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11.28.17

Pressure is Growing for Christoph Ernst to Stop Destruction of Career System Ahead of Arrival of Campinos as EPO President

Posted in Europe, Patents at 3:58 am by Dr. Roy Schestowitz

Campinos is coming within 7 months, but will much talent be left to welcome him?

Carrer

Summary: As one last ‘gift’ from Battistelli, EPO examiners are put closer to the door (exit) and in order for Campinos to have any prospects of saving the EPO the Council led by Christoph Ernst must stop it

A COUPLE of news sites have already written about the new “career system” (which is anything but, for it actively eliminates careers). Yesterday afternoon Dugie Standeford from IP Watch wrote about it as well. He later changed his headline (“More Patent Grants” became “More Productivity” later in the day) and here are some excepts:

Fear is a “real factor,” as numerous staff members are being investigated and disciplined, he said.

Another problem is that training for new examiners has decreased in quality compared with 10 years ago, the source said. The past system was based on seeking to recruit the very best applicants with the highest skills for this specific job, who speak several languages and have a desire to serve the public, he said. New recruits are placed on time-limited contracts that require them to learn their jobs in one year, and are given production targets that are far too high for newcomers so soon after recruitment, he said. Examiners who aren’t fully trained in the need for thorough prior art searches can’t do them properly, he said, adding that makes patent quality the “elephant in the room.”

The chronic state of pressure means staff members feel unwell; and staff surveys organised by the employee representatives and a consultant in the field of psycho-social risks at work show significant deterioration in morale and health, said the source.

[...]

Campinos is still many months from taking office. In a 23 October letter to Campinos (available here), USF said it and its affiliated SUEPO branches are “looking forward to substantial improvements especially on social dialogue, rule-of-law and employment stability issues during your mandate.”

In a 3 November response (also available on Kluwer Patent Blog), Campinos wrote: “In the different managerial positions on my career path, and especially in my current tenure as Executive Director of the European Union Intellectual Property Office, I have always prioritised human resources matters and have developed an open and fruitful relationship with the representatives of the staff and their associations. In this sense, I look forward to continuing the cooperation between the EPO and the Union Syndicale Fédérale once I take up my duties as president of the European Patent Office next year.”

EPSU’s Goudriaan said he read Campinos’ statement “as a start of a more constructive dialogue in which the issues that have been raised by the staff and their union can be addressed and dealt with. There are quite a few and you have inherited a rather unfortunate situation which included a hostile approach towards the union and its delegates.”

The way things are currently going, we are growingly pessimistic about any prospects of a turnaround under Campinos. There will be nothing left for him to save if this brain drain continues and quality of EPs declines this low, populating the pool of EPs with so many dubious patents. The system is being flooded with patents that are granted too quickly by people who are decreasingly experienced. This is a recipe for disaster.

What makes us ever more concerned about brain drain is the plan of making staff more sackable, or simply out of work by virtue of a contract expiring. Sent 5 days ago was this letter [PDF] that SUEPO describes as a “[l]etter from the European Public Service Union to Mr. Christoph Ernst, Chair of the Administrative Council of the European Patent Office.”

Here is the full text:

Ref : JWG/cb
Brussels, 23 November 2017
Chair person of the Administrative Council of the
European Patent Office

Mr. Christoph ERNST
ernst-ch@bmjv.bund.de
council_secretary@epo.org
Subject: Employment Framework at EPO

Dear Mr. Ernst,

We have been informed by our colleagues of USF, our affiliate in the European institutions, agencies andinternational organisations, that the current management of EPO has proposed the introduction of a new Employment Framework. This framework would recruit EPO staff on the basis of fixed-term contracts. This is again a proposal that is not discussed and negotiated with the unions. It increases precariousness, insecurity and has negative consequences for the well-being of workers. Employers and unions as well as the European Commission and Member States have committed to fight against precariousness and have high standards regarding health and safety of workers. This was recently confirmed again by the EU social summit in Gothenburg and the EU pillar of social rights signed there.

A new employment framework that takes into account the needs of workers, their rights and improves health and safety and well-being, and at the same time seeks to strengthen the work of EPO might well be worthwhile. This is best done through social dialogue and negotiations rather than impose precariousness.

As a Federation with affiliates across Europe and including in public administrations and agencies (8 million members in 260 affiliated unions) we find the proposed model of putting workers on fixed term contracts dubious. It increases the risks of corruption, of revolving doors and of mixed interests. This undermines EPO as part of the European public service in which people in Europe can have confidence for its expertise, high standards and independence. It might make it even more difficult to ensure a geographically well-balanced organization.

We ask you and the EPO Council therefore not to adopt this framework.

On a more personal note: introducing such a comprehensive reform just before the new Director Mr. Campinos takes office smells of bad administration, and frankly of cynicism. It makes the work of Mr. Campinos more difficult to have a proper social dialogue almost setting him up for failure. We look forward to your answer. As previous correspondence has not always been answered, I would appreciate if you can inform us of the standards for response to letters. Those of the European Commission (response within 20 days) seem reasonable as the European Ombudsman has indicated.

Yours sincerely,

Jan Willem Goudriaan
EPSU General Secretary

cc. Commissioner Thyssen cab-thyssen@ec.europa.eu; Agnes Jongerius (MEP) agnes.jongerius@europarl.europa.eu ,
Mr. Battistelli council@epo.org , USF usf@unionsyndicale.eu Bernd.Loescher@consilium.europa.eu

So they too have noticed the changes or spoke to SUEPO about these. It’s not hard to see the writings on the wall. Will Dr. Ernst see these too? Certainly he’s smart enough to know what is happening, so the question is, will he care? There are many comments being posted about him right now. It’s based on a JUVE interview. We wrote about this interview twice before (on Saturday and on Sunday). The comments were recommended by SUEPO, which said: “We strongly suggest you to read also the comment section!”

If SUEPO recommends these, then they must be good. People rightly point out Ernst’s hypocrisy or opportunism:

Well, for years Christoph Ernst was head of the German delegation to the Administrative Council of the EPO. Did he there oppose any of the controversial measures pushed through by Battistelli, including various attacks against union members, or any of the series of AC decisions which stroke a – probably – fatal blow to the independence of the Boards of Appeal?

The Boards of Appeal are grossly understaffed and have already lost a judge whom Battistelli illegally attacked, then defamed.

As we noted earlier this morning, Benoît Battistelli and Željko Topić continue to bully this judge. If Christoph Ernst wanted to put an end to all this, he probably could, but he uses evasive language in his JUVE interview. He is just slightly better than Jesper Kongstad in that regard, but both are complicit by inaction (Kongstad previously became complicit in this case by taking action against the judge, requesting his removal).

See why the EPO is in such a sordid mess? Everyone’s hands (at the top) are dirty and people just use one dirty hand to wipe another, then save face (otherwise they would actually touch their face and the dirt become frontally visible).

The second comment is very long and informative:

It is a bit easy to complain about the present president a few months before he leaves.

For a start I doubt very much that the present tenant of the 10th floor has strengthened the position of the EPO. I even have strong doubts. Future will tell if the patents granted in last five years will have the same resiliency as those before he started his crusade against staff. That things could and even should change at the EPO is not part of the debate. What is however tragic and should not have happened is the way things have been made to change. It boils down to consider that EPO staff was a lazy bunch which only deserved a kick somewhere. This is the idea with which the present president came to the EPO. In this endeavour he got all the support from the AC, and Mr Ernst is not a member of the AC since last year.

Mr Ernst did not oppose a lot of the amendments introduced in the staff regulations. he positively voted much of them, even when other big countries were much more reserved on the issue. He did oppose a few, and as far as is known, the changes in status of the Boards of Appeal. But not much more.

Mr Ernst would be more credible now, had he requested systematically a vote with a qualified majority. This would have avoided that when voting over some very important changes, that the votes of some small countries to have a much higher weight than they actually deserve. I have nothing against small countries, but the tenant of the 10th floor knows how to make small countries vote his way. And this not with his own money, but that of the users of the system.

When one sees for instance, that the changes for the Boards, especially sending them to Haar in order to improve the perception of their independence (sic), were voted mainly by countries having hardly an application going at the EPO, one wonders whether he was as concerned at the time as he makes out now. In spite of what Mr Ernst claims, the Boards of Appeal have not gained in independence. In order to receive a further 5 year contract, a member must have produced enough. In which judiciary system is the continuation of the work as judge subjected to quantitative constraints? In the past the Praesidium of the Boards could propose its rules of procedure. Nowadays, it is heard, but the rules of procedure are decided by the Boards of Appeal Committee. I could go on.

When looking at what happened in the AC, it was at least for the last 5 years the tail wagging the dog. The president was controlling the AC and not the AC controlling the president. Let’s see if Mr Ernst has the real will and power to revert to the former situation. In older times it even happened that the AC refused to accept the budget of the president…..

The first exercise when Mr Ernst can show whether he wants the Council to control the Office and not the other way round, is whether the present tenant of the 10th floor will manage to get the most stupid reform he thought off through: 5 years contracts for examiners as off 01.01.2018.

If Mr Ernst, and other members of the Administrative Council of the EPO wants an organisation which is not just a bunch of mercenaries for a short length of time, but rather wants a perennial organisation, the AC will have to oppose strongly such a move. If this move is approved 6 months before the arrival of a new president, then it is not only to despair from the AC and its members, but it will also be a blow in the face of the incoming president.

If people stay for 5 or 10 years, then there is clearly no chance that they get involved in union matters or the like. But is then the EPO still in a position to deliver the quality of work which has made its reputation?

When the Principal Directors began to get 5 years contracts, the effect was clearly to be seen. From 3 ½ years onwards, the thought was only: what can I do to get my renewal? This is the best way to stifle critics, but the damages brought about through the attitude “Yes prime minister”, leads in general to a cultural collapse. Is this the future the member states wish to the EPO? Then they will be killing the cash cow.

Let’s hope Mr Ernst realises well the immense responsibility he has taken over, and that he will bring back to the institution the urgently needed peace and quiet.

The next couple of comments say:

So, Herr Ernst sees a need for improvement in the “social culture” prevailing under President Battistelli at the EPO. I suppose the AC’s lengthy complicity in the culture of Battistelli leaves Herr Ernst unable to call it how it really is, in the area of employee relations at the EPO. Ever the optimist, I will suppose that Herr Ernst well knows already, and here is alluding to, Team Battistelli’s utter contempt for what we in Europe are most proud of, namely, due process, a fair trial and The Rule of Law. That, gentle readers, is a disgrace, an embarrassment for Western European civilisation and social values. The sooner M. Battistelli (and his flunkeys and hangers-on, one floor down from the President’s penthouse) are out on the street, the better. I await for the AC (and the incoming President) to set a good example to the rest of the world. It is not as if the EPO can’t afford to treat its employees fairly, is it?

I understand that the document concerning contract staff has recently been removed from the AC December meeting, after the meeting of the Board 28 which organises the agenda. The Budget and Finance Committee had recently not decided on the document. At the moment contracts unde this scheme cannot begin on 01.01.2018.

In reply to the above:

Believing in fairy tales is a dangerous thing given the current brutal regime and in particular the pronounced taste of PD HR to pick on those who work hard to pay her salary.

The situation is a little more subtle than what you present here:

a) the point is still is still on the agenda of the December AC for information
b) the “cunning plan” of Mrs Bergot (after her debacle during last AC meeting with a pathetic presentation of it lacking any substantive work) is to review her deficient document and have it back for the March 2018 Council for decision

So much for “off the table”

On Monday evening someone wrote:

That the document about the 5 years contracts for examiners has been removed from the agenda of the AC is a good thing. It is to be hoped that this document has disappeared for good!

But if the AC would have done his job, such a document would never have been submitted. It is only since the AC gave the present tenant of the 10th floor the freedom to fool around that such an action was even thought of.

It shows clearly and abundantly that some people claiming to be “managers” in the higher ranks of the EPO have not the faintest idea what the work of examiners consists of. If they had inquired, they would have realised how stupid this proposal is. That the top management of DG1, or its new form (Super PDs), did not even try to dissuade HR to present such a document is certainly not to be put to its credit. But they want their contract to be renewed….

As far as Mr Ernst is concerned, did he oppose the way the president blatantly disregarded separation of powers between the Boards of Appeal and the management of the EPO? Did he also forward the decision of the Disciplinary Committee of the AC to the Enlarged Board so that the latter was merely invited to rubber stamp this decision, what it refused to do? If this is the case, his words are shallow.

As a lawyer working in the Ministry of Justice of the largest contracting state of the EPO one can suppose that Mr Ernst should know what separation of powers means, and what respect this notion deserves. He should also know that a mere quantitative assessment of the work done by a judge is not a way on deciding on the career of a judge.

And later that evening someone added:

My comment was purely intended to be factual. No spin intended.
However, I now understand that a replacement/amended ‘ orientation’ document has been tabled for December for ‘opinion’ rather than decision or information. The document has limited some aspects e.g. a maximum percentage of contract staff and a maximum number of renewals. It is explained as being as a result of comments previously made.

We certainly hope that Dr. Ernst is reading these comments. His interview with JUVE does not allow comments (it’s in paper form only, or online PDF) and only 2 months after he began his work people aren’t exactly pleased. He’s like a gentle form of Kongstad. We expect Campinos, Battistelli’s choice for President, to also be a gentler form of Battistelli. Battistelli was (and still is) a politician, whereas Campinos is a former banker. The EPO was supposed to revolve around science, but nowadays it’s pure politics and lies are so habitual that it often resembles the White House in 2017. Europe can do better than that.

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