The golden rule: people in the Establishment protect people in the Establishment
Summary: A look at how the EPO’s management (Željko Topić in particular) defended the unprecedented promotion of Ms Bergot (wife of the president’s close assistant), even in the face of outcry from EPO staff
THIS is the third part of a four-part series. In part one and in part two we focused on the case of Ms Bergot, who was promoted under very dubious circumstances. Now is a good time to proceed to part three, only two days after the protests that we covered here earlier on. SUEPO’s Web site has just said: “The suspension of three staff representatives in Munich and the attacks on two more in The Hague, attracted quite some attention, most of it rather critical of the EPO.”
“Ms Bergot’s promotion from grade A3 to grade A6 occurred before she had received a standard two-year performance report following her recruitment to the EPO on the 1st of December, 2010.”As a result of these shameful attacks on staff representatives we are only going to accelerate our coverage of EPO scandals, starting with this third part of our latest series (there are more series to come in the future).
In accordance with the requirements of Article 49 Service Regulations, it is established practice at the EPO that for promotion of internal candidates, the competent Selection Board takes into consideration the candidate’s staff reports and remarks (recommendations) made by his/her direct superior.
Ms Bergot’s promotion from grade A3 to grade A6 occurred before she had received a standard two-year performance report following her recruitment to the EPO on the 1st of December, 2010. The first two year reporting period beginning after the end of her probation period would have ended in December 2013.
This means that Ms Bergot, who was initially appointed as administrator at grade A3 with main duties to support her Director (of grade A5) and senior management, was promoted to grade A6 without the competent Selection Board having taken into consideration a single full two-year staff report.
“By the standards of international administrative law, the Vice-President Mr Topić who was Ms Bergot’s direct superior at the time in question could not be an impartial and independent Chairman of the Selection Board which recommended Ms Bergot’s promotion.”The Chairman of the Selection Board recommending the promotion of Ms Bergot was none other than her immediate superior, Mr Željko Topić, who is said to be facing many criminal charges in his home country. The other members of the Selection Board nominated by the President were the Vice-Presidents of Directorates General 1 and 2, Guillaume Minnoye (warning: link to
epo.org, so tracking may be possible by EPO management) and Alberto Casado Cerviño (warning: link to
epo.org, so tracking may be possible by EPO management).
By the standards of international administrative law, the Vice-President Mr Topić who was Ms Bergot’s direct superior at the time in question could not be an impartial and independent Chairman of the Selection Board which recommended Ms Bergot’s promotion.
Following the announcement of Ms Bergot’s promotion by Mr Topić on the 30th of January (the same year), the EPO Staff Committee voiced strong criticism of the appointment.
Mr Topić immediately responded with an internal Communiqué addressed to all EPO staff in which he claimed that the procedure for the appointment of a new Principal Director 4.3 “was launched and conducted in strict accordance with the applicable rules and included use of an assessment centre and interviews.”
To quote the original:
Elodie Bergot new Principal Director HR
New Principal Director Human Resources as of 1 February 2013
I am pleased to announce that, with effect from 1 February 2013, Elodie Bergot is appointed Principal Director Human Resources (PD 4.3).
Ms Bergot will report directly to me. I wish her every success in her new role.
Vice-President DG 4
And from the following day (probably because he could not keep silent anymore):
Communiqué from Vice-President DG 4
Email to all staff from the CSC regarding new Principal Director HR
one of the less edifying aspects of the internal culture of the EPO – very striking to a newcomer such as myself – is the habit of staff representatives of contesting systematically nominations to senior positions.
There have been innumerable challenges over the years, though the post of Principal Director 4.3, Head of Human Resources, seems to attract sustained fire.
Such incidents do not normally call for an individual response. However, this time a highly personalised attack on the new Principal Director 4.3 has been made which crosses the bounds of acceptable discourse and which calls for an immediate rebuttal.
The procedure for the appointment of a new Principal Director 4.3 was launched and conducted in strict accordance with the applicable rules and included use of an assessment centre and interviews. Ms Bergot emerged very clearly as the strongest candidate, a substantive judgement which was reached unanimously by the five members of the selection board.
Indeed, the strict adherence to the rules accounts for the delay in filling the post; in the interim, I performed the functions of PD 4.3 myself.
Those who are appointed to senior positions of responsibility can be expected to carry a heavier burden than most. They should not, however, become the target of dishonest campaigns of vilification. I am confident that the vast majority of staff at the EPO share this view and that there will be no repetition of this lamentable behaviour.
Vice-President DG 4
Topić further claimed that the decision to select Ms Bergot “was reached unanimously by the five members of the selection board.”
“Bergot’s promotion is still the subject of an appeal at the already-upset (at EPO) International Labour Organisation.”Due to the fact that the members of the selection board are bound to respect the confidentiality of the procedure, it is impossible to verify the claim made by Topić that the decision was “unanimous.”
As we stated in part two, this isn’t over. Bergot’s promotion is still the subject of an appeal at the already-upset (at EPO) International Labour Organisation. █
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Projection by the growingly-militaristic EPO management?
Summary: The EPO’s management has a poor record on accuracy and truth and the latest staff-shaming tactics serve to reinforce that track record
ACCORDING to reports from the local German media (translation to English would be very much appreciated), the protests on Wednesday were massive. This serves to show that EPO is indeed experiencing a meltdown. We are glad to see this type of coverage crossing over the channel and reaching Britain as well (credit goes to Münchner Merkur, which regularly covers these issues, e.g. [1, 2, 3]).
“SUEPO is winning here (the staff is more loyal to SUEPO than to the EPO).”As British media put it, “Anti-EPO demo attracts 2,000, union member has ‘nervous breakdown’” and to quote from it: “Jesper Kongstad, chair of the AC, has allegedly implied previously that his organisation is looking to resume “trilateral talks” between EPO management, the AC and SUEPO.
“However, SUEPO has said that “meaningful discussions” cannot happen while the four members remain suspended.”
SUEPO is winning here (the staff is more loyal to SUEPO than to the EPO). It’s not getting any better for the EPO’s high-level managers and one must inevitably wonder who was even left inside the building at times of recent protests, other than Battistelli and his ilk. The question increasingly becomes, who does not demonstrate against the management and why not?
“Sources of ours said that even Directors attended the latest protest!”There is some ‘damage control’ here and it says that “2,000 people attended a demonstration at the Isar building in Munich in support of the suspended members and another is scheduled for December 10.”
That’s one week before my birthday. Let’s hope that they can get virtually everyone in the office to come outside. Sources of ours said that even Directors attended the latest protest!
We were very much disturbed to see the crudest ‘damage control’ from the EPO’s management. This was posted by WIPR and it’s claiming “threats of violence” from staff. To quote the part about the EPO’s spokesperson: “The spokesperson added that over the past two years the EPO has unveiled instances of serious misconduct including cases of fraud in the EPO’s healthcare system, violations of data protection, the leaking of confidential information, and harassment.”
That’s not “threats of violence”. Well, maybe — just maybe — there was some anonymous comment somewhere (perhaps IP Kat), maybe even ‘planted’ by the party that desires it (the agent provocateur tactic). But we’ve never seen such a thing and therefore we must conclude that the EPO’s management cannot quite produce a single example of “threats of violence”. If there is such an example, then they’ll need to show something. Be specific.
“We think this qualifies as a collective daemonisation/character assassination tactic.”This seems like a clever PR ploy. For all we know, there are no threats of violence. Remember the judge whom the EPO’s management (probably illegally) suspended for speaking about VP4. They tried to paint him — without any oversight while the I.U. [1, 2, 3, 4, 5, 6, 7] did its possibly framing-esque gig — as some kind of an armed Nazi [1, 2, 3], The guy is not German/Austrian but an Irishman, based on the German media (it is now considered public knowledge). Is this where the “threats of violence” are supposedly coming from?
Reading through the article from WIPR, we don’t see even one example of threats of violence and we saw no such thing in any flyer, publication etc. We think this qualifies as a collective daemonisation/character assassination tactic. The EPO management now wants to paint its very own staff as violent savages. What a terrible PR move. “Don’t believe a word! That’s only typical double EPO Leader language,” wrote one person yesterday. Well, the EPO’s management does not have a good track record when it comes to truth and accuracy.
In other news, IP Kat‘s Merpel has revealed some truly fascinating details about the suspended judge. “We knew that the EBA had rejected Mr Kongstad’s request,” she wrote, “for Mr. Battistelli was driven to write a memo to the AC asking it to bypass the EBA and simply fire the Board Member, since the EBA had (he said) shown itself to be incapable of fulfilling what was a simple administrative request. In other words, the EBA’s only job (he believed) was to rubber stamp the AC’s request (see Merpel’s post “Ignore the Enlarged Board, EPO President tells Administrative Council” if you want a fuller reprise).”
“Techrights articles are now more censorship-resistant as some readers decided to mirror the site’s articles and even maintain them, fork them, etc. on Github.”Read on for more details. It’s rather jaw-dropping. What kind of a rogue organisation has the EPO become?
Prof. Dr. Siegfried Broß, a former judge of the Federal Constitutional Court, recently spoke out against these actions by the EPO's management. Merpel has, usefully enough, just gotten a hold of this translation of the article from Juve. “Merpel notes,” she said, “that by coincidence, Juve has today published a rebuttal of the interview below, with EPO Vice-President Raimund Lutz.”
But sticking to the original article which quotes Broß, here is what Merpel wrote: “He has been interviewed by Juve (a leading German magazine for lawyers), in an interview published a few weeks ago. Juve have kindly permitted Merpel to republish an English translation, which may interest English-speaking EPO watchers. The interview was conducted by Christina Geimer and Mathieu Klos from JUVE, Germany. Merpel is responsible for its translation, for which she thanks a kind reader.”
For future record we have decided to reproduce this translation here as well. Techrights articles are now more censorship-resistant as some readers decided to mirror the site’s articles and even maintain them, fork them, etc. on Github. Here is what Broß had to say about the EPO’s actions against the Irish judge:
Juve – 29.10.2015
EPO Disciplinary Proceedings:
“The actions of the Administrative Council and Battistelli are devoid of any legal basis.”
The European Patent Office (EPO) suffers from a fundamental structural problem. Only a Diplomatic Conference of its Member States can help one of the world’s largest patent offices to emerge from its current crisis. This is the view expressed by Prof. Dr. Siegfried Bross, a former judge of the Federal Constitutional Court (Bundesverfassungsgericht) and the Patent Division of the Federal Court of Justice (Bundesgerichthof) in an interview with JUVE
JUVE: Two years ago, as a legal expert for one of the parties in a complaint before the Federal Constitutional Court, you analyzed the question of the independence of the EPO Boards of Appeal. What conclusions did you come to at that time?
Siegfried Broß: The EPO Boards of Appeal are not an independent court. We are dealing here with a self-evident intermeshing of the roles of the President of the Office and the supervision of the Boards of Appeal. Therefore, the Boards of Appeal cannot be considered to possess the character of a court.
Juve: A lot has changed since you issued your legal opinion. The President of the EPO has imposed a house ban on a Member of the Boards of Appeal. In addition to that, Benoît Battistelli’s reform proposal is now on the table. What conclusions do you draw today?
SB: These developments, especially the reform proposal, do nothing to alter the fundamental
incompatibility of the EPO’s structure with the European Convention on Human Rights (ECHR), the European Charter of Fundamental Rights and rule-of-law-based democratic principles. The President still remains at the head of both the administrative and the judicial departments of the EPO and can exert influence on the Boards in terms of staffing and material issues.
Juve: What needs to be done to remedy this unsatisfactory situation?
SB: The Boards of Appeal should be completely separated from the EPO and provided with their own management and budgetary resources. Furthermore, all personnel links to the EPO President should be severed. In addition, the European Patent Organisation should introduce life tenure for judges. These are matters which require action on the part of the Member States. They cannot absolve themselves from their obligations to uphold fundamental rights guaranteed by international conventions and/or by national laws merely on account of their participation in an international association of states. As a matter of fact, Germany should never have been allowed to participate in the European Patent Convention in its present form.
Juve: In the context of disciplinary proceedings against the suspended judge, the Administrative Council has recently requested the competent Enlarged Board of Appeal to make a proposal for his dismissal. What is your opinion about this?
SB: To begin with, it is must be noted out that the disciplinary proceedings initiated in this case do not comply with the rule of law but rather have been conducted in a manner comparable to criminal proceedings. Therefore, generally recognised principles such as the presumption of innocence under the ECHR and Charter of Fundamental Rights apply to those affected. Ab initio the EPA procedure has not been conducted in a proper manner because it has been directed by the President. According to rule-of-law principles, disciplinary proceedings against judges should be conducted exclusively by independent judges. From this perspective, these disciplinary proceedings are pre-destined to collapse.
Juve: The EPO published the main allegations against the accused person in a Communiqué. Is this compatible with international principles?
SB: In a disciplinary procedure the principle of confidentiality is of fundamental importance, in particular having regard to the presumption of innocence. That does not mean that press releases are prohibited, but any kind of polemical content should be avoided.
In addition to this, in an internal e-mail to all EPA employees, a copy of which was provided to JUVE, Battistelli has publicly disseminated further accusations of a personally denigrating nature against the judge.
Such behavior is unacceptable. From the very outset, the actions of the President were devoid of any legal basis.
Juve: The basis for the Administrative Council’s decision was, a report by an external investigation unit. Can this be used as a basis for the disciplinary tribunal?
SB: The deployment of this investigation unit provides the clearest possible confirmation that the disciplinary proceedings is not based on an approach which complies with the rule of law. The course of action which has been adopted could not be more flagrantly at odds with the international conventions to which all the Member States have subscribed.
Juve: What possibilities does the Enlarged Board of Appeal have now?
SB: They should reject all the requests of the Administrative Council and terminate the proceedings in order to draw attention to the fundamental abuse of procedure.
Juve: What impact might these problems have on the upcoming unity Patent?
SB: The Administrative Council must ensure that the EPC contracting states adhere to rule-of-law-based democratic principles and enforce an organisational separation of the administrative and judicial departments of the EPO. This is all the more urgent, because the Agreement on the Unitary Patent couples the EU in a blatantly unlawful manner to these structures. The regulations governing the Single Patent only provide effective legal protection in the case where a patent application is successful. If the EPO in its capacity as the competent administrative instance rejects an application, then the applicant cannot submit this decision to an independent judicial review. Such a state of affairs is contrary to Article 47 of the Charter of Fundamental Rights and, likewise Articles 6 and 13 ECHR.
Juve: Could a potential complaint against the Unitary Patent, for example before the Federal Constitutional Court, be based on such considerations?
SB: Yes, of course. Due to the fact that it is only the owners of rejected patents who enjoy no judicial protection, there is additionally a violation of the right to protection of property enshrined in the ECHR. In additional, there is no objective reason for this omission – the formulation of the [Unitary Patent] Agreement is arbitrary in this respect.
Please stay tuned as we have a lot more to come regarding the EPO. Pierre-Yves Le Borgn’, a French politician who formed somewhat of a political ‘coalition’ against a largely French EPO management [1, 2, 3, 4], is getting involved again (translation from French required). There is coverage in several other languages, including German and Dutch (English translations would be very much appreciated, for future record and publication/dissemination across the Web). █
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Treating EPO staff like they’re ISIS
Picture from downtown Paris (this week) superimposed on EPO logo (fair use on the basis of criticism/commentary)
Summary: The increasingly militant approach of EPO management (with counterterrorism staff added to interrogate EPO staff) serves to show an organisation gone truly bonkers
THE massive protests by EPO staff will be the subject of our next post. We first wish to quote this comment which says:
This particular circular, as any other circular in this regard and all circulars regarding our strike regulations are deemed to be EPO-internal only and are therefore of absolutely no interest to the piblic [sic], and as such their exitence [sic] should not be disclosed to the public.
They are public to EPO-personnel, but include a reference to non-public elements of the case-files, which may include the results of the discussions with the EPO department having started the investigation.
We are happy to say that we got hold of the said circular and documents. These will be the subject of future articles in Techrights, probably after the “EPO: It’s Like a Family Business” series. The commenter also says:
Today I saw a lot more than usual security in The Hague standing at choke points of the hallways, apparently searching for some specific employees of the EPO who may be too sick to go to their office and formally receive letters signd [sic] by the head of the personnel department.
(usually I see one at the public entrance, today I saw at least three between the lifts and the cantern, and I did not pass the public entrance. In the carport entrance there was also one waiting, where ther’s [sic] usually none.)
This means that aggressive behaviour (by the management) is still the ‘norm’ at EPO. There is the same atmosphere in EPO buildings as there is in Paris and according to IP Kat: “Matters came to a head last weekend. The Investigative Unit of the EPO paid an unexpected visit to two officials in the Hague, who were taken away for an interview. On their return, they were badly shaken and required medical treatment and have been on sick leave since. Then two days ago, three or four further SUEPO officials, who knew they were being investigated for alleged disciplinary offences, were suspended from service and banned from EPO premises. The Office says, with a perfectly straight face, that it is not targeting the union. It just so happens that, at a stroke, the union has been decapitated — but this is simply an unfortunate and entirely incidental side effect, or so we are supposed to believe. [...] Two of the officials, who include the high-profile Els Hardon, are accused of having breached the first (and second) rule of Investigation Club: You do not talk about the Investigation Club. That’s right. If you’re the subject of a disciplinary investigation and decide to waive your own right to confidentiality, you have automatically exacerbated the situation and have committed a (further) serious breach of staff regulations which can lead to suspension from duties. [...] Ms. Hardon is also being investigated for having allegedly assisted “another staff member” – this being the “House Ban” Board of Appeal member suspended last year for allegedly spreading defamatory materials.”
“If it wasn’t for the EPO’s Hubris and its alleged immunity, offices would possibly have been raided in daylight, officers in suits be handcuffs and escorted into police vans.”We know the name of the person and it seems unthinkable that staff is put under gag orders and prevented from helping other staff. As Merpel correctly put it (her coverage as of later has been fantastic): “In legal terms it would appear that Mr Battistelli is the fortunate possessor of a magical artefact (Eponia is after all his domain), such as a Cloak of Immunity and Privilege. When he dons it, the law of the land stops applying to whatever activity he is currently thinking about. When he removes it, the law of the land applies with full rigour to the poor unfortunate on whom his gaze falls. I think we’d all like to have one of them.”
Where on Earth are Dutch and German authorities? If it wasn’t for the EPO’s Hubris and its alleged immunity, offices would possibly have been raided in daylight, officers in suits be handcuffs and escorted into police vans. This is very much unjust. European laws are being grossly violated and The Hague subjected to what typically constitutes “contempt of the court”.
Meanwhile, thugs from the largely-exposed [1, 2, 3, 4, 5, 6, 7] Investigative Unit are probably still tricking people into false confessions using dirty tricks, or leading them to self-incrimination or incrimination of others, based on false information or mere suppositions thrown over to induce pressure. These are the same tricks uses against Aaron Swartz, eventually leading to suicide. █
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Summary: The reaction of patent profiteers to scope/boundary restrictions, the FRAND lobby by Microsoft’s longtime front group, FRAND matters in Korea (affecting Android), Google’s response to patent threats, and Red Hat still keeping quiet about its patent agreement with Microsoft
THERE is nothing exceptionally surprising in the news today, so we are going to focus on the EPO, which is in a very poor state right now. The management is so frail that the only language it understand is aggression. We shall write several articles about it this afternoon. Before we start, however, here is a potpourri of updates about the patent situation and how it relates to Free/Open Source software (FOSS).
“When they say “patent world” they mean the corners of the world where people pursue patents — those who try to profit from patents without necessarily creating anything.”Patent lawyers’ Web sites are still bemoaning the death of many software patents in the United States (death by Alice). One of the better known ones says that “many software patent holders must feel ─ like they were walking along merrily through the woods when they fell suddenly into a blinding, winding rabbit hole. Where once their patents stood bold and tall, they have now shrunk to a seemingly indefensible size. Whether they can defend their so-called “abstract” patents in court is now as unclear as the Mad Hatter’s riddles. The famed Alice decision has certainly left many in the patent world wondering.”
When they say “patent world” they mean the corners of the world where people pursue patents — those who try to profit from patents without necessarily creating anything.
Remember FRAND lobbying in Europe back in the days (nearly a decade ago)? Well, ACT‘s new face just got mentioned by another who was paid by Microsoft, and also regularly pushes along the FRAND front (against FOSS, relying on Korea at the moment). “ACT | The App Association,” he explained, “has announced a new web resource for innovators, policy-makers, and academics. It’s called All Things FRAND and supported by significant players including Cisco, Intel, and Microsoft. ACT is headquartered in the U.S. but also quite active abroad.”
Well, historically ACT had been little more than a Microsoft lobbyist. Then there is CCIA, which seemingly changed its position after being paid a lot of money by Microsoft. CCIA‘s Matt Levy, who now runs an anti-trolls site, has just released this new video. Don’t expect Levy to criticise CCIA’s funders, which include Microsoft. This monopolist, Microsoft, is acting in ways that resemble patent trolls.
“Well, right now many of the “bad guys” also use FRAND against Android, which Google distributes as Free/Open Source software.”Google, in the mean time, claims to be against patent trolls. As IEEE Spectrum put it some weeks ago: “Google’s Patent Purchase Promotion, which the company says received “thousands” of submissions during a three-week window, may prompt similar experiments in keeping patents out of the hands of what it considers the bad guys of intellectual property.”
Well, right now many of the “bad guys” also use FRAND against Android, which Google distributes as Free/Open Source software.
In other news, we are still pressuring Red Hat to reveal what it did with Microsoft regarding patents. We haven’t forgotten about this and we are not going to give up. The Free/Open Source software world deserves some answers. █
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