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05.19.16

Anonymous Commenters Debate Whether Battistelli’s EPO Can Revoke Pensions of Dismissed Employees Who Dare — GASP — Find Alternative Employment

Posted in Europe, Patents at 2:14 pm by Dr. Roy Schestowitz

“Disaster for the EPO.”

Siege Philips Amsterdam
No people jump through the windows of this building, where Dutch law is still applicable (unlike the EPO)

Summary: A look at causes for desperation and immense pressure at the EPO, where pensions can be cut as means of reprisal and people can be denied employment even after they leave the European Patent Office (EPO)

THE EPO is still in a state of crisis, based on what Board 28 said. Nothing has improved since.

Battistelli found a regime at a level low enough even for him, having just visited Morocco (warning: epo.org link, also published separately in French). To be fair, after ignoring or breaking European laws he can’t make friends. Not many politicians would wish to be associated with him in any way if they actually did their homework. Battistelli is somewhat of an outcast except within circles of dyed-in-the-wool patent maximalists and large patents-hungry corporations such as Philips.

Battistelli’s mistreatment of his own workers has earned him a zero (yes, 0%) approval rate/level, based on a recent extensive study (thousands of respondents). He not only abuses the staff while this staff works for the Office but also when the staff is ill. He is punishing them even after leaving the Office for good (after dismissing them under highly controversial circumstances). What kind of ‘President’ is this? Maybe the kind of ruler one might expect to find in Morocco or Tunisia.

Reflecting or remaking on the mistreatment of former EPO staff, several comments in IP Kat were too good to ignore. One person wrote:

Here’s an interesting question: what would be the consequence if an EPO employee (let’s assume for the moment a member of DG3) were to defy a “ban” imposed by the EPO president on taking up new employment?

Presumably, it would be impossible for the EPO to take legal action against their former employee. This is because such action would need to be launched before the national courts, which apply national laws and not EPO internal rules. (Plus, of course, the EPO might be reluctant to take action in the light of the very high likelihood that the EPO’s rules would be found to be contrary to national laws.)

Would that mean that the only action that the EPO could take would be depriving their ex-employee of the benefit of a pension from the EPO? If so, that could be a risky strategy – as it could open the door to legal action against the EPO. In such a situation, what defence could the EPO mount against an accusation of “stealing” acquired rights from their ex-employee? If the answer is their internal rules, then we return to the question of whether they would really want to try to justify those rules before a national court…

An issue here could perhaps be the challenge of getting a national court to accept jurisdiction for the dispute. However, it is arguable that the EPO’s immunity would not apply to disputes involving the proposed, new rules. This is because immunity of the Organisation applies only within “the scope of its official activities” (Art. 3(1) PPI). Further, such “official activities” are defined in Art. 3(4) PPI as “such as are strictly necessary for its administrative and technical operation, as set out in the Convention”. It is hard to see how it could possibly be argued that the new rules could be argued to be “strictly necessary” when the EPO has functioned perfectly well for decades without them!

Here is a response to this:

The Office would simply start disciplinary action and decide to cut the pension. And if you think you have a legal way out of that via the national courts, I suggest you inform the people recently dismissed about your findings.

Yes: I know about Art. 3(4) PPI. In practice, it is never applied. May I remind you that the Office was condemn by a Dutch court and that the Vice President said in front of Dutch TV that they will not follow the judgment? What more do you need?

There is also this:

Suing a former employee by the EPO may not be so easy, but withholding the pension = income is an extremely severe punishment for any former employee, but especially so for pensioners who want to continue e.g. as patent agents. And it such a case it is the EPO that has to be sued by the former employee, which, as we all know, takes years. By the time the pensioner has won that case, he is dead.

The issue of taking away people’s pension attracted some attention earlier this week. “This is quite an important question,” one person told me and another said [1, 2, 3]: “True as far it concerns national law procedure however they would immediately start an intern. disciplinary procedure and decide to cut your pension! Most probably without success! Sad but true this is Europe anno 2016 ! Hold your breath and be prepared it will even get nastier in the near future!”

Further (more recent comments) spoke about Ms. Hardon’s pension cut:

you may well be right. However, the only pension that I am aware of having been “cut” (that of Ms. Hardon) was apparently restored. I doubt that Monsieur le President reversed his decision purely out of the kindness of his heart… which might mean that there were other (e.g. legal) reasons that left him with no choice but to hand over what, in any event, were acquired rights.

The question of whether the EPO respects the judgement of a national court is, ultimately, a matter for the AC. That is, they have the power to order the president to respect any judgement – and to eject him if he refuses to do so and/or to lift his immunity. I guess that whether the AC decides to take any action depends upon how much political pressure they feel under from their bosses back home. Not the most ideal set-up for ensuring that fundamental rights are respected at the EPO, but not entirely hopeless.

Here is another interesting point: the proposed, new conditions of employment (including what those in private practice might see as an equivalent of a restrictive covenant for DG3 members… and perhaps others) were not those that EPO employees agreed to when signing up. Imposing restrictions on future employment is a very serious matter, and so requires the explicit (and informed) consent of any employee to be bound by such restrictions. With this in mind, how could the AC even contemplate rubber-stamping the unilateral imposition of such restrictions by way of “new rules” that have not received the consent of the employees that they affect?

That alone would appear to be a very good reason for the AC to simply dismiss the proposed rules out of hand.

“Batistelli has recently denied the AC the power to tell him what to do,” one person then added. “Disaster for the EPO.” Here is the full comment:

First, very good reasons have not been the guidance followed by the AC for a long time, even less so under the Batistelli administration.
Second, Batistelli has recently denied the AC the power to tell him what to do.
So what is the sum total of this picture?
Disaster for the EPO.

In relation to the Boards, which we wrote about in the weekend and early this week [1, 2, 3], one person said:

About the boards of appeal and the UPC: the UPC, as the EPO board of appeal and the German “Bundespatentgericht” foresees legal and TECHNICAL members. Finding legal members should not be too much of a problem (although the language requirements may prove to be a problem), but finding technical members will probably be. The technical members need to be:
-trained technically, basically they should have an engineering diploma
-fluent in the 3 official languages and
-trained legally (although not as much as a legal member).
Basically the idea is that the courts should have specialists able to understand in details what the Patent is about (especially important in difficult subject matter like chemistry, biotech, computers…).
In the EPO board of appeal and the Bundespatentgericht, the technical members were recruited from examiners.

The EPO board of appeal is the single largest collection of people filling the requirements of TECHNICAL members (especially when one considers language requirements).

Now Battistelli, being motivated by his personal vendetta against the board of appeal, has caused a major problem. In a well run office, the board of appeal would be sufficiently staffed, so that a fraction of their members could be sent to the UPC to train future staff and deal with the first cases. Battistelli closed that route twice: by making sure that they will be legally excluded to do so and by refusing to staff the EPO board of appeal for years. None of this is proper management: every manager knows that when a new branch is started, training new staff is a bottleneck. It is in all the management books.

There are quite a few other comments on this subject which we didn’t mention, but many seem to suggest that “Battistelli, being motivated by his personal vendetta against the board of appeal, has caused a major problem.” (or something along these lines)

We sure hope that EPO staff, including the Boards of Appeal, will fight back against Battistelli and his ‘baby’, the antidemocratic UPC. We welcome leaks relating to this subject. The UPC would be sunk if more of the European public knew the truth about the UPC force-feeding and what forces motivate this whole push.

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