Summary: EPO staff responds to the weak charm offensive from “Mr Battistelli’s boys”, stating that much work -- including protests -- remains to be done

LAST WEEK we started writing about the Dutch scandal that led Benoît Battistelli to concessions, in an effort to appease his critics who got his very job under serious threat. Florian Müller said that Battistelli would allow SUEPO to merely exist (based on just a statement) and also published some thoughts about the EPO Administrative Council meeting that we had mentioned for quite a while. Flier [PDF] and comments [PDF] from staff were also uploaded and we present these below.

Ortssektion München . Local Section Munich . Section locale de Munich

23.03.2015
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ACTIONS CONTINUE
DEMONSTRATION: WEDNESDAY 25 MARCH
ISAR BUILDING AT 12.30h

The EPO in the news Last Saturday (21 March) the two most respected Dutch newspapers, NRC and Volkskrant, both ran highly critical two-page articles about the EPO. The NRC commented in a second article on the refusal of the EPO to admit the Dutch labour inspection after a suicide on the premises in The Hague. As usual, Mr Battistelli denied all the charges, insisted on the EPO’s immunity and blamed SUEPO. The articles can be found here:

NRC, “Ik ben geen zonnekoning” http://www.nrc.nl/handelsblad/van/2015/maart/21/ik-ben-geen-zonnekoning-1477227 (printable version)¹, (Google translation)

NRC, “De arbeidsinspectie komt er bij het Europees Octrooibureau niet in”, http://www.nrc.nl/handelsblad/van/2015/maart/21/ruzie-de-arbeidsinspectie-komt-er-bij-heteuropee-1477187 (printable version)², (Google translation)

De Volkskrant, “Baas van Europese octrooiorganisatie voert schrikbewind” http://www.volkskrant.nl/economie/baas-van-europese-octrooiorganisatie-voertschrikbewind~a3918719/ (printable version)³, (Google translation)

SUEPO will provide official translations as soon as possible.

IP blogs have also become rather critical of Mr Battistelli’s attitude and behaviour, see e.g.: http://kluwerpatentblog.com/2015/03/20/behavior-benoit-battistelli-is-bad-for-the-epos-reputation/ http://www.fosspatents.com/2015/03/epo-human-rights-issues-and-eu-patent.html

Finally, an English translation of judgment pronounced in a court case in Croatia earlier this year has become available: http://techrights.org/2015/03/18/full-judgment-against-topic/

In this case Mr Topic (VP4) complained about defamation. The judge could not see any defamation in the – very serious - accusations against Mr Topic. These findings are highly embarrassing not only for Mr Topic but also for Mr Battistelli who has long denounced what he called a “defamation campaign against VP4”⁴. Mr Battistelli imposed (and the Council rubberstamped) a house ban on a Member of the Boards of Appeal suspected of involvement in the alleged “defamation campaign”⁵. Such charges now seem difficult to maintain.

___________ ¹ http://www.suepo.org/public/ex15136cp.pdf ² http://www.suepo.org/public/ex15138cp.pdf ³ http://www.suepo.org/public/ex15139cp.pdf ⁴ see e.g. Mr Battistelli’s note to all staff of 26.02.2013: ⁵ link to Communiqué No. 64

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And the politicians? The leading politicians responsible for patent matters in the Member States remain mostly silent. But it is clear that Mr Battistelli’s open disdain for the Dutch judiciary and the Dutch labour inspection has raised eye-brows in The Netherlands. We also hear that Mr Battistelli’s plan to move DG3 to Berlin did not go down well with the German government. It seems that the French government is starting to become seriously worried about possible damage to the reputation of France. And we doubt that the UK minister of Innovation (“the Baroness”) failed to notice the criticism about her apparent inactivity in the current crisis: http://ipkitten.blogspot.de/2015/03/peace-for-our-time-or-another-wasted.html http://ipkitten.blogspot.de/2015/02/epo-suepo-and-question-of-governance.html

Next reforms The Administrative Council of the EPO will meet on Wednesday 25 and Thursday 26 March in Munich. On the agenda are a reform of DG3 (CA/16/15) and the next “health reform” (CA/14/15a). The proposed reform of DG3 is purportedly intended to improve the “perception of independence of the Boards of Appeal.” In reality the reform amounts to a hostile take-over of DG3 by the Administrative Council.

The “health reform” pretends to improve the reintegration of staff on long-term sick-leave or invalidity. In practice it will seriously weaken the position of sick staff vis à vis the Office by excluding the treating physician from the medical committee. The Office furthermore plans to unilaterally abolish the – thus far compulsory - invalidity insurance that staff may have been paying for 10, 20 or even 30 years. This amounts to a breach of contract.

Apart from being financially disadvantageous, the new regulations would oblige sick staff to remain at their place of employment during at least 10 years of full incapacity before the Office will consider recognizing their invalidity. During this time they will need to request permission from their employer for every absence. According to SUEPO this is an impermissible infringement of their privacy.

What are our claims? Staff at the EPO calls on the Administrative Council: - to reject the proposed health reform that foresees measures that have no equivalent in any of the EPO member states and violates fundamental rights, and - to order the President of the EPO to enter into negotiation with the staff representation in order to come to an agreed solution.

SUEPO intends to organise a demonstration every month for as long as it takes to bring the EPO back on track.

SUEPO Munich

“I'm open. But we also have troublesome unions. A mix of French unions with German efficiency: a dangerous cocktail.”

Benoît Battistelli, NRC, “Ik ben geen zonnekoning”, 21 March 2015

Here are the comments:

Ortssektion München . Local Section Munich . Section locale de Munich

27.03.2015
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ADMINISTRATIVE COUNCIL
25 / 26 MARCH 2015 – A REPORT
&
NEXT ACTIONS

The Administrative Council: deaf & dumb?

Leading IP blogs have become rather critical of Mr Battistelli’s attitude and behaviour, as well as of the EPO Administrative Council’s passivity in this respect, see e.g.: http://kluwerpatentblog.com/2015/03/20/behavior-benoit-battistelli-is-bad-for-the-epos-reputation/ http://www.fosspatents.com/2015/03/epo-human-rights-issues-and-eu-patent.html http://ipkitten.blogspot.de/2015/03/a-kat-may-look-at-administrative.html

SUEPO¹, EPO staff in general² and the Members of the Boards of Appeal³ have also called upon the delegations not to rush through the fundamental reforms on the agenda, namely an outline of a reform of the Boards of Appeal (CA/16/15) and the second health reform (CA/14/15), without thorough reflection and proper consultation of the internal and external stake-holders. To no avail.

DG3 matters Despite all the comments and objections (see above), the delegations unanimously approved the framework for the proposed reform of the Boards of Appeal. Another controversial decision concerned the suspension of a DG3 accused of “anonymous defamation of VP4” which was prolonged. And again there were no new appointments to DG3, meaning that DG3 will be forced to cope with an increasing workload through increased “efficiency” rather than increased capacity.

The health reform The health reform also passed, albeit with 10 abstentions. The delegations discussed a 8 (!) hours in closed session (i.e. with the usual observers and without their “social partner”), probably mostly about the social dialog and the social reforms. The open discussion of the health reform was planned to take a mere 10 minutes. It seems for the Office difficult to signal more clearly to your “social partner” that you are not interested in his opinion. On the other hand: the open session finally took 50 minutes rather than 10. And the 8 hours in closed session are a clear sign that discussions are now taking place. That can almost be qualified as “progress”. The three major delegations (DE, FR, and UK) were amongst those who abstained. They were joined by CZ, IE, IT, MT, SE, SI and SK. This voting pattern shows that

_______ ¹ http://munich.suepo.org/archive/su15023ml.pdf ² http://munich.suepo.org/archive/su15024mp.pdf ³ http://amba-epo.org/page/get/ca1615 and http://www.epostaff.org/archive/ex15146cp.pdf

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traditional alliances in the Council have shifted. A majority of mostly small countries with a weak or negligible patent system are now outvoting countries with a much bigger population and a greater interest in a functional patent system. This does not bode well for the stability of the EPO and for its functioning as administrator for the Unitary Patent.

What next? The Council’s approval of the reform of DG3 was not a final decision. The topic will be back on the agenda in June. We can only hope that by then the responsible politicians will have finally woken up and realised what is really going on: a hostile take-over of DG3 by the Administrative Council involving the creation of 8 new “jobs for the boys” – presumably Mr Battistelli’s boys.

For the health reform SUEPO will provide staff with the requests for management review that are now the necessary first step before filing an internal appeal. We will renew our contact with the Bayerische Laendesärztekammer in order to get answers to some pertinent questions about the extent to which medical doctors in Germany may fulfil the tasks the EPO intends to assign to them. Finally, SUEPO will provide legal support for its members who are denied invalidity or otherwise disadvantaged by the latest reform.

Union matters Amazingly, after having once again brushed aside the concerns of staff and their representation and pushed through yet another ill-conceived reform, Mr Battistelli and Mr Kongstad now jointly announce⁴ “new initiatives to restore social peace” starting with an invitation to the trade unions (note the plural) to a kick-off meeting on 22 April 2015. Given the previous positions⁵ of Mr Kongstad, he and Mr Battistelli seem an unlikely pair to negotiate social peace. Whereas SUEPO wishes to echo Mr Battistelli’s statements that “our door is always open”, we also make it clear that we are not interested in merely improving “the perception of a social dialogue”.

Next actions Should the discussions with Mr Battistelli and Mr Kongstad lead to unexpected progress (e.g. the withdrawal of the above health reform) then SUEPO would be more than delighted to postpone further actions. Until this happens, however, SUEPO intends to organise a demonstration every month for as long as it takes to bring the EPO back on track.

Details of the next demonstration will be published after the Easter holidays.

SUEPO Munich “I am not talking about SUEPO at all: SUEPO has no standing in this Office. SUEPO has no role to play in this Office.”

Željko Topić (VP4), 19 March 2015, in a meeting with the Munich Staff Committee

_______ ⁴ http://www.epo.org/news-issues/news/2015/20150326.html ⁵ http://ipkitten.blogspot.de/2014/12/battistelli-and-kongstad-respond-to-epo.html

"Details of the next demonstration will be published after the Easter holidays," says the above, so surely Battistelli knows that it's far from over. It shouldn't be over until there is justice, which should include not just recognition of the staff's rights but also removal of corrupt EPO officials. ⬆