History rewritten by Sugar Daddies

Summary: The media and reputation laundering campaign seems to be working, as the trampling on the European Patent Convention (regional treaty) continues unabated

THE leadership of the EPO has long been defended by IAM 'magazine' [1, 2, 3, 4, 5] and we are delighted to find some comments online which increasingly highlight this fact (IAM is now paid by FTI Consulting, for example, which is funded by the EPO to the tune of nearly $1,000,000). If Techrights more or less represents the views of Europeans (including software developers and scientists who work as patent examiners), sites like MIP or IAM probably more or less represent the views of the EPO management and patent lawyers (the patent microcosm).

IAM organised an event for patent trolls (as covered here before) and next up there is a pro-UPC event. IAM's articles as of late are quite revealing. See the earlier part of this week's article which refers to trolls as NPE's and says "NPE's embrace Europe – During 2015, a number of NPEs enjoyed positive results in the European courts, while many more decided to give the continent a try." We wrote about this before and it is nothing to be celebrated. More interesting, however, was the later section of this article. There's some text about patent thickets (SEP) and then comes the odd part about the EPO, which (as one ought to expect) is an echo of the EPO's position. To quote Wild: "Daggers drawn at the EPO - As has been the case for at least the last decade or so, senior management and staff union SUEPO were at loggerheads during 2015 over changes to examiner working conditions and pay structures."

These aren't the main or principal concerns. It's not about pay. The EPO's management likes to paint this as a dispute over money, but the issues are far greater than this.

Going back to Wild, he wrote: "During this year, though, things took a decidedly nasty turn with accusation and counter-accusation about human rights abuses, suicides and intimidation. Unfortunately, there is no sign of the discord coming to an end, even though up to now SUEPO has proved singularly incapable of preventing or even modifying management plans."

This is patently untrue, unless one takes Battistelli's words as fact. We have already shown how texts got modified at the 90^th minute due to unpopularity.

Wild says: "Most important to users of the office, though, are the quality of its output and the independence of the boards of appeal; and while there are no indications that the EPO’s standards are slipping, there seems to be a fair amount of concern about reforms being proposed to the boards."

There is a lot of misdirection here. Quality of patents is being compromised, the independence of the boards has only come under more attacks (threatening to send it elsewhere isn't about independence, as noted by various respected parties), there is definitely indication of standards slipping (we gave some examples) and what's being euphemistically called "reforms" (to the boards) is as much about reform as union-busting is an 'investigation'.

Don't take our word (alone) for it. The staff of the EPO, commenting anonymously due to fear, is rather upset seeing what's being done to the boards and other persecuted sections. As one comment put it yesterday, "I see we have the repeated 'quality is ever better'. My sources tell me that EPO staff can see that their balanced scorecard shows all quality numbers for DG1 are worse in 2015 than in 2014 and those are BB's [Battistelli's] own figures. Perhaps someone can confirm? Certainly the motto that if staff reach my targets I can't be doing anything wrong is a bit sickening. And the 'it's only a minority' must surely be wearing thin..."

Wild says: "At times during 2015 it felt as if EPO president Benoît Battistelli was losing control of the narrative."

The use of the word narrative is odd, as if Battistelli is in a theatre play and needs to convince spectators that some illusion is in fact real. Like the majority of staff being on his side, which is total nonsense.

Wild says that Battistelli "will need to get it back during 2016 in order to provide the necessary confidence that the EPO is fully prepared for the central role it will play as Europe prepares for the biggest shake-up of its patent system for decades."

This is some more UPC promotion from Wild. It's that talking point which justifies radical policies (like a takeover or a coup) by saying there is some kind of "greater good".

"What is clear," Wild says, "is that an organisation that was created by and for experts in a time when no-one outside of that world cared about patents needs to fully embrace transparency."

No, not only transparency is an issue. When an entity blames poor communication or lack of transparency for bad press/negative publicity, then that's just convenient, shallow spin.

"Right now," Wild says, "there is just too much about the office’s functioning and performance that outside eyes do not get to see. For the agency’s own sake, as well as for the good of its users, that has to change."

The implied message here is that only the "experts" (as in "created by and for experts") know and truly grasp the "functioning and performance that outside eyes do not get to see." See? It's a secret recipe. We "non-experts" just cannot understand it. Just leave it all to the "experts"... like those geniuses from ÉNA.

Wild proceeds to a whole section in promotion of the UPC, shaming Germany again for not (yet) playing ball. "Progress towards the creation of the EU’s unitary patent and the UPC continued apace throughout the year," Wild wrote, just before the section above. The #1 goal right now (at the EPO) is to make the UPC a reality without (or before) any public consultation. Consider this comment which alluded to the MIP interview and notes:

In the interview, President Battistelli characterizes DG3 as an administrative unit of the EPO, composed mainly of EPO examiners. He tells us that the EPC Member States deliberately chose not to create a judiciary body under the EPC but, rather, a mere administrative unit of the EPO.

Is this what the AC now thinks? Does this explain the unseemly rush to bury DG3? Has the thought taken root, at AC level, that all of the 38 EPC Member States are failing, still, even after more than 40 years of trying, to comply with GATT-TRIPS?

I don't understand. I thought it was well settled, that DG3 is a judicial not an administrative instance. Is the EPO President so almighty that he can by fiat declare DG3 to be administrative and NOT judicial?

Or is all this just a manifestation of the pan-European political imperative, to jump start the UPC?

As one person wrote in response, "the reason is simple - DG3 is a cost burden on the EPO budget. The only way to reduce it is to reduce the size of DG3, either through not appointing new members, encouraging current members to leave, or "disciplinary" measures."

Alluding to Battistelli's background in ÉNA, one person opines:

Being an Ena-teque, I suspect BB sees everything as an administrative task with technical/judicial support functionaries. That reflects his treatment of staff in general. DG4 (HR et al) is the core and DGs 1 and 3 are support acts for the successful operation of DG4. While HR, IT etc. were previously the support, the system has changed and now examining and boards of appeal are downgraded to simple tasks which any non-ENA person can do.

Another comment says:

The President€´s public statement that the Boards of appeal are an administrative and non-independent unit of the office amounts to a complete reversal of the position which had been successfully maintained for more than 40 years and had been absolutely paramount to the recognition of the European Patent System by national jurisdictions. This is indeed a disastrous move, which might have dramatic consequences. It looks as if the President, after having been discharged by the AC at its last meeting of any further responsability in the necessary institutional reorganisation of the Boards, had in his rage decided to broke the toy altogether. And beyond the Boards, it is now the AC which he attacks.

More refutations of Battistelli are as follows:

A short summary of the managing ip interview is here: Battistelli defiant in interview about EPO reforms The part about the BOAs only forming an administrative unit is not included.

BB suggests that the appeal fee should cover 20-25% of the cost instead of 4% as is the case now. (A similar if not much larger increase of the opposition fee is not difficult to predict. To justify such increases one only needs to compare with the UPC fees!)

BB says it is "short-sighted" to suggest the backlog of appeal cases has been created in the past few months due to positions being vacant ("few" being 18). Yet another sign of intellectual dishonesty, as no one has suggested that the recruitment stop has created the backlog. The backlog was there already, but how is that an excuse for stopping recruitment.

BB appears to be not completely unwilling to make new nominations next year. We'll have to wait and see what kind of surprise he has in mind.

BB still wants to move the BOAs out of his sight and to prevent BOA members from working in private practice after leaving their position. How is he going to do that, now that the AC is said to have taken the reform out of his hands? But of course he still controls whoever will draft the new proposal.

The responses to Battistelli's claims include the following:

Battistelli seems to want be BoA to be self-financing and yet they are only an administrative organ rather than a judicial body. Will HR be equally self-financing? And, if so, how? Make your mind up!

Is sing members - 18 now but how many after end of year retirements? New nominations? But no posts have been advertised for more than a year. There can't be anybody ready beyond personal nomination by him? Preventing from working by attacking their pension (rights)? Delaying payment of final allowances? Going to court - a single case would frighten a few? Playing hard ball with their new employers? You think he wouldn't be creative?? (See you at the ILO in 10 years...)

Usefully enough, someone posted the relevant quote from this article (behind paywall) and it goes as follows:

We understand that you and the Administrative Council believe that the efficiency of the Board needs to increase, and the independence needs to be assured. Can you reassure people about that in the long-term but also in the short term, given concerns about the number of members of the Boards?

[Battistelli:] The first thing to bear in mind is that when the EPC was discussed, signed and ratified the member states decided not to create a judiciary body that would be separate from the EPO. They decided to create an administrative unit within the EPO with the task of reviewing EPO decisions on granting or not granting a patent. It is recognised there is some ambiguity there but this was the choice made at the time. There have been several attempts over the past 40 years to change the situation, and they have never succeeded.

So the situation is we have an administrative unit, composed mainly of former patent examiners, who are independent in the decisions they make but not in their legal nature.

In spite of the ambiguity during the past 40 years, the Boards of Appeal have built strong reputations for independence and expertise and have fulfilled their roles to everybody's satisfaction.

Second, on independence, this has never been questioned. None of my predecessors or myself have interfered in any specific case. But there was a decision of the EBA [R2/14] that said because of the links there was a risk of partiality.

This decision obliged us to reconsider the links between the Boards of Appeal in general and the Office, so we started to reflect on a situation where we could increase the independence and the efficiency. I made some proposals to the Council, one of them to create a fully separate organisation, but this would imply a change to the EPC. The Council clearly indicated they cannot consider this option and asked me to make some proposals within the framework of the EPC.

It's not easy because the EPC clearly gives the responsibility for the management of the Boards to the president of the Office. How can the president delegate this authority to someone else? We looked at creating a person with a new function of president of the Boards of Appeal, who would be the highest authority but also in charge of administration, like in many national courts. Somebody has to manage the Boards, and it cannot be the president of the Office as this would be understood as interference in their functioning. It's legally not easy because it has to be compliant with the EPC.

We are also proposing to help the Council fulfil its duties by creating a subsidiary body composed of members of the Council and high level judicial people. This body will be consultative and will help the Council to fulfil its duties for the Boards of Appeal.

I'm confident that we could make some proposals in the first months of 2016 in order to go forward.

What Battistelli does here is pretty amazing because, as people repeatedly show, he is ignoring all the rules, probably in pursuit of his^* "greater good" (the UPC). One person digs up old documents before commenting as follows:

BB's interpretation is not consistent with what is recorded in the Travaux Preparatoires: http://webserv.epo.org/projects/babylon/tpepc73.nsf/0/4ADD77A7756D6D23C125742700497086/$File/Art23eTPEPC1973.pdf

Quick ! Make a backup copy before they disappear online ...

We have made a local copy just in case [PDF]. The document is dated 30^th of September, 1973 (nearly a decade before I was even born). Having paged through it, I'm increasingly convinced it's quite valuable in the sense that it enables detailed comparison between the original goals, rules and visions of the EPC to what Battistelli now claims them to be (revisionism). It's not necessarily the EPC that's misguided; it's those who misinterpret or distort its message (or find loopholes) that put it to shame. ⬆ _______ ^* Large multinational corporations' actually, as the infamous new pattern serves to show.