03.08.18

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Benoît Battistelli and Confidants Like Bergot Want to Make a Lot of EPO Staff Redundant Without the Staff Ever Noticing

Posted in Europe, Patents at 12:38 am by Dr. Roy Schestowitz

Gagging unions and representatives is the first phase

Old: Battistelli Puts ‘Team Battistelli’ in Charge of ‘Scrutinising’ His Proposals

Pyrrhic_victory
Downsizing not due to automation but because of greed that lowered patent quality and repelled applicants (now being offered ‘discounts’ to still entice them, after the number of applications dropped)

Summary: The EPO’s (Organisation) Boards Of Appeal are not being replaced by UPC (as UPC fails to arrive), but staff of the EPO (Office) now faces the prospect of mass layoffs, before or just after the arrival of President Campinos

THE future of the EPO does not look bright. The EPO, in our humble assessment, is changing the rules to facilitate upcoming layoffs with the Council’s consent. This is clearly not what examiners signed up for. Who would trust EPO after that?

“This is clearly not what examiners signed up for.”There’s 'peak censorship' at the EPO right now; even staff representatives are being gagged. They’re not really allowed to speak to staff whom they represent. Flow of information is being suppressed if not cut.

Just before the media was taken over by the EPO’s PR department with external help (more on that in our next post), World Intellectual Property Review (WIPR) published this article about a provision to lay off any EPO member of staff (living abroad with family) instantaneously (like Battistelli intended):

European Patent Office (EPO) president Benoît Battistelli has ensured that a controversial term in an employment proposal has been dropped, just weeks before the EPO’s supervisory body, the Administrative Council (AC), will deliberate the plan.

Battistelli and Elodie Bergot, principal director of human resources, had added a motion to discuss the plan to recruit staff on renewable contracts of five years during a budget and finance committee meeting in October last year.

A first discussion of the proposal, which is called the “Modernisation of the employment framework of the EPO”, took place during the AC’s meeting in December.

It was then amended to include article 53(1)(f) of the EPO’s Service Regulations, which read: “Without prejudice to the expiry of a fixed-term appointment in the same circumstances, the appointing authority may decide to terminate the service of an employee: … (f) if the exigencies of the service require abolition of their post or a reduction of staff.”

The removal of this provision is almost a Pyrrhic victory because what remains is still very harmful to staff. It’s Battistelli’s infamous negotiation tactic wherein he asks for something very extreme and at the end makes “concessions” that still leave a pretty radical proposal in tact. We wrote about this before. It’s not the first time. Based on what sources told us, the removal of this provision was Battistelli's own action. Maybe it’s the strategy he had all along (giving staff the mere impression that they accomplish a “compromise”).

“In 2016 it was projected that layoffs would start some time around 2018.”We don’t intend to frustrate or depress staff; we’re just trying to be realistic here. It looks like the media lost its tongue and EPO insiders are too afraid to speak out in this current, hostile climate. Regarding layoffs, these were foreseen in 2016 by staff representatives [1, 2]. Most staff is already aware of it. In 2016 it was projected that layoffs would start some time around 2018.

It’s worth noting that Britain’s national patent office (UK-IPO) advertised jobs recently; it’s hiring. It was also making jokes about patents on snow the other day. Back in 2016 we reported that EPO recruitment of Brits had gone down by 80% and sources inside the EPO are concerned that hiring standards collapsed under Bergot (working conditions also). What is the EPO becoming? It can barely attract people who are required to move (relocation to another country).

Regarding the Boards of Appeal, yesterday the EPO wrote again: “Here’s how you can have your say on proposed changes to the Rules of Procedure of our Boards of Appeal.”

“The Boards of Appeal are constantly complaining that they self-censor and cannot rule independently from the Office (without ramifications/dangers to their career).”As we said before, they try to give the bogus impression that the public is participating. In reality, however, the Boards of Appeal have been under unprecedented attacks from Battistelli, who thought they would be scuttled by the UPC. But it’s not happening, is it? So now we have neither a UPC nor a truly functional venue for appeals. The Boards of Appeal are constantly complaining that they self-censor and cannot rule independently from the Office (without ramifications/dangers to their career).

A few hours ago John Leeming from J A Kemp wrote about where Boards of Appeal stand on software patents (they should all be denied).

I wrote to the Boards of Appeal about it in the past, but now that they’re living in fear of Battistelli (who openly supports software patents) can we truly expect them to do what’s right? Leeming wrote:

2017 was a year of change for the Boards of Appeal of the EPO: a new President and a move out of the EPO’s oldest building in the centre of Munich to a suburb, Haar. There has been some recruitment, but overall it appears there are still many vacancies on various Boards. Overall the relevant Boards issued 10% more decisions than in 2016 and Board 3.5.01 in particular has significantly increased its output in the latter part of the year as it now has a chairman.

The so-called “Comvik” approach to mixed inventions has been applied consistently, with Board 3.5.01 introducing the “notional business person” to help distinguish between technical features – which can contribute to inventive step – and non-technical features – which can’t. Nevertheless, the presence of non-technical features in a claim remains a strong predictor of rejection.

This paper reviews notable decisions published in 2017 by the “electrical” Technical Boards of Appeal (Boards 3.5.01, 03, 04, 05, 06 and 07), which most often handle software related inventions, excluding Board 3.5.02 which mostly handles electrical components and hardware.

While we’re sympathetic towards the Boards, historically they have been very much akin to patent maximalists and their rulings went in favour of Battistelli. In his last bit of work (in his capacity as a judge) Patrick Corcoran rejected a software patent of a massive American (US) company that is connected to the EPO. Was the house ban potentially retribution for his stance? Whatever information he was accused of transmitting had already been disseminated by many other members of staff, as we noted here in the past. Why was it him who got targeted and isolated by illegal surveillance? We might never know and it’s likely just a “coincidence” as Minnoye might put it.

A few days ago there was also this article by Ping Li and Olga Bezzubova (Jones Day). It was about the Enlarged Board of Appeal and it said:

A recent decision by the Enlarged Board of Appeal of the European Patent Office confirmed that a 2011 ruling dealing with disclosed disclaimers does not overrule its 2004 decision applying to undisclosed disclaimers.

[...]

With its decision in G 1/16, the Enlarged Board of Appeal (“EBA”) of the European Patent Office (“EPO”) clarifies that its 2011 decision in G 2/10 dealing with disclosed disclaimers does not overrule its 2004 decision in G 1/03 that applies to undisclosed disclaimers.

[...]

1. The G 1/16 decision confirms that “undisclosed disclaimers” fulfilling the criteria set out in G 1/03 do not introduce added matter.

This case was mentioned here before. It’s a bit old. How long before Battistelli and/or Campinos (Battistelli put him in place and will likely have leverage over him even after his tenure ends) attempt scuttle the Enlarged Board of Appeal along with the other boards? Perhaps as they intended all along? They already put the Board in a building that is not the EPO’s and is basically rented space (as though it was temporary).

Is there a future for the EPO? EPO insiders are actually more negative than us. Some have begun assessing/planning their post-EPO career, assuming — as more EPO insiders do — that the first round of layoffs is coming.

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