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06.20.16

Under Battistelli’s Regime the EPO is a Lawless, Dark Place

Posted in Europe, Patents at 4:50 am by Dr. Roy Schestowitz

Reign of terror by Team Battistelli

The coat of arms of East Germany

Summary: How the EPO’s Investigative Unit (IU) and Control Risks Group (CRG), which is connected to the Stasi through Desa, made the EPO virtually indistinguishable from East Germany (coat of arms/emblem above)

THE EPO‘s top management continues to rule by fear and the more afraid people are — or the more irrational and dangerous the management seems — the less likely people are to dissent, unless anonymously. We should note that some blogs from EPO workers vanished over the past two years (some did exist) and not much has remained for the expression of dissenting views, such as the view that patent quality significantly fell under Battistelli's watch. Moreover, if not more so, staff representatives are afraid. They are rightly afraid given the extreme sanctions against existing staff representatives in Munich and The Hague (using exaggerated and/or made-up allegations).

As one person put it: “Dialog… really?”

“It seems like the harsher the methods employed by Battistelli, the less likely he is to be able to engage in any meaningful social dialogue.”There is hardly even an illusion of social dialogue anymore. Battistelli does almost whatever he wishes. He does not even listen to the Administrative Council. He lives in his own fantasy world, where everything he pleases he believes will happen with or without backlash (he hardly worries about backlash as he insists he’s above the rules and repeatedly demonstrates that). Who takes the toll? The EPO’s reputation. Does Battistelli care? He doesn’t seem to mind, he’s already at retirement level/age.

“Simultaneously to the demonstration,” one person recently wrote, “the General Consultative Committee, GCC, took place in the ISAR building in presence of the top management.”

Was there any real dialogue there? Not really, “[h]aving learnt from a painful experience made by a former member of the IAC [Internal Appeals Committee], Aurélien Pétlaud, who was downgraded in 2015 in exactly this situation, the elected Staff representatives which had the obligation to participate.”

“Seeing a large bunch of disgruntled EPO workers (who seem to be the overwhelming majority by now), Battistelli has chosen the use of force rather than consent.”It seems like the harsher the methods employed by Battistelli, the less likely he is to be able to engage in any meaningful social dialogue. One begins to legitimately wonder if he’s actually interested in such a dialogue or only wants to tell the media about such fiction.

“On the Agenda [there were] precisely two reform proposals on Investigation procedures and Disciplinary Procedures,” we learned about aforementioned proposals, “giving even broader powers to the investigation unit and the president: knowing that these are already on the agenda of the coming AC (Disciplinary: CA/53/16 & CA/53/16 add1 – Investigations… sorry the official term is “fact finding”: CA/52/16 and add2), the debate was nothing more than the usual rhetorical exercise, that some may qualify a yet another of these sad “Battistelli-movies”.”

“Is this the future of Eponia? Another East Germany?”So even when there’s an attempt at dialogue it seems to involve yet more escalations in the attacks on staff, including staff representatives. This has got to be some kind of a farcical exercise. That’s like sitting down with one’s enemy for “peace talks” while deciding which targets are “ideal” for “mutual” nuclear strike/impact (as in power plants, water supply and so on).

From the same text: “It was [supposedly] the opportunity for the Staff representatives to state their utter disappointment with the last president disciplinary decisions (see as an illustration one intervention made in the GCC by an elected CSC representative) and Staff broad disagreement with the present management policy.”

This text, which reached us not by intention, serves to demonstrate which kind of atmosphere prevails not only at the appeal boards but also in panels or discussions pertaining to staff rights. It’s ludicrous and moreover it serves to show that Battistelli’s mask may not have fallen off yet. He wishes to get even nastier and he wishes to authorise even more authoritarian powers (maybe some of which were exercised beforehand, even before these were ‘legalised’ to retroactively justify/excuse them).

“Under Battistelli’s regime, the unthinkable becomes possible (for him, Battistelli) and ordinary things become verboten (for everyone) if Battistelli decides so.”Seeing a large bunch of disgruntled EPO workers (who seem to be the overwhelming majority by now), Battistelli has chosen the use of force rather than consent. When BlueCoat and the IU (or CRG) can’t identify disgruntled EPO workers one should wonder if they also reach out to their friends in spy agencies (CRG is connected to Desa, i.e. former Stasi staff, and maybe GCHQ also, as we noted last year). Is this the future of Eponia? Another East Germany?

As one insider recently told us about Battistelli, “do you think he’s not universally despised here? Even directors despair at the methods… [but Battistelli] has the money to spread around [...] so many people eating from his palm [...] there’s a good article in the Sueddeutsche about the slide downwards [...] that people lose job security and more and more jobs are precarious, on the border to the survival level [...] it’s also what´s being promoted at the EPO, with the limited time contracts” (which pressures to grant more patents rather than do one’s job and also reject applications).

Regarding Team Battistelli we got told that “Topic depends on Battistelli so he’ll do whatever Battistelli asks of him [...] hopefully he will get sentenced in Croatia, then things would become clearer, but justice in Croatia doesn’t move that fast [...] best hope is Battistelli himself who will certainly provide some more ammunition [...] he has no idea what a manager should be like (never heard words like “inspirational”, “motivating”, etc.) [...] he has no shame (who else would’ve brought nine French friends and distributed them in high positions?)”

“It’s enough to be flagged or accused by Battistelli to lose one’s job and potentially be barred from taking employment elsewhere (for several years).”Under Battistelli’s regime, the unthinkable becomes possible (for him, Battistelli) and ordinary things become verboten (for everyone) if Battistelli decides so. The notion of justice, in a system which is intended to provide justice (on patents), is totally absurd. “Institutionalised injustice,” as anonymous writers recently referred to it, is now the norm under Battistelli and here are some figures to support that: “CA/20/16 shows that things have since gotten worse. The documents show that the success rate of the “requests for review” has further gone down from about 5% in 2014 to about 4% in 2015, in terms of number of cases (page 55/116; table under point 285). The success rate in the Internal Appeals Committee (IAC) was about 9% in 2014. This was already a very bad year. Previously the success rate was between 25 and 35%. In 2014 the IAC did not meet after summer, until the members appointed by the Staff Committee resigned in October 2014. At the end of the year the IAC then whipped out a large number of opinions in 3-member composition, without staff representatives. From the overall success rate for the year it seems that the vast majority, if not all, of these opinions were negative for staff. As a next step the nominees appointed by the Staff Committee were replaced by “volunteers” recruited by Mr. Battistelli. Subsequently the success rate in the IAC went down to 4%, again in terms on the number of cases (page 56/116; first table under point 287). In terms of number of appellants, the figures are much worse still. According to the next table under point 287, of the final decisions after the IAC taken in 2014 still about 15% were positive for the appellant. The higher success rate compared to the IAC recommendations of the same year presumably comes from IAC recommendations issued by the IAC in 2013, many more of which were positive. In 2015 the success rate final decisions after IAC also dropped dramatically. Of the 243 cases (from a total of 2.420 appellants), Mr. Battistelli only allowed two, one of which only in part, giving an overall success rate of 0.8%. These data show that the current administration tries to win conflicts with its employees rather than to try and solve them. Under the circumstances it should not come as a surprise that the Board “observes” a growing number of ILOAT files (page 59/16). But for the Auditors all of this seems to be no reason for concern. The Board simply mentions the figures, without much comment and without giving any recommendations for improvement.”

Put succinctly and in very simple terms, there seems to be no point appealing anything inside the EPO, and outside of it, notably at ILO, justice is far too slow and even then it’s somewhat dubious (based on statistics on cases). This means that Battistelli can do to staff pretty much anything he pleases and there’s no veto power, no ‘safety net’ of appeals. So much for ‘job security’ at the EPO. It’s enough to be flagged or accused by Battistelli to lose one’s job and potentially be barred from taking employment elsewhere (for several years). Talk about reign by terror…

“The future shape of IP in Europe,” one person said, or “the balance between legal security and the need for costly litigation, is being determined by one thing only- the greed of the AC and the national patent offices.”

Another person wrote the other day, vaguely alluding perhaps to the Enlarged Board of Appeal:

A truly historic moment for the EPO.

At last somebody within the organisation* has stood up for the rule of law and takes a principled stand against the abuses of the EPO management.
(* And I am not referring here to the Administrative Council!)

Many people have been waiting such a long time for a hopeful signal like this and are truly grateful that it has finally come.

Sad to think that such hideous abuses of power are tolerated for so long at the highest political levels throughout Europe. But those responsible will wash their hands and pretend that “we were never informed”, “we didn’t know” etc. while they dance on merrily to the tune of “Put another nickel in the nickelodeon”.
Shame on them.

The “idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous,” one person wrote. Here is the comment in full:

It would be unfortunate if that turns out to be the reasoning of the EBA. It would convince only those who need no convincing, which is just useless.

A mere “unlawful” by the president who does not get to decide anyway (Art. 23(3)) should have been easy to dismiss.

The threat had better be real and serious. Probably it was, but at the moment it is impossible to tell. The idea that the investigation unit would be ordered to investigate a BoA decision is objectively too ridiculous to take serious unless the letter actually makes such threat.

“Who would really be surprised if one or more members of the EBoA would be marched out of the EPO,” one person said regarding Battistelli’s EPO. It would not be surprising at all, hence the insistence that the suspended (on ‘house ban’) judge gets a fair assessment, not politically-charged accusations and dismissal:

the two of recent of our feline friend concerning EPONIA, start on the sidebar with

“Extraordinary news has just reached Merpel.”
(this concerns the EBoA OP that was torpedoed )

the other reads “Merpel thought that nothing at the European Patent Office could surprise her any more. How wrong she was. ” (post employmen restrictions)

Who would really be suprised if one or more members of the EBoA would be marched out of the EPO because somebody ruled that a house ban was the right thing for these Judges , who are not really Judges ?

Sir Robin Jacob is then recalled, for his epic intervention on this matter:

Actually, a lot of people at the time were surprised.

Remember Sir Robin Jacob’s Letter?

And the one of the Six National Judges?

And the one from Dr Tilman Müller-Stoy? – with the caption from Merpel: “who’s asking the DE delegation to the AC to set the EPO management straight” (sorry, Dr. Müller-Stoy: it really did not work …).

After Battistelli informed the AC – and the public – that the suspended member of the BoA was (allegedly) an armed nazi, I can understand their reluctance to continue to defend him … but now? After the AC failed for 3 TIMES to have him dismissed, would it not be the time to SAY SOMETHING?

Actually, the silence of the IP world is defeaning.

Only Merpel is brave enough to continue to cover, comment on and criticize what is going on at the EPO.

Where are you Sir Robin?

In response to the above:

I would not expect too much from Sir Robin and his friends.
They may be in a quandry.

Rumour around the EPO has it that a retired British judge chaired a disciplinary body appointed by the Admin Council which rubber-stamped the work of the IU.
Seems like he never heard of Article 23 EPC.
A bit embarrassing for all concerned.
It cannot be pleasant to wake up and realise that you have been a Presidential patsy.
Might help to explain the current silence.

The following person believes that the EPO is like “East Germany” now:

When people who dare criticize and resist a dictatorship are caught, they are never good family’s fathers.

To avoid that normal people could identify themselfes with the person expressing a legitimate critic or an act of resistance, they are publicly presented as monsters, perverts, with the convenient discovery in their offices of incriminating material.

Defending someone like this becomes embarassing – Sir Robin is not heard anymore.

But the person has not acted alone! – we are told. Further conspirators are discovered, guilty by association – first the Judge, then the Union Leaders.

Thus, one by one, the pillars of a civil society are silenced – in secret trials in which the State’ s security may be conveniently invoked to avoid embarassing witnesses to appear, or with reformes to enhance the “perception” of independence, presented with grand fanfare.

And all this is appening – of all places – in Germany, the representative of which in the Administrative Council belongs to the Minister of – wait for it – “Justice”.

I’m surprised that nobody noticed this – but then, not everybody lived in the former East Germany.

“With the EPO,” one person says, “Maas has a politician’s dream: a half-plausible excuse to say “not my department!”.” Here is the full comment:

Justice minister Heiko Maas (SPD) ain’t really the sharpest knife in the drawer. Look at his performance in the NSA and Netzpolitik scandals…

With the EPO, Maas has a politician’s dream: a half-plausible excuse to say “not my department!”.

But it could still be worse… A lot worse… Three words: Thomas. de. Maizière.

Also, “forbidding the three members of the Investigation Unit to appear,” one person said, “is the real scandal here!” Battistelli is probably just trying to cover his own behind, having (quite likely) broken his own rules again:

Everybody here is focusing on a real or perceived threat in the letter of the President – the details of which we will probably never know.

In my opinion, forbidding the three members of the Investigation Unit to appear at the hearings, as requested by the EBoA, is the real scandal here!

The following comment explains that “Battistelli obstructs justice.”

So what happens next?

Whether it was by failure of allowing witnesses to be heard or by a threat letter to the enlarged board, one thing is clear: Battistelli obstructs justice.

Another thing is clear: in their last meeting, the administrative council gave clear instructions that “justice must be seen to be done”. In addition to “restore social peace”, “start talks with the unions”, etc…

Normally, in cases as clear and detrimental to the function of the EPO as this one, the expected answer would be: lift Battistelli immunity and find another President at interim to sort out the mess.

So I am asking the question again: what happens next?

Perhaps the best comment so far points out that “the Investigation Unit might have violated the private e-mail accounts of the accused member” (probably a lot more than once). As we noted here before, the EPO’s Investigative Unit claims to have read private E-mails of bloggers like Florian Müller (one might nonchalantly wonder if Google had something to do with it because Gmail was used). When HP got caught doing such things the ramifications were enormous, but in Eponia? No justice. Here is the comment in full:

Quite amazingly, the President himself has given an indication of why the procedure against the accused member of the boards might have had to be stopped at all costs.

In his final decision against Elizabeth Hardon, the recently fired chairwoman of SUEPO, as published here: http://techrights.org/2016/01/16/battistelli-has-isssues-with-hardon/ the President wrote:
“As regards the defendant’s request concerning the DPO authorisation, the Office’s explained both the technical and the legal aspects. It has explained the exact circumstances under which the investigation took place. For the avoidance of any doubt, the Office did not intercept your correspondence to Mr XX, nor access your private email account. Rather, it collected evidence in the context of an investigation against unknown persons within the premises of the Office and more specifically at one of the Office’s public PC kiosks. Screen shots of email correspondence and activities of Mr XX were obtained in that context. These included screen shots of two-way correspondence between Mr XX and you. It was in that way that your involvement came to light. It was demonstrated to the Committee that the Office had not relied upon intercepting your private email at all, and you were mistaken to think so. These reasons and details were considered carefully by the Disciplinary Committee who fully understood and accepted them. They do not require further elaboration“ see § II (iv) of the President´s final decision.

The President´s final decision thus evokes a suspicion that the Investigation Unit
might have violated the private e-mail accounts of the accused member of the boards and of his alleged accomplice, Elizabeth Hardon. The Disciplinary Committee in Hardon’s case, chaired by the very Mr. McGinley, see § II (i) of the decision, who a few days ago unexpectedly announced his early resignation http://techrights.org/2016/06/15/ciaran-mcginley-is-leaving-epo/ was apparently satisfied by the explanations of the Investigation Unit that they did not gain access to any private e-mail accounts.

It cannot be excluded that a public hearing by the EBA of several members of the Investigation Unit in the present case, which obviously relies upon the same investigations, could on the contrary have revealed that the Office in addition to its admitted spying on publicly available computers also hacked the private e-mail accounts of its staff, with disastrous consequences.

One might begin to wonder if last Tuesday’s hearing helped motivate Ciaran McGinley to take early 'retirement'. If he was ever implicated in obstruction of justice or the aforementioned illegal spying, what would be the impact?

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