10.30.17

Irregularities at the EPO and UPC (Unitary Patent) Dodgy Dealings Should Draw Ire

Posted in Europe, Patents at 4:20 pm by Dr. Roy Schestowitz

Summary: The seriousness of the situation at the EPO ought to attract hard-hitting media coverage but does not; to make matters worse, voices of insiders and critics are being silenced

NOTHING is normal at the EPO. In just a few years it managed to turn from one of Europe’s most reputable institutions into a source of shame and a liability. There’s complicity enabling this also outside the EPO and we are currently investigating the alleged role of Belgium [1, 2]. Expect to hear more about it because it’s a subject of growing controversy even inside the EPO. Remember that Battistelli controls access to billions of euros, even without proper checks and balances. It’s enticing to suck up to him and he is alleged to have ‘bought’ votes of small countries (using money which wasn’t even his).

Comments about EPO scandals are locatable, but they have become harder to find due to censorship. The “line between expressing concern about the EPO’s governance and making ad hominen [sic] attacks,” says this new comment, has become the basis for censorship. But by “attacks” they typically mean the naming of people. As if one cannot even name individuals anymore. Here is this comment which IP Kat was ‘kind’ enough to approve:

Obviously there is a dividing line between expressing concern about the EPO’s governance and making ad hominen [sic] attacks. I can certainly understand that Merpel is concerned to prevent one spilling over into the other, and I think you do too.

The separate issue you raise is that the IPKat is no longer posting about the governance issues, which means there is less opportunity for others to express their concern. That might be regrettable, since the IPKat would be a much better forum for legitimate debate than a certain other website, precisely because Merpel filters out unreasonable comments and ad hominen [sic] attacks.

However, before complaining that the IPKat is no longer concerned, have you considered that the blog’s panel of contributors changes over time, and that each contributor tends to post on topics that happen to interest them? The lack of posts about EPO governance may simply be due to changes in personnel, rather than a deliberate policy of discouraging debate.

As the next comment put it, “should the purpose not be to post on topics to interest the readers?”

The next one said: “If it were a commercial concern such as a newspaper or magazine, and the contributors were being paid to write stuff to attract readers, then yes maybe. But it’s not.”

Too much speculation about IP Kat has given them the benefit of the doubt, first by attributing the censorship (they prefer the euphemism “moderation”) to a technical glitch and now the change of authorship. It’s nice and rather convenient to think that the silence is purely interests-related, but the real explanation for the silence is different, however, as it followed an embargo against the blog.

Thankfully, there are still some places where criticism of the EPO is tolerated and EPO insiders are quoting this new comment [1, 2, 3] which says:

Have a look at the structure proposed for reorganisation of DG1 and DG2:

https://www.epo.org/modules/epoweb/acdocument/epoweb2/261/en/CA-65-17_en.pdf

I understand that this new structure is being implemented. The trouble is that it tramples all over the EPC, which clearly requires the individual “in control of” DG1 to be independent (at least from a hiring, firing and disciplinary perspective) from the President of the EPO. Under the new structure, the “independent” VP1 will be left with only symbolic powers, with new COOs reporting directly to the President (and being hired / fired / disciplined by him) and taking over almost all of the substantive powers previously afforded to VP1.

So, in short, this is yet another example of the EPO’s executive (presumably with the full knowledge / complicity of the AC) effectively ignoring the provisions of the EPC. Regardless of what one thinks about the constitutional complaints, these kind of developments could take those complaints to a completely new level. That is, if the AC has proven itself to be incapable of ensuring that the EPO operates in accordance with the EPC, then it becomes an established fact that there is a “democratic deficit” that requires urgent action.

No names mentioned here, but it’s clear who it’s all about. Days ago a French politician, Claudine Lepage, named the main culprit (who brought many French cronies with him). SUEPO has just published this English translation (there is another one for German readers) and we have highlighted in yellow some of the important bits, not the talking points ‘shipped in’ by Battistelli (basically a bundle of lies):

Written question on the social policy at the European Patent Office

Posted on 27 October 2017 by admin

I submitted a written question to the Minister of the Economy and Finances with regard to the social policy adopted at the European Patent Office.

The reply which I have just received from Bruno Lemaire, given what is at stake and the social context which prevails at the EPO, is more than deceptive.

In order, in company with other members of Parliament, to be able to keep track accurately the situation at the EPO, I feel obliged to respond to certain arguments put forward by the Minister.

The EPO has never been in deficit, and has always been self-financing, and the plan for the transformation of the organization adopted in 2013 was therefore never an obligation.

With regard to the social dialogue which the Minister refers to, every observer is well aware that this is reduced to the minimum, and that, on the contrary, the social malaise is a permanent feature within this international organization.

I am therefore calling upon the French Government to take note in full of the situation at the EPO, and to take all steps necessary to put an end to this social conflict, which, apart from the fact that it is seriously detrimental to the image of France, is also posing a risk to the health of the staff.

Read below the reply from the Minister, as well as my question:

Reply by the Minister of the Economy and Finances:

The European Patent Office (EPO), created by the European Patent Convention (EPC) of 5 October 1973, is an intergovernmental organization which has been in operation since 1977, which employs a staff of close on 7000 people coming from 30 different countries. In order to ensure the financial viability of the EPO in the long term, a plan for the transformation of the organization has been adopted, and in 2013 the Administrative Council introduced changes into the statutes relating to the staff of the EPO, imposed on the whole of the social structure (pensions, remunerations, social services, right to strike), in consultation with the staff representatives. These reforms allowed for the financial situation of the Office to be redressed within a few years, despite some specific organizational constraints which are inherent in respect of the international organization status of the EPO, and an establishment culture which is essentially fragmented, given that it has five establishments in four different countries. The reforms have nevertheless engendered social conflicts, accentuated by the legal status specific to international organizations. Following proceedings initiated before local courts, on 20 January 2017 the Supreme Court of the Netherlands overturned the ruling by the Court of Appeal of The Hague, and confirmed the legal immunity of the EPO. Being aware of these difficulties, France has consistently supported, within the Administrative Council of the EPO, the initiatives aimed at improving the situation and the social dialogue within theorganization, such as the launching of the social audit undertaken in 2016, or the resolution adopted in March 2016, inviting the President of the EPO to present to the Administrative Council a project for reviewing the staff statutes, making provision for disciplinary procedures to be reviewed and amended, as well as the directives relating to enquiries. On 28 and 29 June 2017 the Administrative Council accordingly adopted into the staff statutes new guarantees aimed at ensuring the independence and impartiality of procedures (enquiries, disciplinary measures, internal appeal), as well as the rights of defence (the right to remain silence or to be assisted by an advocate in particular).

Question by Claudine Lepage:

Ms. Claudine Lepage draws the attention of the Minister of the Economy and Finances to the situation at the European Patent Office (EPO). This intergovernmental organization and its 7 000 staff members, highly qualified persons recruited form 38 Member States, unquestionably makes a major contribution to innovation, competitiveness, and economic growth in Europe. For a number of years, however, the authoritarian and arbitrary social policy of this Office has been incurring major difficulties, in particular with regard to the respecting of the fundamental rights of the individual and the violation of social law. It must also be emphasised that four suicides in 32 months are a deplorable occurrence among the staff. Moreover, the
Court of Appeal of The Hague, to which recourse was made by staff representatives, in February 2015 condemned the social policy pursued by the EPO, ruling it contrary to fundamental rights. The French President of the Office nevertheless refuses to act on this decision, on the pretext that the Office enjoys a status of immunity. This management approach, which is highly open to criticism, is having a direct impact on the reputation of France among international institutions, and she therefore wishes to know whether provisions are going to be adopted in order to remedy this situation, which has gone on too long and which threatens the very future of the institution, at the moment at which, after thirty years of negotiation, agreement has been reached with regard to a Unitary European Patent, the issue of which will be entrusted to the EPO.

An open debate about what goes on at the EPO — without fear of retribution — is necessary if not imperative for things to improve. As we shall show in our next post, things are still getting worse. █

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