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04.29.15

As Core Issues Still Not Addressed, Another Protest Against EPO Management Scheduled for Tomorrow in Munich, Germany

Posted in Europe, Patents at 9:14 am by Dr. Roy Schestowitz

EPO protest

Summary: On Thursday (tomorrow) yet another demonstration is organised in Munich, less than a week ahead of the UPC decision (May 5th)

The EPO’s corrupt management is not off the hook. No solution has been reached. Last week we wrote about the EPO's management which was trying hard to appease its critics ahead of May 5th. We did wonder why so much momentum had been lost when it comes to opposition, but as it turns out, based on this announcement [PDF], staff will march to the Dutch embassy tomorrow, knowing that Dutch politicians are already aware of the issues and may take serious action (among other reasons, including the role of the Dutch branch and the court at the Hague). This was only announced two days ago (far shorter a notice than before), which limits Battistelli’s ability to threaten staff which ‘dares’ to exercise the right to protest. Here is another take on it.

“I don’t know if you went on this webpage lately,” wrote someone to us, “but some other articles than the one from “Le Monde” concerning the office are available [...] some translated [into] English.”

El Pais (the Spanish newspaper) wrote about it [PDF] and so did Ingeniøren (Danish website), which published a piece [PDF]. “An article about the French management in France Telecom,” says our source, “a case more and more similar to the EPO,” was published here [PDF] by SUEPO.

Here is the English translation of the article from El Pais:

The “Happy Office” goes on strike

Staff at the EPO, the European patent authority, which employs 7,000 people, is declaring war on its President after 40 years of happy existence

Miguel Ángel Noceda Madrid 19 APR 2015 – 00:10 CEST

It is the authority on which all the patents of European companies depend. More than 7,000 people work there, highly qualified people from a range of European nationalities, making it the second biggest inter-governmental employer in Europe. It is almost 40 years old, and its employees have passed that time in a calm and peaceful organization, with the assurance of support from staff who are well paid and enjoy enviable conditions.

But it is an organization which is also little known. This is the European Patent Office, the EPO, and behind this happy façade a crisis is brewing which is putting the employees on a war footing, due to the “dictatorial attitudes” of the President, Frenchman Benoit Battistelli, with the consent of the Board of Administration, which represents 38 European states (those of the EU plus others not in the Community).

The EPO was founded in 1977 by way of the European Patent Convention. Its tasks consist of examining the applications, which, if granted, come to be known as “European Patents”. Headquarters are in Munich, although there are also three outposts, in The Hague, Berlin, and Vienna. It is the second largest body in Europe, in terms of budget and number of employees, after the Commission in Brussels. The Office, which in 2014 dealt with 274,000 applications, is financed by the income from the patents.

It benefits from extraterritorial status, which allows it to make its own rules when it comes to taxes, social security, and pension schemes. It does this with the International Labour Organization (ILO) as supervisor. In other words, it’s a happy world, where the employees earn an average of 5,000 Euros, and have medical and family benefits into the bargain.

But in the view of the majority union Suepo (acronym for the Staff Union of the European Patent Office), to which 50% of the workforce are affiliated, this whole world could come crashing down thanks to the decision adopted by Battistelli, a long-standing French official aged 64, and graduate of the prestigious National School of Administration (École Nationale d’Administration – ENA), who came into office in 2010 and was ratified last year for another mandate period.

Suepo have denounced Battistelli for cutting back the employment rights of the staff members, abusing the judicial immunity which the organization enjoys, and having created a stifling and intolerable environment. According to the employees, who have raised the issue before the courts by way of French attorneys William Bourdon and the Spanish Ledesma y Asociados, Battistelli has at no time consulted the representatives of the personnel when it came to putting his reforms into effect. And they also accuse him of taking reprisals.

The union accuses Battistelli of having changed the rules, and of having made it “impossible” for a decision to be reached internally. The list of accusations which has accumulated during his time in office is a long one, and significant: Refusal to recognize the union representatives as the legitimate representatives of the staff, and proposals for changes in the structure of employee representation; installation of filters to block internal E-mails; censorship of internal publications; introduction of rules whereby an employee can be investigated without the need for them to be advised of this beforehand; change in the rules for calling strikes, in such a way that this now requires a petition to the President signed by at least 10% of the workforce, and a minimum participation of 40% in order to be quorate.

As well as this, the unions accuse of Battistelli of not having allowed an investigation into the causes of the suicide of an employee at his place of work, and of isolating the members of the staff who have suggested that the management bear responsibility in this suicide. And they add that he has systematically refused to follow the recommendations of the Internal Complaints Committee.

In the light of all this, they are petitioning the European Commission, which already holds a majority of representation on the Administrative Council, such that, “if they wish to take seriously the use and promotion of the Unitary Patent”, a policy be instituted which will be sufficient to settle the conflict “by means of the introduction of policies of consultation and negotiation, and not of repression and intimidation”.

Here is the English translation of the article from Ingeniøren:

EPO: the image’s feet of clay are crumbling

By George Brock-Nannestad 10 Feb 10:46

IDA chairperson Frida Frost came to the following conclusion about the future Patent Court in Ingeniøren on 12 May 2014, before the referendum:

“… And of course small businesses must safeguard their inventions with a patent. There is no reason to stand idly by, waiting to see what will happen in practice under the new collaborative system. Conversely, it makes complete sense to enter into the unitary patent on a level playing field and to be able to influence collaboration as much as possible to optimise this. Not least for the sake of small businesses.”

The way things look at the moment, small businesses in particular will suffer hugely in the slightly longer term because the foundations of the unitary patent and the Patent Court are rotting away.

Right now there is a very unfortunate development at the only subcontractor of unitary patents, i.e. the European Patent Office EPO. Up until now, this development has been the concern of specialists: patent attorneys and judges, as well as case handlers – the highly educated patent specialists who work at the EPO. In recent months, they have been so frustrated about the consistent erosion of their ability to do a good job that they have been out demonstrating in Munich, where the EPO has its headquarters. The most recent demonstrations ended at the Danish consulate in Munich, because the president of the EPO’s Administrative Council, the highest responsible authority, is a Dane.

I cannot at this juncture provide a course on patents with a view to explaining in depth where the problems lie, but I can cite some principles. There are a few blogs online where discussions are ongoing, and the most professional one is http://ipkitten.blogspot.dk. Try a Google search of <"administrative council" ipkitten>.

As stated, there are two independent problems which will have the combined effect of degrading legal certainty.

One problem is inherent in the actual basis from 1973 and 2000, the European Patent Convention (EPC). All countries have a Board of Appeal associated with the patent system – in Denmark, it is Ankenævnet for Patenter og Varemærker (the Patents and Trade Marks Appeal Board). Anyone who is dissatisfied has two instances to approach. However, if the EPO rejects a European patent application, that leaves only one independent instance, i.e. the Board of Appeal. That is the “asymmetry flaw” when it comes to the EPC.

The EPC emphasises that the Board of Appeal should be like a court, independent of the administration, precisely because it has to determine whether the administration is in error. And, if anyone is unhappy about the Board of Appeal having upheld the approval of the European patent application, then in each country where it has been validated, it is possible to conduct an opposition proceeding against the now national patent. Once the Patent Court is up and running, it will be possible to conduct an opposition proceeding there, and thus impact all Member States in one go. In other words, an error at the Board of Appeal is not the last word when it comes to approved patent applications.

For more than a year, the Administrative Council of the EPO, at the instigation of the president (actually outside his remit), has been making plans to subjugate the Board of Appeal directly to the management of the EPO. Going forward, the EPO Service Regulation will also be applicable to the Board of Appeal. The Service Regulation places fixed constraints on staff conduct, and the extension of appointment of Board of Appeal members and any promotions will now become contingent on performance. This has led to strong protests from judges at courts and patent courts throughout Europe. They are frankly appalled that it is possible to force through suspension of the independence of the Board of Appeal.

There will no longer be even one independent instance for a company that fails to get its European application approved. That amounts to serious prejudicing of rights!

The other problem is that the case handlers are being given less and less time to process cases because they are required to meet purely arbitrary production targets to make savings for the EPO. Those savings will not result in lower charges. It could be said that, going forward, case processing will become rather perfunctory. In other words, neither the applicant nor any competitors will be able to assess whether any right granted will be fit for purpose or something to be wary of. The case processors, who are specialists in their field, have used every means at their disposal to protest about this.

It is now being suggested quite seriously in professional patent advisory circles that clients should be advised to avoid the EPO (and thus the unitary patent) entirely and apply nationally, the way things were done long ago, before 1978. Things have become much easier today, partly because many countries now accept submissions in English, which in some countries then have to be translated into the local language by a later deadline. But that is tantamount to declaring the bankruptcy of a system that has had so much invested in it since 1978.

The entire EPO system is now run by a group of self-perpetuating, incestuous officials who are far more adept at manipulating the system than politicians imagined. Unfortunately, the president of the Administrative Council is a Dane who, back in the day, arrived with great words about setting up pan-European collaboration in order to reduce the bulge of applications, whereby some of the case processing for European patent applications would be done by the national patent authorities as external suppliers. It really makes you wonder why he has moved from this open policy to an extremely closed one, complicit in the president’s manipulation.

A subcommittee of the Administrative Council, known as Board 28, will be presenting a proposal on Wednesday regarding the future administration of the EPO, and the Administrative Council itself will adopt this at an actual Administrative Council meeting in March. There are no channels for arriving at a dialogue or for influencing the Administrative Council, except if the ministers with responsibility in the individual Member States take the matter up. Unfortunately, however, the five-yearly ministerial meetings prescribed by the EPC have never taken place! And the planned diplomatic conference, designed to modify the EPC in line with lessons learnt from how it has been working up until now, has been taken off the table.

Why should users have the wool pulled over their eyes? Why should the European patent system of the future be degraded?

“Among the some interesting blogs and websites,” said our source to us, there is this item from the pro-patents site IAM. It says that “transparency and independent oversight look unattractive for many that work inside IP’s major institutions. Such reactions are understandable among people who, like most inside the IP world, entered the field when it had a very different, much lower profile. Nevertheless, I am afraid, that’s the way it has to be. We cannot hold off on doing the right thing because it discomfits certain people and interests. IP is too important for that.”

The problem is not only transparency, there are much more severe and far worse problems than that. Staff of the EPO is not going on strikes and protests because of lack of transparency. That’s just a convenient straw man of EPO apologists.

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