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12.08.17

European Media Covers the Latest EPO Scandal and the EPO’s Refusal to Obey Orders of a Court

Posted in Courtroom, Europe, Patents at 5:22 pm by Dr. Roy Schestowitz

Presidential trends of 2017…

Refusal to Obey Orders of a Court

Summary: European media is starting to catch up with the latest from ILO and the great importance not only of the rulings but also the EPO’s response to these

THE latest EPO scandal is an unfinished story. Expect strikes next week (at least one in Munich) and plenty of discussion in the European press. The case is extraordinary because the EPO basically rejects a court’s ruling. It reinforces the stigma associated with the EPO. We wrote 5 articles about this yesterday:

  1. ILO is ‘Forcing’ Team Battistelli to Compensate the Banned Judge and Give Him Back His Job
  2. Meanwhile in Eponia, Tyrant Battistelli Must be Seeking Advice on How to Refuse to Obey Court’s Orders (Again)
  3. ILO Said Give the Judge His Job Back, But Christoph Ernst’s Administrative Council Will Likely Let Him Go (Unemployed)
  4. Less Than 24 Hours Later the EPO Already Refuses to Obey Court Orders From ILO (Updated)
  5. Battistelli’s EPO is Once Again Caught in Very Gross Violation of the European Patent Convention (EPC)

Plus 3 so far today:

  1. EPO Scandal Spills Over to Irish Media, So It’s Time for the Backstory
  2. SUEPO Announces Protest, EPO Distracts From the Scandal, and Readers Spill the Beans
  3. Antonius Tangena From the European Patent Institute (EPI) ‘Aids’ Željko Topić’s Appointment at the European Patent Office (EPO)

Expect much more on this subject. Over the weekend we’ll also release some more documents.

Mathieu Klos of JUVE has meanwhile published this article, which he summarised in English as follows: “Lawyer of suspended EPO-judge demands reinstatment – immedeatly [sic] our report…”

So German media now covers the latest scandal in Munich. Expect French/Dutch media to join in. Earlier today the British media revisited the subject (second time this week) and wrote about the refusal to obey the court’s orders, then some words from the Central Staff Committee:

Despite the ruling however, which explicitly stated he should be handed back his user ID and be allowed to access EPO buildings effective immediately, when Corcoran turned up at the EPO’s Isar Building in Munich after lunch on Thursday – reportedly to have a cup of tea with colleagues – he was turned away by the head of the EPO’s security who reportedly informed him that she was under instructions to ignore the court order.

[...]

In the meantime, the EPO’s staff union Central Staff Committee has written a letter to EPO management and the Administrative Council arguing that the ILO rulings demonstrate that Battistelli cannot be allowed to enact any further reforms before his term ends next year.

The letter highlights the (many) criticisms of Battistelli within the ILO’s rulings. “We cannot help but interpret the judgments both as a massive motion of no confidence in the President of the Office and a warning letter to the AC,” the letter states and argues that the council was “misled about essential points” in the Corcoran case by Battistelli.

“We have repeatedly warned against the content and pace of major reforms which have been pushed through without genuine consultation,” the staff representatives note, while pointing out that even if the EPO does follow the ILO’s judgments (which, so far, it has not), that they still do not address the underlying governance problems at the EPO.

“The ball is now with the AC,” the letter concludes, “which urgently has to answer the following question: should these reforms be left to a President and team having such a record of performance?”

The Register has already attracted many comments about ILO and what some people within the comments suspect to be AstroTurfing from the EPO (or a PR firm).

One person asked: “What are the sanctions going to be? If the ILO have no power to impose sanctions then they are pissing in the wind.”

A lot of the comments are abusive or distracting. A few comments in Kluwer Patent Blog are the same. Well, the author of the article then responded to some “aggressive” (ad hominem) comments as follows:

Thanks for your aggressive queries.
I had three separate sources confirming what happened earlier today.
I don’t know whether you’ve been following events at the EPO, but for several years its management has been aggressively investigating and disciplining staff that criticize its president or his reform plans. As a result, people aren’t all that keen on having their names published.
As for the ILO decisions, the organisation put out a news alert and a special announcement that it would be revealing the results of 8 cases a month earlier and in pubic. It said 5 of those 8 were about the EPO. It also live streamed the meeting on YouTube.
I found out about both these events because I am a journalist and that is what I do for a living.
Hope this helps.

One person responded to this article by asking: “Will Member States and EU put the final nail on the coffin of fundamental justice for EPO workers? Let them do that soon then.”

Over at Kluwer Patent Blog, “Concerned observer” expressed his/her belief that the EPO will simply disregard a court’s decision again (in spite of political pressure and staff protests). To quote:

This could be where we enter interesting territory. Article 19(2) of the PPI of the EPO reads as follows:
“The President of the European Patent Office has the duty to waive immunity where he considers that such immunity prevents the normal course of justice and that it is possible to dispense with such immunity without prejudicing the interests of the Organisation. The Administrative Council may waive immunity of the President for the same reasons”.

From the long and tortured history of the case of the “judge” that was the subject of the ILO’s judgements, there are several points where it is clear that the national courts could have a role. I shall give two examples.

The first is the alleged “defamation” of the President. Whilst immunity has not stopped senior EPO management from trying to sue in the national courts, it is a far from ideal state of affairs. That is, it creates an inequality of arms: the management can sue (and make allegedly “defamatory” comments in the course of doing so), but are immune from counter-suits. This is a powerful reason to strip the President of his immunity in connection with the case of the “judge”: if Mr Battistelli TRULY believes that he has been defamed, then the best way to sort it out will be in the national courts … but the price for pursuing this course of action will be loss of immunity from counter-suit. A fair compromise, no?

A second point on which the national courts may have a role is the manner in which the “evidence” against the judge was gathered. I for one would be keen to ensure that the EPO is not able to “snoop” on me (and my confidential communications) if and when I ever enter the EPO’s premises. I very much doubt that I am alone here, meaning that there is a strong public interest in ensuring – through investigations by national authorities and, if necessary, by prosecutions in national courts – that the management of the EPO is rendered incapable of authorising monitoring activities that break EU laws.

On both of these points, it is perfectly possible to conclude that “immunity prevents the normal course of justice”. Thus, the only question that remains is whether “it is possible to dispense with such immunity without prejudicing the interests of the Organisation”. That one is easy to answer too: the Organisation has an overriding interest in maintaining a good reputation. It will be impossible for the Organisation to do that without taking positive action to expunge the stains that have been left from the case of the “judge” that was subject to a house ban.

In the light of all of this, I suppose that the only relevant question to ask will be: which “excuse” will the AC come up with this time for not taking any action?

My bets are on no “excuse” at all. That is, I predict that they will simply ignore the judgement (like they did with the judgement of the Enlarged Board of Appeal which concluded that the President’s actions compromised their judicial independence). There is a grave danger for the AC if it chooses this path, though. This is because this issue will simply not go away, meaning that inaction on the part of the AC will only prompt further questions. These may well include questions relating to whether the AC is performing its function, and if not why not.

Of course there is nothing whatsoever for the AC to fear if there is nothing to see here – that is, no (financial) impropriety of any sort, nor any “conspiracy” to cover up misdeeds. But what are the chances of that?

We warmly welcome any more information on this subject. There’s more that we already know and intend to publish soon. It’s somewhat liberating to know that a lot of “dirty laundry” can come out now.

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