04.22.16

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The Chaos in the EPO Impacts Stakeholders

Posted in Europe, Patents at 4:10 am by Dr. Roy Schestowitz

Even the French National Institute for Industrial Property (INPI) is complaining…

Paris, france

Summary: The service at the EPO is quickly becoming unsatisfactory and leads to complaints even from Battistelli’s home country

Nearly a week after we published a translation which reveals an upcoming lawsuit against the EPO SUEPO provides its own English translation and adds this second translation of an article mentioned here earlier this week. Amid “crisis” (the word used by Board 28) it tackles a problem which was covered before by Merpel (French workload lowered in priority) and here is the full article in English, complete with quotes from Pierre-Yves Le Borgn’.

European Patent Office backlog causing concern for France

An industrial dispute weighing down the European Patent Office (EPO) is increasingly causing concern for its contracting states, particularly France, where delays in reviewing applications submitted to the institution are worsening.

According to several sources, for the last year, some applications sent to the European Patent Office (EPO) by the French National Institute for Industrial Property (INPI) are being returned with delays of one to two months compared with the usual turnaround time, which could have consequences for patent applicants.

The EPO carries out the “prior art search” for French companies: a comprehensive review of the state of knowledge and technology to assess whether something is a genuine invention, Alain Michelet, President of the French Patent and Trademark Attorneys Institute (CNCPI) told AFP.

Companies have one year from the start of the search to initiate protection procedures abroad. So, the longer the research takes — lately, up to 11 months, compared with the usual nine — the less time the company has to decide, which especially penalizes small entities that do not have the same financial footing and expertise in industrial property as large corporate groups.

What is causing the delays? “Last year the EPO completely overhauled its working procedures”, it says, which “may have caused delays for specific user groups.” “We are working to put this right and we foresee the delay will be gone in a few months’ time.”

Reprisal

But for Yves Le Borgn, the Socialist Party MP for French nationals living abroad, whose constituency includes Germany where the EPO has its headquarters, “it is not ruled out that this could be retaliation” on the part of the institution’s President, the Frenchman Benoît Battistelli, against France, critical of his methods as the head of an institution with a poisonous social climate. Other sources interviewed have the same interpretation.

Does this mean that Mr. Battistelli has given the express instruction to let the French applications slip? “I have no evidence as such, but putting together everything that I have heard, I cannot rule out the idea of a causal link,” says Mr. Le Borgn.

Michelet refuses to speak of deliberate delays.

He argues that France is one of the few among the 38 member countries to have the EPO carry out the “prior art search”. This is subcontracting work which understandably does not have the same priority for the EPO as reviewing its own files.

>> Read: Benoît Battistelli: Many Apple patents would not have been granted in Europe

Occupying the post since 2010, Mr Battistelli, formerly of the Ministry of Finance and the former INPI chief executive, has been working to reform the institution with its 7,000 highly qualified, well paid employees, who enjoy many benefits including generous welfare and pension schemes.

Battistelli has launched a series of reforms of, for example, career management or sick leave rules.

Demonstrations and strikes

“I don’t want to raise the charges. So the only solution (to stay competitive) is to increase efficiency, which implies reforms”, he told AFP recently. “My policy is not to reduce the package of social benefits. It is a policy of developing activities, of cost control and improved efficiency to pay for our social system in the long term.”

It is, though, a difficult pill to swallow. The Office has for several years been the arena for social tension punctuated with strikes, demonstrations and alleged smear campaigns. The workers’ union Suepo condemns the “dictatorial” methods.

“There is a small group of people with Suepo at the centre, who resist change”, is Mr Battistelli’s analysis.

His successor at INPI, Yves Lapierre, who represents France on the EPO’s Administrative Council, says: “the reforms are necessary, it is important to put them in place, but I do wonder about the methods used”.

In mid-March, the Administrative Council of the EPO, which had reappointed Mr. Battistelli in June, asked the two sides to “work to find a solution.”

Michelet seeks to reassure. “I have a commitment from Mr Battistelli that by autumn the problem will be resolved.”

However, Mr Le Borgn sees a much deeper problem of governance in an organization “which is not sufficiently controlled by its member states.”

The above serves to reaffirm something we learned about last year. Citing another French text (“L’érosion de l’obligation, pour les Etats membres, de garantir le droit d’accès au juge au sein des organisations internationales?”), SUEPO quotes an opinion/commentary and states:

See here for a critical commentary Ms. Anne-Marie THEVENOT-WERNER on two recent ECHR judgments that concern violations of human rights in international government organisations. The article is in French.

Résumé

In its decisions Perez and Klausecker rendered on 6 January 2015, the European Court of Human Rights reaffirms its case law derived from the decisions Waite and Kennedy and Bosphorus. However, the way it applies the principles allowing the Court to engage a State’s responsibility for violations of the human rights protected by the European Convention on Human Rights may lead to an erosion of the obligation of a State to protect these rights, as the Court seems to require implicitly their protection to be “manifestly deficient”, including in the framework of the proportionality test developed in the decision Waite and Kennedy. In the end, the Court protects in any way possible the autonomy of International Organisations. This might lead however to the hardly desirable consequence that International Organisations and their Member States are free not to apply the same standard of human rights protection as the Convention offers to acts and omissions of the Organisation – even to Organisations where all Member States are a Party to the Convention.

For all we know, a Munich State Attorney is now pursuing criminal charges against the European Patent Office, so things are about to get interesting.

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5 Comments

  1. One of those... said,

    April 22, 2016 at 1:54 pm

    Gravatar

    Well, a while ago, a French government representative publicly said something negative about the management at the EPO. During a PR event.

    Two weeks later, we examiners received an information, that due to better auomatisation, French national files will receive a new limit date, which has been set 2 months later than the previous limit date.

    Since our work order (for searches) gets sorted by these limit dates, the result is pretty much exactly predictable, and has now been confirmed.

    Well, it seems the French may not have been informed of these changes. and now they are taken by surprise of this predictable outcome. A search done two months later is delivered two months later tomthe applicant.

    Oh, I love that this change is purely coincidental, as the limit dates for all other national searches has not been changed.

    Dr. Roy Schestowitz Reply:

    How can one solidly prove a correlation between these two incidents?

    One of those... Reply:

    Not at all, as there is no written comment on any of these alegations of “coincidence”….
    I do not know if anyone ever officially asked management for a comment on the why the limit date has been pushed back…

    Dr. Roy Schestowitz Reply:

    Maybe it’s time for someone/s like CSC to submit a query, but judging by the lack of response to a letter regarding censorship of Techrights, I doubt Team Battistelli will take such a letter anywhere but the wastebasket.

  2. One of those... said,

    April 26, 2016 at 2:18 pm

    Gravatar

    The CSC (Central Staff Committee, part of Staff Representation, the other parts are the LSC’s, Local Staff Committees) is legally only concerned with matters that affect staff. I therefore assume, that this is no topic they will concentrate on, especially as further, very staff related reforms, have ben filed for consultation in the obligatory consultation bodies where CSC represents staff before the new reforms can be imlemented. Not that the current administration has ever changed their mind after these “consultations” in any importantnstaff related issues.
    The unions are also not representatives of the applicants/customers…
    In this case, INPI has pretty good contract elemets anyway. They can adress this directly, and as they have representatives in the AC (Administrative Council), they could ask for official numbers there too. Seing how much work they refer to us, the are amon our top customers, also for historical reasons.
    But whatever political elements do play a role is outside the influence of staff.

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