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01.03.18

Battistelli’s Attacks on Judge Corcoran Threaten Not Only the EPC But Also UPC

Posted in Europe, Patents at 2:48 pm by Dr. Roy Schestowitz

Michelangelo's slave sculpture
Michelangelo’s slave sculpture

Summary: Lack of independence, or judges’ ‘bondage’ to Battistelli, isn’t just a violation of the most fundamental rules (and spirit) of the institution but also a clear barrier to a system which extends breadth of impact to enforcement/litigation

THE situation at the EPO sort of resumes where it stopped before Christmas, with Judge Corcoran ending up on the other side of the fence (Battistelli’s). DG1 is under the direct control of Team Battistelli.

“I think you work with an out of date Codex (the employee contract),” one person wrote today in response to claims that DG3 is unable to complain about Battistelli, e.g. in a German court. The comment emphasises that “the relevant article is now Art. 19? And it has very limited exceptions in sub-clauses.”

This person wasn’t alone. Another one said:

Please refer to Article 41 of the EPO Service Regulations.

Many BoA members were “permanent employees” prior to appointment and remain so afterwards.
There is room for argument about those who worked elsewhere prior to appointment.
But if they are not recognised as “permanent employees” then their employment situation is even more precarious as they would not enjoy the protection of Article 41 (3) of the Service Regulations.

… would it not rather prove the point that the Boards of Appeal are not truly independent if the President could forbid them from providing evidence on this subject in a court of law.

It is rumoured that some members of the Boards wanted to participate in an interview about the current situation with an IP magazine.
According to Article 20 of the Service Regulations the President should have to give his permission but “Permission for publication of
a work by a member of a Board may only be refused with the agreement
of the authority referred to in Rule 12(1) of the Implementing Regulations
to the EPC 2000.”

It is said that when a signal of disapproval came from the 10th floor those involved ran for cover and did not risk a confrontation by referring the matter to the “the authority referred to in Rule 12(1) of the Implementing Regulations”.

All rumours and hearsay and no documentation I know.
But such is the state of affairs at the EPO these days.

“Apart from the absurdity of requiring Board members to seek permission from the President to comment on the issue of their independence, there is something else that I find strange about the application of the Service Regulations to the Boards,” said the next comment, which is pretty informative:

If there is anything to the hearsay, then I can only comment that this is a very sad state of affairs indeed.

Apart from the absurdity of requiring Board members to seek permission from the President to comment on the issue of their independence, there is something else that I find strange about the application of the Service Regulations to the Boards. That is, is it not strange that the Boards of Appeal should be bound by Regulations, the drafting of which is de facto controlled by the President – especially if those Regulations could be shown to compromise the independence of the Boards of Appeal?

However, there may be a way out. This is because it seems to me that one could argue that, where Article 20(1) conflicts with Article 15(2) (“Members of the Boards shall, both in the performance of their duties and otherwise, conduct themselves in such a manner as not to detract from confidence in their independence”), it is the provisions of the latter that should prevail. This is because it is surely more important to maintain confidence in the independence of the Boards than it is for the President to have control over “non-public” information regarding the practicalities of how the Office is managed.

Whichever way the cookie crumbles, it would certainly make for an interesting situation if a court (such as the BVerfG), or a party to court proceedings, were to make a formal request for a member of the Boards of Appeal to provide expert evidence on the extent to which independence of the Boards is guaranteed (both in theory and in practice) under the EPC and associated rules and regulations. No doubt the President would object but this would at least bring the issue to a head (and, hopefully, to a resolution).

Workers of the Office, which now includes Corcoran, cannot speak out against Battistelli (except anonymously). Not even staff representatives are courageous enough to speak out as often as they used to (SUEPO’s site has not been updated for weeks; it was finally updated with a couple of links earlier today).

“What’s worth noting is that even UPC boosters (who actively lobby for it) aren’t happy with Battistelli’s ‘reforms’, which some believe are intended to usher in the UPC.”Today, linking to its ‘magazine’ (quarterly publication), the EPO said: “A team of eight at the EPO in Vienna ensure that customers have access to the patent information they need, in the format they require.”

They actually use the word “customers” and they make it sound as though these “customers” are very happy. But they’re not. See this long new thread from a UPC proponent, who is also a “customer” of the EPO. “Hi #EPO watchers,” he wrote. “Just heard of new internal instructions for Examiners to issue Summons if there are *any* outstanding objections after 1st A94(3) comm. Can anyone confirm? [] my colleague tells me this is from an “EPO-wide memo” (so not confined to a particular division) but it is for “internal distribution only” and so the Examiner couldn’t give exact wording (?!). Agree, this is all rather concerning. [] I think one of (many) troubling things about this, and other recent “reforms”, is that it takes as its base assumption the idea that the Examiner is correct – while simultaneously depriving the Examiner of the time and opportunity to consider their position in detail.”

What’s worth noting is that even UPC boosters (who actively lobby for it) aren’t happy with Battistelli’s ‘reforms’, which some believe are intended to usher in the UPC.

“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

Dr. Glyn Moody

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