspection from the national regulatory authorities in the countries in which the main Office sites are located, i.e. the German and Dutch labour ministries. If those bodies are satisfied that the Office is being run according to recognised basic norms of HR practice, then that would be enough to assure themselves that staff are being managed fairly. The management of the Office would resist and cry "diplomatic immunity", but the answer to this is simple: Article 20 of the Protocol on Privileges and Immunities states:

Article 20
(1) The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol. 
The mandatory language used in this Article, which is an integral part of the law under which the AC operates and the EPO exists, requires that there be co-operation, apart altogether from the moral imperative of the AC's responsibilities to the 6,000+ staff members (as balanced against the one employee they seem unable to manage).

It is worth recalling that, in a recent independent study commissioned by SUEPO in which about 40% of EPO staff participated, 98% of respondents rated their confidence in Mr Battistelli as either "low" (6%) or "very low" (92%).  Currently, Mr Battistelli is running a Social Conference to address the concerns of the AC. Merpel can save readers the bother of waiting for the inevitable press release at the conclusion of this process. In an atmosphere where dissenting voices have been silenced, and only the foolhardy or very brave would risk their careers by speaking up for the 98% who have lost any confidence in Mr Battistelli, the Social Conference will be hailed as a resounding example of constructive, open dialogue. All it's missing is the leaders of the staff union who are being eliminated, one by one.

Of course this presents a shining opportunity for ambitious, concerned members of staff to take up the banner and step forward into leadership roles in the staff union. Those without dependent families and who are financially independent would be best suited to take on this career-ending role.


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Anonymous said...

A voice from the lowlands says...


in a couple of days some farting geese in the fog will decide about the goose that lays golden eggs! BB is currently lobbying with the AC to extend his contract for another 3 years, so we are in for some news in the coming days:(

Quo Vadis? said...

A group of PDs leading DG1 instead of a VicePresident?
What about Article 10 (3) EPC, and Article 11 (2) EPC?
This obviously one step further towards cementing the power, as VPs appointed by the AC are rather safe from presidential repercussions, whereas PDs are not....
This would violate once again the EPC, just like Article 4a EPC gets continuously ignored....

Not just a minor violation of secondary or tertiary laws and rules, but the main Articles.
The whole EPOrg has been created to implement the EPC, but the law gets ignored at positions where the AC is the supervisory organ, showing how weak the AC has become since the fall of the iron curtain and the consecutive enlarging of the EPOrg.

Anonymous said...

EPO Protest Tomorrow, Heads of Delegations Informed Regarding the Reasons

See Techrights :

Anonymous said...

new article on The Register

Anonymous said...

Result of the discussion : BB says to the AC "I have decided not to replace VP1" (who is only in charge of ca. 4500 civil servants"...

The AC (who IS in charge of nominating VPs) : MUTE

Result : BB 1 - AC 0

Game over

Anonymous said...

Feedback AC nr 2

usually only few delegations speak during the open part of the AC meeting (eg CH, NL, DE and the like)

In confidential session though, all liliputian delegations (eg Albania, Croatia etc) who have the IP activities you know, who normally speak very bad English, then read speaches written in Oxbridge EN (apparently prepared by...the EPO !)

Disgusted said...

New Communiqué from the two old farts VP1 and VP2 : the manipulation is so cheap and below the belt! this shows that when addressing the Admin Council in their statement where they worry about the fact that the figures are due to unhealthy production pressure which can only impact on the quality of the work done (thus caring for the future of the EPO), the Staff Reps have hit the nerve!

And this auch noch signed by VP1 (an ex-examiner who did all he could not to do patents) and from VP2 (a man whose level mirrors that of Manuel in Fawlty Towers...)

I am proud to be represented by you guys! Hut ab!


Dear colleagues,

We have the duty to inform you that yesterday when the Administrative Council was discussing the progress report of the Unitary Patent Protection, the staff representatives took this opportunity to attack publicly again, in front of all Member States' delegates and the user representatives, the quality of the products delivered by EPO staff, without any evidence but unfounded allegations.

Although all objective indicators, supported by regular internal and external audits and user surveys, have demonstrated that EPO quality has increased over the last years, these attacks are repeated publicly. It shows a total lack of respect for the colleagues who have shown by their efforts and professionalism the capacity of the Office to improve the quality of the products and services of the Office.

The staff representation has the right to criticize any aspect of the management of the Office if they so wish. The staff has the right to know what its representatives say about its work.

Martin said...

I fulhheartedly agree.

As chair I see a decline, as OPPO member I see a decline, and it all boils down to second and chair not having the time to actually check the work. The search checks (which get ISO 9001 recorded) are positive, because the time allowance is such, that you cannot do much more than understanding the subject-matter of the application, and see what was done, and click through the forms. No real checking of quality is done. 2h is really on the short side, at least in my field...
But then, quality is very subjective here..

A previous president, Mr Kober, took a stack of search file, had them duplicated so that another search examiner could do exactly the same file. He expected in most cases the same documents to be cited. This turned out to be illusionary. But, the same application with different searches had different documents, but the differences in which dependent claim may be positive was negligible. Different reasoning, same result.
I fear, this would not be the case anymore, if the same exercise was repeated. Also because the new search tools would find the very similar first done search, and the second search examiner would build on that or even stop the search there....

Anonymous said...

report upon the last admin council last week in MUC can be found on :

Kittensarenice said...

The comments above give the impression that the plan was to improve production and that quality was just an unfortunate casualty of production pressure. But I think that lowering quality may actually have been a goal of its own, even if I don't exactly understand what is achieved by a lower quality. Consider what happened in the past years:
-first, about 4 years ago, search and examination were reorganized, officially so that technical domains were not split between The Hague and Munich. In practice, however, in many cases it seems that domains were chosen to insure that a maximum of examiners had to change and therefore search and examine something which did not correspond to what they had learned to do. The training which was offered was often minimal.
-this completely unnecessary destruction of competence is not a huge problem in examination (people can adapt much more easily in examination) but is a much bigger problem in search (it takes one to two years for an engineer to be familiar with the collection of documents), but...
-second, about 3 years ago, search became a top priority and examiners had to do search files under time pressure (as an arbitrary short delay was set on them). Many had no time for examination any more
-because of the strange way production is internally measured, this also meant that examiners had artificial higher production figures (search is counted with 50% more points than examination)
-third, about a year ago, searches dried up and reducing examination backlog became a top priority. The examiners had to do more examination, but only final actions count towards our internal production figures (only grants or refusal, no intermediate communications). Examiners are not supposed to have their production figure decrease ever or your director will come to you and start to discuss retirement or dismissal for professional incompetence. That means that an examiner who had done, say, 80 "urgent" searches in 2015, not finding much prior art in a domain he or she was not familiar with, suddenly had to do 120 final actions in 2016 (they count 50% less). Many of them worked longer hours or brought files home.

Add a few items to fine-tune the process:
-we hire as much as we can, the new people must be trained by existing examiners, only do searches in the beginning (while common sense would have them start by examination) and are under an enormous production pressure.
-some examiners, particularly less scrupulous ones with very high production figures, are moved around, become team leaders (so that they can explain their colleagues how to increase production) and generally are spread around so that each directorate has a few high producers (and the note at the end of the year is dependent on the ranking within a directorate).
-there are still regular transfers of people to technical domains they do not really know
-I know at least two examiners who were pushed toward retirement because they rejected too many patents.

So, I may of course be wrong, but I have the feeling that lowering quality is part of a concerted plan. It does not happen by chance, just as it did not happen "by chance" that of 3 people dismissed, all 3 of them were prominent union officials.

Anonymous said...

@ Proof of the pudding said... about the DG3 judge

nothing to report bro ! The judge remains suspended until death follows... this is a huge disgrace not only for the EPO but obviously for the administrative council the level of lack of responsability is a shame.

The EPO has definitively become a rogue organisation

Proof of the pudding said...

@Anon 21 March

Shameful hardly begins to describe the situation. A serious threat to the very foundations of patent law in Europe would be a more accurate description.

The EPO is there to uphold the law, as set out in the EPC. Now we know that, when it so desires, the EPO ignores provisions of the EPC that its management finds "inconvenient". We also know that the AC allows the EPO management to get away with this.

This all begs the question: which provisions of the EPC can we rely upon the EPO to properly enforce?

If rumours are to be believed, which rumours would certainly explain developments that I have personally witnessed, then Article 84 EPC will be the next "casualty". Also, the EPO's extraordinary decision to suspend examination of certain plant (product) patent applications suggests that even more fundamental provisions (including Article 113 EPC) could be under threat.

Not the most sustainable situation, really... and one that should be of grave concern to us all.

BadFuture said...

It is sometimes interesting to reread old comments, for example this one:

"during the Admin. Council, Battistelli called VP1 in his luxury suite overlooking Munich's city on floor 10 of the Isar building, to tell him that he was very happy with the production figures and that VP1 did an excellent job before to eventually tender him a letter of resignation ready to sign on the spot."

Now, we know that the idea was never to replace the vice-president DG1, but that Battistelli will manage the branch responsible for examination and search (about 4500 people) directly. The new structure with 3 "COO" each working in tandem with a "Principal director" at exactly the same level will insure that these managers will be absolutely powerless.

So now we know that Minnoye was pushed away so that Battistelli can manage the largest part of the Office directly. What for? What does Battistelli plan to do that Minnoye would have opposed?

Headache said...

There will also be a race between the clusters for production numbers (to allocate "bonus" and other "goodies").
Plus a lack of 2nd level AC appointed (and thus disciplined) managers will indeed mean that no-one who wants to keep her/his job can oppose any demand by the president, no matter if questionable or fully reasonable.

BadFuture said...

Another earlier comment which is interesting in the present context:

"the Council cannot stop Battistelli dismantling the European Patent Office if that is his plan. He can continue as long as he gets votes from 10 countries. Even for a second or third term, as far as I can tell.
All he needs are the votes from 10 countries."

That poster refers to the majority of 3/4 necessary to elect a new president. But in the last session, Kongstadt had this strange proposal that a same majority of 3/4 was necessary to start the selection process. Isn't that a veiled way of saying "start the selection process if you want, without a 3/4 majority Battistelli stays in post"?

What happens in June 2018 if Battistelli, who controls at least a blocking minority of 10 countries, decides that he just stays in post? Without another President, he stays in post. And he has an history of disregarding the provisions of the EPC, hasn't he?

I think it is wishful thinking to believe that Battistelli will be replaced in 2018. He is there to stay until he has finished his task.

Anonymous said...

at bad future

Trust Battistelli to use all tricks (do not forget he seats on a yearly budget of 2 billions Euros with zero decent financial control...) to have the selection of a successor postponed until the end of times since he has NOTHING waiting for him in France where he is persona non grata

He violated the EPC as he see pleased and the Admin Council delegations let him do this so those who expect him to go on 30th June 2018 dream with open eyes.

Hinterland said...

To paraphrase the immortal words of playwright Sebastian Barry:
"He will live forever ... like a f***ing vampire!"

Anonymous said...

To those of your wondering what happens with the for TWO years shamefully suspended judge, see :

curious how this will play out once personal differences are set aside. said...

And since the DG3 member has no influence on the timing of the steps of the procedure, he has no chance to get the eBoA to actually speak him free.

He can go nowhere, as national judges "have no jurisdiction", the internal procedure is "still running" (ILOAT will decline any judgement), the AC and the president are not willing to proceed the procedure, and the eBoA cannot do anything out of its own volition, as there is no case before the eBoA currently.

Another perfect example of "the internal remedies available to staff are sufficient, therefore national judges need to uphold the immunity and have no jurisdiction".

But then, there's "only one" "human" affected, who is overpaid anyway.

Really wondering why the leftish anti-Europe papers are not picking up on cases like this, but then the DG3 member is not allowed to defend himself publicly, while the office slandered his name publicly as Nazi (despite not having delivered any proof, as noted by the eBoA).

I wonder how anyone can think the EPO and its employees do follow the EPC if its management and supervising organ are so obviously violating the EPC again and again.
Despite all the words in favour of a strong Europe, someone is set on destroying it from within. The fallour in the public opinion will strengthen the anti-Europe sentiments, which should not be in the interest of the EPO.

Anonymous said...

Patent quality never so high according to Battistelli ?

You bet !

part 1

part 2

part 3

Anonymous said...

and part IV

Anonymous said...

News from Germany on the EPO :

Anonymous said...

Use of applicants' money

Anonymous said...

Usualy the more you speak about something, the less you practice it.

Let's us try with Quality at EPO, article over 2 pages

Anonymous said...

New question of MEP Marc Tarabella (Belgian) about the situation at EPO

Thanks god it exists politicians like Mr Tarabella, Mr Cordery, Mr le Borgn', Mr Yung, Mr van Nispen, and dozens of others who dare to raise their voice to denounce what needs to be denounced.

Anonymous said...

Finally inspirational working methods from the EPO

Anonymous said...

Bad evening for Battistelli : crooked Fillon lost it!

Indeed Battistelli placed until very recently, his hope in Fillon's election (they both belong the same political party Les Republicains). He was heard in Munich telling with his usual arrogance that should Fillon win, he would get a three years' extension

well Benoit, time for a change? En Marche back in St Germain !

Proof of the pudding said...

@Anon 23 April

Don't assume that BB does not have (or will not generate) a "Plan B" that will be equally unpalatable as a 3-year extension.

Remember, this is a man who has virtually wrecked the EPO on the grounds of financial self-interest (of the EPO management, the AC delegates and the Member States), in the process trampling over the (basic human) rights of the staff, crippling the Boards of Appeal and blatantly ignoring both the interests of the users and the rule of law. For someone who has achieved all that, what is to stop him twisting the agenda yet again to suit his personal needs? Certainly not the AC.

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