11.19.16

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European Media, Dutch Parliament and Spectacularly Enough Even IP Kat (Yes, It’s Back!) Subject the EPO to Serious Scrutiny

Posted in Europe, Patents at 5:39 pm by Dr. Roy Schestowitz

Scrutiny

Summary: Belatedly (after a lot of unjust suffering and half a dozen suicides), having taken a closer look at some of the latest terrible policies from Battistelli and his goons, the press along with politicians and bloggers chastise the EPO and call for immediate remedial action

THE EPO is rotting and along with it the reputation and demand for its services. Will the European economy be so thoroughly damaged by it? Unless Battistelli and fellow thugs of his are removed, everyone will suffer, not just patent examiners but also attorneys, applicants, grantees, large European corporations and of course the European public. We need to sort out this mess before it’s too late!

Yesterday we mentioned beer ingredient patents and New Europe now has this new article about it. To quote:

NGOs urge Carlsberg to rethink beer ingredient patents

The European Patent Office in Munich and the Carlsberg company were criticised on November 17 in an open letter by campaigners opposed to the patenting of plants and animals.

No Patents on Seeds, an alliance including Greenpeace, the Catholic charity Misereor, and globally networked small-scale farmers, called on the Danish brewer to voluntarily relinquish three patents it received earlier this year from the European Patent Office.

As reported by Deutsche Welle (DW), Germany’s international broadcaster, documents published by the EPO also list Heineken of the Netherlands as a patent proprietor.

On several occasions last week, including last night, we wrote about growing concerns in Dutch Parliament. Remember that the latest staff representative to be sacked by Battistelli was a Frenchman working at The Hague. According to what’s typically a very pro-EPO (and pro-UPC) blog, there is a “debate in Dutch Parliament about deteriorating social climate at European Patent Office” and here is a fragment from this very long blog post:

MP Sharon Gesthuizen of the socialist SP received support for her request from a majority of the MPs earlier this week. They have asked Secretary of Economic Affairs Martijn van Dam for a government letter on the developments at the EPO, which has one of its main offices in The Hague.

John Kerstens of the social democrat PvdA, who gave a speech last month during a demonstration of 350 EPO workers in The Hague, stated they deserve ‘attention for the reign of terror – this is how I call it – at the EPO.’ Esther Ouwehand of the Animal Party said she is very concerned and wants to know how the EPO can be brought under democratic control, despite the legal immunity the institution has according to the Dutch government.

The dismissal of SUEPO secretary Laurent Prunier, also a member of the EPO’s Central Staff Committee, was the latest development in years of turmoil, protests and conflicts between EPO employees and the authoritarian president Benoit Battistelli, who is accused of creating a climate of fear, putting workers under intolerable pressure and ignoring the organization’s own rules.

In reaction to a critical article on the IAM blog about the dismissal of the union leader, Battistelli explained in a letter that Prunier had been harassing an EPO colleague. In an ensuing letter of Prunier, he denied the allegations and asked for transparency: ‘The easiest solution for the public to assess the truth vs. story-telling is for Mr Battistelli to lift the confidentiality he imposes on me and I will gladly publish all the documents.’

What’s noteworthy here is not just the news from the Parliament but also the fact that pro-EPO blogs are quickly turning against Battistelli. Even IAM is showing more and more signs of dissent. And remember IP Kat? The blog which used to be critical of the EPO until the EPO threatened it with sanctions? Well, Merpel is back and she has very detailed reports about the Boards of Appeal of the EPO. The latest report from her is a multi-part series on the EPO’s “house ban”, issued under Battistelli’s orders (his massive ego is even bigger than the EPC!). To quote some key parts from this good article:

Remember the House Ban? How two years flies past

[...]

It is almost two years since Mr Battistelli illegally suspended a member of the BoA, confiscated the computer belonging to the Board member, and imposed a “house ban” to prevent access to the premises of the EPO. As readers of the blog will know, the Administrative Council subsequently tried to regularise the suspension, and suspended the member on full salary until March 31, 2015 (yes, more than 18 months ago, it’s not a typo).

Three attempts have been made, all spectacularly unsuccessful, to petition the Enlarged Board of Appeal to remove the member from office. Along the way, Mr Battistelli forcefully told the AC that it should ignore the rule of law and the Enlarged Board, told the Enlarged Board he would refuse to authorise any witnesses to attend its hearings, and demanded the Enlarged Board to provide an assurance that it would neither hear the case in public nor call any EPO witnesses. All of which was rather presumptuous on his part when he was not even a party to the Enlarged Board proceedings (despite which it was EPO employees presenting the case on behalf of the Administrative Council, not independent lawyers appointed by the AC).

[...]

The Enlarged Board has issued three decisions in the House Ban proceedings. In each of these decisions, the Board has ordered the European Patent Office to publish the decision, but the Office has flagrantly ignored those binding orders.

In the third such decision, the Enlarged Board noted that the Office had failed to comply with both of its previous orders, repeated that the earlier decisions should be published and made a formal order to publish the third decision as well. And … nothing happened. The Official Journal continues to be published on schedule with such important matters as the accession of Djibouti to the PCT, but curiously omitting the mandatory publication of these fundamentally important decisions on judicial independence and the relationship between the Boards, the AC and the President.

[...]

For the AC’s credibility to be restored at this very late stage, certain actions seem to be required.

1. The Board Member at the centre of the House Ban affair should be reinstated without further delay. The legal path has been followed and its outcome is clear. Suspension for an extended period at the insistence of management is incompatible with the requirement of judicial independence.

2. A clear signal should be given in the minutes of the next AC meeting that the actions of Mr Battistelli vis-a-vis the Enlarged Board are unacceptable, in terms of his instruction to the AC to ignore the Enlarged Board, and the actions which the Enlarged Board interpreted as threats to its operation and independence.

3. It should instruct Mr Battistelli to reinstate the recently dismissed Mr Prunier – after all, that was the standing instruction which he ignored by continuing to pursue and target the union leadership.

4. It should order that the next edition of the EPO Official Journal contains the approved texts for publication of the three “Article 23″ Enlarged Board decisions. If Mr Battistelli can’t find them for the publishers, the ever-helpful Merpel reminds all involved that they can be found here: No. 1, No. 2 and No 3.

“Please don’t forget the reinstatement of Liz Hardon and Ion Brumme and of course Malika Weaver (after degradation),” one person added in relation to action 3 and “under Action 3,” added another person, “please do not forget Aurélien Pétiaud, Michael Lund both unfairly downgraded for having done their job as staff representatives in the Internal Committee and Laurent Prunier having just been fired who dared to take courageous positions in front of Battistelli at several occasions on several highly sensitive files (eg. New Main building worth 250 Mio EUR; suicides at the workplace etc.)”

“The President of the EPO wants to move the Boards of Appeal to Haar,” Merpel noted in a followup (part 2). We believe that Battistelli plans to ultimately deprecate them, under the assumption that UPC can someone be made a reality (he gave false predictions and timeframe estimates time after time). To quote Merpel:

The President of the EPO wants to move the Boards of Appeal to Haar. “Where?” Merpel hears you ask. Precisely. Haar is a municipality on the outskirts of Munich, most famous (not that it is famous at all) for housing the largest mental hospital in Germany. Is this just a sick joke on the part of M Battistelli? Because there is nothing else that could justify this – excuse Merpel – insane idea, which is to the detriment of applicants and patentees, opponents, professional representatives, and the Board of Appeal members themselves.

The official justification for the move is to increase the perception of independence of the Boards of Appeal. But in the consultation of users carried out by the EPO itself, the geographical location of the Boards was overwhelmingly not considered an important factor to their independence. An earlier proposal to move the Boards to another city or country completely (which would have destroyed the Boards as we know them) has thankfully been dropped.

The idea put forward that members of the Boards of Appeal might be influenced in their decisions by the possibility that they might encounter in the canteen an examiner disgruntled because they have been over-ruled is ludicrous in principle, and not borne out by the actual experience of the EPO over the last four decades, even when first instance examiners worked in the same building as the Boards of Appeal. They no longer do. First instance divisions are located in other buildings in Munich, or in The Hague, or in Berlin. The person who does however share the Isar building with the Boards of Appeal is, of course, the President of the EPO, and Merpel gets the impression that he wants those pesky Board members as far away from his domain as possible.

Some new information emerges also in the many (and growing number of) anonymous comments there, but we shall get around to highlighting some of them in the next few days, depending on relevance to the latest developments. Susan Pickin has told me and told the EPO that “We could have them [the boards] in the UK [...] UK could offer to have them here…”

Heck, how about opening a whole branch of the EPO here in the UK and actually ensure that staff enjoys human rights? As a reminder, the EPO has been highly discriminatory against British workers as of late. And later it wonders why the UK won’t ratify the UPC?

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