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01.07.15

Intellectual Property Judges’ Association (IPJA) Speaks Out Against EPO Tyrant Battistelli

Posted in Europe, Patents at 8:02 pm by Dr. Roy Schestowitz

Benoît Battistelli in the crosshairs of European patent professionals

Summary: As the new year starts (first week of the year) Battistelli is already in the firing line of yet more high-level departments/personalities

More criticism of Battistelli, this time from the Intellectual Property Judges’ Association (IPJA), is now reported by Merpel of IP Kat.

Merpel reveals that IPJA, which is the representative association of European National Patent Judges, is getting fed up. “Just in case you missed it,” wrote a source to us, the following letter may be of interest. We copy it below for future reference (Merpel put lots of Microsoft Word cruft in it, hence the poor formatting).


The Rt. Hon. Professor
Sir Robin Jacob
5th January
2015

Jesper Kongstad,
Chairman of the
Administrative Council of the EPO,
European Patent Office,
Bob-van-Bentham-Platz 1
80469 Munich
Germany                                                                                                                                            

            I am writing on behalf of the
Intellectual Property Judges’ Association (IPJA) to express the extreme concern
of European Patent Judges to the recent events concerning a Member of the
Boards of Appeal of the EPO. IPJA is the representative association of European
National Patent Judges. This letter has been written after consultation with
the IPJA membership.  It has near
unanimous support and no objection or reservation by anyone.

            As we understand it the Member was,
on the orders of the President acting on his own initiative, physically removed
from his office and possession was taken of his computer. It is not, as far as
we know, suggested that the Member has committed any criminal offence. That, in
any event would be a matter for action by the criminal law enforcement
authority, not the President.

            We do not know what it is that the
Member is alleged to have done wrong. Nor does it matter. What does matter is
that the Member has been treated in a manner we deem to be inconsistent with
the status and position of a Member of the Boards of Appeal as provided for in
the EPC.

            As
Judges we are not in a position to take any concluded view of the legality of
the President’s action – the point could well come up in a real case concerning
the status of Board of Appeal decisions. But we can say that according
to article 23(1) (read in conjunction with articles 10 and 11) of the EPC it
seems clear that it is for the Administrative Council and the Enlarged Board to
take action, not the President, and that the Administrative Council
should have so declared.

            More generally we make one further
observation. The present events seriously threaten the judicial independence of
the Boards of Appeal and by doing that call in question the guarantee of an
independent and impartial review of the European Office’s decisions by a
judicial body. Not tolerating that should be the common interest of all Member
States of the European Patent Organisation.

            A copy of this letter will shortly be
sent to EPLAW, IPKat and Managing IP magazine.
UCL
Faculty of Laws, Bentham House, Endsleigh Gardens, London, WC1H 0EG

 +44 (0) 20 7679 5831  rjacob@ucl.ac.uk

“Add this to other letters that we have shown before and sooner or later it becomes clear that Battistelli not only runs out of allies; he runs out of apathetic entities that neither support nor dennounce him.”As Merpel states: “This letter has the support of “all or virtually all” of the main patent judges of Europe and from 11 countries.” Add this to other letters that we have shown before and sooner or later it becomes clear that Battistelli not only runs out of allies; he runs out of apathetic entities that neither support nor dennounce him. The tide is quickly turning, much as we hoped all along. Here is Merpel’s summary of some other recent developments, some of which we covered here before:

On Christmas Eve according to the Gregorian Calendar, Merpel posted a round-up and summary of what has been going on at the EPO. Now that we have come to Christmas Eve according to the Julian Calendar, it seems appropriate to revisit the subject. There have been a large number of developments over the last couple of weeks, and the IPKat and Merpel have received an enormous amount of correspondence. There is actually too much for a single post, so Merpel will start with a round-up of brief news, in particular relating to the UK Parliament and the EU Parliament, together with some other snippets. In her next post, Merpel hopes to delve into the Business Distribution Scheme of the Boards of Appeal, where some interesting facts become apparent, and she will also look a bit more into Board 28.

[...]

As reported by the IPKat here, the MP for Cambridge, Dr Julian Huppert tabled a question to ask the Secretary of State for Business, Innovation and Skills:

What steps he is taking to protect the independence of the Enlarged Board of Appeal of the European Patent Office.

[Incidentally, while Merpel congratulates Dr Huppert for tabling this question, it would have been better phrased without the "Enlarged"; fortunately, the response addresses the better formulation.]

Yesterday the IPKat learnt that there has been a response as follows:

Officials in the UK Intellectual Property Office are closely and actively involved in discussions relating to the Boards of Appeal of the European Patent Office (EPO), including the Enlarged Board. It is the UK Government position that the Boards of Appeal should be independent of the executive of the EPO, and be seen to be so. This view is shared by other EPO member states and we expect proposals to make this clearer to be considered by the Administrative Council, the Office’s supervisory body, in March 2015.

Cautious Katpat to Her Majesty’s Government – if there are indeed proposals to make the independence clearer then the IPKat and Merpel applaud the efforts. Thanks to several readers who alerted the IPKat to this.

We too received information regarding that latter item. “There is no doubt that this is a setback for Battistelli,” noted one of our readers. “I think what emerges from this is that at least one significant member state of the AC is breaking from Battistelli’s public position.”

Over the weekend we began preparing some future exclusive posts about the EPO and they will be ready for publication very soon. Right now “we need an increasing drumbeat in the run-up to the next AC,” told us a reader. “It’s a real shame that EP industrial corporations haven’t spoken out yet – if they did he would be a dead duck real quickly.”

Combining some of the recent letters and considering the number of scandals we are about to show, Battistelli will almost definitely be out of office soon (no vacation), and he won’t be alone in leaving. It would be poetic justice if he was just “suspended” out of office, sitting outdoors in winter calling himself "President" repeatedly when all he really became was a thug in a suit, no better than Željko Topić (Topić too is in serious trouble and he knows it).

In other news, which is very sad, “Bernard Marris, economist against software patents, was killed today in Paris,” wrote Benjamin Henrion in Belgium. The articles cited by Henrion are in French. We need to fight for elimination of software patents, especially in Europe. Bernard Marris would have been happy to see that happen. Based on our sources, many in the EPO (science-oriented staff) are against software patents and are not willing to just “follow orders”. To Battistelli, quality of patents does not matter and those who don’t agree with him shall receive the ‘Putin treatment’ (EPO staff privately refers to Topić as “Putin”).

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    January 11, 2015 at 9:34 am

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