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06.25.16

With UPC Dead for Battistelli’s Entire Remaining Term, No Reason for the EPO or the Administrative Council to Keep Battistelli Around

Posted in Europe, Patents at 12:40 am by Dr. Roy Schestowitz

SUEPO, the staff union of the EPO, will prevail, unlike Battistelli

SUEPO speech

Summary: Thoughts about what happens to the EPO’s leadership after ‘Brexit’ (British exit from the EU), which severely undermines Battistelli’s biggest project that he habitually used to justify his incredible abuses

THE EPO management’s sheer abuses served to discredit the European Union as a whole, as we noted here many times before. Despite not being an EU body, as Europe’s second-largest intergovernmental entity it was seen by many as symptomatic of a failure to respect the rule of law, honour democracy etc. This was the legacy of Battistelli. In many ways, Battistelli caused more damage to the European Union than anyone else in Europe so far this year and last year.

This post is an outline of recent news regarding the UPC and the EPO. There is a lot to be said and many sites already speak about it. Even insiders at the EPO speak about it. “Earthquake in EU,” one person labeled it, in relation to the “decision of the UK citizens to BR-EXIT!”

To quote the core argument:

As you have most certainly heard, the UK referendum has turned out in favour of the BREXIT yesterday. The decision has had the effect of a bombshell – Cameron has announced his resignation for October- and if it can be a measure of it, the markets which are reacting in freefall worldwide.

At this stage nobody can foresee the effects on EU economy nor politics. But the same can be said about the impact on the European Patent System. Clearly the Unitary Patent set-up – and the future of its UP-Court which was meant to be in London – is shaken at its root and it is remains to be seen if it can go forward despite yesterday’s [or 2 days ago] event.

In the mean-time, The UK remains a full member of the EPC: it is simply joining the select club of the major IP countries not belonging to the EU, such as Switzerland… However, in the context of such a political earthquake, it is doubtful that our supervisory body – not renowned for finding simple solution to simple problems – will be able to go beyond the state of stunned confusion and focus on the major problems at hand in the EPO. let alone find solutions.

As a recap for our readers, as part of the planned transition to the UPC system, Battistelli has been crushing appeal boards. Jonathan Radcliffe, who wrote about the latest twist in this plan a few days ago, has this article about it. This repeats the euphemisms of the EPO’s management and the headline says “European Patent Office to Make Pan-European Revocation Proceedings Faster, More Efficient as of July 1″ (i.e. a few days from now). Alternative headline: EPO crushes appeals process to lower quality of patents and give an illusion of success.

Battistelli’s war on the appeal boards, including threats against them (the leaked text clearly shows a threat issued to all of the members), is quite telling. In fact, the judgment has been covered by Kieren McCarthy in the British media. It happened just over 24 hours ago (1 AM). To quote some portions from “Nazi witch-hunt ends with fierce judgment”:

The judge in question was dismissed by the president for allegedly leaking documents that embarrassed Battistelli and EPO management and for making anonymous criticisms of them.

Battistelli set up an investigative unit – nicknamed “the Stasi” internally – to root out who was making the criticisms. It concluded that the judge was behind the leaking and he was suspended. The decision was then backed up by a disciplinary council.

When it came to removing the judge from the Boards of Appeal however, the independent body decided to look deeper into the issue, prompting an unusual series of events where the EPO’s Administrative Council lodged and then withdrew two successive complaints before finally settling on a third complaint in which its initial allegations were reduced from five to two.

[...]

This is simply the latest in a long series of complaints about Mr Battistelli’s behavior. Just this week, an anonymous group of staff wrote an open letter to the representatives of European countries asking them to fire him. Previously there had been a zero per cent vote of confidence in him.

The judgment also comes just before a meeting of the EPO’s Administrative Council, where it will consider what progress he has made on a previous request for him to improve conditions at the EPO.

So far, Battistelli has been able to persuade the Administrative Council to continue backing him and his proposed reforms, but with even the organization’s highest judicial body accusing him of overstepping his role and undermining the organization’s very functioning, it is hard to imagine how he will continue to retain support.

Looking at some early comments, people compare this to FIFA again. One person wrote: “Well… all this is making the popcorn sellers happy. I just feel like we’re watching a really, really bad movie being played out here and it’s not going to end well for someone. Anyway… like watching a train wreck… can’t not watch.”

Another person said: “I can’t figure out how this guy keeps his job. The Administrative Council continues to back him despite that fact he has borked things so badly that he needs bodyguards. Hard to explain I would have thought.”

“Just look at what’s going on at FIFA,” wrote another person, “someone gets some power helped by some others, and promises to give ‘em some advantages as long as he or she retains power…”

Battistelli — like Blatter — works under the pressure of other people who are powerful as well (recall the Michel Platini and Sarkozy twist), or so it sometimes seems. “Bundestag UPC ratification is fast-tracked,” Benjamin Henrion (FFII) noted the other day, “while it should have been handled with care” (or put on ice). It’s not suggestive of Bundestag loyalty for Team Battistelli; maybe they work for the same ‘bosses’ (oligarchs, large corporations, etc.) and a lot of the aforementioned abuses — like in FIFA — are means to an end. Other than the European public, a major casualty might be Battistelli himself. As one EPO insider put it:

Earthquake in the EPO: Decision of the EBoA… could it mean a BB-EXIT?

At the more modest scale of the European Patent Organisation, a bombshell also went off yesterday as the Enlarged board of Appeal published its decision on the DG3 disciplinary case. From some prior information gathered during the previous tumultuous Oral Proceeding, it became obvious that the President had found it necessary to send a long threatening letter to the EBoA.

While the Office has been as usual silent about that such news (nothing on Intranet as of now – total transparency, literally…), this information has spread like wildfire in the media and the blogs:

o IPKat: Enlarged Board publishes decision: EPO President violated judicial independence;
o Techrights: Benoît Battistelli Should Resign in Light of New Leak of Decision in His Vendetta Against Truth-Telling Judge (Updated) (the site may not be visible from within the EPO as it is blacklisted);
o Register: Nazi witch-hunt ends with fierce judgment – Boards of Appeal excoriates EPO president over threats

In general this decision will have a major impact on the future of the European Patent Organisation: by threatening the board, Mr Batistelli has “undermined the fundamental principle of judicial independence,” the board noted, adding: “All present members of the Enlarged Board find themselves threatened with disciplinary measures if they continue with these proceedings in the presence of the public, and seek to determine the facts of this case”.

The debate on the independence of Board of Appeals is now more than ever open: we, the Staff of the EPO, are looking forward reading how the Administrative Council will deal that critical topic in its discussion of the Reform proposal (CA/43/16) – and which has been abundantly been criticised by AMBA, the Association of the Members of the BoA.

Much more is at stake than the mere disciplinary case. One can hope that the supervisory ins tu on and the media will note how critical the situation is. Ideally, one could expect that Administrative Council even to act, for instance by taking seriously its own March resolution : the least would be to decide on concrete consequences for the President, Mr Battistelli and his team, who, through all its recent decisions made a mockery of the AC public claims.

The bottom line is, Battistelli needs to be sacked this month, unless he resigns first. In spite of everyone speaking about the UPC and Brexit yesterday, there was still a long discussion about this in IP Kat. One person wrote:

BB’s [Battistelli's] words usually implied that the creation of the Unitary Patent was justification for his actions, and seemed to be one of the reasons why the AC put up with him, beginning with his secret contract.

Now that the Brexit meteorite hit the planet, and the UP looks at least severely compromised, will the AC change course? And what will BB do? Hide in a corner and sit out the storm?

The trade, foreign, and justice ministers of the EU28/EPC38 will undoubtedly have more pressing priorities than to try to salvage this comparatively minor agreement… (If the text of treaty has to be ratified, then the ratification cycle will have to start all over again).

As one person put it: “Who is the first EPO President who violated the judicial independence of the Enlarged Board?”

On Battistelli, says another person, it’s him who “started his 1st term by a speech in the hague, where he declared himself to be a “convicted european”. We should have known back then! The brexit news this morning left me nauseous, but truly, how could I blame voters for not wanting to be part of that kind of Europe…” (not sure if this quote is real, maybe a result of poor English)

Regarding “he declared himself to be a “convicted european”” this one person said: “I do not really believe this. He enjoys diplomatic immunity. Securing a conviction would be next to impossible.”

Another person said: “The Protocol on Privileges and Immunities does provide for the Administrative Council waiving the President’s diplomatic immunity, but as the relationship between the President and the AC is akin to that of a dog who is being wagged by its tail, the prospects of his immunity being waived seem slim.”

Battistelli “continues to repeat… Investigation Unit is only a “Fact-finding” body, but is the IU that “decides”,” this one person noted and Battistelli’s abuses are now being mentioned even by EPLAW, i.e. patent lawyers. Battistelli, insisted one person, “was of the view that the EBoa had no authority to conduct their own fact-finding exercise.” As one person later noted, “it seems increasingly likely that some comments are being posted on IPKat on behalf of the EPO management.” Watch the merit (or lack thereof) of this claim.

No doubt there’s an urgent need to debate Battistelli’s latest abuse, but very soon thereafter came Brexit (the same night that the above document got leaked) and then everyone started speaking about the UPC.

Here is Managing IP (MIP) back to its UPC script and British patent lawyers “air[ing] concerns over departure from EU” (but it’s not lawyers we should worry for, it’s science and technology we should worry for). Also see “UK’s referendum—its implication on the Unitary Patent System” (the UPC is effectively dead for good or for 2+ years). Other new articles of interest are “Brexit vote should spur businesses to review their patent filing and commercialisation strategies, says expert”, “Brexit – What does it mean for trade mark portfolios, IP contracts and the UPC?” and “Drama of Brexit Decision Won’t Bring Clarity For IP Owners”. In relation to “Brexit: CIPA calls for calm”, bear in mind that CIPA has been somewhat of a think tank and propaganda mill for the UPC.

Mathieu Klos ‏from Juve: wrote “Düster o. strahlend? Die nächsten 6 Tage entscheiden über Zukunft des europä. Patentsystems: #Brexit + #UPC Strukturreform #EPOorg (29.6.)” which roughly translated into “Dire o. beam? The next 6 days decide the future of the European. Patent system: #Brexit+ #UPC structural reform #EPOorg(29.6.)” (there will be some more bombshells next week, based on what we privately learned).

The UPC propagandists are, as expected, very sad about Brexit (focus on the original article, not just the many comments), but not for reasons that matter for ordinary people. To them it’s just a potential loss of income. “Unified Patent Court came to fruition,” says the Bristows employee, reminding us that proponents of the UPC (not all patent lawyers) worry about Brexit the most. See this analysis from Appleyard Lees and from Bird & Bird (big pusher of the UPC). As Out Law put it, “Rights holders might need to re-register IP in the UK as a result of Brexit, says expert” (that’s the headline).

Lawyers’ firms explain (or self-market) the situation in articles such as “UK “Brexit” Leaves IP Community With Many Questions” “Impact of Brexit for Intellectual Property Rights” and “Brexit – law firm resources” (mostly a set of links from MIP, which persists with the UPC push in spite of the latest news).

There is no lack of coverage about the impact of Brexit, but we don’t want to focus on it because many unknowns remain and we prefer to focus on the EPO’s position. Remember the EPO’s connections to IAM and watch how its Editor in Chief sucks up to Battistelli some more. “What will change,” he wrote, “is the immediate future of the proposed Unified Patent Court and EU unitary patent regime. The UK’s ratification is a requirement before they can enter into force. That was scheduled for this summer, but is now not going to happen. That means until the UK has formally left the EU they will not proceed. So we are looking at a minimum two years delay, though I would bet on longer.”

So even pro-Battistelli circles admit that we are “looking at a minimum two years delay, though I would bet on longer.” It can be called off altogether, but they don’t wish to admit it. As such, there’s no purpose for Battistelli at the EPO anymore. He does far more harm than anyone. He should resign next week. To keep him in order to “get the job done” (the “job” being the UPC project) isn’t rational anymore.

As for the EPO itself, it now promotes a lie. Battistelli publishes a lie in the EPO’s Web site (warning: epo.org link). it says: “Concerning the Unitary Patent and the Unified Patent Court, the Office expects that the UK and the participating Member States will find a solution as soon as possible which will allow a full implementation of these so-long awaited achievements…”

“The @EPOorg issues #Brexit statement,” IAM wrote. “Expects the UK and EU member states to find #UPC implementation solution. Hmm” (sounds like an expression of doubt). Even the minions of Battistelli seem rather doubtful as we suppose that the UPC will die like its predecessors (thrown in the ashtray of history).

“EU institutions are not mentioned in the statement,” wrote Francisco Moreno. “Are they irrelevant to find a solution or are they the problem?”

The UPC is just harder to believe in right now. As even MIP put it: “Fear that may be beyond even Margot F’s formidable skills.”

It seems, based on the time it took the EPO to issue the above statement, that it required a long time to prepare a single whitewashing paragraph, or a truth-dodging lie (or semi truth). “We have heard from the @EPOorg,” WIPR wrote beforehand, “which we understand is preparing a statement. #Brexit has implications for unitary patent and UPC. #EUref” (why did it take so long to prepare just one single paragraph?).

The “EPO says it expects UK and #EU member states will “find solution to allow long-awaited implementation” of UPC and unitary patent,” WIPR later noted. It published an article about it in a couple of its sites [1, 2]. We wish to remind readers that EPO management has historically lied to journalists, so this time too we must take everything it says with a grain of salt (the size of Russia).

Darren Smyth of IP Kat, writing on the subject, says: “Sir Robin Jacob thinks that UPC will likely not go ahead at all without UK if UK is to leave the EU”

“Sir Robin may well be right about that,” MIP replied.

“Jacob and other believers think they can patch the UPC to handle the UK case,” Henrion wrote. “We should be better prepared for another round.”

Jacob is actually part of the group that used self-fulfilling prophecies for the UPC, in order to induce defeatism among opposition. “The CJEU said explicitly that non-EU countries can’t participate,” one person (Steve Peers) noted, and Henrion responded with: “Froehlinger is already probably busy rewriting it.” A short while ago Peers said: “UPC can go ahead without the UK. Simply move one part of the court.”

Changing the rules again, for millionaires and billionaires (and patent trolls as a side-effect)?

On “Unitary Patent fast track,” Moreno wrote, “UPCA never enters into force. New enhanced cooperation w/o UK. Same 2 regulations + a third one for a court under the ECJ.”

As Henrion points out, “art6 and 8 were the art of Jacob and Cameron.”

It sure looks like Darren Smyth accepted my interpretation of the situation all along (that it’s plausible the UPC will just die) [1, 2] and one person wrote: “If this breaks the EPO, that would have been worth it.”

Actually, saving the EPO rather than breaking it is the goal. Removing people like Battistelli is the means. Florian Müller wrote: “Countries won’t leave the European Patent Organisation as easily as the EU because of less public debate, but it helps to at least stall UPC” (it can eliminate it as well).

The next few days will be interesting because of the meeting next week. In the words of an EPO insider:

Let’s face it: the Staff of the EPO, is ON ITS OWN!

Clearly concrete actions of the AC, such as suggested above, would solve many problems. But was yesterday’s “earthquake” enough? In the meanttime, that IS until something is done, the staff of the EPO has to face it: we are on our own. And I suppose the EPO will see more of the demonstration.

As you know, the next meeting of the Administrative Council will take place on 29 and 30 June. On the agenda, beyond the “independence” of the DG3, there are
four documents proposing further seriously flawed reforms:

o CA/15/16 on self-insurance for health-care costs
o CA/29/16 on post-service employment restrictions
o CA/52/16 ”standards of conduct” and investigations
o CA/53/16 concerns a review of the disciplinary procedures

A protest will coincide with this meeting next week. We hope it will be well attended. It needs to send out the message that Battistelli must go. UPC is no longer an excuse for keeping him.

Postscript: I’m away in York for the entire weekend, but will resume on Monday.

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