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12.13.17

EPO Administrative Council Disallows Discussion About Violations of the Law by Benoît Battistelli

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

EPO says hush

Summary: The EPO crisis is not ending for the Administrative Council does not want to tackle any of the obvious problems; Patrick Corcoran is a taboo subject and Ernst is coming across as another protector of Benoît Battistelli, based on today’s meeting (the second meeting he chairs)

TEAM Battistelli continues to reinforce negative perceptions about itself. It’s not only abusive but also oppressive when it comes to free speech. So far this week the EPO has said absolutely nothing about the meeting of the Administrative Council (perhaps preferring for nobody to pay attention). It obviously said nothing at all about the protest. The latter is at least understandable.

“So far this week the EPO has said absolutely nothing about the meeting of the Administrative Council (perhaps preferring for nobody to pay attention).”We’ve been tracking quite closely how the EPO‘s media strategy developed/(d)evolved so far this week and how it worked throughout the day. What it did today is noteworthy as the EPO does, in our assessment, at least subconsciously hide the discrimination against SMEs, the declining patent quality, the likely death of the UPC and so on. Earlier today the EPO was pushing its UPC ‘study’ (that it corrupted academia for) and #IPforSMEs. This is consistent with what has been happening for about a month.

The EPO’s day, however, began with the latest distraction from the latest scandal. It’s their PR strategy. They’re on fire and they try to get people to look away from the flames. The EPO retweeted people first thing in the morning [1, 2, 3] to distract from the major scandals. It’s just their PR stunt (intended to shift attention). The EPO’s PR team added its own to the mix later in the day [1, 2]. Nothing at all about the meeting. So much for “news” from the EPO…

“The EPO’s day, however, began with the latest distraction from the latest scandal.”Thankfully we heard from some insiders that Ernst, chairing the Council’s meeting, did what we expected him to do all along. The EPO “staff representation tried to speak about Patrick Corcoran,” a source told us. “Chairman would not allow him to speak…”

Moreover, based on what a source told us, Corcoran “is not reappointed and is in DG1 from January. Unlikely he lasts long. German constitutional court will be watching. ILO too.”

So this post of ours (making a “claim”) turns out to have been correct all along. We could not confirm it at the time, but the same information is mentioned here too: (new comment)

A non-renewal under these circumstances seems to be problematic in itself.
The disciplinary procedures have not been finished, and the decision to not reappoint has been taken while the disciplinary procedures were running.
This sounds like all ingredients for a hidden disciplinary measure are present, which would again fail to meet the requirements of the EPC and the Service Regulations.

IMHO, a reappointment (possibly under conditions) must be done while disciplinary proceedings are still ongoing.

But he is not on the list the President of the BoA published now.

This story will continue, as the poor chap will now fall under the authority of the president of the EPO as of 1. of January 2018, being an examiner again.

We have heard it from three sources so far, so it’s likely true (unless they have all been fed from the same source). Any documents relating to this would be greatly appreciated.

“Any documents relating to this would be greatly appreciated.”Merpel is alive again. At long last. There was a post this morning and it notes that the fate of Corcoran might not be good:

The problem is, however, that Mr Corcoran has not been reinstated. As further reported by the Irish Times, when Mr Corcoran went to the EPO “last Thursday afternoon he was refused admission and was told the ILO’s judgments had not yet been implemented”.

This is however perhaps not as simple as it may appear. Because the appealed suspensions were not the end of the matter. The Administrative Council repeatedly sought, and failed to achieve, from the Enlarged Board of Appeal, a proposal for Mr Corcoran’s removal from office. That is the only manner, according to Article 23(1) of the European Patent Convention, that a Board of Appeal member can be sacked while in service. But Board of Appeal members are appointed for 5 years, and their appointment can be not renewed. Tucked away in the Report on the 152nd meeting of the Administrative Council of the European Patent Organisation (available here) from 28 and 29 June 2017 is the innocuous-looking paragraph:

“The Council also decided to reappoint 12 members of the Boards of Appeal, and not to reappoint any other person, hence following the reasoned opinion of the President of the Boards of Appeal. It further agreed to the procedure for designating the deputy of the President of the Boards of Appeal in the future, and took note of the intended procedure to handle after-service activities of former board members.”

The phrase “and not to reappoint any other person, hence following the reasoned opinion of the President of the Boards of Appeal” is understood by Merpel to mean that the new (and first-ever under the new arrangements for the governance of the Boards of Appeal) President of the Boards of Appeal has proposed Mr Corcoran’s non-reappointment and the Administrative Council has accordingly not reappointed him. This seems to leave him in legal limbo – if the EPO declines to readmit him, Mr Corcoran may have to appeal yet again to the ILO-AT in regard to this latest decision.

“Noticeable that they are very narrow decisions,” the first comment noted. The following is not correct: “The IPO has singularly failed to say that Mr Corcoran is innocent of the accusations made against him. If I made similar pseudonymous posts against the CEO and a deputy CEO of the company I worked for, I would fully expect to be sacked immediately. So would anyone at any other company. But the CEO and deputy CEO would stay out of it and leave it to someone else. As a result my sacking would stick. No-one comes well out of this sorry story.”

The EPO is not a company with a CEO and the appeal boards are not subservient to the Office. An EPO insider, moreover, responded to (or refuted) the above by saying/quoting (perhaps Corcoran’s/SUEPO’s lawyer): “The two ILOAT judgments and several decisions of the Regional Court of Munich and the State Prosecutor of Munich have confirmed without any doubt that Mr. Battistelli’s accusations against my client are unfounded.”… So, for the German law he is innocent.”

“The whole situation is a travesty which ought to be noticed (and then noted) by the German constitutional court.”Notice the next comment, which says: “Could the issue be that the BoA member, after initially having suspended by the President, was removed from his duties by the AC and therefore cannot be reinstated until the AC reconvene?”

We’re leaving until the weekend. We depart quite soon (Christmas party far away from home), so this may be the last EPO post for a while. We won’t be able to cover day 2.

For information about today’s protest see this short report from World Intellectual Property Review (WIPR). Here’s a portion:

Staff members at the European Patent Office (EPO) are holding a demonstration at the EPO’s Munich office today.

The EPO’s Administrative Council is meeting today and tomorrow, December 14, also in Munich.

One of the items on the agenda is the reinstatement of a suspended EPO Board of Appeals judge to his former post.

The International Labour Organization’s Administrative Tribunal (ILOAT) handed down five decisions last week, with two of the judgments ordering the “immediate reinstatement” of the judge, who had been suspended because of alleged misconduct.

The reinstatement looks like it’s temporary and as we said this morning, he's incapable of doing any meaningful work. The whole situation is a travesty which ought to be noticed (and then noted) by the German constitutional court.

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