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06.18.16

The Rule of Money and Power, Not the Rule of Law, at the European Patent Office

Posted in Europe, Law, Patents at 7:26 am by Dr. Roy Schestowitz

Corporate agenda at all costs, even is that means stomping on the rule of law

Sepp Blatterstelli and FTI Consulting
The golden rule: the law of rule, not the rule of law

Summary: The European Patent Office (EPO) gets chastised for its gross abuse of the law and receives flak for even breaking its own rules, in another desperate effort to give Battistelli whatever he wants, even when he cannot lawfully have it

THE EPO‘s North Korean standards of 'justice' are putting everyone off, both inside and outside the Office. Even the media has begun speaking about it, in spite of the risk of bans (EPO management — like North Korea's regime — resorts to site-wide censorship of news sites that don't repeat its party line). No wonder top examiners are leaving. Even some top managers are leaving. It’s quite an avalanche which Battistelli has kick-started and does not know how to stop. Battistelli “is doing all the wrong moves,” one insider/reader told us, “shooting himself in the foot. [...] he’s so full of himself that he doesn’t care about the outside world, but he still has two years left, which is a lot of time” (enough time to destroy what’s left of the EPO ‘brand’).

A lot of online discussion has appeared in recent days, much of it in the form of comments about the so-called ‘trial’ against a judge, as previously covered in [1, 2, 3, 4, 5]. This article strives to summarise some of the better comments and shed light on how people — even people from inside the Office — view Battistelli’s gross subversion of justice. It is mostly self-explanatory although there are refutation attempts (e.g. that Battistelli did not issue a threat) which we need to rebut.

Let us begin with the following informal summary of what happened last Tuesday:

DG3 disciplinary case: decision from the Enlarged board of appeals EBoA

- The Enlarged board of Appeal has a public Oral Proceeding in the DG3 disciplinary case. From some prior information, it became obvious that the President had found it necessary to send a long threatening letter to the EBoA.

- Despite the pressure, the hearing was public. During the public part, Mr. Kongstad, the Chairman of the Administrative Council, was asked whether the Council distanced itself from the allegedly “threatening letter” (sic!). Since the answer received was not considered satisfactory, the Enlarged Board announced (according to IP Kat) the EBoA could not in the circumstances pursue the procedure, which accordingly was terminated without the EBA proposing removal from office of the respondent.

- Clearly this courageous decision will have consequences and will feed the debate on the independence of Board of Appeals, topic in discussion in the Reform proposal (CA/43/16), and which has been abundantly been criticised by AMBA, the Association of the Members of the BoA. Clearly a lot more is at stake than the personal case: how could the European public believe and trust the BoAs absolute judiciary independence when, according to the “court’s” own perception, that independence is not unambiguously ensured?

- As far as the Disciplinary case is concerned, it means that unless the case is referred for the FOURTH time to the EBoA, the suspension and sanctions against [the] DG3 [judge] should be removed at the next session of the AC. But… [...] at the EPO, so the weirdest things are possible.

When asked whether the ‘trial’ was definitely over one person with inside knowledge told us: “I don’t know but from the letter I assume that it’s postponed and not definitely closed. Battistelli may try another time and the longer this drags on the worse it is for him but reemploying the judge doesn’t seem to be an option.”

This seems like a case of forever uncertainty (not knowing what will happen), until the judge’s term in the Board reaches the end. In fact, “probably this will be the tactic but I would imagine Battistelli still trying” (to fire him).

“The Administrative Council is complicit,” told us this person, “because they voted to prolong the suspensions in general to 2 years, which is scandalous [...] it’s shameful but nobody want to deal with an institution above the law [...] difficult legal situation” (the EPO's management has already gloated about ignoring the highest court at The Hague).

One person asked a few days ago: “Does anybody know what regulations apply at the EPO?”

Well, the EPO’s management insists that it’s above the law and Battistelli breaks his own rules, so does that matter? Here is the comment in full. It’s about surveillance:

Under EU data protection law (Regulation (EC) No. 45/2001) covert surveillance measures have to be approved by a “prior checking procedure”:
“In cases where the risks to your fundamental rights are high, the institution concerned is obliged to assess the implications of that surveillance on privacy and data protection (also known as an impact assessment). This impact assessment must then be submitted to the EDPS for prior checking i.e. before the surveillance becomes operational.”

https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Factsheets/Factsheet_4_EN.pdf

Does anybody know what regulations apply at the EPO ?
Is such retroactive rubber-stamping permitted ?

One response to this was as follows:

In addition to that Bulgarian judges appear to be well versed in the ramifications of covert surveillance operations:

http://sofiaglobe.com/2016/01/15/bulgaria-former-court-chief-gets-suspended-sentence-in-eavesdropping-trial/

The Bulgarian Judges Association seems to understand a thing or two about the “separation of powers” doctrine:
“Judges Association Urges Politicians Not to Jeopardize Law-Based State”

http://www.bta.bg/en/c/DF/id/1015331?PageSpeed=noscript

The names of those involved, Kathrin Klett and Anna Dimitrova, were disclosed as follows:

One should keep in mind that the EBoA in this case comprised two external legal members (Kathrin Klett (CH) and Anna Dimitrova (BG))
(see http://www.epo.org/law-practice/legal-texts/official-journal/2016/etc/se1/p2.html and https://en.wikipedia.org/wiki/Art_23_1/15_and_Art_23_2/15).
They are national judges of their respective countries and it can be assumed that they are well prepared to discern if the letter of the president represented a threat to the board or not.

Here is one person pointing out that three members of the Investigative Unit (it’s not much bigger than that) were summoned, presumably because their ‘evidence’ was illegally collected and/or made up:

Interesting to read that the EBA had invited three (!) members of the Investigation Unit as witnesses to its hearing. Both the chairman of the AC and the president of the EPO must have immediately understood this meant that the EBA would not simply endorse the alleged pieces of evidence put forward against the accused judge, but make an issue also of the way these have been obtained.
Although an invitation to hear witnesses must have been issued largely in advance of the hearing, and put to the president´s attention by his legal staff – who happens to also represent the AC in the procedure (!!) – the president waited for the very last day to send his explosive letter.
This is pretty like launching a bomb on a moving train.
But why did the procedure so direly need to be derailed? And why did the chairman of the AC deliberately not defuse the bomb?

“If the President thinks,” added one person somewhat sarcastically, “that the behavior of the Enlarged Board of Appeal is unlawful, then he should perhaps go to the German courts to get help in this matter.”

Battistelli would never go to a national court like the German courts because that would expose him to all sorts of scrutiny and Hell. Battistelli prefers to keep everything inside the bubble of Eponia, where he is king, judge, jury, accuser, executioner and so on.

“Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli,” one person pointed out in relation to this leak which we published 4 months ago. Here is the comment in full:

I’m not normally one to see a conspiracy where a cock-up adequately explains events, but:

The AC has now tried three times to instigate proceedings to remove the Board member. Each time they have screwed up such that the proceedings could not continue. They are surely by now well aware of the standards of evidence and argument which will be required to persuade the EBOA to make a recommendation of dismissal, and yet each time they have failed to even get their case off the ground far enough to discuss substantive matters. To misquote Wilde: to screw up one attempt may be regarded as a misfortune. To screw up two may be regarded as careless. To screw up three…?

At first this level of incompetence seems hardly to be believable. Having failed twice now, surely they should have gone in with a watertight approach on the third attempt if they were serious?

Well – what if they’re not seriously trying to remove the Board of Appeal member? Recall that Mr Kongstad was behind the leaked Board 28 communication expressing extreme frustration at Battistelli. Maybe the larger AC players, having lost patience with BB but unable to remove him due to his grip on the smaller members, have decided deliberately to undermine the credibility of their own case to remove Battistelli by other means.

So here we have the EBOA asking Kongstad to distance himself from BB’s threats. Kongstad fails to do so – preserving whatever impression of loyalty to BB may remain. But in doing so, he torpedoes the proceedings against the Board of Appeal member, in a manner which drags BB’s already-soiled reputation further into the mire. Sure, it also makes Kongstad look bad at first glance – but the major damage is to Battistelli. Hey presto, an opportunity for Kongstad to persuade the rest of the AC that “regardless of the merits of the case”, they must reluctantly come to a decision to expel BB for the sake of the reputation of the Office…

Even if the smaller members vote in sufficient numbers to save Battistelli, the loss of support of the bigger members should surely be inevitable (if they have any sense of decency). Devoid of the support of DE, CH, FR, NL, maybe GB, surely his authority is drained and maybe the big players are then banking on the idea that he can either be brought to heel, removed with a final push at a later date once he fails to comply with them again, or persuaded to fall on his sword.

In other words, Kongstad avoids any public statement either against Battistelli, or in favour of the suspended Board member. He appears to remain loyal or neutral to the last, while at the same time ensuring that the proceedings fail in a manner designed to cause maximum embarrassment to BB.

It would be no crazier than anything else we’ve seen from the EPO lately.

Well, to be frank, nobody should assume that the EPO’s management will behave in accordance or adherence to its own rules, let alone national or international laws. Eponia is basically a rogue monarchy.

Here is another bunch of comments regarding whether this constitutes a threat or not (violation of Battistelli’s own Code of Conduct), without actually seeing the letter that was received from Battistelli and then passed to Mr. Kongstad:

Not a threat to declare an action by EPO employees unlawful? That is a very serious threat, because the EBA members, being EPO employees, would then disobey the statutes and could be accused of not acting in the interest of the office. You know what that means: investigation unit and sanctions, perhaps even dismissal. I do call that a threat.

Do not forget that under Article 10(2)(h) EPC the President may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11(3) (the members of the Boards of Appeal).
Is the potential “threat” becoming clearer ?

Here is the part which raises the possibility that Battistelli made his threat in an effort to hide his goons’ illegal activity, in the same way the FBI and USDOJ often do this in the United States (when Parallel Construction cannot be used to mask the illegal surveillance):

The picture that is emerging here is that one of the aims of the President was to prevent public discussion about the covert surveillance measures.

Does anybody know what regulations cover the use of these measures at the EPO ?
Obviously the EPO is outside the scope of the EU data protection law such as Regulation (EC) No. 45/2001.

Does it have any regulation to cover this matter or is the use of covert surveillance at the EPO completely unregulated ?

Can anybody help on this ?

Justice at the EPO and even outside of it (in independent branches of the Organisation) has become a farce:

I think you illustrate what I was saying. Article 10(2)(h) EPC existed for 30+ years without the Boards feeling unduly threatened by it.

However, the current relations between the Boards and the President are so fragile that they do now feel threatened, even when no explicit threat is made.

Here is a response to the above comment:

How can you claim that no explicit threat was made if you haven’t seen the contents of the letter ?

As far as is known the President expressed the view that it would be “unlawful” to hold a public hearing.

Thus if the Board held a public hearing it would – according to the President’s view – have committed an unlawful act. Or to use the favorite Eponian terminology these days – the members would have been guilty of “misconduct”. And everybody inside the EPO knows what that means. Since December 2015 Board members can be suspended for a minimum of 24 months on a proposal from the President.

Under these circumstances who could blame the Board for requesting clarification from THEIR appointing authority (the Council) to which the President is also subordinate (or supposed to be)?

It is OBVIOUS that the onus was on the Admin Council to clarify the matter and to state UNAMBIGUOUSLY whether or not it shared the President’s view about the “unlawful” nature of a public hearing.

If the Council did share the President’s view then it would be likely to follow any proposal that he made under Article 10(2)(h) EPC.
If it did not share the President’s view then the Board had no reason to feel threatened.

The Council Chair should have given a clear and unambiguous answer to this question and it was his failure to do so that resulted in the termination of the proceedings.

PS: The safeguard of Article 34(2) of the Service Regulations has also existed for Staff Reps. and their nominees for 30+ years: “The fact of of performing such duties shall in no way be prejudicial to the person concerned.”
It was respected (more or less) by all previous Presidents who kept their staff rep bashing activities within the bounds of reason.
That was until the current Pres decided to ride roughshod over it and “prosecute” staff reps and their nominees on trumped-up charges of “misconduct”.

So the nervousness of the Enlarged Board members is very understandable.
After all they are dealing with a person who once told them to their faces “In my opinion you are not judges !”

Now it seems that someone has finally had the courage to tell him “On s’en fout de votre opinion, Monsieur Battistelli”.

Well, based on information we got, it is indeed fair to call it a threatening letter, especially given Battistelli’s history of witch-hunting people (even by making up serious allegations and ‘dirt’).

As the following commenter put it, the “fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards.” Here is the comment in full:

All we know (from the accused BoA member’s lawyer) is that the President’s letter used the word “unlawful”. You seem to acknowledge that.

But we have not been told of any actual explicit threat. As far as we know, he didn’t actually say “If you hold these proceedings in public, I will do XXX”. Everything else that you describe is just fear of what the President might do.

That fear is of course fuelled by what the President has done in the past, and by other, real threats that he has made to the Boards. That is the reason for the fragile relations to which I referred. It is the reason why the Boards are nervous. It is the reason why the independence of the Boards is a big issue.

I said all of this in my previous post. You are not saying anything which contradicts it.

The debate over whether there was a threat or not carried on:

I think there is a slight misunderstanding among commenters about what is meant by “threat” in this case. Yes, individual members of the EBoA who are EPO insiders (some were external persons) could indeed consider the President’s letter personally threatening. But I think they meant that the President’s interference was a threat to the integrity of the proceedings, by attempting to forbid the public hearing and by refusing to allow the EPO employees called as witnesses to testify. No fair hearing could be possible in such circumstances.

I guess the issue was not merely whether the members of the EBA themselves felt directly threatened in their job by the intervention of the president. Also the respondent (accused member of the boards) and the public at large had to be absolutely confident that the judges in charge would conduct the procedure and decide freely and in full independence, rather than acting as BB´s puppets. The AC actually is the sole authority which could have given this guarantee in the circumstances, but it failed to do so despite having been offered several chances, apparently.

As a somewhat sarcastic response to the above consider this:

You mean, like the Disciplinary Committee which examined the cases of the three Staff Representatives? Certainly, if they felt threatened and under pressure from Battistelli, they could turn to their appointing authority which is … oh, is Battistelli.

Freely and in full Independece! Urrah!

And in response to the sarcasm:

I like that.

Actually, I shall add it at the end of my grants to dispel the impression in the public that I’m granting only to reach Battistelli’s targets.

I shall remove the “Urrah”, though – it doesn’t fit the code of conduct.

“Barbi” (a frequent poster) made the following good point:

If there were no threats in that letter, BB will not pass up on the opportunity to penalise the EBA for groundlesly failing in ist duty to deliver the requested dismissal for the judge. So that, if he does not request a penalty for the EBA at the next AC, it will mean that the EBA can prove that threats were there in the letter.

The “consequences of doing something that Battistelli alleges is “unlawful” are very clear to every EPO employee,” pointed out the following person:

There’s a huge difference between writing in a letter that the procedure is “unlawful” and actually providing legal arguments in support of that statement – arguments that the EBoA would have certainly discussed and admitted or rejected, depending on their merit – and merely alleging that the procedure is “unlawful”.

As someone noticed above, the consequences of doing something that Battistelli alleges is “unlawful” are very clear to every EPO employee – weapons and nazi memorabilia will be found in your office.

It sure seems like Battistelli has accomplished the unthinkable. He managed to make everyone (even managers) distrust him. He keeps some of them complicit by dangling Euros, but at the end of the day everyone knows that he controls people by fear (or terror). How ironic it is that he keeps exploiting terrorist events to paint himself as a sympathetic victim.

Battistelli has basically helped ‘prove’ that today’s EPO offers no notion of justice (this is essential/fundamental in a system which revolves around a patent justice system), just horrible libel against those who try to uphold justice. As one person put it the other day: “Thank you Mr. Battistelli: you probably have dispelled in the public at large the last doubts that the dismissal and degradation of the three Staff Representatives has been conducted in a fair and independent way.”

There are quite a few comments about this over at The Register as well, in response to an article about Battistelli’s attacks on the boards.

“Surely someone has the power to fire him,” one person wrote. “A good article would explain what is necessary to dismiss him or if it isn’t possible report why not. I’ve read umpteen ElReg article about Battistelli but can’t recall any mention. It reminds of Katrina Percy, chief executive of Southern Health NHS Foundation Trust who refuses to resign despite a number of damming reports. The fact that both of them are refusing to go confirms they need to go.”

“I’d say surely someone has that power,” responded another person. “He’s just very very good at sucking those particular balls/ballettes so that he won’t get fired. With that kind of behaviour he should be fired, that’s what is certain. And those of you familiar with Futurama know with what he should be fired and to where.”

“In theory he can be fired by the Administrative Council which appointed him,” another person pointed out. “But since he comes from their ranks, they will protect him as one of their own just as they have done so far. Especially the Chair of the AC Kongstad who negotiated Battistelli’s secret contract.

“Yes that’s right a contract so secret that not even the ordinary members of the appointing body know what is in it. Only the Chairman has seen it.

“And don’t imagine that voting for BREXIT will help you. The EPO Is not an EU institution. Even after a BREXIT, the UK will remain a member of the EPO.”

Here is another (longer) comment from there:

A comment over on IPKat may shed some light on this point:

=== When the computers in the public – public – area of the Office were put under control, there was no request to the Data Protection Officer. The request was made only after the guy was caught doing whatever he was doing.

=== From the article Welcome to EPOnia, the strange land of European patents that is outside the law:

A strange letter from the head of the EPO’s Investigative Unit to the organisation’s internal data protection officer asked whether the spying described above “would have been authorised”—implying the request was being made after the fact. Also curious is the handwritten authorisation on the document, which is dated December 3, 2014—exactly when the Board of Appeals member was suspended for “alleged dissemination of material which was, as was also alleged, defamatory.”

=== Which means that the data collected from the public computers were obtained illegally.

They cannot be used. Had the witnesses of the IU confirmed this, in a public proceedings, the case would have crumbled. So, the President barred them because their deposition could have helped the defendant.

Here is a less serious comment about Battistelli:

Mr. Battistelli sounds like a candidate for an award we used to have in the US, whereby worthy individuals were recognized for their unique contributions, arrayed in ceremonial finery and dispatched on a Victory Tour.

The colloquialism was “Tarred and feathered and ridden out of town on a rail”.

One recipient was heard to remark, “If it wasn’t for the honor of the thing, I think I’d rather walk.”

But surely your tumbrels aren’t all gone?

As another person put it: “If he was appointed then surely there is a way to get rid of him? An extreme method would be to tell him he’s fired and send security guards in to escort him off the premises. Why can’t this be done?”

A cynic might think that Battistelli hired 6 bodybuards (grossly overpriced) to protect him from firing (as well as protect his bulldog and Bergot) inside Eponia where police is not allowed without his prior approval. His bulldog is not even attending court sessions he's summoned for, perhaps thinking that Zagreb is like Eponia and the law is not obligatory.

One person notes: “in the most recent articles about this nut-case, is who he is answerable to – surely *someone* is able to fire him, he’s not a head of state.”

“Apparently he is,” it’s noted, “effectively.”

Lastly, writes one person, “[a]s far as I can see, that ship has long sailed,” quoting the original author as saying: “It is not known why Battistelli is so insistent on the appeals board hearings being held in private, or whether the appeals board is pushing for them to be held in public, but many suspect that what comes out in the course of the proceedings could be damaging to the president’s standing.”

One of our readers who’s familiar with the whole situation is “quite skeptical” that Battistelli is on his way out. “There was a moment at the beginning of last year when I thought Battistelli could be deposed,” said this reader, “but now I can’t see a majority in the Administrative Council.

“Battistelli can buy a lot of the representatives and the ones of the big countries are not that decided to get rid of him.”

We wrote about this before. It is outrageous and it serves to show that the notion of justice is outlandish and foreign to the EPO, whereas cronyism if not bribes is the ‘norm’.

“Ask the partner to give you heads up on customer situations – bribe them!”

Steve Winfield, Microsoft

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