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12.17.15

EPO Union Responds to Željko Topić and Raimund Lutz’s Attempt to Intimidate Staff That Joins Unions

Posted in Europe, Patents at 6:19 pm by Dr. Roy Schestowitz

Dr. Birkmann’s legal analysis, which debunks claims from Topić and Lutz

Birkmann letter

Summary: Benoît Battistelli’s union-busting actions inside the EPO come under fire from legal experts commissioned by the unions

Team Battistelli has been busy attacking people whose function is merely allowing people to join unions. Team Battistelli even sent a warning sign a month before the suspensions (under the misleading title “your rights”; a better title might be “you have no rights”). Topić appears to be leading the charge when it comes to union-busting these days and SUEPO et al. (this is the Central Executive Committee and supporters) took the time to respond to that two days ago, having released the following statement:

Zentraler Vorstand . Central Executive Committee . Bureau Central

16/12/2015
sc15455cp – 0.2.1/0.3.2

Rebuttal of the publication by the Office entitled ‘Your Rights’ from 2nd October 2015

On the 2nd October 2015, the office published a document entitled ‘Your Rights’ on the intranet. Mr. Raimund Lutz and Mr. Zeljko Topic both signed this publication.

In it, the office at least recognised the right of Unions to provide legal support to colleagues and to provide standard contracts to them to that effect. However, they then concluded that based upon ‘an external legal opinion’, the SUEPO standard contract ‘does not fulfill the required standards of legality’.

In order to have an impartial and independent assessment of the legal situation, SUEPO’s lawyers contacted an external, experienced legal expert. Dr. A. Birkmann is a lawyer, a former Judge at the German Federal Court of Justice (BGH-Richter) and Minister of Justice (Justizminister).

In summary, his expert assessment on the legal validity of the SUEPO agreement is as follows:

  • The contract does not infringe upon staff’s rights.
  • The contract does not infringe upon the basic human rights of the staff.
  • The contract does not violate statutory provisions in terms of a breach of the lawyer’s obligation to confidentiality.
  • There are no conflicts of interest to the detriment of the EPO.
  • The contract does not infringe upon the employer’s rights.
  • The contract is legally sound and does not violate the applicable law.

Here is the entire expert statement in German and a certified translation in English.

The Office never published their ‘external legal advice’. We doubt they even have one. If they do, we suspect it probably tells a very different story to the one that the authors of the office document would have us all believe. However, if they do indeed have one, then we would very much like to read it.

Mr. Topic may not have the necessary legal expertise in German Law, so he might be excused for having put his name to such a publication. However, it is with regret that we once again see that Mr. Lutz, a former German judge, apparently provides an erroneous legal opinion. This not only seems to misinform the staff, but also risks bringing the Office once more into disrepute. After all, was it not the very same VP5 who apparently gave his advice in the “lost” case in TH [The Hague], wherein the office was found guilty of violating the staff’s basic human rights?

This is an important matter because Team Bergot, a ‘subsidiary’ of Team Battistelli, is already engaged in institutional harassment of at least two people who are responsible for the SUEPO agreement/contract.

Here is the legal opinion defending the SUEPO agreement:

Certified translation from German

Spilker & Colleauges
Attorneys-at-law
Partnerschaftsgesellschaft mbB
H. -J. Spilker. A. Schmidt. V. Heppt. G. Ladige. Dr. M. Fertig
Dr. A. Birkmann. M. Scherer
Anger 23. 99084 Erfurt. Tel. 0361-598 94-0. Fax 0361-565 4638

Expert statement on the legal validity of the Agreement (Agreement on Legal Assistance)
between

STAFF UNION OF THE EUROPEAN
PATENT OFFICE (SUEPO)

and

Members of the Union

dated 20/28.09.2012


I. Starting situation

In an e-mail dated 20 November 2015, Mr Alexander Holtz, the lawyer representing the Staff Union of the European Patent Office (SUEPO), asked the undersigned to submit an expert report on the question of the legal validity of the Agreement on Legal Assistance of 20/ 28.09.2012 – Annex 1. Mr Holtz ordered this report in the name of his client in an e-mail on 21 November 2015.

II. Facts of the case

1.

In the Agreement on Legal Assistance (Annex 1) it is agreed that the “Applicant”, the beneficiary of the Agreement on Legal Assistance and member of SUEPO, will be reimbursed for between 2/3 and 100 % of the total costs of legal defence in proceedings against the European Patent Office. The rules for the grant of legal assistance stipulate the cases in which legal assistance will generally be granted (11.2). If necessary an external lawyer may be hired to give legal advice (11.9).

Rule No. 13 stipulates that

a) the recipient of the legal assistance shall entrust the whole defence procedure to the lawyer, either directly or through SUEPO’s Legal Advisor,

b) the recipient of the legal assistance shall at no time communicate directly with the Patent Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor of SUEPO,

c) if the recipient of the legal assistance fails to meet the two requirements (a) and (b) above, financial aid may be revoked at any stage and time.

2.

The European Patent Office is of the opinion that the grant of financial aid to employees for legal assistance in proceedings against the Office is based on unlawful regulations which render the Agreement on Legal Assistance invalid.


The Office considers the Agreement on Legal Assistance to be invalid pursuant to Sec. 307 BGB (German Civil Code). They maintain that under German Law, lawyers are not permitted to prohibit their clients from talking to their opponents in legal proceedings. Consequently, the provision in Art. 13 of the Rules was an invalid standard clause pursuant to Sec. 307 BGB. They consider that the freedom of self-determination of the union member is unlawfully restricted.

Furthermore the European Patent Office is of the opinion that the provisions in the Agreement on Legal Assistance constitute an infringement of Sec. 106 of the GewO (German Industrial Code) which guarantees the right of the employer to give directives as regards work duties, in order to ensure law and order in the company.

In addition, the European Patent Office considers that the Agreement on Legal Assistance violates the right to freedom of expression guaranteed under Article 2, para. 1 of German constitutional law (Grundgesetz – GG) and Article 10 of the European Convention on Human Rights and further that it constitutes an infringement of basic rights of occupational freedom guaranteed by Art. 12 of the Grundgesetz.

Finally, the Office claims that due to the provisions in Art. 13 of the Rules, the external lawyer appointed would be committing a breach of the obligation to secrecy if he did not agree to contact with the opponent but the SUEPO Legal Advisor were to take steps to initiate such contact.

3.

Mr Holtz has made a detailed statement on the objections of the European Patent Office to the Agreement on Legal Assistance on behalf of the Union and rejected the objections
raised on the grounds that they were materially and legally inapplicable. With respect the details of Mr Holtz’s submissions we refer to Annex 2.


III. Legal assessment

1.

In so far as the EPO raises the central question of the invalidity of the Agreement on Legal Assistance pursuant to Sec. 307 BGB, it must first be clarified whether Sec. 307 BGB is applicable at all in this case. Sec. 307 BGB is a follow-up regulation related to the application of general terms and conditions of business which are settled in Sec. 305 BGB. According to this provision, general terms and conditions of business are contractual provisions that are incorporated into the contract (cf. Palandt, German Civil Code (BGB), 74th ed., 2015 Sec. 305 margin note 2). They are principally applied in contracts with reciprocal contractual obligations. However, unilateral declarations may also be considered as the subject of general terms and conditions of business. This does not apply, however, in the case of unilateral declarations made by the user (cf. Palandt, ibid, Sec. 305 margin note 6). The user exercises his own rights in this respect when formulating the provision (cf. BGH (Federal Court of Justice) NJW 2011, 139, 141).

In the present case, it is not possible to incorporate the Agreement on Legal Assistance in the provisions of Secs. 305 et seq. BGB, in the context of further contractual regulations, foreseen as a possibility in case law (cf. BGH, NJW 2011 ibid; BGH NJW 2013, 2683 et seq.). Legal assistance is not being granted here within the framework of a mutual contractual relationship with the beneficiary, but in line with the way the Staff Union of the European Patent Office (SUEPO) perceives its function and the consequences for its work derived from this perception. Within the framework of fulfilling its tasks, the Union lays down the conditions under which it is prepared to grant benefits. The “Agreement” to be concluded between the Union and the beneficiary is solely a consequence of the freedom of the Union to decide for itself. This is therefore a unilateral legal transaction on the part of the Union within the meaning of the judicature of the BGH (cf. BGH, NJW 2011, 3, 141). This unilateral freedom to decide for oneself stems from the collective bargaining autonomy of the unions which is protected under Art. 9 Grundgesetz. Art. 9 para. 3 of the Grundgesetz guarantees the freedom of action of the unions. As a consequence of this right, the Staff Union of the European Patent Office (SUEPO) offers its members assistance with exercising


their rights. The Union is entirely free to decide how to organise this unilateral offer. Contrary to the opinion of the EPO, there is little room for the consideration of the principles of good faith, given the legal situation.

Some members of the Union perform their work in accordance with this freedom to decide for themselves. They are subject to the same constitutional protection as the Union itself, the so-called individual right of the union members to pursue union activities (cf. Maunz-Durig-Herzog, Grundgesetz, Commentary, Art. 9 margin note 169).

There is therefore no legal scope to control the content of the conditions for offering assistance pursuant to Sec. 307 BGB.

2.

Neither does the employer’s right to give orders pursuant to Sec. 106 of the German Industrial Code restrict the union’s freedom of decision and action protected under Art. 9 para. 3 of the Grundgesetz. The boundaries of Sec. 106 of the German Industrial Code are found elsewhere in the working conditions laid down there. The conditions governing work performance are basically derived from the contract of employment and the provisions agreed therein, as well as from company agreements and usual company practice, collectively agreed and statutory provisions (cf. Landmann/Rohmer, GewO, Voll, Sec. 106 margin note 3). This means that the employer has to respect the union’s sphere of influence. The employer must take into account the rights due to the unions on the basis of Art. 9 para. 3 of the Grundgesetz (cf. Landmann/Rohrner, ibid, margin note 5, 6). This states: “Given a modern understanding of labour relations, companies today, especially in the face of global competition, cannot exist with a simple hierarchical structure, but must foster a cooperative partnership between employers and employees.” That means that, in the interests of unions working on behalf of the workforce, the legally permissible freedom of action of the unions working must be respected.


3.

The Rules for the Grant of Legal Assistance do not unlawfully restrict the right of the employee to free development of his personality in accordance with Art. 2 of the Grundgesetz and to choose their occupation or profession in accordance with Art. 12 of the Grundgesetz. On the contrary: it is a very expression of the freedom protected under Art. 2 para 1 of the Grundgesetz that contractual freedom is guaranteed and that employees therefore, within the scope of private autonomy, are free to conclude agreements, such as to accept the offer of assistance from the Union. The conflict seen by the European Patent Office between this and the offer of assistance derived from Art. 9 para. 3 of the Grundgesetz, does not exist. The employee is free to choose whether to accept or reject such an offer (cf. Maunz-Dürig-Herzog, ibid, Art. 2 para. 1 margin note 101).

In the same way, the basic right to choose an occupation or profession pursuant to Art. 12 of the Grundgesetz is not affected by the legal assistance regulation and the acceptance of the assistance by the employee. Art. 12 of the Grundgesetz is to be seen against the background of Art. 9 of the Grundgesetz. The basic right to form associations pursuant to Art. 9 para. 3 of the Grundgesetz has it main material point of reference in occupational freedom, insofar as it concerns the collective regulation of working conditions. When an employee joins an association – union – this is part of his occupational freedom (cf. Maunz-Durig-Herzog, ibid, Art. 12 margin note 193).

4.

Neither does Art. 13 (c) of the Agreement violate statutory provisions in terms of a breach of the lawyer’s obligation to secrecy. The standard clause governing lawyers’ professional duties is Sec. 43 BRAO (Federal Lawyers’ Act), which states that the lawyer must “exercise his profession conscientiously and prove himself worthy of the respect and trust that the position of a lawyer demands both in his professional and private life”.

The performance of these duties relates to the professional conduct of the lawyer vis-à-vis persons seeking legal assistance, clients and opponents, courts and authorities as well as in


collaboration with the Bar Association and members of other professions, as well as to laws concerning supervision and advertising (cf. Feuerich / Braun, BRAD, commentary 5th ed., Sec. 113 margin note 9).

The obligation to secrecy is expressly settled in Sec. 43 a BRAD. The maintenance of strict secrecy is the essential basis of trust between the lawyer and his client (cf. Feuerich / Braun, ibid). No conflicts of interest with the Patent Office are evident. In a counterfactual situation where the Legal Advisor of SUEPO declares that contact between the applicant (beneficiary) and the opponent is permissible, the external lawyer would seem to be indirectly released from his obligation to secrecy. “If the client releases the lawyer from the obligation to secrecy, the obligation to secrecy ceases to exist” (cf. Feuerich / Braun, BRAD, Sec. 43 a margin note 24).

IV. Result

In summary it can be stated that the Agreement on Legal Assistance does not violate applicable law.

All the measures included in the Rules should be viewed against the background of the freedom to decide of the Staff Union of the European Patent Office (SUEPO) and are justified. There are no conflicts of interest to the detriment of the European Patent Office (EPO).

The Agreement on Legal Assistance as a whole can be seen within the framework of the union’s freedom to decide on its own actions.

Erfurt / Gernsbach, 4 December 2015

Dr. Andreas Birkmann
Lawyer,
Judge at the Federal Court of Justice (retired)
Minister of Justice (retired)

Experience suggests that irrespective of how illegal, unethical or unjust the EPO’s actions may be, the EPO will just use its immunity/impunity to do whatever Battistelli wants. Where are politicians in all this and how can this be tolerated by so many of them? Lack of information (legal threats contribute to this) is most likely the cause of apathy.

Ahead of Administrative Council Meeting, General Consultative Committee Warned of “Witch Hunt in Pursuit of SUEPO Officials” (Union Busting)

Posted in Europe, Patents at 5:38 pm by Dr. Roy Schestowitz

“Social study” — like “investigation” — a convenient façade for painting dissent as armed “Nazi” “Mafia” “snipers”

SUEPO support

Summary: “Social study” is the new euphemism for a process of crushing unions and punishing whistleblowers based not on their legitimate and important activities but some made up/sexed up ‘scandals’ (like in the Julian Assange case)

THE General Consultative Committee, or GCC for short (not to be mistaken for the GNU compiler), has been getting increasingly involved recently in an effort to save SUEPO officials, i.e. staff representatives. An attack on SUEPO is rightly perceived as an attack — by extension — on all other EPO unions. Benoît Battistelli’s EPO does not tolerate different views and the Administrative Council, which has been little more than “yes men” (or women) of Battistelli, is said to be letting down the unions.

Here is what GCC wrote two days ago, with our emphasis in larger fonts:

Zentraler Personalausschuss
Central Staff Committee
Le Comité central du Personnel

16 December 2015
sc12915cp – 0.2.1/0.3.2/4.6/6.2.1

Social Study document (CA/101/15) submitted to the GCC

Following the second meeting of the Board 281 in just two weeks, a document entitled “Social study” was sent to all the members of the General Consultative Committee (GCC) less than 39 hours before the meeting took place on 9 December 2015. At the same time, all were informed that both Mr Kongstad as Chairman of the Administrative Council (AC) and Mr Ernst as head of the German delegation (and currently Chairman of the Budget and Finance Committee), would also participate in the meeting.

“What credibility could any kind of “social study” have if it is to be carried out at the very moment that staff representatives and union officials are suspended, investigated, made sick and perhaps eventually sacked by the EPO in the coming weeks or months?”Considering the importance of the subject matter, we of course accepted to include the document on the agenda for information and to provide our comments on it in spite of the very late submission. The GCC meeting started under the chairmanship by Mr Battistelli (for that agenda point only) in the presence of Mr Kongstad and Mr Ernst. All three gentlemen left the meeting room at the end of the discussion on the social study, i.e. about two hours later.

Although we remain always ready to contribute to this “social study”, we have already made some preliminary comments along the following lines:

  • What credibility could any kind of “social study” have if it is to be carried out at the very moment that staff representatives and union officials are suspended, investigated, made sick and perhaps eventually sacked by the EPO in the coming weeks or months? If the AC is serious about entering into discussions with staff representatives, then the AC must start first by protecting them. That protection need not exceed the protection that staff representatives normally enjoy under national legislation, e.g. in Germany, but should certainly not be less as is currently the case.
  • We reminded Mr Ernst that investigating / threatening / suspending / dismissing staff representatives in the EPO could not take place without the implicit consent of Germany2 and that it was one of the prime duties of the AC to protect staff representatives from EPO management. We further reminded Mr Ernst that Germany is – by far – the most influential country in the AC, and that he had a specific responsibility as head of the German delegation to put an end to this unacceptable state of affairs in the EPO.
  • We stated that under the current circumstances, giving more (punitive) power to the President would send a very wrong signal to staff, and we urged the AC delegations to reject all the changes tabled for the December AC meeting relating to Articles 2 and 95 ServRegs3 .
  • When combined with the lifting of all current suspensions and the termination of all ongoing investigations against staff representatives and union officials, this would be a first signal that the AC does really care about staff and wishes to regain their confidence.

___________
1 Board 28 is a sub-body of the AC named after the Article 28 EPC, comprising members including the President and the chairmen of the AC and BFC, i.e. Mr Kongstad and Mr Ernst. Its role is normally to prepare for upcoming AC and BFC meetings.
2 The three latest suspensions all take place on German territory, in Munich.
3 The CSC will soon publish an opinion paper on this topic.


  • Genuine discussions on all recent reforms and their corresponding Presidential decisions should urgently take place with a view to correcting their excesses. Recovery should start with fixing the dysfunction within the Appeals Committee, in particular re-allowing the Staff Representation to appoint its own members rather than ceding the President additional powers to continue to do so instead. This could then be followed by a revision of several other reforms, including the long overdue (and promised) revision of the Investigation Guidelines, to make them more acceptable to staff and workable in the interests of all. All reforms, whether current or planned, should then be reviewed with the active involvement of the Staff Representation and the Staff Union (SUEPO), thereby reintroducing genuine consultation into the AC approval process.
  • In its March 2015 meeting, the AC already stated that the social situation in the Office was causing great concern and needed to be addressed urgently. We are now in December 2015, and the social situation has further deteriorated. The process of “union recognition” has turned into a witch hunt in pursuit of SUEPO officials. Contrary to what is stated in the “social study” document, in our opinion the calendar for the study is anything but ambitious, since the final results are planned to be discussed only in the AC meeting in October 2016 (!), i.e. in almost a year from now. Yet while procrastination continues and no action is taken, the Staff Representation is further decimated and staff health continues to deteriorate. If the member states are to respect their responsibilities, then the AC must act quickly.
  • For the CSC, the most important and relevant objective of the “social study” is to quickly complete an impartial and independent staff survey. There is a very quick, efficient, professional and successfully proven way to run such a survey4: to authorise the CSC to re-launch the Technologia5 Staff Survey, as was done in 2010 and 2013. This would have the distinct advantage of providing an internal benchmark allowing clear comparisons of the current situation with the previous social climate, the new survey’s questions being almost identical to the previous ones. It could be run in January 2016 and at least a preliminary analysis of the results made available in February, early enough for the AC to discuss them in its March meeting. If the AC is serious about claiming urgency of action and wishes to regain some credibility with staff, then they should convince EPO management to “give the green light” to the CSC to run the Technologia survey6 in early 2016.
  • Finally, we must not overlook the fact that the CSC is presently not involved at all with the running of the “social study”: it will (soon) be launched by the Council, but apparently only in “close cooperation with the President”. Staff representation stated that it would welcome as a trust building measure an invitation to collaborate in the running of that study. We shall see if the Council and management are ready to seize such a golden opportunity to start rebuilding that trust.

The Central Staff Committee

___________
4 The EPO administration keeps refusing repeated requests from the CSC to that effect, the first dating back to July 2015.
5 Technologia is a world-renowned company specialising in identifying, assessing, preventing and/or reducing professional risks in all types of organisations. Technologia is certified by the French Ministry of Labour.
6 Sadly enough this proposal was turned down by Mr Kongstad who has proven once more to be one of Mr Battistelli’s staunchest supporters. Although he presented this refusal as being that of the AC, one has serious, legitimate doubts that the AC were consulted on the matter: firstly, the “social study” paper was drafted a few days before by the Board 28; secondly, the CSC proposal to run the Technologia survey in the framework of the “social study” was expressed for the very first time only during the GCC meeting.

Notice the disingenuous ways in which union busting at the EPO is being framed as “investigation” or “study”. How dumb do managers think staff might be?

Administrative Council Does Not Crush the Boards But Does Crush the Unions (Suspension Duration Sextupled)

Posted in Europe, Patents at 4:52 pm by Dr. Roy Schestowitz

Punishment for union leaders (or whistleblowers) virtually multiplied sixfold in spite of the publicised scandals and reaffirmation of EPO abuses

sextuple

Summary: The latest word regarding the Chairman of the Administrative Council, Benoît Battistelli’s EPO, and those whom they are attacking for not being 100% obedient workers (to their controversial masters)

“Today and tomorrow,” one person wrote last night, “the AC [Administrative Council meeting] is taking place in Munich.” That refers to yesterday and today.

In reference to yesterday’s outcome we learned that: “Clearly to believe that the problem is solved would be misplaced at this stage. However, in the light of this remarkable turn of event “cautious optimism” is justified (“verhaltene Op mismus” as the Germans put it): after the French and the Dutch, now it seems that the German Institutions are finally taking some interest on what is happening in the EPO, a key European Institution they are hosting on their soil.”

“As a direct feedback from the AC,” wrote this person, one can assume “already that the three delegations in the AC have already disturbed the traditional round of congratulations and compliments accompanying the President’s annual report:

  • To paraphrase Mr. Ernst, the Head of the German delegation (to the best of my knowledge): “The president reports positive developments. I do not
    share this view.[...] The president has spoken 40 minutes, of which only 2 minutes on the social situation.”
  • To paraphrase the French delegate: “The social Climate is not conducive to maintain performance.”
  • Or the Dutch: “We do not understand why the Office is fighting the Union and has suspended Union officials. We simply do not understand this. We
    encourage all social partners to take a more moderate stance.”

“The AC President [probably meant Chairman] summarised the first round as follows: “The Council expressed concerns about the social situation in the Office.”

“One can only hope that these polite expression of concern will soon evolve into concrete actions.”

This was about the first day. It didn’t have much to do with the unions. “At the end of the AC,” remarked this person, “we will let you know if such things will have happened… Don’t hold your breath though.”

Well, we didn’t expect things to get any better given the history of Kongstad as the Chairman and his apathetic-at-best attitude towards the unions (including as of late).

Looking at some comments at IP Kat this evening, the following stand out a bit because there is information there about the second day of the AC meeting. One comment says:

Folks,

let’s celebrate today’s outcome of the AC.

Battistelli lost several battles – he wanted to take off the DG3 paper – but was informed by the Chairman that this paper was approved on the agenda by the AC, and that it was not in his powers to withdraw it.

Then the Swiss made some “administrative” remarks. They all were very clear that the President overstepped his powers to make such proposals. The reform of DG3 will not be a matter to be proposed by the President, but the AC will have to do it on his own.

The tax adjustment proposal was dismissed.

When praising his own work in the report of activities, the German delegation interrupted him. They told him that the report was 95% on technical matters and only 5% on social matters. They expected something else. The proposal for a social study was dismissed, again the AC takes this task on his own.

The President told the AC what majority they need if they want to get rid of him – if you ask for it?

I saw many smiling faces today at the EPO, some even were sipping champaign.

A later comment says something without providing substantial proof, so we can only take that at face value:

Merpel was right about the AC saving the BoA but unfortunately the AC approved BB´s proposal of a 2-year suspension (from 4 months). Very disappointing …

It seems probably.

There is still no reprieve or redemption for the unionists or the suspended judge:

Indeed, encouraging news, but still too early for a celebration.

BB seems to cling on. Even if he would leave early, his team will remain.

And at least 4 wistleblowers [sic] are suspended. They’ll either loose their job or get a 50% salary cut.

In our next post we are going to share some documents that relate to it.

EPO Attacks Staff Representatives’ Right to Work Just One Week Before Christmas

Posted in Europe, Patents at 12:49 pm by Dr. Roy Schestowitz

Summary: Reports from the ground in Berlin, mostly those relating to the suspension of staff representatives from SUEPO, the most popular union whose existence predates even the EPO itself

Last month we showed how the EPO had made sadistic threats to take Christmas away from slower workers. This is clearly inappropriate given the laws in Europe, let alone the stress that examiners are already subjected to. We’ve come to expect this kind of behaviour from management at the EPO, having already seen what it did a year ago just ahead of Christmas.

“Last month we showed how the EPO had made sadistic threats to take Christmas away from slower workers.”Yesterday we learned that “Ms Hardon, Ms. Weaver and Mr. Brumme’s disciplinary hearings took place respectively last Thursday, Yesterday and TODAY” (that’s the day before yesterday and yesterday).

As we noted two nights ago, EPO protests had spread to Berlin where there were “provenly over 120 [people who] were counted (at one specific time of the demonstration),” according to one source. Here are some banners used during this demonstration:

EPA

SUEPO reps

Maas

There was also a banner saying “SUEPO”, which can be seen in the photo that we published the other night.

One person asked: “Are patent attorneys slowly “waking up and smelling the coffee?””

This was said in reference to the AIPPI and EPI letters. There are some patent law firms (at least two prominent ones) that wrote critically about the EPO in recent days. Are we seeing the final shift or defection away from the EPO’s management? Perhaps a defection to the likes of SUEPO? The number of people joining SUEPO is said to have soared recently, so the EPO’s goons are now bullying (with lawyers) those who sign up new members while the goon in chief (with history), Željko Topić, threats staff that ‘dares’ to join (deterrence tactics). If this isn’t union-busting action, what is?

“There are some patent law firms (at least two prominent ones) that wrote critically about the EPO in recent days.”The Berlin protest was the fifth EPO protest (Office-wide) in just 4 weeks and “after the demo in Berlin,” one person wrote, a “lawyer met high-ranked delegation of the German Ministry of Justice.” Communication about these issues appears to be improving, despite character assassination attempts.

“This event was organised,” we’ve learned, “as a follow up of Munich demonstration that took place last Thursday. On the 17.11, 2000 colleagues showed up despite the very short notice (about 2h advance warning). Another demonstration took place on the 4th of December, again in front of the Isar building. According to the police even more people turned up than the week before. On last Thursday’s March, an estimated 1500 people marched over the Hacker Brücke and finished in front of the Bavarian Ministry of Justice.

“As a fifth demonstration on the streets in 4 weeks (three above in Munich and one on the 1.12 in The Hague), in Berlin an estimated 130 staff gathered peacefully in front of the EPO entrance: while these figures may seem modest in absolute terms, this represents by far more than half of the 260 employees present on the day in this small duty station, let alone considering the fact that line managers and several services have explicit Vice-Presidential instructions that it is a “requirement of management not to a end demonstrations”.”

“Are we seeing the final shift or defection away from the EPO’s management? Perhaps a defection to the likes of SUEPO?”This is also true when it comes to the petition circulated in support of SUEPO representatives.

‘In presence of SUEPO Central Lawyer,” we’ve learned, “and protected by two (slightly amused) police officers, the participants held during one hour large banners calling upon the German Ministry of Justice and the German institutions to intervene in the matter and protect EU citizens on German (and EU) Soil.

“If this isn’t union-busting action, what is?”“At the German Ministry of Justice in Berlin, despite the short 1 week notice,” the SUEPO Central Lawyer “was subsequently received by a high ranked delegation of the Ministry of justice.

“During the 30 minutes meeting, the SUEPO Lawyer had ample opportunity to hand out the letter drafted on behalf of SUEPO and expose to the small German team the key issues regarding the breach of fundamental rights, in essence reiterating calls made in the past (like in the public letter dated 20.06.15 by William Bourdon, Prof. Liesbeth Zegveld, Javier Ledesma and Alexander Holtz).”

Later today we want to share with readers some more details that we’ve got regarding these overt union-busting actions. We hope that more people will be able to see what is really going on inside the EPO. We generally find that there is too little (if any) information about it anywhere on the Web and this kind of information scarcity (induced by threats by the EPO’s goons) is intended to prevent justice. Only in transparency and under public scrutiny can true justice be served.

Members of the European Parliament Slam the EPO for Patent Maximalism That Led to Granting of Patents on Plants

Posted in Europe, Patents at 11:45 am by Dr. Roy Schestowitz

In pursuit of ‘efficiency’ or ‘products’ the EPO is getting unhinged from public interests

A green plant

Summary: The increasingly-deranged policy of the European Private [sic] Office is getting the attention of European politicians, whereupon the Office publicly receives flak

THE pressure on the EPO is growing and it comes from a growing number of sources, too. Information overcomes massive spin campaigns (costing nearly $90,000 per month) and action inevitably ensues.

Techrights is still under various kinds of attacks, not just legal threats from the EPO. As some readers may have noticed, due to growing levels of abuse against the site, there is now very aggressive/heavy filtering (some legitimate visitors get banned for nearly a couple of hours at a time). Even the EPO has some IP addresses contacting Techrights periodically and very heavily (we just assume that it’s the I.U. [1, 2, 3, 4, 5, 6, 7] because of the Office-wide ban).

Yesterday our filter got some IP addresses from “European Parliament” banned for an excessive number of requests, which was — in retrospect — quite unwise. People from the European Parliament were probably just researching stuff. Today they formally complain about the EPO’s expansion of patent scope to seeds or plants. Here is a new press release from the European Parliament: (published just hours ago)

A ban on the patenting of products obtained by conventional breeding techniques, such as crossing, is essential to sustain innovation, food security and small businesses, says a non-legislative resolution voted by Parliament on Thursday. MEPs, surprised by the European Patent Office decision to allow patents on such products, call on the EU Commission to clarify existing EU rules as a matter of urgency and protect plant breeders’ access to biological material.

MEPs note that plant breeding is an innovative process practised by farmers and farming communities since the birth of agriculture. They argue that access to biological plant material is vital to encourage innovation and the development of new varieties to ensure global food security, tackle climate change and to prevent monopolies. Products obtained from essentially biological processes, such as plants, seeds, native traits or genes, should therefore be excluded from patentability, they insist, in a resolution approved by 413 votes to 86 , with 28 abstentions

Parliament calls on the Commission to clarify existing EU rules – particularly the EU’s Biotech directive – as a matter of urgency and to forward this clarification to the European Parent Office (EPO), so as to ensure that products obtained by conventional breeding cannot be patented. MEPs also insist that the EU and its member states must safeguard access to and use of material obtained from essentially biological processes for plant breeding.

And the EPO wants us to believe it's 'green' and pro-environment

There is some more background in the remainder of the above press release. It’s reassuring to see that, in spite of the EPO’s bullying of critical delegates and critical politicians, the European Parliament is prepared to take on the EPO. It takes courage to stand up to these thugs, based on their track record so far.

Benoît Battistelli’s EPO Continues Its Self-Congratulatory PR Charade, Neglecting to Even Acknowledge the Catastrophes Therein

Posted in Deception, Europe, Marketing, Patents at 11:14 am by Dr. Roy Schestowitz

The EPO’s marketing/PR people just put bad news on hold, won’t comment on it

Phone key

Summary: The management of the European Private [sic] Office (EPO) continues to congratulate itself every other day, almost as though nothing has gone amiss and the EPO is an heroic leader of green energy, humanitarian unity, and compliance

Yesterday (late at night in particular), due to a quickly-growing backlog we published about half a dozen articles about the EPO. Watch Battistelli milking ISO 9001 (warning: epo.org link), taking advantage of something which we covered in this old article and of ISO, another rubber-stamping organisation. After greenwashing and additional UPC glamourisation it’s apparently time to spread the false perception of EPO being in compliance (e.g. with the law). Clever spin.

It’s no secret that the Office is now lobbying (and wants a monopoly on this kind of lobbying, as we showed last night) for the UPC. Words like “Community”, “Unitary”, “European” and so on are supposed to make occupation of Europe by large (and usually foreign) corporations sound not just benign but also desirable. Watch Éanna Kelly from Science|Business acting as some kind of megaphone or courier for Battistelli in this new article that’s looking more like a press release. Is this part of the expensive PR campaign? As one person put it earlier today in IP Kat comments, “880k euros well spent?” (alluding to this leak of the FTI Consulting contract)

Here is the article in which this comment can be found. Among the comments we also see mentioned “AIPPI and Epi finally woke up from their long sleep. Better, because more courageous and complete, is the letter of AIPPI. Now BB [Battistelli] will get slaps from all directions on all issues: wrong on DG3, unrespectful of rules of law, disregard for due process, harassment of employees etc. He will have to get out of here with his team, and quick. At last…!”

The article is relatively short and in it Merpel wrote about letters which we already covered (before IP Kat) and added: “It’s anyone’s guess where this will go next. Merpel’s guess, based on another rumour she has heard, is that the AC will take the reform of the Boards entirely out of the hands of Mr Battistelli, and will develop its own proposals, perhaps through a sub-committee or within Board 28 (its internal management committee).”

In IP Kat comments, more so than in any other site, we suspect that the EPO (or some kind of PR proxy or EPO apologists) use distraction as an art form. In Merpel’s article there happens to be a link to this AMBA letter. Here is the full text of the letter:

Re: Orientation Paper on the Structural Reform of the BoA

AMBA has seen the Presidium’s letter to the AC in response to CA/98/15 (see Annex 1) and fully endorses it. We would like, however, to make some further comments.

1. The short timeframe foreseen in CA/16/15 was used to justify provisional measures, notably a freeze on recruitment. After nine months, CA/98/15 represents a rather small change with respect to CA/16/15. In this time, however, the staffing situation in the Boards has become critical, approaching 20% of posts are vacant, despite considerable user protests about backlogs and timeliness. Boards in some technical areas have insufficient members to handle cases.

2. AMBA has put forward concrete written proposals to the Task Force. We, however, have never seen a single document or proposal before the publication of CA/98/15. Moreover, the document manifestly takes no account of our submissions, despite assurances that they would be reflected in any proposal. The paper also takes no account of the comments of the AC members in the Council meeting of March 2015, or of the user survey results; rather, it misrepresents them (see Annex 2).

3. The paper states that the Office has asked an independent expert about the legality of the delegation of presidential powers and functions [11]. We understand that this advice was first sought after the problems of CA/16/15 were highlighted. If there is no answer after nine months of study, it must be doubtful whether the delegation can possibly have the desired effect of clearly separating the judicial function from the executive. But, if delegation turns out not to be legal or not clearly to increase independence, the whole proposal is without foundation. It is premature to consider further measures, especially ones that the Council, board members, and users have identified as entirely secondary or misconceived, before resolving this crucial issue.

4. In our view, all the changes introduced in CA/98/15 are detrimental to both actual and perceived independence and do not solve the problem highlighted in decision R 19/12. The proposal now places considerably more power in the hands of the President of the Office: proposing the President of the BoA [9] and the Rules of Procedure [17], and involvement in setting up the BoAC [18]. The BoAC now has more influence from the AC and still no voting representative of the BoA [19] despite the fact that AMBA, the Presidium, some delegations, and virtually all the responses to the user consultation have raised doubts as to whether a body of the AC should be involved in the running of the BoA. Contrary to what is stated [13], the BoAC is in no way limited to general advisory and consultative roles. There is no explanation of, and no mechanism for, assuring the Boards’ autonomy under the BoAC or the new President of the BoA. The removal of control from the Boards of the Rules of Procedure and conditions for re-appointment must reduce autonomy. Association of the Members of the Boards of Appeal / European Patent Office

5. AMBA and the Presidium jointly presented an alternative proposal (see Annex 3), involving a Senate for the Boards of Appeal, based on the existing Presidium, but in an extended composition that balances the independence of the BoA with the understandable wish of the AC to be more informed, and more involved about the functioning of the BoA (accountability). It is a proposal that requires minimal changes to the existing structure and which does not rely on delegation of presidential powers, but which is compatible with a BoAC as a sub-committee of the Council.

6. The setting of Rules of Procedure in national jurisdictions is a complicated matter that must be understood in their proper contexts. CA/98/15 glosses over this [15] and does not present the Council with sufficient information to make an informed judgement. It may be noted, however, that the CJEU and the ECHR decide their own Rules of Procedure. Amendments to the Rules of Procedure for the UPC are proposed by its Presidium (Art. 15(3)(a)).

7. The proposal puts the Boards back in the Office’s “technical” career path (as defined in Art. 47 ServRegs) [24]. The Council recognised this as inappropriate for the Boards, which is why a transitional system was adopted. Not mentioned is the Boards’ paper regarding a career system. The main points were that the principles of judicial independence and security of tenure require that re-appointment should not be based on performance and that all board members (or chairmen) do the same job so that proficiency levels and promotion within a job level make no sense and would give a strange impression to the parties. The paper also proposed various scenarios to address these problems, by having grade advancement at re-appointment.

8. No delegate or user group has indicated any conflict of interest if an ex Board member works as a patent agent. If there were such a conflict, it would, a fortiori, not be possible for practising patent attorneys to sit as judges in the UPC.

9. Since a move outside Munich appears to be against the EPC, it provides an additional argument for those challenging the legality of the whole system. Moreover, again no delegate or user group sees a need to move out of Munich and most see no need to move at all. The alternatives presented in the paper are all associated with major disruptions and/or increased costs. We think that the alternative of remaining in the Isar building should be seriously considered.

The Boards of Appeal will be an essential part of the European Patent system for many years to come. AMBA therefore appeals to the Council to stop the ad-hoc interim measures that impede their functioning, and to critically analyse alternatives before taking any decisions that might damage their standing and their reputation and might be difficult/costly to reverse (relocation, reduction of posts, legislation etc.). We also support the idea of meeting with members of the AC and independent external experts to help find a common solution to this issue.

Yours sincerely,

The AMBA Committee.

Not all is well at Eponia (understatement of the decade), but outsiders who just follow the EPO based on its “news” section and/or Twitter account won’t know a thing!

There’s a lot of malicious stuff going on inside the EPO right now (irrespective of the imminent Christmas break, which is exploited by patent bigwigs to the detriment of examiners), so we will definitely release many documents later today. It’s my birthday today, but defending law-abiding staff representatives at this crucial time is a lot more important. Some believe that the EPO plans to just sack (if possible) the suspended staff representatives before Christmas. We strongly doubt it, as it has been over a year since a judge was suspended and it’s still an ongoing issue of heated dispute.

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