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12.05.16

EPO at a Tipping Point: Battistelli Quarrelling With French Politicians, Administrative Council Urged to Act, Staff Unrest Peaking

Posted in Europe, Patents at 3:32 am by Dr. Roy Schestowitz

No career fallback with Nicolas Sarkozy, either

Battistelli

Summary: The latest messages about Battistelli’s regime at the EPO, which faces growing opposition from more directions than ever before

THE EPO seems to be reaching another tipping point, where not only ILO and politicians take the side of EPO staff but a lot of the British media too (definitely not the German media, which seems to enjoy the EPO as a local cash cow). Even a British mouthpiece of the EPO gave a platform to an EPO staff representative a couple of weeks ago. To quote this recent comment, “Mr Prunier’s post on IAM blog : http://www.iam-media.com/blog/Detail.aspx?g=2141acfb-0254-48ab-a380-31fee0da7f97″

Another new comment says that a “reply from the [French] secretary for industry reveals he has even contacted BB to express his discontent.”

The “President of the EPO simply insults the Minister for Industry (responsible for patents in France),” wrote the following comment in reply. Certainly not a way to make friends and allies:

Phillips Cordery was present at the latest demonstration in The Hague. He gave some details in his speech. Christophe Sirugue (Minister for Industry) indeed talked to Battistelli about the social situation. Battistelli answered that he did not care about his opinion.

I could not believe my hears in that demo: there was a MP, talking in public, and announcing that the President of the EPO simply insults the Minister for Industry (responsible for patents in France). But ask anyone present and they will tell you.

What is even more worrying is that Battistelli is probably right. He IS indeed more powerful than a French Minister (or a German, English, Swiss… etc). He has immunity and nobody can do a thing against him.

Phillips Cordery (mentioned above) is the latest among several French politicians who call Battistelli an embarrassment/humiliation/"disgrace"/"damaging to the image of France".

“Tragedy hangs in the air,” said another comment, as “further dismissals ring out.” Well, Battistelli and Bergot have more in the pipeline, but can the Administrative Council or outside intervention put an end to it? Here is the full comment:

It is chilly in the EPO. It is the chill of a fanaticism that has enveloped itself in a harness of principles. Tragedy hangs in the air, further dismissals ring out. A political statement, the scandal of which reverberated far into Europe. BB’s response sounds hollow and hypocritical, ‘No one can escape his duty!’

“Even examiner team managers are showing opposition to the regime” of Battistelli, said the following comment, reinforcing what we heard before (even some Directors join the protests). Here is the comment in its full glory:

Very chilly indeed. Even examiner team managers are showing opposition to the regime: they ignore duties when it comes to completing their examining/oppo duties within the official timescales. The ILO is now pointing at total meltdown. Europe and its innovators deserve much better than this clapped out Enarquien despot. Clean sweep, please.

Perhaps optimistic about the morals of a chinchillas killer, one person believes that the Administrative Council, well paid (or strategically gifted) by Battistelli, will dismiss him:

Why the AC will not dismiss BB?

Because the AC is deeply divided. The AC members from the south – south of France, that is – and from the East – east of Germany, that is – do not care about the internal reputation of BB. Authority and hierarchy are good. And for each and every decision that is even a little bit out of their mandate, they have to Phone home.

At least one of the AC members from some other countries – a rather small country, one of the founders – is rumoured to be very vocal against BB.

But with a divided AC, BB – at the ENA well prepared for politics – will win. The earliest moment BB will leave is with an UMP president in France, probably provided he currently support that candidate (oops, missed the debate tonight…)

The AC wanted someone to put the examiners back to work, work a little harder and pick up files within one to two years after the last letter from the patent attorney – rather than sometimes over six years. The AC made a pact with the devil. The rest is history…

“It’s the end of the EPO as we know it,” another person wrote, “but I feel fine, I’ve got my design.”

Going further back in the comments (over a fortnight backwards), there are many comments which we deem “trolling” or intentionally provocative. We don’t want to draw attention to these as that would only encourage them. Here is one among many responses to such comments:

@ Dry Tears
Why is it that the board members get critisised when they haven’t done anything wrong, unlike the senior management and the Admin Counc who escape your censure. Whose side are you on?

@ the anonymous “Anonymous”
Have you read Merpel’s blog entry? Who is to blame for this mess? The board member you want to see dismissed? Shall we now start dismisssing judges who don’t conform? Why don’t you have a go at getting disciplinary proceedings going against the alleged “enemies of the people” in the UK? Yes, that is the sorry road we all seem to be going down, whether we want to or not.

“Battistelli and his minions have seemingly being drip-feeding information to the press,” noted another person on defaming of the accused board member. Here is the full comment which is actually quite informative:

Also worth reiterating is the fact that, while the suspended Board member is forced to remain incommunicado in the public sphere, BB and his minions have seemingly being drip-feeding information to the press (a) enabling the member in question to be identified without too much difficulty; and (b) containing tantalising hints of the allegations against him, making a mockery of the judicial process.

Namely: without having to look too deeply, it’s possible to find in various sources information about which Board the suspended BOA member comes from; what his nationality is; what his specialism is; and asserting variously that he’s been accused of carrying dangerous weapons within the office, spreading Nazi propaganda, disseminating defamatory information against a certain Croatian Vice-President of the Office, collaborating somehow (in ways curiously unspecified) with at least one of the suspended or fired staff representatives, and so on and so forth.

Some or all of this may be true. We simply don’t know (though I certainly find it doubtful, not least given the public prosecutor’s finding that the allegedly-defamatory press articles were not defamatory). It is surely not right under any reasonable concept of “justice” that the Office is apparently free to cast around such hints and accusations in public while the accused Board member is effectively gagged.

We should also not forget that some of the alleged evidence against the accused was reportedly obtained by means of key logging software or other such spyware installed on computers in public areas of the Office, and that these covert surveillance measures were apparently only authorised retrospectively by the EPO’s data protection officer, after the actions had already been taken.

The seemingly unnecessary plan to move the Boards out of central Munich, too, could do with closer scrutiny. According to some reports I’ve seen elsewhere, this plan has now been backed but only because the majority of AC representatives *abstained* in the crucial vote, thus leading to a “majority” in favour of the plan which actually represents a minority of the delegates. This is outrageous. Abstention is a completely ineffective means of registering a protest if it doesn’t stop the plan going ahead!

“The President has carte blanche and is using it to defeat his only serious opposition – SUEPO,” according to this comment which also relates to the Unitary Patent — a subject we’ll revisit shortly.

No, Anon, a single country cannot interfere, but what about the EU acting as a bloc? It would theoretically be possible for it to command a decisive majority. Indeed it would be very much in its interest in view of the importance to it of the Unitary Patent.

Is this going to happen? Of course not.

Any more than the prescribed ministerial conference is going to happen. When I mentioned the latter in my last post it was because I thought it might at least put some identifiable politicians in front of their responsibilities. But the fact that no-one is responsible for for carrying out this obligation means that it is just a purely theoretical possibility, meant to confer the mere appearance of democratic accountability on the doings of the EPO.

So there is no political entity, country or individual that can intervene. The President has carte blanche and is using it to defeat his only serious opposition – SUEPO.

The next few comments managed to avoid the trolls and stay on target/focus, i.e. the appeal boards. To quote one comment:

One point – an abstention must always be ineffective. It isn’t a vote against but a vote to let the rest decide for whatever reason. The risk is that when too many abstain, the resulting vote lacks authority and also you may then realise how you really felt. In this case if the vote had been against, I’m not sure you would be so agitated.
But I agree with the rest of your points.

A Bundesverfassungsgericht decision is then mentioned as follows:

There are many foul elements to this sorry story, in my view the most disgusting being the possibility for indefinite suspension of BoA members. As Merpel points out, the President no longer needs to go to the trouble of A.23(1) EPC (having spectacularly failed with this 3 times already…) – instead a troublesome BoA member can just be suspended until their tenure runs out. This is absolutely contrary to judicial independence and I look forward to reading the Bundesverfassungsgericht decision on this.

Bit of a risk involving the Bavarian police, no? I wonder if they had anything to say about key-logging / spy cameras, in contravention of German Datenschutzgesetz? Remarkable temerity to involve the police to ask them to act under national law while flouting that same law (sorry – being immune to it) as regards data protection. I don’t believe that such covert surveillance would anyway be admissible before a German court; it would itself be possibly deemed illegal surveillance.

Here is a good explanation of how or why Battistelli has managed to survive in his job so far:

Politicians in the countries, the governments, of Western Europe are fond of patting themselves on the back, when they berate the rest of the world for being unable to maintain The Rule of Law. OK, well then, the Administrative Council of the EPO is an ideal vehicle for them to demonstrate to the rest of the world what they mean by “the Rule of Law” and how it is to be maintained.

And what do we see? Totally supine attitudes. The AC has no backbone. BB is to be held to account by a lump of Plasticine.

No wonder that, these days, authoritarian and lawless regimes all round the world have nothing but scorn for our precious western European democracies. All talk and no action.

Those of us who read Merpel here should try to explain to the honorable profession of journalists what’s going on here, and how the AC story is a good way to demonstrate to the wider general public, in specially simple terms, a practical example of the erosion of our precious rights under a Rule of Law.

“Past tense,” noted another person in relation to the last sentence above is “At EPO the Rule of Law”

Present tense is “At EPO the Rule of Low” (how low can Battistelli stoop before he’s terminated by the Council?)

The whole Organisation is a rogue institution now, not just the Office. As long as the Council is cooperative in this whole charade, one might view it as passively complicit.

“So,” wrote the following commenter, “the EPO has blatantly failed to follow the rule of law.” This has been going on for years actually. Laws are being broken repeatedly, usually to help cover up previous violations of the law. It’s like a Watergate Scandal in slow(er) motion and Battistelli takes the role of Nixon.

So, the EPO has blatantly failed to follow the rule of law. The AC has blatantly failed in its most fundamental role of overseeing the actions of the Office. To add to that, there are numerous rumours circulating about precisely how it is that the President of the Office manages to retain the undying loyalty of certain representatives to the AC.

It is not hard to come to the conclusion that the Office has been entirely captured by a bunch of self-serving career civil servants who care not a jot for the reputation of the Office or the people that work there and merely seek to further their careers (and other self interests).

It seems that we cannot rely upon the current “political” class to “drain the swamp” at the EPO. There is simply too much complicity. My suggestion is that light will serve as the most effective disinfectant here. Does anyone have the number of a good investigative journalist (assuming that such people still exist)?

Here is part of a little debate about “multi-lateral bodies” such as WIPO and the EPO:

I agree with MaxDrei in respect of the general inadequacies of multi-lateral bodies. We just have to look at the impotence of the United Nations in matters far more devastating than this EPO saga.

So-called modern nations can’t combine to police/control despots around the world and many are suffering. Unilateral action by countries such as the US, UK, France are essential to protect people from the genocides and terrorists slaughters that regularly occur.

There is a lot of noise among the comments, with someone who goes by the name “BBRox” and is not alone in spreading pro-Battistelli talking points. “Check out the last comment,” someone told us about this thread at one time, “the use of the “we” shows that BBRox is at the EPO. The only question is who it is…”

Whoever it is, the person isn’t alone and a lot of the discussion got lost, focusing on imaginary staff perks rather than abuses against the staff. It’s a distraction and reversal, putting staff on the defensive. We are happy to see Merpel resuming/continuing to cover EPO (resuming after 4 months!) in spite of threats and sanctions from the EPO, but we are saddened to see some comments showing up with sheer (and likely intentional) inaccuracies in them, like claims that EPO staff is paid half a million Euros per year.

Here is an interesting long comment about the issues associated with such unnatural/multinational institutions that exist in a legal vacuum:

Amongst international organisations granted immunities, the EPO is unfortunately far from being alone in failing to respect basic principles of the rule of law. A 2010 essay by Matthew Parish (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1651784) had this to say about the matter:
“The only way international law applicable to international organizations is enforced is either by the international organizations themselves, or through political pressure of their members. Neither of these is satisfactory, for obvious reasons. Self-regulation cannot expect to be effective, as the rules will be interpreted and applied in a way convenient to the organization applying them. Political pressure is arbitrary: the force that is brought to bear, even if disguised in legal language, is likely to reflect national political interests rather than legal principle. There can be no law without impartial adjudication of its content and application. The inference we must therefore reluctantly draw is that international organizations are lawless creatures, despite their best pretences otherwise. For all their formalities, procedures, internal regulations, bulging legal departments and quasi-legal language in which they cloak their operations, their legal structure is a phantasm. When the rhetoric is stripped away, the legal framework within which international organizations are revealed to operate is entirely self-serving. Divested of the only mode of accountability that might conceivably be available to constrain them, their true form is revealed as an utterly undisciplined bureaucracy, inward looking, unrestrained, hydra-headed but directionless, self-consuming, and subject to perennial self-serving growth”.

I am sure that this description of effective lawlessness will sound pretty familiar to those currently serving under BB’s cosh.

Sadly, the only solution proposed by Mr Parish (the introduction of legal accountability measures for international organisations) is not likely to be effective in the current situation… at least not unless national judges start developing theories by which certain actions of international organisations can be subject to the jurisdiction of national courts. Based upon the “opinion” issued in the case pending before the Dutch courts, this does not look likely to happen any time soon.

So, I guess I am back to reiterating my previous request: does anyone have the number of a good investigative journalist?

Surely it would not be too difficult to find “hard” evidence of actions by EPO management (or failures of oversight by the AC) that would breach provisions of all national laws (including provisions of the European Convention on Human Rights)? The first instance judgement in the Netherlands and the situation of the “suspended” judge spring immediately to mind. Analysis of the voting patterns of each national representative to the AC could well provide a rich source of information too.

Watch the following noteworthy observation about what Battistelli is doing as he strives to have an “INNOCENT PERSON dismissed,” to quote the following comment:

Mmh … let me see if I get it right:

the Munich Public Prosecutor – a fairly independent instance, I would say – has dismissed the complaint.

Did the President inform the Administrative Council of this important development in May?

Or is he using the AC to have an INNOCENT PERSON dismissed?

If anybody, at least the suspended member shall inform the AC, his own appointing authority.

It’s now also pretty clear why the president doesn’t want any external review of the cases of the dismissed Staff Representatives …

And then this came, regarding “dissemination of press articles [which] could constitute defamation under German law.”

The Prosecutor reviewed and analyzed the articles and concluded that their content was not in fact defamatory under German law. The Prosecutor also expressed doubt that in any event the dissemination of press articles could constitute defamation under German law.

Well, well, well … we now discover that the original accusation was “redistribution of press articles” which the Office “considered” “defamatory” against a “member of the senior management team at the EPO”.

(Everybody knows who this “member of the senior management team at the EPO” is. But now we now also understand why the EPO decided to block access to Techrights from within the Office … everything fits together perfectly …)

Given the reaction of the President and the mess in which he has put the Office, these articles should contain explosive material! What a pity that we cannot read them …

… but wait: we can! In Germany, legal proceedings are not subject to the cloak of secrecy imposed in EPOnia. In Germany, everyone can make his/her own mind, and not only hear the management’s version of the facts.

Anyone to get a copy of the decision of the Munich Prosecutor and retrieve a these “dangerous” articles*?

Also, send a copy of the decision to the German press that so far seems to have blindly followed the words of El Presidentissimo?

Mr. Battistelli has made a big mistake here. By the time the Munich Prosecutor announced his decision, he expected the suspended member to be already out of the EPO since long time …

* Yeah, I know they most probably are already available at Techrights, but still …

This defamation against the judge started at almost the exact same time that the EPO started sending threatening legal letters to Techrights. Both strategies (hypocritical SLAPP over “defamation” while the EPO itself is defaming an innocent man) began just shortly after the EPO had signed the first FTI Consulting contract. One wonders if both strategies were at least partly FTI Consulting’s idea (manipulating the Dutch and German press outlets by interjecting attack pieces into them and silencing other press by legal threats).

The EPO sure operates like some kind of a Mafia these days.

Here is a reply to people who think about applying for a job at the EPO:

you are free to apply to this paradise since EPO is hiring.

A salary and good working conditions are not a compensation for violation of fundamental rights or unhealthly management methods, and union bashing, denial of justice, bolchevik trials etc.

“Anyone who can is leaving,” notes the following comments, “early retirements are skyrocketing” (we have heard of actual numbers that confirm this trend). To quote:

It really grieves me to say it after many happy years in the EPO as an examiner, but I can’t recommend that you pursue your application. It is wishful thinking to hope that the badness is all at the top, and the lower management and staff join together to ignore as much as they can what BB and co. are doing. Anyone who can is leaving: early retirements are skyrocketing. You can see from the information in this blog and in the comments that BB’s power is completely unfettered, and is called a “reign of terror” without exaggeration.

You would not receive adequate training. Production pressure is so high that examiners are no longer willing or able to help one another with the benefit of their experience, as was always the case in the past. During the probationary year your targets will be unrealistic, such that you will have to violate your conscience many times in order not to fail.

Anyone brave enough to stand up to BB, such as staff representatives, or even senior managers, can be eliminated without any recourse to law. In this climate it is a miracle that any solidarity survives. It does, but it is hanging on by its fingernails.

It is difficult to see how the situation might improve. Unless and until there are some hopeful signs I would steer well clear.

The quality of comments thereafter is low as discussions have generally descended/devolved into some kind of quarrel between provocateurs and people trying to correct them. We don’t want to feed these as they’re a waste of time. We are not blaming the moderator for failing to maintain quality of comments (censorship should never be the answer), but the signal/noise ratio was down at that point. There were still lots of good comments in there, but they were lost amid many of which are just jokes and slightly off topic remarks. Commenters, many of whom are concerned EPO insiders, were spending a lot of time responding to pro-Battistelli voices that provoke by painting EPO staff as spoiled and self-centric. Here is one such response:

@zbrox as to being wrong. It is not only wrong on the moral merit, what you are writing, but also on the facts. A SR resigned. Evidently he did not feel harassed, as he did NOT file a disciplinary complaint which he could have done. Someone else did for him.

We believe that Bergot did this, but without having the documents leaked to us we can only guess based on vague responses from Mr. Prunier (LP). Here is a response to misinformation about LP:

Your facts on the LP case are interesting. Please quote your (independent or documentary) source.
Your characterisation of Suepo as Trump and BB as Clinton is equally incredible. Not least since BB is part of the right-wing party in France. Suepo, by the way, have not linked any of the current issues to more money or rights, contrary to your statement.

Regarding EPO work pressure, one person noted that it’s “not hard to imagine how this could lead to production pressure and low quality results.” Yes, patent quality has certainly declined. Nobody has told us otherwise. Here is an example of this troll-feeding comment (“BBrox” is one among few trolls):

I find BBrox comments very enlightening. If newly appointed examiners are seriously expected to deliver 90 products in their first year, how much time will be left for the “extensive 2 year training” advertised on the EPO jobs homepage? It’s not hard to imagine how this could lead to production pressure and low quality results.

Based on employment surveys, the EPO no longer even attracts many job applications (at least not of desirable quality), which means that quality of examination will suffer. Things won’t improve until Battistelli and his “swamp” say goodbye and even after they are all gone the EPO may take several decades to rebuild and maybe even regain its reputation.

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