Gestapomen following the white buses (a Swedish photograph in the public domain)

Summary: SUEPO, the EPO's staff union, steps up its spiel in a case against the "European Patent Organization" as defendant and "SUEPO/VEOB" (Trade Union of the European Patent Office) as claimants

THE colossal EPO failures when it comes to judgment (or justice) won't send out the right message to stakeholders. The EPO has become antithetical to justice and incompatible with the rule of law. Nothing demonstrates this better than the Investigative Unit, which we introduced to readers last year [1, 2, 3, 4, 5, 6, 7].

SUEPO Central (inter-branch/site), which represents the interests of EPO employees (not top management), published today a provocative article titled "Is Battistelli staring into the abyss?" To quote the latter part, regarding the latest action:

Then second, SUEPO and SUEPO-TH once again summoned the EPO before the Dutch Court. With this lawsuit, the unions complain of both severe union harassment and non-compliance with the Council’s resolution CA/26/16, as reflected in their claims. On 21 June, a bailiff tried to serve the summons in person on the EPO in Rijswijk, but the EPO refused to accept the papers. Unfortunately for President Battistelli, this does not stop the law from taking due course: the summons is nonetheless considered as served and the package was in any case delivered to the Office by registered mail the following day. The court has set the date and venue for the hearing: 15 July at 9 am in the district court of The Hague. Apparently, despite being given fair notice, the President had not even bothered to alert the Council on this issue. We assume he must have been too busy, so our lawyer has done this service for him…

To summarise: nobbling of EBoA judges and attempts to pervert the course of justice; harassment of unions and of their leaders; contempt for the legal authorities of a host state. The picture that is emerging is of a deranged man who either has misunderstood the concept of “rule of law” or is willfully putting himself above it. Should an organization that delivers juridical products and services for the European public be seen to be led by such a figure?

The above was published just in time for this week's Administrative Council's meeting and this was also published as PDF, which can be here [PDF] along with an injunction petition (also as PDF). Here it is as simplified HTML:

PETITION FOR AN INJUNCTION | District Court of The Hague (NL)

Case C/09/512962 / KG ZA 16-741

Claimants: SUEPO & VEOB Defendant: European Patent Organization

CLAIMS (free translation)

The Claimants request the judge in interlocutory (summary) proceedings to render a judgment:

i Ordering the EPO to engage an external, independent expert to test the ongoing and intended investigations by the Investigative Unit and ongoing and intended disciplinary procedures against Claimants’ board members, against the requirements of a fair and reasonable trial, and to ensure that they do not unnecessarily impede the Claimants’ union work, all this in conformity with the resolution CA/26/16 adopted by the Member States of the EPO in the Administrative Council of 16 March 2016;

ii Ordering the EPO to cooperate with mediation by a mediator appointed by the judge in interlocutory proceedings with regard to the conflict between the EPO and the Claimants, all this in conformity with the resolution CA/26/16 adopted by the Member States of the EPO in the Administrative Council of 16 March 2016;

iii Ordering the EPO, pending the process of external assessment of the investigations by the Investigative Unit and disciplinary procedures against Claimants’ board members as referred to in (i) or pending the mediation in respect of the conflict between the EPO and the Claimants as referred to in (ii), to cease the investigations and disciplinary procedures against Claimants’ board members, all this in conformity with the resolution CA/26/16 adopted by the Member States of the EPO in the Administrative Council of 16b March 2016;

iv Ordering the EPO to ask for the permission of the Administrative Council before initiating a new investigation by the Investigative Unit and/or disciplinary procedure against one or more of Claimaints’ board members, and before resuming one or more of the ongoing investigations and/or disciplinary procedures against Claimants’ board members;

v Ordering the EPO to relieve Claimants’ board members from their duty of confidentiality pursuant to Article 4 of Circular 342 (‘Guidelines for investigations at the EPO’) of 30 November 2012 in respect of the investigations and disciplinary procedures against them;

vi Ordering the EPO to bear the costs of the current proceedings;

vii Ordering that this judgment, insofar as possible, is provisionally enforceable.

As we noted some days ago, the Investigative Unit seems to have gone out of its way to do what Battistelli wants at the expense of truth. It is increasingly probable that evidence was made up or 'sexed up'. People are rightly upset and they still vent out over at IP Kat (in the relevant thread).

Additional remarks about the bogus 'trial' have carried on coming this weekend, starting with this ode:

B atters UPC in tatters as we speak B enny has had a torrid week E nlarged Board has laid him bare X posed,ridiculed,but he's still there! I s he going to make monkeys of the AC again? T hursday will show if they are primates or men(and women)

The people involved in this bogus process were then looked at more carefully (not good publicity for England):

Perhaps will we sometime discover the identity of the distinguished English QC who advised the President in relation to his extraordinary intervention, and the amount of his professional fees, though these are likely to represent a fraction only of the costs to the European patent applicants of the disciplinary procedure so far, adequate damages and compensations not even included.

Whatever about the identity of the QC, the latest rumour doing the rounds at Eponia is that VP5 the head of the directorate responsible for legal services and international relations has been buzzing around like a rather nervous "Kolibri" (hummingbird) trying to make it clear to anyone who will listen that he had nothing to do with it ...

Since the EPO is not subject to national laws, it is difficult to understand what expertise the QC could bring in such matters other than being of a skilled student of legal texts. In such matters, I would have thought that the practitioner of EPC law, in other words the EBA, would be the experts. In any case, seeking external legal advice to oppose your own internal legal procedures does seem highly dubious.

I always thought a QC is a reputable member of the legal profession who deserves a lot of respect. Reading what was published in the decision, this person seems an exception, and I hope it will remain one. May be the pay-check he received from the EPO was decisive in his way of dealing with the matter. It rather shows a total disregard to the independence of the judicial, which is quite surprising for such a flying legal counsel. If the AC ever thought that the EPA would rubber stamp a decision from the AC's DC it should get better advice. The whole thing is disgusting and can only hope that BB reign ends as soon as possible, but the harm done to the EPO and its reputation is already irreversible.

That's the EPO of today for you: a milk cow for any opportunist willing to give the President what he wants - QCs, External Consultants, Advisors, Communication specialists, IT specialists, members of the Administrative Council - you name it.

In response to an earlier remark that said "So does that mean we are now in the situation where it is unarguable that the EPO is being run by a person who, under national law, could fairly be described as a criminal?" we saw this:

Looks like the EPO is on the brink of becoming an international criminal organisation with its employees, pensioners and their respective families potentially being complicit or being held hostage. All this happens with the apparent consent (if not intent) the beloved home and host countries of the workforce ... in the interest of the organisation, of course.

According to Article 31 of the Vienna Convention immunity is provided from criminal, civil and administraive jurisdiction of the receiving state. No exemption from jurisdiction of the sending state is given, Article 31(4). Also according to Article 32, immunity may be waived by the sending state.

And remember: "Our organisation believes in an open and inclusive society based on fundamental principles of freedom, equality and justice." (EPO, Solidarity with the victims, Attacks in Brussels, 22.03.2016)

Mind the part which says "EPO is on the brink of becoming an international criminal organisation with its employees, pensioners and their respective families potentially being complicit or being held hostage."

On it goes. More on the independence issues:

It was a serious error in fundamental law to issue any decision and at the same time admitting they were under pressure and not independent . Resignation would have been the only legal way out. Having admitted their intrinsic partiality, they have set a precedence not only for the EBA but for all TBAs and judicial boards. They have admitted they are not functional. All their future and probably even past decisions are void. Not only VP3 is not above suspicion of partiality, as they previously admitted, none of them is.

One person noted:

mind to point out the specific passage of the decision where they make such an admission?

The legality of this entire process has come under fire:

A decision to discontinue/not-continue is also a decision of the EBA which ends the proceedings and as such must be announced by the EBA. There is no legal obligation on the EBA or itt members to resign when the EBA is threatened.

The recent EBA decision is the very last step before the ultimate meltdown of the entire European patent system, which is already scheduled to take place this autumn, when the German constitutional court is due to settle two complaints filed in 2013 and based on an alleged - and now evident - lack of judicial review against decisions of the Boards of appeal (see the schedule of the cases to be dealt with in 2016 by the 2nd Senate of the court, rapporteur Prof. Dr. Huber, point 14 as published here: http://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresvorausschau/vs_2016/vorausschau_2016_node.html) There is no way out, unfortunately.

Going back to the aforementioned QC, the likely identity gets revealed:

Perhaps will we sometime discover the identity of the distinguished English QC who advised the President in relation to his extraordinary intervention ...

The identity of the QC is known in legal circles inside the EPO as (s)he is the co-author of a textbook on disciplinary proceedings. It is also rumoured that the QC and an associate participated in one or more of the recent "show trials" against EPO staff reps.

Brian Harris OBE QC?

rumors inside the EPO say that a representative from the German Bundesverfassungsgericht was present as public during the oral proceedings of the EBA in june

a representative from the German Bundesverfassungsgericht was present

I am sure the ghosts of the Founding Fathers of the EPO were also there ...

I do not know Brian Harris. One reason for this is probably that he has retired (see http://www.39essex.com/8th-edition-of-disciplinary-and-regulatory-proceedings-published/).

I can understand why BB might have picked Brian for the hearings involving allegations of misconduct by staff. This is because Brian's view appears to be that "misconduct" is a flexible concept that has a scope that can effectively be defined by the investigating body. To quote Henderson Chambers:

"Misconduct is, and remains, the basic concept for disciplinary proceedings being commenced against a member by his or her professional regulatory body. Misconduct is said to be the oldest and perhaps still the most widely used form of allegation. Misconduct leaves it to the disciplinary tribunal to decide its ambit in any particular case, as opposed to individual offences of narrow scope: Disciplinary and Regulatory Proceedings, Fifth Edition (2009) by Brian Harris OBE QC and Andrew Carnes at para 4.02. The earlier terms “infamous and disgraceful” conduct or “serious professional misconduct” have largely given way to the use of the word “misconduct” or the words “professional misconduct”".

Taking this kind of reasoning to the extreme would, of course, allow an unscrupulous investigating body to pick almost any kind of conduct and frame it as "misconduct". I am not saying that is definitely what happened to the staff reps at the EPO, but it is hard to imagine that there are no other "experts" available who would have provided very different views on the matter. Thus, if Brian Harris was indeed involved in the disciplinary proceedings, then the observable evidence would certainly not be inconsistent with a "fit-up job" (in which the "expert" selected just so happened to espouse views that could be adapted to fit the management's narrative).

Another reason that I do not know Brian is that he does not appear to have dealt with / specialised in IP during his career (it is difficult to find out any information on his expertise, but his main legal publication seems to be "Disciplinary and Regulatory Proceedings", which suggests an area of practice far removed from patents).

I would therefore be very surprised if BB had relied upon Brian Harris to provide an "expert" view of the competence of the EBoA. Whilst not impossible (as I can see that BB may well have viewed the proceedings as being essentially "disciplinary" in nature), it beggars belief that BB would seek, from a (retired) QC with no experience in patents, an opinion upon what the EPC says that the EBoA can and cannot do. If this did indeed happen, then the case for firing BB on the grounds of incompetence might be further strengthened.

Some dispute involvement from Harris:

According to rumours at the EPO, Brian Harris had no involvement. But the hint to the book which he originally authored points in the right direction. The Essex trail is the one to follow.

Your quote appears to relate to disciplinary proceedings by a professional regulatory body against a member of a regulated profession, such as a lawyer. That is professional misconduct, or malpractice. The title of Brian Harris's book is consistent with that.

Disciplinary proceedings by an employer against an employee are not the same.

Are we sure that the previous anonymous poster has got the right QC?

Other names then come up:

If the rumours are to be believed, then the candidates are:

Greg Treverton-Jones QC, who "specialises in regulatory and disciplinary issues concerning solicitors"; and/or

Alison Foster QC, whose "practice consists of public and administrative law with particular involvement in regulation and indirect tax".

I very much doubt that the experience of either of those QCs would qualify them to provide an "expert" opinion upon interpretation of Article 23 EPC.

I very much doubt that the experience of either of those QCs would qualify them to provide an "expert" opinion upon interpretation of Article 23 EPC.

That could however arguably make them a perfect "patsy" for BB ...

Can I ask what you are trying to achieve by attempting to spin this episode as being some form of evidence that the BoAs of the EPO are not adequately "judicial" in nature?

Without wanting to prejudge the result of the constitutional case in Germany, I would point out that there is currently no viable alternative to the BoAs. With the future of the UPC looking uncertain (to say the least) for at least the next 2 years, what would the world of IP in Europe look like if decisions of the BoAs were found to be (incurably) unconstitutional?

I guess your choice of words ("meltdown of the entire European patent system") provides a hint at your agenda. But whose interests would that serve? It can be the work of moments to destroy institutions that have taken years of hard work and dedication to build. You therefore really need to be very certain that those institutions are built upon completely the wrong foundations before you take the wrecking ball to them. You also need to have a clear idea of what you would replace them with: the recent history of popular uprisings (and the type of "change" that, if unplanned, they ultimately produce) should provide a stark reminder of the importance of this point.

I would be happy to hear more from you if you can provide us all with a fully reasoned explanation of how your views will ultimately lead to an improved, fully functioning patent system in Europe. However, if not, then my personal preference would be for you to stick to the old adage that "If you don't have anything constructive to say, it's better to say nothing".

Some took note of CIPA's input, which we mentioned here before:

CIPA has filed a response to proposals for reform of the EPO Boards of Appeal.

Then TRIPS came up:

Has anybody given consideration to the implications for Article 32 of TRIPS ? http://www.cptech.org/ip/texts/trips/32.html

The EPO is not a party to TRIPS. Those regulations therefore do not apply.

The EPO is not a party to TRIPS but surely its member states are ?

If they allow the "judicial instance" at the EPO to be neutered might it not place them (the states) in breach of their obligations under TRIPS ?

Not a problem for the EPO but potentially a problem for its member states ?

You make a fair point. However, TRIPS Article 32 merely requires that "An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available". Thus, the obvious response to your point is that the BoAs do provide the "judicial" review required under TRIPS. That is, they review decisions (of the OD or ED) to "revoke or forfeit" a patent.

Case closed... unless, of course, you are questioning the "judicial" nature of the BoAs. In that case, I refer you to my comments above in response to @Coroner.

There is a precedent for that: the European Convention on Human Rights. All EPC contracting states are members, yet this treaty does not apply to the EPOff, and the EPOrg.....

Where does the cited TRIPS article demand a judicial independent review?

TRIPS article 32

Article 32 - Revocation/Forfeiture

An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.

The following comment suggests the case might linger on:

I am afraid that the case is far from closed. Of course the the BoAs do provide the "judicial" review required under TRIPS. Or at least one could credibly uphold that position until the latest decision.

The question is whether or not the BoAs can still be regarded as an independent judicial instance after the most recent denouement. That is not to question their status under the EPC.

The issue is more whether the current situation within the EPO means that they can still be regarded as truly "independent" if the President can issue "threats" with impunity.

I am merely posing a question with presuming to have the answer.

[...] as they say - is in the eating and I put it to you that this particular dessert has yet to be digested by all concerned.

Unless Battistelli is out, it's likely that he will continue trying to shoot the messenger. Is a defamation lawsuit still on agenda? Either way, these battles are likely to enter courtrooms -- real courtrooms, not the EPO's (or Eponia's) fake ones. ⬆