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06.14.16

Detailed Account of Today’s ‘Trial’ of a Judge Who Said the Truth About the EPO

Posted in Europe, Patents at 3:45 pm by Dr. Roy Schestowitz

Fair trial
Fair trial at the EPO is an oxymoron under Battistelli's regime

Summary: The widely-defamed (but unnamed in public) judge is off the hook again and Team Battistelli managed to suppress public participation which is passive (observers) by locking everyone out at the last minute

WHEN we wrote about today’s ‘trial’ as early as last night we could mostly speculate about what would happen, based on information available to us last night. This morning and this afternoon we released some actual information from the inside and now there’s a report from IP Kat, which probably needs to be careful with its words because of the recent warning shot from the EPO‘s management. We now have available to us some more details and background from Merpel. Everything she wrote was pretty much in alignment with/concurring with what we had published, including this bit:

Clearly, then, the EBA had decided to make the Oral Proceedings public. Merpel can only surmise that this must have been with the agreement of the Board of Appeal member concerned.

Now, Merpel has heard a couple of reports of what happened today. Apparently, despite the notices, in fact for the beginning of the hearing the the public was in fact excluded. Merpel understands that the reason was that the President had written to the Enlarged Board in an attempt to stop them from making the proceedings public. Merpel is then told that the proceedings continued in public – the EBA stated that they had received a threatening letter from a non-party to the procedure (presumably the President), and asked the “the petitioner in its quality of the members’ appointing authority to distance itself from the threats in that letter” (see comment here at 17:54 today). Merpel understands this to mean that the EBA was asking the employees of the EPO presenting the disciplinary case, acting not in their usual capacity as agents of their own appointing authority, the President, but in their specific capacity in the present proceedings as agents of the Administrative Council, the appointing authority of Board of Appeal members (and the petitioner in the present case), to distance themselves from the President’s letter. This the employees presenting the disciplinary case failed to do to the EBA’s satisfaction.

Merpel then understands that the EBA considered that it could not continue under these circumstances and closed the case without proposing removal from office of the Board member concerned.

Will this be the end of the disciplinary case? Merpel does not know. She presumes that any semblance of due process does not allow an unlimited number of attempts to prosecute the same matter, and three seems quite a lot. But as ever in the EPO at the moment, who can say?

“Further rumor has it that the EBA has forwarded the president’s threat to the chairman of the Administrative Council,” one comment added. This is actually a confirmed fact.

“We tend to hear from people who spoke to other people, who earlier spoke to other people.”We have some further information and corrections to IP Kat. Not many people are aware of what happened because not many people were actually there and word of mouth is not sufficiently reliable. We tend to hear from people who spoke to other people, who earlier spoke to other people. Sometimes we hear similar and overlapping stories from multiple sources, which helps contribute to confidence and assure relative accuracy. Below is a summary that’s based on various sources (second hand).

One who was actually at the ‘trial’ called it a “crazy day”. The public was only allowed in for the first two minutes (at 09:00) and the last five minutes (at 17:10). One could certainly get the impression that it was a final decision, as many people definitely seemed to think that. Everyone was then thrown out and then costs (presumably) were discussed. Someone actually heard people mentioning that they all had to sign in (list of names, signatures) and there was a piece of paper to go through; they all had to write their names and then sign to confirm/promise they wouldn’t record the session, so someone must have read Techrights.

“Someone actually heard people mentioning that they all had to sign in (list of names, signatures) and there was a piece of paper to go through; they all had to write their names and then sign to confirm/promise they wouldn’t record the session, so someone must have read Techrights.”We heard that a couple of bits are wrong in the IP Kat article, namely that the EBoA actually said that they did not recommend the removal of the judge, which is, in reality, much stronger than how it is stated in the IP Kat article. Additionally, it wasn’t the “employees of the EPO” who presented the case, but the Administrative Council itself. They were the “petitioner”. Put another way, they were represented by the employees. One can sort of see what Merpel is saying, but it is a bit confusing as it stands.

The important thing, which is missed out in the article, is that the Administrative Council itself, in the form of Kongstad was contacted twice today, in order to clarify whether they would distance themselves from the President’s letter. His answers were apparently so wishy-washy that the EBoA were not reassured that their independence was protected. Hence they could not continue because of the “threat” to their independence. The word “threat” was actually used.

We hope that people generally find this information useful. Having watched and assessed these things very closely today, we believe it’s an accurate representation of what happened.

Someone wrote about us as though we have a record of inaccuracy, even though we have historically gotten the facts right. It says:

According to a source cited by Techrights – always to be taken with a pinch of salt, still Techrights was the first to disclose the threats of Battistelli to the EBA:

“inside sources say that Mr. Battistelli sent a threatening message to the Enlarged Board of Appeal dealing with the case, to the effect that they should not let the public be present during the hearing. The EBA is said to take this very seriously and to have forwarded the president’s threat to the chairman of the Administrative Council.”

Here is another comment on this subject:

At the end of today´s public oral proceedings in relation to a petition by the AC of the EPO to the Enlarged Board of Appeal to remove a judge from office, the EBA announced
1. that its members had received a threatening letter from “an authority which is not a party to the procedure”
2. that it had requested the petitioner in its quality of the members´ appointing authority to distance itself from the threats in that letter
3. that in its response the petitioner did not adequately distance itself from the received letter
4. that the EBK could not in the circumstances pursue the procedure, which accordingly was terminated without the EBA proposing removal from office of the respondent.

“Finally,” replied one person, “Battistelli is showing to everybody his true face.” That’s what we wrote this morning. It is important to give outsiders an accurate account of this whole embarrassing display of megalomania (if not paranoia) from Battistelli.

Update: Kongstad’s role is now reaffirmed by a new comment that says: “As I understand the information given, the Enlarged Board contacted Mr. Kongstad, the Chairman of the Administrative Council, and asked whether the Council distanced itself from the allegedly threatening letter. Since the answer received was not considered satisfactory, the Enlarged Board decided that they could not continue with the case and did not propose removal of the member from Office.”

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