The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 17 November 2016

Remember the House Ban? How two years flies past

Merpel has not posted for quite some time on the various developments affecting the EPO Boards of Appeal (BoA), but has been keeping an eye on the ongoing developments and reforms. She plans to post a couple of articles on the Boards generally, but thought she should first address the topic (no sniggering down the back of the class, please) that readers most frequently ask her about: the continued suspension of a Board of Appeal member for allegedly disseminating critical opinions about the Boards of Appeal and for alleged defamation of a member of EPO senior management (the allegations are set out in broad strokes in the Enlarged Board Decision Art 23 1/16).

The "House Ban" - Part 1: the story to date

It is almost two years since Mr Battistelli illegally suspended a member of the BoA, confiscated the computer belonging to the Board member, and imposed a "house ban" to prevent access to the premises of the EPO. As readers of the blog will know, the Administrative Council subsequently tried to regularise the suspension, and suspended the member on full salary until March 31, 2015 (yes, more than 18 months ago, it's not a typo).

Three attempts have been made, all spectacularly unsuccessful, to petition the Enlarged Board of Appeal to remove the member from office. Along the way, Mr Battistelli forcefully told the AC that it should ignore the rule of law and the Enlarged Board, told the Enlarged Board he would refuse to authorise any witnesses to attend its hearings, and demanded the Enlarged Board to provide an assurance that it would neither hear the case in public nor call any EPO witnesses. All of which was rather presumptuous on his part when he was not even a party to the Enlarged Board proceedings (despite which it was EPO employees presenting the case on behalf of the Administrative Council, not independent lawyers appointed by the AC).

The full and sorry saga of the failed Enlarged Board cases is detailed in this Wikipedia article. You can and should read the three decisions if you want to see how the case was mishandled by the AC and the Office: the full texts are at Art. 23 1/15, Art. 23 2/15 and Art. 23 1/16. You will look for these landmark decisions in vain on the EPO's website, despite an order that each be published (as to which, more below).

Although originally suspended on full salary, the AC subsequently decided to reduce the suspended individual to a half salary, which has been imposed since October 2015, after a Disciplinary Committee established by the AC decided that dismissal of the Board of Appeal member was justified. The AC also in December 2015 retroactively amended the rules applying to the suspension of BoA members: under the terms of Article 95 of the EPO Service Regulations which was in force when the suspension was imposed, a final decision was required within four months.

However, by means of the subsequent decision CA/D 18/15 adopted on 17th December 2015, it is now possible for Council appointees (i.e. primarily members of the Boards of Appeal - but also the President and Vice-Presidents ... any takers?) to be suspended on half-salary for a minimum of twenty-four months, or indefinitely prolonged if the AC so decides in "exceptional circumstances".

Given that the appointment of a Board member is for a five-year term, CA/D 18/15 permits the de facto removal from office of a Board member outside of the procedure foreseen under the higher-ranking legal provision of Article 23 (1) EPC. Judicial independence in such circumstances is reduced to an irrelevance. Still, it's a reasonable price to pay to keep Mr Battistelli happy, one supposes, even if it means that the AC has to take actions that directly work against the very EPC under which they are constituted and which they are bound to uphold.

In what now seems like a deliberately ironic exhortation, when this crisis broke (December 2014) the AC engaged in a hand-wringing exercise of concern, and publicly urged a speedy resolution of the disciplinary proceedings. Why ironic? Because the AC has itself continued to drag out the very same disciplinary proceedings with repeated unsuccessful attempts to fire the Board Member, appears unprepared to accept the outcome of the disciplinary proceedings before the Enlarged Board, and has in the interim written rules allowing it to impose an indefinite period of suspension specifically in order to prevent the Board member returning to work within the envisaged four month period and perhaps never. Urge a speedy resolution all you like, AC members, but perhaps some inward reflection is called for when this fails to transpire.

The House Ban part 2 - Call the cops!

What is EPO management to do when the European Patent Convention's procedures for disciplining a Board member don't deliver the desired result? Why call in the local police of course.

The Munich and Hague constabularies are always most welcome at the EPO's doorstep when they arrive for the right reasons, e.g. if there's a suspicion that published newspaper articles have been emailed from within the Office (!). Just as long as they don't expect to gain admittance if they're investigating an incident that the management finds inconvenient. In that case, the door will be barred to the Polizei and Politie quicker than you can shout "diplomatic immunity".

This particular twist in the story started in 2013, while members of EPO management were still trying to trace the source of press articles that it alleged were both defamatory and were being distributed from within the EPO - these being articles from the German and Croatian press investigating the pre-EPO career of a member of EPO upper management.

A complaint about the alleged defamation was filed by a member of the senior management team at the EPO with the Munich Public Prosecutor in August 2013 against person(s) unknown, seeking a criminal prosecution. However, a few days before the "house ban" story emerged in late 2014, members of the EPO Investigative Unit (IU) met with the Bavarian Police and informed them that a suspect had been identified and that the person in question was a member of the Boards of Appeal.

In other words, the Bavarian Police were informed by the IU in November 2014 that a member of the Boards of Appeal was under investigation, before the Administrative Council (i.e. the statutory appointing authority) or the Chairman of the Enlarged Board (and at the time Vice-President of DG3) were informed, as part of an attempt to have that member criminally prosecuted.

On 11th May 2016, the Munich Public Prosecutor dismissed the complaint. The Prosecutor reviewed and analysed the articles and concluded that their content was not in fact defamatory under German law. The Prosecutor also expressed doubt that in any event the dissemination of press articles could constitute defamation under German law - and this allegation is at the heart of the petitions to have the Board Member removed under Article 23 EPC.

The House Ban part 3 - Muzzling the Enlarged Board

The Enlarged Board has issued three decisions in the House Ban proceedings. In each of these decisions, the Board has ordered the European Patent Office to publish the decision, but the Office has flagrantly ignored those binding orders.

In the third such decision, the Enlarged Board noted that the Office had failed to comply with both of its previous orders, repeated that the earlier decisions should be published and made a formal order to publish the third decision as well. And ... nothing happened. The Official Journal continues to be published on schedule with such important matters as the accession of Djibouti to the PCT, but curiously omitting the mandatory publication of these fundamentally important decisions on judicial independence and the relationship between the Boards, the AC and the President.

What does this tell us about the Administrative Council?

To recap: the AC has overridden the operation of Article 23 EPC by ensuring that a Board Member can remain indefinitely suspended, at the urging of the President. It has failed to impose any discipline on that President (this job is basically the AC's entire raison d'être) when that President has told it to ignore the Enlarged Board. It failed to distance itself from the actions of the President which the Enlarged Board held had threatened its independence. It has (most recently) watched as that President dismissed a Union leader in direct defiance of an instruction not to take any such step. And perhaps least importantly, but most tellingly in terms of its impotence, it seems unable even to ensure that when the Enlarged Board orders its decisions to appear in the Official Journal, that publication in fact occurs.

Merpel wonders if the AC is by now so lacking in authority that it cannot even compel the President to comply with an order of the Enlarged Board? Or on the other hand, is the AC so embarrassed by the shambles of the repeated proceedings and its own actions in dragging out a procedure for which it urged a "speedy resolution" that it has once again opted to ignore the rule of law in favour of expedience and saving face for itself?

Either way, Merpel reminds the Administrative Council members that the AC exists only by virtue of the EPC. It must not only act within the EPC itself but ensure that the Office does so also. That includes insisting on compliance with the orders of the Enlarged Board, however inconvenient that might seem.

For the AC's credibility to be restored at this very late stage, certain actions seem to be required.

1. The Board Member at the centre of the House Ban affair should be reinstated without further delay. The legal path has been followed and its outcome is clear. Suspension for an extended period at the insistence of management is incompatible with the requirement of judicial independence. 
2. A clear signal should be given in the minutes of the next AC meeting that the actions of Mr Battistelli vis-a-vis the Enlarged Board are unacceptable, in terms of his instruction to the AC to ignore the Enlarged Board, and the actions which the Enlarged Board interpreted as threats to its operation and independence. 
3. It should instruct Mr Battistelli to reinstate the recently dismissed Mr Prunier - after all, that was the standing instruction which he ignored by continuing to pursue and target the union leadership. 
4. It should order that the next edition of the EPO Official Journal contains the approved texts for publication of the three "Article 23" Enlarged Board decisions. If Mr Battistelli can't find them for the publishers, the ever-helpful Merpel reminds all involved that they can be found here: No. 1No. 2 and No 3.

Reminder for commenters: As has been true with Merpel's EPO posts for some time, and as is now the general IPKat policy, comment-posters are reminded that they are required to identify themselves via a pseudonym if they don't want to use their own names, since there are far too many people called "Anonymous" and it can be difficult-to-impossible to work out which Anonymous is which [if any anonymous posts get through, it's by accident -- not a change of policy]. 
Also, Merpel moderates EPO-related comments quite heavily, knowing that some readers get so exercised that they forget the normal standards of comment etiquette (or even of libel laws). She knows in advance that the comments to this post will require such heavy-handed moderation and will continue to be equally amused and baffled by those who insist that she should allow comments without exercising her own judgment as to taste, content or appropriateness. 
If your comment does not appear within a reasonable time, it may have been automatically identified by Blogger as spam in which case an email to Merpel may resolve the matter; otherwise it may be worth reposting the comment with views that are expressed more moderately and/or which are more about the issues and less about the personalities - or indeed they can be posted in some other forum where the rules are enforced differently or not at all. That said, she as always welcomes constructive and engaging comments from all sides and is receptive to more private communications at merpel.mckitten@gmail.com.

75 comments:

Anonymous said...

We are the office

ad action 3: Please don't forget the reinstatement of Liz Hardon and Ion Brumme and of course Malika Weaver (after degradation).

Dry Tears said...

This is all so sad.
The mere fact that the members of the boards of appeal just carry dealing with their cases instead of loudly protesting against this incredible situation demonstrates how little remains of their independence and judicial status.
A disaster for the whole European Patent system is on its way, watch the soon upcoming decisions of the German Bundesverfassungsgericht on its constitutionaly.

Anonymous said...

If everyone really was riding roughshod over the rule of law and willing and able to re-write the rules on the fly, why is it that the saga continues, with disciplinary proceedings still planned/ongoing?

Why not just dismiss the individual? This is what happens elsewhere, with the dismissed person being entitled to a small payment if they win long, draw-out, stressful unfair dismissal proceedings (UK).

Sounds like there is a degree of protection for the individual concerned that is not applicable outside of the EPO.

Slave at EPONIA said...


under Action 3 : please do not forget Aurélien Pétiaud, Michael Lund both unfairly downgraded for having done their job as staff representatives in the Internal Committee and Laurent Prunier having just been fired who dared to take courageous positions in front of Battistelli at several occasions on several highly sensitive files (eg. New Main building worth 250 Mio EUR; suicides at the workplace etc.)

Anonymous said...

"Last hope" said: Thank you so much Merpel. A most accurate and detailed summary of the deeply sad situation under this president. I hope (I am sure) that this analysis will circulate to all interested parties. In case it is decided to ignore your suggestions at the next administrative council we will have all our answers and better get ready for the end of the EPO.

Henri le Sage said...

Why the AC will not dismiss BB?

Because the AC is deeply divided. The AC members from the south - south of France, that is - and from the East - east of Germany, that is - do not care about the internal reputation of BB. Authority and hierarchy are good. And for each and every decision that is even a little bit out of their mandate, they have to Phone home.

At least one of the AC members from some other countries - a rather small country, one of the founders - is rumoured to be very vocal against BB.

But with a divided AC, BB - at the ENA well prepared for politics - will win. The earliest moment BB will leave is with an UMP president in France, probably provided he currently support that candidate (oops, missed the debate tonight...)

The AC wanted someone to put the examiners back to work, work a little harder and pick up files within one to two years after the last letter from the patent attorney - rather than sometimes over six years. The AC made a pact with the devil. The rest is history...

Anonymous said...

It's the end of the EPO as we know it,
but I feel fine,
I've got my design.

Beelzebub said...

@ Dry Tears
Why is it that the board members get critisised when they haven't done anything wrong, unlike the senior management and the Admin Counc who escape your censure. Whose side are you on?

@ the anonymous "Anonymous"
Have you read Merpel's blog entry? Who is to blame for this mess? The board member you want to see dismissed? Shall we now start dismisssing judges who don't conform? Why don't you have a go at getting disciplinary proceedings going against the alleged "enemies of the people" in the UK? Yes, that is the sorry road we all seem to be going down, whether we want to or not.

slartibartfast said...

Also worth reiterating is the fact that, while the suspended Board member is forced to remain incommunicado in the public sphere, BB and his minions have seemingly being drip-feeding information to the press (a) enabling the member in question to be identified without too much difficulty; and (b) containing tantalising hints of the allegations against him, making a mockery of the judicial process.

Namely: without having to look too deeply, it's possible to find in various sources information about which Board the suspended BOA member comes from; what his nationality is; what his specialism is; and asserting variously that he's been accused of carrying dangerous weapons within the office, spreading Nazi propaganda, disseminating defamatory information against a certain Croatian Vice-President of the Office, collaborating somehow (in ways curiously unspecified) with at least one of the suspended or fired staff representatives, and so on and so forth.

Some or all of this may be true. We simply don't know (though I certainly find it doubtful, not least given the public prosecutor's finding that the allegedly-defamatory press articles were not defamatory). It is surely not right under any reasonable concept of "justice" that the Office is apparently free to cast around such hints and accusations in public while the accused Board member is effectively gagged.

We should also not forget that some of the alleged evidence against the accused was reportedly obtained by means of key logging software or other such spyware installed on computers in public areas of the Office, and that these covert surveillance measures were apparently only authorised retrospectively by the EPO's data protection officer, after the actions had already been taken.

The seemingly unnecessary plan to move the Boards out of central Munich, too, could do with closer scrutiny. According to some reports I've seen elsewhere, this plan has now been backed but only because the majority of AC representatives *abstained* in the crucial vote, thus leading to a "majority" in favour of the plan which actually represents a minority of the delegates. This is outrageous. Abstention is a completely ineffective means of registering a protest if it doesn't stop the plan going ahead!

Cynic said...

Slartibartfast,
One point - an abstention must always be ineffective. It isn't a vote against but a vote to let the rest decide for whatever reason. The risk is that when too many abstain, the resulting vote lacks authority and also you may then realise how you really felt. In this case if the vote had been against, I'm not sure you would be so agitated.
But I agree with the rest of your points.

Anonymous said...

Thank you Merpel - excellent post and update.

There are many foul elements to this sorry story, in my view the most disgusting being the possibility for indefinite suspension of BoA members. As Merpel points out, the President no longer needs to go to the trouble of A.23(1) EPC (having spectacularly failed with this 3 times already...) - instead a troublesome BoA member can just be suspended until their tenure runs out. This is absolutely contrary to judicial independence and I look forward to reading the Bundesverfassungsgericht decision on this.

Bit of a risk involving the Bavarian police, no? I wonder if they had anything to say about key-logging / spy cameras, in contravention of German Datenschutzgesetz? Remarkable temerity to involve the police to ask them to act under national law while flouting that same law (sorry - being immune to it) as regards data protection. I don't believe that such covert surveillance would anyway be admissible before a German court; it would itself be possibly deemed illegal surveillance.

Charley

MaxDrei said...

Politicians in the countries, the governments, of Western Europe are fond of patting themselves on the back, when they berate the rest of the world for being unable to maintain The Rule of Law. OK, well then, the Administrative Council of the EPO is an ideal vehicle for them to demonstrate to the rest of the world what they mean by "the Rule of Law" and how it is to be maintained.

And what do we see? Totally supine attitudes. The AC has no backbone. BB is to be held to account by a lump of Plasticine.

No wonder that, these days, authoritarian and lawless regimes all round the world have nothing but scorn for our precious western European democracies. All talk and no action.

Those of us who read Merpel here should try to explain to the honorable profession of journalists what's going on here, and how the AC story is a good way to demonstrate to the wider general public, in specially simple terms, a practical example of the erosion of our precious rights under a Rule of Law.

Kal en Boer said...


Past tense
At EPO the Rule of Law ?

Present
At EPO the Rule of Low !

Proof of the pudding said...

So, the EPO has blatantly failed to follow the rule of law. The AC has blatantly failed in its most fundamental role of overseeing the actions of the Office. To add to that, there are numerous rumours circulating about precisely how it is that the President of the Office manages to retain the undying loyalty of certain representatives to the AC.

It is not hard to come to the conclusion that the Office has been entirely captured by a bunch of self-serving career civil servants who care not a jot for the reputation of the Office or the people that work there and merely seek to further their careers (and other self interests).

It seems that we cannot rely upon the current "political" class to "drain the swamp" at the EPO. There is simply too much complicity. My suggestion is that light will serve as the most effective disinfectant here. Does anyone have the number of a good investigative journalist (assuming that such people still exist)?

Anonymous said...

"@ the anonymous "Anonymous"
Have you read Merpel's blog entry? Who is to blame for this mess? The board member you want to see dismissed? Shall we now start dismisssing judges who don't conform? Why don't you have a go at getting disciplinary proceedings going against the alleged "enemies of the people" in the UK? Yes, that is the sorry road we all seem to be going down, whether we want to or not."

You have misinterpreted the point. It was not a suggestion or recommendation to have someone dismissed. It questioned the power of BB, which presumably is limited/controlled if he is unable to dismiss someone out of hand, which is certainly the case elsewhere.


Re:
"The AC wanted someone to put the examiners back to work, work a little harder and pick up files within one to two years after the last letter from the patent attorney - rather than sometimes over six years."
The EPO is funded sufficiently to provide quality and speedy examination. That is what I expect. Was the AC expecting too much of existing examiners, or was the comfortable EPO life getting a little too comfortable?

Anonymous said...

I agree with MaxDrei in respect of the general inadequacies of multi-lateral bodies. We just have to look at the impotence of the United Nations in matters far more devastating than this EPO saga.

So-called modern nations can't combine to police/control despots around the world and many are suffering. Unilateral action by countries such as the US, UK, France are essential to protect people from the genocides and terrorists slaughters that regularly occur.

Anna Lyse said...

"watch the soon upcoming decisions of the German Bundesverfassungsgericht on its constitutionaly"

Please note that - different from what had been envisaged in the court's outlook for 2016 - a decision (unfortunately) does not seem to be "soon upcoming" at all. This does not change by frequently claiming that the opposite was the case.
Apart from that, bearing in mind the possible political impact of the decision and the manner the German Constitutional Court recently dealt with similar matters, I would be rather sceptical that any meaningful guidance can be expected, let alone a convincing solution.

THE US anon said...

Ah, MaxDrei,

I expect to see far less of your "EP Uber Alles" posting on US blogs, given the "log in your own eye" here.

Oberlehrer said...

Mein lieber US Anon:

I might agree with you about obvious straws or logs sticking out. However, the 24/7 freak show doing business under the brand of "US politics" hardly gives you any ground for gloating.

How many months more before your already widely dysfunctional institutions will descend into chaos?

Der Oberlehrer.

Drumpf said...

Hey Mr Oberlehrer better not get too cocky.

Maybe someone in the new US Administration will set their sights on the EPO.

The failure to provide a truly independent judicial review instance could arguably count as a breach of TRIPS.
Grounds for an action against the EPO contracting states ?
Let's see ...

arthurdent said...

@Anna Lyse: actually a decision by the Bundesverfassungsgericht is still foreseen for 2016 according to

http://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/vs_2016/vorausschau_2016_node.html

(Zweiter Senat, No. 14).

If you have different information would you mind citing your sources?

Daniel said...

@athurdent: The Jahresvorschau clearly shows that so far only 8 of the 30 "planned" rulings of the Zweiter Senat have actually been made this year. It seems highly unlikely that all of them (or even a majority) will be resolved in December.

Anna Lyse said...

The "Jahresvorschau" - I called it the court's "outlook for 2016" in my earlier comment - is nothing more than this, an outlook which, of course, is not binding on the court. You should also be aware of the fact that the two proceedings mentioned in the outlook are not the one only ones pending there in relation to the EPO.

If you doubt my statement, feel free to confirm this with the Court's Registry.

THE US anon said...

Der Oberlehrer - my comment was directed at patent law issues - NOT anything else, thanks.

(When I come blowing a US is better in other areas, then let me know about those other areas, ok?)

Quo Usque Tandem said...

here further information on situation at the EPO http://kluwerpatentblog.com/2016/11/19/debate-in-dutch-parliament-about-deteriorating-social-climate-at-european-patent-office/

The Great Ba Di Di, Prince of Toilets said...

Mmh ... let me see if I get it right:

the Munich Public Prosecutor - a fairly independent instance, I would say - has dismissed the complaint.

Did the President inform the Administrative Council of this important development in May?

Or is he using the AC to have an INNOCENT PERSON dismissed?

If anybody, at least the suspended member shall inform the AC, his own appointing authority.


It's now also pretty clear why the president doesn't want any external review of the cases of the dismissed Staff Representatives ...

Et sinon je reprendrais bien des croquettes said...

The Prosecutor reviewed and analyzed the articles and concluded that their content was not in fact defamatory under German law. The Prosecutor also expressed doubt that in any event the dissemination of press articles could constitute defamation under German law.

Well, well, well ... we now discover that the original accusation was "redistribution of press articles" which the Office "considered" "defamatory" against a "member of the senior management team at the EPO".

(Everybody knows who this "member of the senior management team at the EPO" is. But now we now also understand why the EPO decided to block access to Techrights from within the Office ... everything fits together perfectly ...)

Given the reaction of the President and the mess in which he has put the Office, these articles should contain explosive material! What a pity that we cannot read them ...

... but wait: we can! In Germany, legal proceedings are not subject to the cloak of secrecy imposed in EPOnia. In Germany, everyone can make his/her own mind, and not only hear the management's version of the facts.

Anyone to get a copy of the decision of the Munich Prosecutor and retrieve a these "dangerous" articles*?

Also, send a copy of the decision to the German press that so far seems to have blindly followed the words of El Presidentissimo?

Mr. Battistelli has made a big mistake here. By the time the Munich Prosecutor announced his decision, he expected the suspended member to be already out of the EPO since long time ...


* Yeah, I know they most probably are already available at Techrights, but still ...

Borussia said...

... but wait: we can! In Germany, legal proceedings are not subject to the cloak of secrecy imposed in EPOnia.

Ahem... Haven't you heard of the Uli Hoeneß case?

The Landgericht München II issued a rather bowdlerized version of its decision which does not enable one to see what was left out, despite the protests of the press...

A complete decision would have provided information on how much more the FC Bayern boss had actually stashed away beyond what he admitted to. But the court would have had to justify its apparent leniency.

(I don't know what is meant by "Pflichten der Staatsanwaltschaften zu Auskünften und Akteneinsicht nach der Strafprozessordnung bleiben hiervon unberührt." in the BY Amtsblatt.)

Court Reporter said...

@Ba Di Di

Prince of Toilets, the President is not using the AC to have anybody dismissed. He prefers to do the dismissals himself as he has found out that you can't find anybody reliable to delegate such dirty work.

All he is asking from the AC is that they keep the guy suspended until his term of office at the end of December 2017. At that stage he will have been suspended for three years of the five year term.

In case you missed it "infinite extension" of the suspension of Board members is now possible thanks to CA/D 18/15. Check out the new version of Article 95(3) of the "Beamtenstatut" at any publicly accessible computer on EPO premises (watch out for the "spy software" that might be installed).

So you see there is no longer any need for the messy business of dismissals of DG3 members. Just permanent suspensions for anyone that steps out of line.
After their term of office expires they revert back to being under the disciplinary "cosh" of the President and Madame Bergot.
It's a really elegant solution.



Proof of the pudding said...

Amongst international organisations granted immunities, the EPO is unfortunately far from being alone in failing to respect basic principles of the rule of law. A 2010 essay by Matthew Parish (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1651784) had this to say about the matter:
"The only way international law applicable to international organizations is enforced is either by the international organizations themselves, or through political pressure of their members. Neither of these is satisfactory, for obvious reasons. Self-regulation cannot expect to be effective, as the rules will be interpreted and applied in a way convenient to the organization applying them. Political pressure is arbitrary: the force that is brought to bear, even if disguised in legal language, is likely to reflect national political interests rather than legal principle. There can be no law without impartial adjudication of its content and application. The inference we must therefore reluctantly draw is that international organizations are lawless creatures, despite their best pretences otherwise. For all their formalities, procedures, internal regulations, bulging legal departments and quasi-legal language in which they cloak their operations, their legal structure is a phantasm. When the rhetoric is stripped away, the legal framework within which international organizations are revealed to operate is entirely self-serving. Divested of the only mode of accountability that might conceivably be available to constrain them, their true form is revealed as an utterly undisciplined bureaucracy, inward looking, unrestrained, hydra-headed but directionless, self-consuming, and subject to perennial self-serving growth".

I am sure that this description of effective lawlessness will sound pretty familiar to those currently serving under BB's cosh.

Sadly, the only solution proposed by Mr Parish (the introduction of legal accountability measures for international organisations) is not likely to be effective in the current situation... at least not unless national judges start developing theories by which certain actions of international organisations can be subject to the jurisdiction of national courts. Based upon the "opinion" issued in the case pending before the Dutch courts, this does not look likely to happen any time soon.

So, I guess I am back to reiterating my previous request: does anyone have the number of a good investigative journalist?

Surely it would not be too difficult to find "hard" evidence of actions by EPO management (or failures of oversight by the AC) that would breach provisions of all national laws (including provisions of the European Convention on Human Rights)? The first instance judgement in the Netherlands and the situation of the "suspended" judge spring immediately to mind. Analysis of the voting patterns of each national representative to the AC could well provide a rich source of information too.

Brit said...

Anon 17 November 2006,
Regarding unfair dismissal, since the alleged perp was it seems only passing on available documents s/he may have grounds for claiming whistleblower protection which would not be a limited sum of compensation in the U.K. at least. Thus I'm not sure he has the rights he would have elsewhere.

Anonymous said...

@Anonymous
"The AC wanted someone to put the examiners back to work, work a little harder and pick up files within one to two years after the last letter from the patent attorney - rather than sometimes over six years."
The EPO is funded sufficiently to provide quality and speedy examination. That is what I expect. Was the AC expecting too much of existing examiners, or was the comfortable EPO life getting a little too comfortable?

I can assure you that this is not the case. Our production targets have increased exponentially over the last three years. This year's target was very challenging, and for the average examiner next year's is 15% higher. There is no obvious reason for this increase, except, if the rumours are to be believed, someone high up would like the nice round number of 400.000 products to be produced in 2017; all other factors used to calculate our targets have been manipulated to make this possible, regardless of the actual achievability of the targets set. In some complex fields, mine included, we now have less than 2 days per product; in the case of a search, that means reading the application, performing the search and writing the search report + written opinion in less than 16 hours. This is simply not enough. So no, we examiners are not lazy, but we are under enormous pressure...

BBrox said...

Dear last anonymous,

You are a bit off-topic, but I'll bite. An increase of 15% is indeed very challenging to say the least.

It is, ofcourse, complete nonsense. The plan for 2016 is 385.000 products, the plan for 2017 is 400.000. That is a 15.000 increase, not a 15% increase. But it gets better. We are currently about 11.000 ahead of plan so it looks like we will end up with a total production in 2016 of 396.000. Then it is only a 4.000 products increase. But it gets better. Next year we will have on average 50 examiners more, who each finish about 90 products. So they will, together, increase the output by 4.500, making up for all of the difference. This means that the target of the average examiner will not increase at all compared to the achievement of 2016!

Maybe you are 15% below average yourself and you've been asked to improve?
Could you please tell us where you have your numbers from?

Thank you...

BBrox

Anonymous said...

I was simply responding to something that an earlier poster said. I am certainly not a low producer, and everyone in my directorate has had the same bad news. The new targets are simply derived from the reference examiner, scaled according to grade and available days - this has resulted in significant increases to an already difficult target. Such increases are simply not sustainable year-on-year.

Anonymous said...

Dear BBrox,
greetings to Mr Minnoye, to his PDs and Directors:
"This means that the target of the average examiner will not increase at all compared to the achievement of 2016!"

It already has. Why has P of the reference Examiner been increased for the next year then?
One of those "Maybe you are 15% below average yourself and you've been asked to improve?"

Proof of the pudding said...

@Anon(s)

Don't feed the (EPO management) trolls. Whilst production increases might be a suitable subject for a debate, it is not the topic of this thread... which, with all due respect, is a much more fundamental topic (how to deal with the total absence of the rule of law within the EPO).

Of course, feel free to carry on correcting gross misstatements / misrepresentations. I would do the same. Just question the motivations of those who appear to be deliberately provoking you to get involved in a distracting side-show.

By the way, do you know the number of a good investigative journalist? I keep asking, but the silence is deafening.

Representative of various anons. said...

@Proof of the pudding.

Of course you are right, the debate about production increases was just started as a distraction. But I would like to point out that it actually points at the more fundamental topic: the numbers published at the EPO are not to be trusted, since there is not independent control on them.

Basically, what the peculiar posts say mirrors what EPO management says: on the one hand, objectives did not change, examiners work as usual, everything is as before including quality and yet, on the other hand, we managed to break another production record 3 years in a row and next year shall be even more amazing. Add a little bit of examiner bashing (lazy and overpaid) or union bashing to taste.

It is a system.

Of course, the fact is that, BEFORE Battistelli, the EPO was universally acknowledged to be the best in the world (despite examiners and union, I suppose). Now, it isn't.

Sam McClure said...

Pudding old chap, the problem is that your question albeit well-intentioned is difficult to answer.

The "investigative journalist" (singular) who could deal properly with the EPO probably does not exist. The subject matter is complex and would probably require a cross-border and cross-disciplinary team to do it full justice.

Another problem is that it's too much a "niche interest" to attract enough interest in the mainstream media.

Having said that Bavarian Television did quite a good documentary earlier this year but that was in German and may therefore have had limited circulation. Dutch TV has also provided some coverage.

Getting back to your original question, there are many cross-border centres and networks for investigative journalism for example the ones that dealt with Wikileaks and the Panama papers. But the EPO doesn't seem to have the same "mass appeal" so it's more difficult to attract any coverage.

The Fourth Estate said...


Investigative journalism in Europe

International Consortium of Investigative Journalists

ICIJ - our journalists

The Prisoner said...


for investigative journalism one golden rule : follow the money.

EPO has plenty (2.000.000.000 EUR / year budget and ZERO decent check-and-balances comparable to what can be found at UNO or EU)

They are currently building expensive in NL aren't they ;o)

Be seing you

Blatteristelli said...

WIPR published yesterday an article article about the dismissal of Prunier, and cited the statement of the Office that "The procedures were conducted according to our rules, which compare favourably to other international organisations [...]" etc. etc.

Today, they published the response of Prunier, who notices that "the EPO’s spokesperson has no access to the investigation reports and to the disciplinary files, as they are confidential, meaning that they are in no position to certify that “all the rules were followed” and further challenges every statement of the EPO spokeperson.

The EPO declined to further comment.

It's worth reading.

Anonymous said...

Surfer in the VP1 wash said...

@ BBrox

The linear yearly DG1 production growing figures will be in for some shocking surprises in 2017/2018 when The Hague will start with a couple of thousand staff removals such as evacuating the Le Croisse, Rijsvoort and Main building towards the new Main building, having said this we talk about 2 day production loss/examiner. But for people like BBrox there will be no problem to find some more repressive measures to put the examiners through their passes and to continue the social nightmare!

Anonymous said...

Some honest and brave AC members who understand what is going on here should ask BB for the investigation reports of Prunier and for an overview in detail of which rules were followed. BB will never give the reports and that overview. It is clear why. Be honest, should you put your head in a guillotine? Leaking of that information is urgently desired. The EPO should further urgently sign the European Convention on Human Rights.

Pangur Bán said...

To proof of the pudding:

Indeed it is difficult, for the reasons given by Sam McClure, to interest investigative journalists. I know, I've tried and so have others to my knowledge. There is an additional barrier he did not mention: anything "European" is considered by the media in many countries, even those with a "free" press, to be a sacred cow that cannot be criticized for fear of giving aid and comfort to "..exiteers". Even if one could find a keen journalist, what mainstream media would touch this story?



clerk of court said...


SLAPP-Happy EPO Vice-President Slapped Out of the Municipal Criminal Court in Zagreb for the Third Time!

Old and sad said...

The cynicism of BBrox and consorts is quite amazing. We already have increased the production in 2016, so what has to be reached in 2017 is not much more. Why are you complaining? This is the clear demonstration that the production and productivity figures are part of a ratchet mechanism. Always more, and more is not enough.

I know for a fact that high production is not synonym of low quality, but what we see coming out is a quality going down the drain. And it is not just a building site barrack transformed in a hair dresser saloon becoming inventive in that a window is added.

it is disturbing that such comments are allowed to be published. They bare no relationship with the topic which is discussed, which is the total absence of separation of powers between the judicial and the executive. That is what is wrong, and I strongly doubt that the new structure of the Boards will allow a clear separation, at least as long as BB is in charge.

Daniel said...

@old and sad:
I find BBrox comments very enlightening. If newly appointed examiners are seriously expected to deliver 90 products in their first year, how much time will be left for the "extensive 2 year training" advertised on the EPO jobs homepage? It's not hard to imagine how this could lead to production pressure and low quality results.

BBsux said...

If newly appointed examiners are seriously expected to deliver 90 products in their first year, how much time will be left for the "extensive 2 year training" advertised on the EPO jobs homepage?

Where's the problem?
90 "products" delivered in the first year is about two per week.
The "products" will be delivered as collateral damage "side-products" of on-the-job training.

Proof of the pudding said...

@Pangur Bán

You may well be right. Perhaps this is why Monsieur le President feels so secure, despite conducting himself in a manner that would land him in civil court (and perhaps also in criminal court) in any EU country.

This does beg the question: if EU leaders wanted to achieve certain goals that would currently be illegal due to some irksome EU law or other, could they set up an international organisation in order to effectively bypass those laws?

For example, in order to deal with troublesome political enemies, could one or more EU Member States set up an international organisation (with the usual privileges and immunities granted to its staff) with a name such as "Totalitarian Organisation for the Re-education of Those Undeserving of Rights in Europe" - or "TORTURE" for short? I would like to think not, but what would stop it?

If there are mechanisms that would stop the creation of a hypothetical organisation such as TORTURE, what are they? Would any of them be applicable to the EPO? If they would, is it too late to trigger them now? If not, how can they be triggered?

It is clear that the President and his cronies have taken actions that are not "strictly necessary for its [the EPO's] administrative and technical operation". I mean, at what point could it ever be argued that it is "strictly necessary" to fire a staff representative when your governing body has explicitly told you not to? Thus, due to the limitations of immunity under Article 3 PPI, the Organisation, if not any of its individual staff, ought to be liable for suit in a national court. Such suit might raise interesting questions of the duty of the President under Article 19(2) PPI.

I do hope that there is a way out of this mess for the EPO. However, I fear that only legal action at a national court will be the answer: as what is to stop another clique of self-serving, money-grabbing, sociopathic "politicians" taking over the management of the EPO once the current President finally leaves?

Old man said...

Proof of the pudding,
I suspect the. Dutch Supreme Court Appeal might answer your question. It seems the court will find in favour of the EPO but, of course, the decision may well say a lot more about whether the EPO is morally wrong but technically safe. In doing so it should define the boundaries since that is the crux of the matter - where does immunity start. Don't be surprised if the court is very direct and critical.

Er zijn geen bergen in Nederland said...

" Don't be surprised if the court is very direct and critical."

It's a Dutch court, after all ...

Proof of the pudding said...

@Old man

Despite the AG's opinion, I can't see any reason to believe that it is likely that the Dutch Supreme Court will find in the EPO's favour. This is because the AG's opinion is so demonstrably full of holes that it is embarrassing. ILO-AT's remit simply does not cover complaints relating to the rights at issue, and so to point to the possibility of complaining to ILO-AT is no answer to the plaintiff's arguments.

But perhaps you know something about the Supreme Court's decision-making process that I do not.

I would rather have expected that the government of the Netherlands (as well as all other national governments and/or heads of international organisations) would be at pains to avoid any suggestion of "political" interference in the Dutch judiciary. The independence of the judiciary is, after all, one of the cornerstones of democracy in Europe.

I Secondat said...

The independence of the judiciary is, after all, one of the cornerstones of democracy in Europe.

What century are you living in ?
Certainly not the 21st century in Eponia !

What a load of quaint antiquated Montesquieuesque nonsense !

The King sets the Rules said...

One of the two decisions which had been announced for exceptional public delivery by the ILOAT is now available here:
http://techrights.org/wp-content/uploads/2016/11/ilo-3785.pdf
It doesn´t seem extraordinary, but it is, and it might have serious implications for other appellants as well: the ILOAT refused to examine the case before it on its merits, but sent it back right away to the EPO for reconsideration by an Appeals Committe "composed in accordance with the applicable rules" (!!!)
By analogy it must be expected that the numerous cases pending before the ILOAT concerning e.g. the disciplinary measures taken against staff mambers, or the contested guidelines relating to investigations, data protection, right to strike, etc ... will be remitted to the EPO in the same way. It is a pity, and clear evidence that the EPO administration does not even abide to the most elementary statutory rules.

Old man said...

Proof of...
No, no inside knowledge. I was only commenting on what was known and what was likely. And I would not question the judiciary's independence. Hence I suspect they follow the law, no matter how unfair it may but express their misgivings while so doing. The problem is a political one with regard to the wording of the EPO Seat Agreement signed by the Govt. which appears to be too lax. The judges can only work with the contracts in front of them.
However, I hope I'm wrong.

another cynic said...

It is a pity, and clear evidence that the EPO administration does not even abide to the most elementary statutory rules.

That is only the tip of the iceberg.

The real problem is that the AC will not demand any consequences or call those responsible for the mess to account, in particular DG5 legal services dilettantes who have created the problem with their anticipatory obedience to the forces of tyranny.

You really have to wonder whether the AC will even realise the significance of this judgement.

IP Watcher said...


IP Watch: ILO Decisions said to confirm that EPO staff lack fair legal system

IP Watcher said...

IP Watch seems to have been struck down by a DDOS attack ...

Intellectual Property Watch is Temporarily Unavailable

The website is currently experimenting technical difficulties. We apologize for the inconvenience, please come back later.

What a coincidence !!!!

Anonymous said...

Facts are opinions. This is what EPO communication is about now. Facts are opinions, firing staff representatives is not what it looks like, it is based on individual circumstances, it so happens that 100% of dismissals target senior union members. And opinions are facts: really, yes, the unnamed board member hid nazi memorabilia and weapons in his office, after all who are you to disagree, I am the one controlling communication here. All of this is a matter of degrees in a scale with no beginning and no end.
So of course no definitive action need be taken by the administrative council. We are all still talking and arguing, you see. Let us put things in perspective.
From my perspective, the time for talking is long gone; communication has become corrupted and dangerous. The rule of law has become an esoteric detail standing in the way of "modernisation" and "reforms".
Do not ever take BB and his cronies for anything other than what they are.

The Press said...

IP Watcher said...

IP Watch: ILO Decisions said to confirm that EPO staff lack fair legal system


The European Patent Office has emailed some gobbledygook in response to the article of IP-Watch.

Anonymous said...

Eponia's forgotten roadmap says...

Currently being rolled out in the EPO is a PRISMA information security policy, it is not about information theft prevention but information manipulation on a scale never seen before! ... BB's chiefs, HR and the IU are taking key positions and use information control tactics to gain ultimate control over Eponia and any opposition. Let's hope the AC delegates act before it is too late.

Memorandum of Ignorance said...

The way I interpet the EPC, the AC must renew the contract of the BoA member, just to make a decision.
It would be unlawful to not renew while suspended, or they'd still need to pay all his withheld remuneration, as there was no decision of disciplinary measures. And taking a decision of disciplinary measures while not an employee seems even weirder.

But then, what kind of "Rule of Law" does the head of administration uphold, while being head of an organistion, whose sole role it is to apply law?

Kitty said...

@ gIgnorance
For a BoA member to be renewed, he has to be proposed to the AC. By the president. BB will simply not propose the suspended member to the AC for renewal, as he has done (or rather not done) with quite a number of newly appointed or to-be-prolonged members before. So the AC will not be in a position to decide anything.

The Great Ba Di Di, Prince of Toilets said...

@MoI

It would only be fair, if the BoA is reinstated, that he/she is allowed to additionally serve the 2 years during which he/she was suspended before his/her 5 years term is considered to expire.

RTFM said...

@ Kitty

For a BoA member to be renewed, he has to be proposed to the AC.

Not true. Under Article 11(3) EPC (first sentence) appointment of Board members requires a proposal from the President. Reappointment (Art. 11 EPC, second sentence) is the prerogative of the Council which is only required to "consult" with the President.

The President has no veto over reappointment of Board members although he could conceivably attempt to manipulate the Council to block a reappointment.

Article 11(3) EPC:
The members, including the Chairmen, of the Boards of Appeal and of the Enlarged Board of Appeal shall be appointed by the Administrative Council on a proposal from the President of the European Patent Office. They may be re-appointed by the Administrative Council after the President of the European Patent Office has been consulted.

Disheartened said...

Kitty, the responsibility to propose that the BoA member be reappointed is now to be delegated from BB to the new President of the Boards of Appeal.

Whether that will make a difference I don't know.

Anonymous said...

‘A dose of letting go’ says...

Will the AC , partners in crime, become tomorrow a group of refined thinkers and doers who deal freely and easily with the Eponians academic reflexes , unhindered by the often overwhelming foreknowledge of those in BB’s close circles?... A group armed with a critical , constantly alert outlook , with antennae and feelers reaching out in all directions, with ears permanently pricked and implausibly intelligent hearts. To look at the EPO differently , dispense with the obvious, communicate more deliberately with the Eponians and place their trust in them. Do they dare to take this leap in the unknown? A Wahlverwandschaft. There is no such thing as coincidence!

Et sinon je reprendrais bien des croquettes said...

@A dose of letting go

"Will the AC [...]"" etc. etc.

No.

Anonymous said...

Bringbackalib.Says..

A t last The Muppet Show returns to tread(on)the Boards
P arty time at Christmas,the office can affords
P erhaps this year Batters can desist from lighting a fag
L et the fire brigade have a night off from this running gag
A move to Haar just needs to be waved through
U nlikely that the revellers will block his newest coup
S o what use are these people? I can only ask
E PO is dysfunctional,they are not up to the task

Headache said...

According to Techrights knows the votes: 21 Yes, 7 No, 7 Abstain.
Spain being the biggest country to vote yes, NL, GB, FR vote against, DE abstain.
What happened to the old "no vote without the support of the big three and the host countries"? Here we have the opposite....

Proof of the pudding said...

Any news on the suspended member of the Boards of Appeal?

And has Battistelli suffered any consequences for having blatantly disregarded a direct order from the AC? Or, for that matter, for having interfered with the independence of the Boards of Appeal?

Anonymous said...

@PotP: as far as I know, the case of the suspended BoA member was not put on the agenda (which is proposed by the President of the Office). Possibly they discussed it behind closed doors, but I assume not.

Poor guy, I'll be bery interested to see what ILO-AT has to say abou this case, once it gets there....

The good old days said...

What happened to the old "no vote without the support of the big three and the host countries"? Here we have the opposite....

That was a "gentlemen's agreement".

But for such an agreement you need to have gentlemen and they seem to be in short supply in the current ranks of the AC.

True gentlemen are not so easily bought.

The Good Old Days said...

What happened to the old "no vote without the support of the big three and the host countries"?

As I already posted in a comment which hasn't appeared, that was a "gentlemen's agreement".

For a gentlemen's agreement you need to have gentlemen and they now seem to be in short supply.

True gentlemen are guided by principles not expediency.

Down the rabbithole said...

Oh, that fits.

the Union FFPE-EPO always points out, that the beloved MoU is a "Gentleman's Agreement".
Now it becomes clear, why the "official union" never complains. They knew right from the start how they'll be treated, and are happy to sit at a table, to discuss things that are neither urgent, nor in need of their input anyway....

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