Bonum Certa Men Certa

As Part of So-called 'Reforms', the EPO's President is Gradually Eliminating the Boards of Appeal, Not Just Their Independence

Wim Van der Eijk (below), Chairman of the Enlarged Board of Appeal (EBoA) and EPO Vice-President of DG3, is said to be on his way out (giving Battistelli even more control/leverage)

Wim Van der Eijk
Photo from EPO.org



Summary: The EPO appears to be preparing for a post-examination (or very poor examination quality) era, heralded in part by the mistreatment of the Boards of Appeal, who are highly specialised workers akin to the Patent Trial and Appeal Board in the United States

THE EPO is an office like no other office, but WIPO is a close match because it too is unaccountable and it routinely abuses staff, which then has no legal/judicial recourse (we have posted several links to stories about it in our daily links this month and earlier today). Even independent judges are being mistreated by the EPO and are then subjected to mock 'trials'.



Today, for a change, the EPO invited people to sign up to the blog (lies) of Battistelli, who is a chronic liar that is a textbook definition of "newspeak" (see the recent announcement about the exile of appeal boards). When the EPO isn't busy 'spamming' universities for a lobbying campaign of the Battistellites at the expense of the EPO (this continued today [1, 2] with two more universities) it is busy pushing or retweeting glamousing dross about "European Patent Office @EPOorg President #Benoit Battistelli" (this is what people are seeing if they follow the EPO, it's just a cult of a single monomaniacal person).

Battistelli's own lobbying event is the only thing that these people can talk about (other than repeated mentions of some pages in the EPO's Web site) and right now the UK-IPO helps the EPO further marginalise the boards (barrier to Battistelli's God-like powers), citing a vacancy which we mentioned earlier this week.

"Registration for the "Boards of appeal and key decisions 2016" conference closes tomorrow," the EPO says, but how long will it be before the boards too get closed/shut down by Battistelli? Judging by articles we read (not just in English), there are no long-term guarantees in Haar and the isolation of staff there is bound to discourage job applications, never mind poor retention of existing staff. We foresee the EPO trying to replace the boards with the UPC -- a subject we have been writing about for a number of years now.

"EU software patents [are] pushed with the establishment of a pan-European patent court," Benjamin Henrion (FFII) wrote today, noting/highlighting again the correlation between the UPC and patent scope. We recently highlighted UPC lobbying by the EPO's Margot Fröhlinger (as recently as last night) and we have been told by EPO insiders that their internal Gazette is lying about the UPC and other topics (more on that tomorrow; for now, see footnote 9 below). Here is what one person wrote today in a comment about Fröhlinger:



I am becoming increasingly concerned regarding the positions publicly espoused by Margot Fröhlinger.

I can agree with her position that “There are no guarantees in life so no one is sure if the CJEU will agree on the legality of UK’s participation if challenged”. However, what are we to make of the fears that she has voiced about the UPCA unravelling due to the CJEU being “politically insensitive”? That is, how else can those fears be interpreted other than as concerns that the judiciary will not provide a ruling that is politically convenient (for the executive)?

Further, indicating a belief that the CJEU will give “its blessing” to a revised UPC Agreement in which a non-EU Member State (i.e. the UK) participates can only be interpreted either as wishful thinking or an indication that undue pressure will be put on the CJEU to reach the "right" decision.

The fact is, the CJEU should be left to its own devices to decide whether any new UPC Agreement is consistent with EU law. I have my doubts about whether this will be possible. This is not least because I struggle to see how the CJEU could, in relation to a system established under EU law, give its blessing to the participation of a country that is not obliged to follow rulings of the CJEU. However, I do not rule out the possibility that a system could be devised that might genuinely be consistent with EU law. That is, unlike Ms Fröhlinger, I have no intention of pre-judging the outcome.

It seems that the EPO management in general (and not just the president) is in need of education regarding the different roles of the executive and the judiciary, as well as the importance of ensuring that one does not interfere with the other.



Whenever the EPO actively pushes for (if not lobbies for, inappropriately and unprofessionally) the UPC it shows rather clearly that it doesn't envision a future with patent appeals. For what it's worth, some insiders believe that examination (and thus appeals) is on its way out at the EPO.

"A different view on the relocation of the Boards of Appeal in Haar," a short paper about the exile of the boards by Battistelli and his tyranny, was recently disseminated internally. In the interests of transparency we have decided to share it below:

Where have the Boards of Appeal gone?



The reform

With CA/D 6/16, the Administrative Council (AC) decided to create a new organisational entity, the "Boards of Appeal Unit"1 (BoAU). Comprised of the Boards of Appeal and the Enlarged Board of Appeal, including their registries and support services, the new unit shall be directed by a “President of the Boards of Appeal” (PBoA) to be appointed by the Administrative Council in accordance with new Rule 12a(1) EPC. Therefore, with effect from the 1st July 2016, DG3 has been disbanded and replaced by the BoAU.

The PBoA is to manage the Boards of Appeal Unit using functions and powers transferred to him by the President of the Office (PEPO) in an Act of Delegation2. In particular, the PBoA is expected to prepare resource requests to cover the needs of the Unit: the PEPO is then expected to provide the necessary resources (see new Rule 12a(2, 3) EPC).

The building

Although most stakeholders did not see any problem retaining the Unit in the Isar building, the PEPO insisted that relocation had to be included as part of the whole reform package in order to “improve the perception of independence”. In Part C of CA/43/16 Rev.1, the AC approved the principle of the removal of the BoA from the Isar building, but keeping them in the Munich area “in a location with good traffic links and appropriate accommodation standards”.

Although the first PBoA has not yet been appointed by the AC, nevertheless the Administration has been very active during the summer in defining the needs of the BoAU and identifying a “suitable” building in the location. Early in July, a few buildings in Munich were inspected for consideration together with representatives of the BoAU, but the Administration found none of them suitable. Shortly afterwards, Principal Director General Administration (PD44) publically announced that a suitable building had now been found and that the BoAU relocation was already scheduled to take place on 1st July 2017 to Richard-Reitzner-Allee 8 in Haar, a city of about 20 000 residents in the Munich hinterland. The chosen “8inOne” building was renovated by its owner to a “very high standard” in 2014, essentially following the concept of open-space offices. It has remained empty since then.

Not all details have been made public yet. However, it is a safe assumption that the rent should be much lower than in more desirable locations in Munich, although the building will have to be refurbished to accommodate individual offices, rooms for oral proceeding and other facilities and adapted to accommodate EPO IT systems. In order to amortise the costs of refurbishment, the contract would commit the Office to remain in the location for 15 years. This long commitment contrasts starkly with the hurried process of finalising the plans and then submitting a complete, formal proposal for approval in the October meeting of the Budget and Finance Committee (BFC).

The needs of the BoAU

This “rush to complete” is all the more problematic as the proposal doesn’t properly take into account the actual needs of the BoAU. The Boards themselves have expressed not only general concerns3 about the present situation; they also have concrete reservations on the suitability of the building for a proper functioning of the unit. To summarise, the Presidium concluded that the building will not offer enough space4 (or all the facilities) necessary for a proper functioning of the Boards and has informed the PEPO accordingly. For more details, [x] suggest that you read the publication5 by the Presidium. In a first response to addressing these problems, the President has decided to plan an additional two meeting rooms and to rent more space for a library in the basement.

The new reform of the BoA entails aspects of both perceived independence and performance improvement. It is obvious to us that the resources presently planned for the BoAU are woefully insufficient to produce the necessary improvements that will realise these goals since the working conditions are neither adequate nor appropriate for such judicial activities.

The needs of staff

From a staff perspective, the relocation would obviously be detrimental for the majority. Although the building is located outside Munich, perceived independence should not be confused with physical isolation. Besides, the offices are too small, the meeting rooms are too few, and the building has no other facilities or “social” rooms. It means that services normally offered to EPO staff in Munich (fitness room, Amicale room, medical and administrative facilities) won’t be available for EPO staff in Haar. Staff will be heavily impeded in availing themselves of these services if it means that they have to travel to the Isar building or to the Pschorrhöfe for them. The Administration already admits that the current canteen is too small to accommodate both EPO staff and staff from other tenants, not to mention visiting patent attorneys and the general public. As a workaround, they propose making use of local external outlets, but these appear to be insufficient and inadequate, thereby rendering the proposal impractical.

The Office praises itself for being a model employer offering numerous amenities to its employees. However, [x] can only conclude that staff at the Haar site would be disadvantaged when compared with their colleagues at Munich sites.

When this is combined with the conditions of employment resulting from the reform of the BoA (for example the limitations in the security of tenure6 , the capping of the career progression7 and increased constraints in post-service activities8), all these factors may prompt more active BoAU staff to retire earlier. With further reforms (pensions, etc.) expected to further worsen conditions of employment, all these changes will reduce the attractiveness of the BoAU as an employer and complicate (long-overdue) recruitment.

Consultation

Staff in the BoAU perceives the reform process as both intransparent and non bona fide. To date, the statutorily required consultation with staff representation has not taken place. According to PD44, the floor plan (“Raumbelegungsplan”) had to be finalised in August. In our view, this renders the probability of statutory consultation leading to any improvement in the reform as unpromising.

A vision

There appears to be no clear, long-term AC vision for the Boards of Appeal.

In the AC meeting of June 2016, delegations kept advocating a quick ratification of the UPC Agreement thereby creating a Unified Patent Court, although its setting-up now seems subject to increasing uncertainty due to Brexit. They appear to align with the PEPO in this respect9. Anyway, legal study concluded that the number of cases migrating from the BoA to the UPC would be a very modest one.

The number of unfilled posts in the BoA has significantly increased10 from 2014 on and this worrisome trend continues unabated. At the same time, the upward production trend in DG1 does not suggest that we should expect any decrease in the number of appeals in the future, assuming [x] maintain a constant quality in the decisions of the first-instance Examining and Opposition Divisions.

[x] wonder whether the AC delegations should realistically expect such an efficiency boost in the BoAU, with new procedures so streamlined11 that the BoAU can both master the caseload and reduce the pendency with reduced resources. [x] suggest they should reconsider their options before embarking on a relocation project which already does not seem future-proof.

Conclusion

By hastily preparing a proposal to relocate the BoAU from the Isar building into the Munich hinterland, the PEPO pre-empts an action that should be assigned to the PBoA, in accordance with new Rule 12a(3) EPC, for the sake of improved (perceived) independence. Furthermore, the building does not meet the needs of the BoAU and its users (patent attorneys and public) and therefore cannot be said to meet the goal set by the AC of “appropriate accommodation standards”. It further deteriorates the working conditions of staff in the Unit whilst at the same time committing the PBoA and the Office to a long-terms contract.

It remains to be seen whether the BFC (and the AC) will actually condone what could be seen as an original sin.

________ 1Unit: “a single thing, person, or group that is a constituent of a whole; a part of a military establishment that has a prescribed organization as of personnel and materiel” (Merriam-Webster's Learner's Dictionary) 2 See Part II of Annex 3 of CA/43/16 Rev.1 3 See the “AMBA Statement on the Current Situation” on the AMBA site 4 It is unclear whether the rented net surface amounts to 10740 m2, as mentioned by PD44, or to 9089 m2, as calculated by the Boards. Presently, the Boards have roughly 13000m2 in the Isar building. 5 Unfortunately, access to this publication is presently restricted to the BoAU 6 see new Rule 12d(3) EPC 7 see new Article 11 ServRegs as amended in CA/D 8/16 8 see CA/D 5/16 9 See Gazette August 2016, page 11: “I don’t see any reason why the UK couldn’t still ratify the UPC.” 10 See page 4/72 of the social report CA/55/16 Corr. 1 11 Pursuant to new Rule 12c(1) EPC, the BOAC as an emanation of the AC adopts the Rules of Procedure of the BoA, instead of the Presidium in the older days.



More information can be found in this article (in German, accurate translations are desirable).

Regarding the President of the Boards of Appeal, it seems certain that Battistelli is going to replace and maybe even eject Mr. Van der Eijk. According to a source, "he's to be replaced" after being flagged as "ill" for a conspicuously long time (we wrote about it last year). "I don€´t know his whereabouts," this source told us. We may post an update about this pretty soon. Some people speculated that he had been punished for disloyalty to Battistelli (which is very much warranted), but we could never ascertain/verify this claim.

Comments

Recent Techrights' Posts

Comparing U.E.F.I. to B.I.O.S. (Bloat and Insecurity to K.I.S.S.)
By Sami Tikkanen
New 'Slides' From Stallman Support (stallmansupport.org) Site
"In celebration of RMS's birthday, we've been playing a bit. We extracted some quotes from the various articles, comments, letters, writings, etc. and put them in the form of a slideshow in the home page."
Thailand: GNU/Linux Up to 6% of Desktops/Laptops, According to statCounter
Desktop Operating System Market Share Thailand
António Campinos is Still 'The Fucking President' (in His Own Words) After a Fake 'Election' in 2022 (He Bribed All the Voters to Keep His Seat)
António Campinos and the Administrative Council, whose delegates he clearly bribed with EPO budget in exchange for votes
Adrian von Bidder, homeworking & Debian unexplained deaths
Reprinted with permission from Daniel Pocock
Sainsbury’s Epic Downtime Seems to be Microsoft's Fault and Might Even Constitute a Data Breach (Legal Liability)
one of Britain's largest groceries (and beyond) chains
Matthias Kirschner, FSFE analogous to identity fraud
Reprinted with permission from Daniel Pocock
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 18, 2024
IRC logs for Monday, March 18, 2024
Suicide Cluster Cover-up tactics & Debian exposed
Reprinted with permission from Daniel Pocock
Gemini Links 19/03/2024: A Society That Lost Focus and Abandoning Social Control Media
Links for the day
Matthias Kirschner, FSFE: Plagiarism & Child labour in YH4F
Reprinted with permission from Daniel Pocock
Linux Foundation Boasting About Being Connected to Bill Gates
Examples of boasting about the association
Alexandre Oliva's Article on Monstering Cults
"I'm told an earlier draft version of this post got published elsewhere. Please consider this IMHO improved version instead."
[Meme] 'Russian' Elections in Munich (Bavaria, Germany)
fake elections
Sainsbury's to Techrights: Yes, Our Web Site Broke Down, But We Cannot Say Which Part or Why
Windows TCO?
Plagiarism: Axel Beckert (ETH Zurich) & Debian Developer list hacking
Reprinted with permission from Daniel Pocock
Links 18/03/2024: Putin Cements Power
Links for the day
Flashback 2003: Debian has always had a toxic culture
Reprinted with permission from Daniel Pocock
[Meme] You Know You're Winning the Argument When...
EPO management starts cursing at everybody (which is what's happening)
Catspaw With Attitude
The posts "they" complain about merely point out the facts about this harassment and doxing
'Clown Computing' Businesses Are Waning and the Same Will Happen to 'G.A.I.' Businesses (the 'Hey Hi' Fame)
decrease in "HEY HI" (AI) hype
Free Software Needs Watchdogs, Too
Gentle lapdogs prevent self-regulation and transparency
Gemini Links 18/03/2024: LLM Inference and Can We Survive Technology?
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 17, 2024
IRC logs for Sunday, March 17, 2024
Links 17/03/2024: Microsoft Windows Shoves Ads Into Third-Party Software, More Countries Explore TikTok Ban
Links for the day
Molly Russell suicide & Debian Frans Pop, Lucy Wayland, social media deaths
Reprinted with permission from Daniel Pocock
Our Plans for Spring
Later this year we turn 18 and a few months from now our IRC community turns 16
Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)
Keith Bergelt has not replied to queries on this very important matter
RedHat.com, Brought to You by Microsoft Staff
This is totally normal, right?
USPTO Corruption: People Who Don't Use Microsoft Will Be Penalised ~$400 for Each Patent Filing
Not joking!
The Hobbyists of Mozilla, Where the CEO is a Bigger Liability Than All Liabilities Combined
the hobbyist in chief earns much more than colleagues, to say the least; the number quadrupled in a matter of years
Jim Zemlin Says Linux Foundation Should Combat Fraud Together With the Gates Foundation. Maybe They Should Start With Jim's Wife.
There's a class action lawsuit for securities fraud
Not About Linux at All!
nobody bothers with the site anymore; it's marketing, and now even Linux
Links 17/03/2024: Abuses Against Human Rights, Tesla Settlement (and Crash)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 16, 2024
IRC logs for Saturday, March 16, 2024
Under Taliban, GNU/Linux Share Nearly Doubled in Afghanistan, Windows Sank From About 90% to 68.5%
Suffice to say, we're not meaning to imply Taliban is "good"
Debian aggression: woman asked about her profession
Reprinted with permission from Daniel Pocock
Gemini Links 17/03/2024: Winter Can't Hurt Us Anymore and Playstation Plus
Links for the day