10.01.16

Immunity of the European Patent Office and Lack of Oversight Within the Organisation Mean That It’s a Rogue Entity Above the Law

Posted in Europe, Patents at 10:57 am by Dr. Roy Schestowitz

Jesper Kongstad has turned the Organisation into a lapdog -- not a watchdog -- of the Office (autocracy of Kongstad’s predecessor), aiding even unprecedented secrecy around salaries

Summary: In light of remarks from the Attorney General in the Netherlands and in light of some recent and highly disturbing developments (like Board 28 folding for Benoît Battistelli), it is increasingly apparent that the EPO is disconnected from any accountability whatsoever

THE EPO‘s staff supports the staff union a lot more than it supports its own management. In fact, the President has a 0% approval rating. That’s how grim things are. The Board, which is increasingly complicit in all this, admits there is "a crisis".

The Attorney General in the Netherlands now says that the EPO’s staff union cannot hold the management accountable for breaking the law. We had the subject covered here shortly after this had made it into the Dutch media. Shortly afterwards we began seeing comments about it at a very old thread of IP Kat (which stopped its criticism of the EPO after the censorship, perhaps a prelude to legal bullying). We don’t think that many people can see these comments (buried very deep inside the site, under page 2 of a very old article), so we reproduce them below. The first comment said:

hoge Raad: Dutch judges are not allowed to assume responsibility in cases against the EPOrg.

So, immunity upheld. SUEPO cannot file charges against the EPO anywhere, neither nationally or with ATILO (only for employees, not for,staff organisations).

So, what about illegal activities of the national representatives who voted in favour of rules which are illegal in their own country?

This links to this report which says: “De Europese Octrooi Organisatie (EOO) beroept zich in een geschil terecht op immuniteit van jurisdictie. Dat betekent dat de internationale organisatie niet voor de Nederlandse rechter kan worden gedaagd voor geschillen over de officiële werkzaamheden van de organisatie. De Nederlandse rechter is onbevoegd om te oordelen in een geschil tussen het in Rijswijk gevestigde Europese Octrooibureau, een onderdeel van EOO, en de vakbondsunie van het Europees Octrooibureau en de overkoepelende vakbond voor werknemers van EOO. Dat schrijft advocaat-generaal Vlas vandaag in zijn conclusie, een advies aan de Hoge Raad.”

Here is a response to the initial comment:

should’ve read the publication (in Dutch) first, instead of just the headline….

This is the opinion of “an independent expert”. He states that the European Convention on Human Rights does not require access to indpendent courts, and that the internal procedures of the EPO, as well as ATILO, allow sufficient remedies.

Well, the SUEPO does not have access to internal remedies, nor to ATILO….

The new expected date for a decision is 20 January 2017.

Another person gave a direct link to the document and said:

Thanks for the press release.

I will have to digest the actual “opinion” before commenting.

Then came a more detailed comment:

From paragraph 2:19 of the opinion of the Prosecutor (Google translated):

“The mere appeal to an alleged particularly serious breach of a norm of international law, or even a norm of jus cogens claim immunity from jurisdiction can not override . Honoring the claim immunity from jurisdiction by the courts in no way means that they held that infringement of property rights is permissible. It follows that the nature of the substantive rights at issue and the alleged severity of the infringement should not be included in the key or the proportionality requirement is met in the context of determining whether an application should be granted immunity from prosecution. I believe that the component also succeeds in this respect.”

In other word, immunity is absolute, and does not depend from the nature of the infringement.

It is difficult to disagree, and a decision against SUEPO in January look improbable.

I don’t blame the Dutch Government to uphold this principle of International Law though its Prosecutor – yes, when a drunken diplomat kills a little girl with its car immunity is uphold, even in front of public outcry. I note, however, that in general the Diplomat will quietly be asked to leave the hosting state to silence the controversy.

This is the least that the Dutch Government, through the AC, should require from EPO, to not appear to abide the abuses happening there.

But this will never happen, of course, and a decision in favor of battistelli and his regime in January will only embolden him and his clique.

It will be like saying “Here, Mr. battistelli: a blank cheque for you.”

Separate threads, these ones nearly 4 months more recent (hence more visible), still talk about various aspects of lawlessness at the EPO. Consider the following new comment (from today):

The fear of M. Battistelli is that an independent audit checks the real situation at the EPO.

Currently all the numbers are given by M. Battistelli himself without any independent authority to supervise.

What’s worse is, he produces self-commissioned propaganda with which to mislead the supposed ‘overseer’ (now more like “yes men” of Battistelli). Next week we will look a little deeper under the kimono of the Administrative Council and show that the Council too — not just Battistelli — has some skeletons in its closet. We must realise that nowadays the Council and the Board (partly overlapping) are actually complicit in all these abuses. Battistelli has turned both (by various nefarious means) into a lapdog rather than watchdog, in the same way mass surveillance in the US is now regulated or overseen by many of the same people who were responsible for it (revolving doors and private industry conflict of interests is what much of it qualifies as). █

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