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11.20.15

In an Effort to Counter EPO Staff Narrative (After ~2,000 of Staff Protest) EPO Management Portrays Staff as Violent But Provides No Evidence

Posted in Europe, Patents at 9:21 am by Dr. Roy Schestowitz

Projection by the growingly-militaristic EPO management?

Selective coverage cartoon
Cartoon source

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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