TODAY, THE EPO is throwing another stupid and distracting party (an event called Patent Information Conference 2016) and after the social conference from an antisocial boss we expect to see social "workshops", ones that are supposed to have taken place today and yesterday. But don't expect staff to have attended or for anyone to genuinely care for this. Staff of the EPO was up in arms after it learned that on Friday the boss had fire yet another staff representative, as first covered in our site with this leak.
What’s more, we have continuously pointed out that disputes between the EPO’s senior management and the staff union SUEPO were taking place long before Benoît Battistelli became the EPO president, and that the union has often been its own worst enemy by making explosive, unsubstantiated claims and by being highly provocative in its approach to negotiation. If being an EPO examiner is such a bad thing, we have always asked, why do so few people ever leave?
Joff Wild of IAM writes:
EPO users and staff need the Administrative Council to get a grip on current events
I have always given the EPO’s senior management the benefit of the doubt, but increasingly it looks like I may have been wrong to do so. With the same things happening over and over again, what other conclusion can I reach – especially when I have met many SUEPO members and know them not to be agitating obstructionists, but people who genuinely want what is best for the office and those who use it.
The first two examples that, in my view, demonstrate how the Rule of Law is currently endangered came from the “ugly world” of politics. So you might not expect that my third one stems from an organisation which ought to be relatively apolitical, namely the European Patent Office. Unfortunately, however, all is not well there either. This has to do with the peculiar “constitution” of the EPO, the European Patent Convention, which only provides for an imperfect system of checks and balances and in particular does not subject the Office President to an independent judiciary, whereas the members of the Boards of Appeal are subject to being proposed by the President for being (re)appointed by the EPO’s Administrative Council. In other words, the Office President has a lot of power and the only entity that can control him is the same Administrative Council that elected him in the first place.
Given how important an independent and fearless judiciary is for a functioning system of checks and balances, an Office President would, in this author’s view, be well advised to exercise utmost restraint in interfering with the Boards of Appeal as the EPO’s judiciary. Yet I am afraid that this is not what happened in summer of this year. Quite to the contrary, the members of the Enlarged Board of Appeal (EBA) of the EPO made very clear that they actually felt threatened by disciplinary measures of the Executive Branch of the EPO, i.e. the President, and insufficiently supported by the Administrative Council. The clash came up in proceedings between the Administrative Council as Petitioner and a member of the Technical Boards of Appeal who seems to have been accused of libelling the EPO’s President and Vice Presidents, which he/she has apparently denied. The Enlarged Board stated in its decision this:
As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied.
I will not bother you with the complete background of this case that is summarized in the EBA’s decision and has amply been reported by IPKat, in my 2014 blog on the same case, and by others. Suffice it to say that the Enlarged Board had ordered to conduct its latest hearing coram publico, which apparently incensed the Office President (why? – honit soit qui mal y pense) to a degree that he felt he should intervene into the judicial proceedings by writing a letter to the Enlarged Board of Appeal which the Board perceived as a threat. Inter alia, the President instructed his lawyer to write that “In view, in particular, of the gravity of the reputational, security, welfare and public order risks identified, there is a strong case for saying that any decision to conduct this hearing in public would be unlawful because it could not be defended as either proportionate or reasonable”. (This may be right or wrong, but is it for the President to decide on whether it is lawful or unlawful to conduct the EBA’s hearing in public, or is it for the EBA itself???) And even more, the letter continued with stating that the President “will not hesitate to take any appropriate steps available to him to ensure the proper running of the Office and the safety of its employees”.
Now, might you argue, the President has just voiced his opinion to the EBA – so why should this be a threat? The problem is exactly the background of the case at stake, i.e. that the President imposed and immediately executed a house ban on a Board of Appeal member for alleged unlawful conduct, without adhering to the procedure prescribed in Art. 23 EPC. Who can guarantee to the EBA that such a thing cannot happen again, if the President feels that some conduct of the EBA is unlawful and sees only himself in the position to ensure the “proper” running of the Office?
I am afraid (and very sorry) to say that even among the EPO’s top officials, the principle of the Rule of Law does not seem to be respected very much. Where are you, Administrative Council?
The following recent contribution refers to the situation at the EPO and mentions the lack of independence of the boards of appeal: http://kluwerpatentblog.com/2016/11/07/rule-law-rechtsstaat-endangered-needs-defended/ In this respect the evident lack of support by the members of the boards of appeal for their colleague who has been maintained in limbo for almost 2 years now in violation of all principles of due process sadly confirms the damage done to the whole institution. Looking forward to reading the upcoming decisions of the German Bundesverfassungsgericht on the constitutionality of an european patent system lacking a truly independent higher instance.
Kluwer Patent Blog has a post titled The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!
It refers to the case of the suspended member of the Boa - but I quote:
"I am afraid (and very sorry) to say that even among the EPO’s top officials, the principle of the Rule of Law does not seem to be respected very much. Where are you, Administrative Council?"
Plum position falls foul of a one man gang Representative Prunier dried out to hang Unless the Muppets wake up fast No functional office can this last EPO on a highway to hell Does the AC need some DC as well?
I think all we can say is that so far the AC has shown itself to be about as much use as the proverbial one-legged man in the arse-kicking competition. Kicking arse is certainly not their forte so far.
As far as Laurent goes, I've known him for a long time: he's a fiery character with strongly-held opinions who isn't averse to voicing them. Unfortunately, some seem to think that to do so within the context of a heated discussion amounts to harassment. If that's true, I have certainly been guilty of harassment in the past. I personally don't believe that the Laurent I know is guilty of harassment. Harassment is about bullying and spite. He may be guilty of expressing himself too forcefully or of intemperate language, but the Laurent I know is not a bully. Unfortunately, of course, neither I nor anyone outside a certain charmed circle know exactly what he is accused of which is said to amount to harassment. So who knows?
That's why, in proper judicial procedures, rather than the banana republic/kangaroo courts we have here, evidence is tested in open court in public (unless there is a good reason why not) and weighed by an independent arbiter who considers only the law. Here, as in the (still-unresolved) case of the DG3 judge, we have a bunch of vague rumours and innuendos put out by Batistelli in his latest communiqué to justify his partial and self-serving adjudication.
In Laurent's case, justice is neither done nor seen to be done. Nevertheless, I have already heard colleagues who should know better opining that they 'haven't much sympathy' with his position, which seems to be another way of saying: ?I didn't like him much and therefore he had it coming'.
Is this where we are now? Trial by prejudice?
Bingo!
and guess what they did it clever to cover up the reward. Technically this was no promotion but, after a selection procedure to a position designed for a very specific profile matching precisely the domain of competence of the individual concerned, he was appointed to a position higher graded.
And the "funny" thing is that Battistelli in his address email to staff (read smear campaign) on intranet about this sad story dared to complaint that Laurent did not presented excuses!
Well to whom should he do this: to the alleged victim who is not the one who filed the complaint since he is no victim or to the top manager close to Battistelli who filed the complaint and is a true harasser (everyone knows it by now)?
The EPO is becoming sick by the day
It cannot continue this way and at this pace.
It is high time for the AC to make clear to the president and all the yes men and women around him that immunity does not mean impunity.
How can they indulge in the EPO being driven in the wall, and forced in expenses which do not have any other aim than to satisfy the president's wish for retaliation against the boards of appeal. After all he started by disregarding the separation of powers.
When one looks at the vote in the BFC, it appears that the states which barely contribute to the filings have decided in favour of sending the boards to the outskirts of Munich. That this implies unnecessary extra costs for the users did not seem to have played a role.
That any organism which does not change dies, this is valid as well for the EPO. Any reasonable person will agree that changes had to be carried out at the EPO. But did it have to be in such a ruthless manner?
If the social climate would be as rosy as tooted out by the higher management of the EPO, why did the president not organise Christmas gatherings with staff for many years? This alone is revealing and says a lot.
The EPO Enlarged Board in G 1/03 decided disclaimers that did not have basis in the application as filed were in some cases allowable, but only where a disclaimer was required to: i) restore novelty over an A54(3) document; ii) restore novelty over an “accidental” prior art document, where the anticipation was “so unrelated and remote that the person skilled in the art would never have taken it into consideration when working on the invention”; or iii) disclaim subject matter that was excluded from patentability for non-technical reasons. This allowed a disclaimers to be made that would otherwise fall foul of Article 123(2), in other words the language of the disclaimer was not included in the content of the application as filed, but only in quite limited circumstances.
A further Enlarged Board decision in G 2/10 related to disclaimers, but instead to those that were based on subject matter disclosed in the application as filed. The Board did, however, state that the test to be applied is “whether the skilled person would, using common general knowledge, regard the remaining claimed subject-matter as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed” (point 4.5.4 of the reasons). This test was, according to G 2/10, the generally accepted “gold standard” for assessing any amendment for compliance with Article 123(2) EPC.
Merpel, Thanks for picking this up. Was beginning to wonder if you had been gagged.
With regard to your final witty comment "Of course this presents a shining opportunity for ambitious, concerned members of staff to take up the banner and step forward into leadership roles in the staff union. Those without dependent families and who are financially independent would be best suited to take on this career-ending role.", I don't remember if you previously noted that:
A. Standing for staff representation is at the president's agreement and there is a ban on those at the end of their career. Staff don't simply get to choose their representatives. Being close to retirement and likely to say what the heck, as you joke, is a good reason to prevent you from being a position to do so. B. Being a representative means being moved administratively into a separate department run by his well-known HR Director. She must approve all your 'work' and its related travel etc. And sign off your holidays, sick leave etc. All a bit strange that staff are deliberately moved under the control of the person with whom they should negotiate/interact. Certainly one way to stifle the 'awkward squad' and, if all else fails, you can accuse them of harassment of each other and get them sacked (I don't refer to Laurent's case since that is secret). C. And the threat to cut your pension at the presidents whim could take a column and a half to deal with as a final blunting instrument.
BoA: "Madness is doing the same thing, over and over again, but expecting different results."
SR: "Messing with madness is one thing, when madness is messing back, it is time to call the whole Social Conference off"
The Staff Union of the European Patent Office (SUEPO) called a 7 November “flash” demonstration in Munich after the office fired Laurent Prunier, SUEPO secretary in The Hague. The move dismayed employees encouraged after the Administrative Council (AC), made up of the office's member states, last month pressured President Benoît Battistelli into backing off from two unpopular proposals for investigating and disciplining staff. via the term “snipers of the Hague,” the source said. [...]
The communiqué “is another example of an attempt of character assassination made by the president,” a source known as “epoinsider” told Intellectual Property Watch. Battistelli linked two disciplinary cases, the one against Prunier and one against Elizabeth Hardon,
“Firings will continue until morale improves - Merpel revisits the EPO” (IPKAT, 7 November 2016). “EPO users and staff need the Administrative Council to get a grip on current events” (IAM, 7 Novmber 2016). “Union Calls “Flash Demo” After EPO Fires Another Union Representative” (IP-Watch, 7 November 2016). “The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!” (Kluwer Patent Blog, 7 November 2016), especially section 4 of the article dealing with the EPO. “Fresh Euro Patent Office drama: King Battistelli fires union boss” - EPO president ignores his own admin council (The Register, 4 November 2016).