Even Tilman Müller-Stoy is growing impatient

Image source

Summary: Pressure on Battistelli is growing even from within circles that are traditionally protective of him and a long letter is sent to Dr. Christoph Ernst, who some believe will replace Battistelli

THERE are many articles about the EPO planned for today. A whole lot of stuff in happening and just a short whole ago MIP wrote that: "Pressure on EPO Admin Council which meets this week. Letter from Tilman Müller-Stoy of @bardehleIP calling for "transparency initiative"" (that's quite an understatement).

Well, there is already some discussion around about this (see context in Twitter) and we are fortunate to have copies of the relevant text. First, as a little bit of background, consider what huge amount of pressure Battistelli will come under not just for 'Brexit' but also for his latest abuses against a truth-telling judge (again). As mentioned here before, EPLAW expresses concern about this and CIPA worries about the whole situation too. These are traditionally pro-EPO circles and they seem to be losing their patience. Not too long ago Alex Robinson bemoaned the latest among systematic attacks on the appeal boards. He wrote: "According to an unconfirmed report on the usually-reliable IPKat blog, European Patent Office (EPO) President Benoît Battistelli has submitted a further proposal for reform of the EPO's Boards of Appeal. The alleged proposals are not yet publicly available, but if the report on IPKat is correct, Battistelli proposes a sharp increase in the EPO's official Appeal fees, from a current level of €1880 to a projected level of €7350 by 2021."

These aren't just reports, it's exactly what Battistelli plans to do and it would further erode patent quality for sure. Now, see 2016 AMBA Panel Discussion on Judicial Independence. AMBA is the Association of the Members of the Boards of Appeal of the European Patent Office. It strives to protect those whom Battistelli cannot help attacking.

We publish in our web site the proceedings of the panel discussion on judicial independence held in Munich on 27th February, 2016.

AMBA is the Association of the Members of the Boards of Appeal of the European Patent Office, having its seat in Munich.

The Boards of Appeal of the European Patent Office as an Independent Judicial Body.

The attack on justice itself at the EPO was bound to invoke the wrath of legal professionals, who Battistelli needs to support him. They are, after all, some of the biggest stakeholders. But they are revolting now.

Shortly after Dr. Tilman Müller-Stoy sent a dissenting message someone ended up forwarding us the E-mail and related material. Dr. Tilman Müller-Stoy, according to our source, "is an attorney of the renowned Bardehle Pagenberg firm (he represented Microsoft in most their offensive cases in Germany against Motorola but he also does defense work for clients such as Amazon) to an undisclosed circle of recipients.

"His open letter to Dr. Ernst, one of Battistelli's rumored potential successors [is] linguistically imperfect but the message is pretty good and strong."

Tilman was mentioned here before, in the following articles among more:

• A State Within a State: Süddeutsche Zeitung Article About the EPO's Bizarre Existence Above the Law
• After Intervention by the Council of Europe Comes a Detailed Summary of the Situation in the European Patent Office (EPO)
• Rolling of Heads Likely Imminent at EPO
• Under Battistelli's Regime the EPO is a Lawless, Dark Place
• Forget Staff Union-busting 'Strike Ballots', How About Ballots on Presidential Matters?

In English we have the message raising awareness of this:

From: Tilman Müller-Stoy Sent: Monday, June 27, 2016 1:55 PM To: Tilman Müller-Stoy Subject: WG: EPO Crisis - Call for Transparency Initiative

Dear „Interested Circles“,

In view of the latest events at the EPO, I sent today the attached further public letter (to which I refer for any details) to the Head of the German Delegation in the Administrative Council of the EPO (following up on my letter of 5 December 2014 that you all know). I strongly believe that it is time for the EPO to engage in a transparency initiative.

Notably, the next session of the Administrative Council of the EPO is scheduled for this week (29/30 June 2016) and I am very interested to see the respective results.

Best regards,

Dr. Tilman Müller-Stoy Partner Rechtsanwalt / Attorney-at-Law Fachanwalt für Gewerblichen Rechtsschutz / Certified IP Lawyer Wirtschaftsmediator / Commercial Mediator (MuCDR)

In German we have the message to Ernst:

Von: Tilman Müller-Stoy Gesendet: Montag, 27. Juni 2016 13:38 An: 'ernst-ch@bmj.bund.de' Cc: 'cornelia.rudloff-schaeffer@dpma.de'; Tilman Müller-Stoy Betreff: EPO Crisis - Call for Transparency Initiative

Sehr geehrter Herr Dr. Ernst,

anbei übersende ich Ihnen im Nachgang zu meinem Schreiben vom 5. Dezember 2014 meinen offenen Brief vom heutigen Tag. Über eine gelegentliche Antwort würde ich mich freuen. Frau Rudloff-Schäffer ist in Kopie. Den Ergebnissen der Verwaltungsratssitzung am 29./30. Juni 2016 sehe ich erwartungsvoll entgegen.

Mit freundlichen Grüßen

Dr. Tilman Müller-Stoy Partner Rechtsanwalt / Attorney-at-Law Fachanwalt für Gewerblichen Rechtsschutz / Certified IP Lawyer Wirtschaftsmediator / Commercial Mediator (MuCDR)

Here is the full message from the accompanying PDF:

BARDEHLE PAGENBERG - Postfach 86 06 20 - 81633 München

Bundesministerium der Justiz und Verbraucherschutz Herrn Dr. Christoph Ernst Head of the German Delegation in the Administrative Council Mohrenstr. 37 10117 Berlin

Per E-mail ernst-ch@bmj.bund.de

CC: Mrs. Rudloff-Schäffer: cornelia.rudloff- schaeffer@dpma.de

München, 27. Juni 2016

EPO Crisis – Call for Transparency Initiative

Dear Dr. Ernst,

In December 2014, following a house ban on a member of the Boards of Appeal, I took the liberty to address you in your capacity as Head of the German Delegation in the Administrative Council (hereinafter: AC) of the EPO in order to express concerns about the judicial independence at the EPO and a functioning EPO patent system, concerns which I shared with many users of the European patent system. Please allow me to reiterate these concerns, in the form or a public letter, in the light of the following two developments:

The Proceedings against the suspended member of the Boards of Appeal

Notably, not knowing the details of the facts and accusations, I have no word to say as to the substance of the matter. However, I do have some general observations:

Until now, the member concerned has been temporarily suspended for more than 1 1⁄2 years. The AC made three attempts to request pursuant to Article 12a (1) of the EBA’s Rules of Procedure that the EBA makes a proposal to remove the member concerned from office. The first one was rejected as unsubstantiated in the

---

EBA’s decision of September 17, 2015, the second one was presumably withdrawn and the third one turned out to be unsuccessful on June 14, 2016. As far as I understand the latter was the result of a conflict between the President of the EPO, the AC and the EBA about the question whether or not oral proceedings should be held in public and that the EBA felt threatened by a letter of the President alleging that the course of proceedings intended by the EBA was unlawful, insinuating consequences for the members of the EBA in case they would conduct public oral proceedings. Eventually, as a result, the proceedings appear to have come to a deadlock now as the EBA decided not to propose removal from office but to close the proceedings without a decision on the substance of the case.

Since the public has not been officially informed of what had actually happened, I have to abstain from commenting on these events in detail. However, the intended and codified system seems not to have worked properly in this case due to the President intervening in the procedure, the reaction of the president of the AC, and the EBA not providing a substantive decision in the case (contrary to its judicial function which is another concern in itself). These events increase my earlier concerns about the functioning of the EPO and the judicial independence at the EPO (see also the reasoning of the in the meantime published decision of the EBA: http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html; http://eplaw.org/epo-eba-complains-undue-pressure-exercised-by-the-president-of-the-office-in-proceedings-on-the-request-to-remove-a-member-of-the-boards-of-appeal-from-office/).

Notably, the proceedings and their background rightfully gained prominence over the last 1.5 years which seems to be only natural as they concern a house ban / removal from office of an EPO judge, i.e. a question which relates to the core of the reliability of the EPO’s judiciary system. Therefore, I believe that the users of the system (who also finance it to a large extent) have a justified interest in obtaining respective official information from the AC. This issue should not be dealt with in camera. Further actions in the proceedings should be taken – at least partially – in public. At any rate, the case should be terminated quickly and, if not dealt with in a public oral hearing, the public should be informed about the cornerstones of the underlying fact finding and legal assessment process.

---

Thus, as my first request, I ask the AC to officially inform the public about the details of the reported events to the extent compatible with the justified interests of all participants.

Secondly, I request the AC to publish an unredacted version of the letter of the President and the AC’s view on the substance of this letter.

Thirdly, I request the AC to provide a plan as to how the issue shall be decided in substance, in due course.

Structural Reform of the Boards of Appeal

Following decision R 19/12 in which the EBA allowed an objection to the Vice-President DG3 as Chairman of the EBA based on concerns of partiality, the President presented a proposal for the structural reform of the Boards of Appeal to the Council (Doc. CA/16/15). In reactions from users’ organizations (e.g. epi in epi information 3/2015, 87, Union IP, epi information 4/2015, 120) and from the Board of Appeals (see website AMBA-EPO.org), objections were raised e.g. to the mixing of the questions of efficiency and independence and to the role of the Board of Appeals Committee (BOAC) to be created as a subcommittee to the AC.

In March 2016, the AC requested the President to submit proposals for immediate implementation of the structural reform of the Boards of Appeal. The President prepared a further paper which is still not publicly available but cited as CA/43/16. So far, there does not seem to be the intention to make it public, for consultation with the users of the European Patent System.

Again, an open communication seems to be key in the present situation. This is what the users can expect from a modern administration in a democratic society and this is the standard in the Contracting States to the Convention. A transpar-

---

ent procedure excludes that the still unpublished proposals could be accepted in the June meeting of the AC. Compared with national German legislation, the structural reform of the Boards of Appeal may be compared with a reform of the Law on the Constitution of Courts (GVG), the Law on the Judiciary (DRiG) and further laws affecting judges at the same time. It would be unthinkable that legislation of such importance implying basic questions of the rule of law, in particular the principle of separation of powers, could take place behind closed doors. The public at large, applicants, the patent profession and academia should have a proper opportunity to scrutinize and comment on the proposals. It should be kept in mind that a reform which does not achieve its aims would add further damage to the reputation of the Boards of Appeal and the European patent system as a whole.

Thus, my fourth request to the AC is to provide transparency in this context to the users, and to take comments of the members of the Boards of Appeal and other contributors with sufficient expertise into serious consideration before any reform is adapted (unless that has not been done already).

Concluding, I do only see one solution to reduce the risk that users like myself continue to lose confidence in the EPO system – namely sufficient transparency. Therefore, the AC is generally called upon to develop a transparency initiative. Following the above requests could be a first step towards the right direction.

Yours sincerely, Dr. Tilman Müller-Stoy Rechtsanwalt - Fachanwalt für Gewerblichen Rechtsschutz - - Wirtschaftsmediator (CVM) -

As readers may recall, Ernst isn't just the German representative this week but also a rumoured possible successor to Battistelli.

We look forward to publishing some more new material about the EPO -- material of which we already have plenty. It is a very busy week ahead. ⬆