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05.12.18

EPO Staff Deprived and Denied Basic Rights, Even Justice, But Almost Nobody in the ‘Mainstream’ Wants to Talk About It

Posted in Europe, Patents at 1:09 am by Dr. Roy Schestowitz

Concentration of media ownership
Reference: Concentration of media ownership (German media keeps deliberately silent about the EPO scandals)

Summary: Why the European Patent Office (EPO) scandals in Munich and in The Hague are barely mentioned as much as they ought to be mentioned

THE EPO is a "cash cow" to Germany, so large/established media such as Spiegel should not be expected to cover EPO scandals. As for smaller publishers in Germany, that’s another story, but their audience is limited and is sometimes a ‘niche’ (like JUVE for jurists).

“The EPO is a “cash cow” to Germany, so large/established media such as Spiegel should not be expected to cover EPO scandals.”A few weeks ago some German media covered EPO scandals pretty well (there’s more of that to come), but there has been nothing since. Pretty much nothing. Nobody wants to even consider writing about the passage of EPO budget/marketing to Battistelli’s other employers. As if there’s nothing to see there…

This isn’t only because the EPO passed some of its budget to the media (a form of 'soft' bribe, with emphasis on Dutch and German publishers) but also because many publishers do not wish to ‘rock the boat’ too much, wrongly assuming that EPO is the same as the EU and that by turning a blind eye to abuse they’d be doing a better service to society. That ‘greater good’ delusion more or less…

“As for smaller publishers in Germany, that’s another story, but their audience is limited and is sometimes a ‘niche’ (like JUVE for jurists).”If Techrights is one among the very few sites willing to keep a pair of eyes on the ball, then so be it. We’ve grown almost tired of informing so-called ‘corporate journalists’, hoping that they too will join. They don’t. They rarely do. One of them explained to me in person (in a coffee shop) that the publisher strongly objects to that. So even if some reporters try to do their job, instructions from up above obstruct publication. Even the BBC did this. They essentially spike stories. The only publication which does its job in the UK seems to be The Register and occasionally Private Eye too. Coming from the UK yesterday, having been put through the PR wires by ResearchAndMarkets.com, is this spammy press release [1, 2] about “The Formal Requirements of the European Patent System” (this is what shows up in news feeds). This does not cover UPC — a dead project more or less. But it also fails to tell the full, agonising story. Law firms have some kind of conspiracy of silence among them; they’d rather not speak about the EPO crisis, for fear that a mere mention of it would exacerbate demand/business. This is partly the reason IP Kat ceased covering EPO scandals.

Watch this new puff piece from Finnegan’s Sanam Habib and Leythem A. Wall (one of the biggest law firms in Europe). They fail to talk about the massive quality decline reported at the EPO (by the examiners themselves!). Instead, these patent maximalists are far too busy sucking up to the managers who demolish the Organisation; they advertise their misguided policy as follows:

In recent years the European Patent Office (EPO) has launched a number of initiatives to increase efficiency and timeliness.

Since the introduction of these Early Certainty schemes, the EPO has received mixed feedback with some users expressing concerns regarding possible adverse effects of accelerated examination.

We have written a great deal about Early Certainty and why it’s a bad idea. Examiners assert that a proper, thorough examination is needed before a meaningful assessment can be made (premature assessment is almost like guesswork and it sets improper expectations for both applicant/s and examiner/s).

Do not expect law firms to participate in exposing abuses at the European Patent Office (EPO) or the European Patent Organisation (also EPO). They are an integral part of it, especially Team UPC, and they fear that putting their employer’s name next to that (visibly or not, the latter being “Merpel” for example) would cause retaliation from Team Battistelli. It’s really that bad.

Märpel, in the meantime (we’re guessing it’s an anonymous EPO employee), has a new post in which s/he “notes that the regulations allow the President of the EPO to decide as he so wishes, which seriously limits what can be revised.”

From the post:

In the previous article, Märpel found out that Guido Raimondi, President of the European Court of Human Rights, finds that the way justice is administered at the EPO is no ground for action. As readers know, the EPO justice system is first based on an internal system for which President Battistelli uses his discretionary rights to reject cases as he sees fit followed by a revision procedure at the AT-ILO. It is quite important to note that AT-ILO is not an appeal court, but rather a “Revisionsgericht”. It will not reopen proceedings, only check whether the regulations were correctly applied.

Märpel notes that the regulations allow the President of the EPO to decide as he so wishes, which seriously limits what can be revised.

Märpel further notes that a condition for revision is that the means of the internal procedure must be exhausted. Considering that the length of the internal procedure is in the hands of the EPO and that there is no recourse against an inordinately long procedure, this also seriously limits what can be revised.

Those words from Guido Raimondi were posted last week by SUEPO and they relate to our article about ILO — an article on which “Dick Whittington’s Cat” remarked: “the Director-General of the ILO (of which the Tribunal is a judicial organ) offered ILO expertise on social dialogue to assist the EPO in the dialogue between the administration and staff union.

“This is the kind of atmosphere one might expect in North Korea or China.”“This offer was not taken up by the EPO.”

Obviously. Mind the next comment:

Yes, the EPO President must be shaking in his boots with such strong statements from the ILO as “Should there be no significant change for the better within a reasonable time frame, and if, for example, final decisions in all of the EPO cases currently subject to its internal procedures result in a large number of complaints to the Tribunal, other, more fundamental, measures would need to be foreseen”.

What kind of “more fundamental measures” do you believe the ILO could possibly implement to deal with the backlog of cases from the EPO? Would any of those measures impinge upon the EPO President, in the sense of pressuring him to earnestly address the social problems at the EPO? Or would it be more likely that those measures would still further reduce access to justice for EPO employees?

If you have any doubt that it would be the latter outcome, then just consider the offhand manner in which the ILO reports recent reforms of the EPO’s internal appeals system:
“in particular, the reform provides for the appointment of an external Chair and Vice-Chairs to the Appeals Committee and to the Disciplinary Committee respectively, which is intended to increase the perception of independence and professionalism of these committees. The three appointees to the Appeals Committee, whose role and procedural prerogatives as Chair and Vice-Chairs of the Appeals Committee were strengthened, started their three-year mandate in October 2017. Other measures introduced with a view to enhancing the effectiveness of the internal appeals system include: a guided amicable settlement procedure, a “test-case” procedure aimed at setting a precedent for similar appeals; the consolidation of internal appeals; the possibility for the Appeals Committee to sit in parallel chambers in reduced composition to accelerate the treatment of internal appeals; the introduction of a registration fee for internal appeals, which may be reimbursed if the appeal is successful; and the possibility to award procedural costs and damages”.

If the ILO-AT were seriously concerned for the proper functioning of the EPO’s internal appeal system, then one might have expected at least some kind of comment upon the fact that the most likely, practical effect of these “reforms” is that EPO employees will be dissuaded from filing appeals (ie they will REDUCE the chances of EPO employees being provided with access to justice).

For example, if one considers past performance of the Appeals Committee – and the vanishingly small chances of that Committee ruling in favour of an appellant – then it is clear that the introduction of an appeal fee (that will only be reimbursed if the appeal is successful) will have a dissuasive effect upon even those appellants having strong grounds to challenge a first instance decision.

Also, given the fact that all members of the Appeals Committee are now appointed by management, and that all members of that Committee need not be present for cases held in “reduced composition”, for whom will the appointment of an external Chair provide an increased PERCEPTION of independence? Certainly not EPO employees who have paid any attention to how the Committee has operated in practice!

To be fair, the ILO did acknowledge that it is committed to examining “several new complaints challenge the legality of the new composition of the Appeals Committee with respect to the members appointed by the staff”. But what reassurance can EPO employees take from this knowledge? The ILO has already established a precedent for simply kicking complaints to the back of the queue when it has been found that the contested decision was made by an Appeals Committee that was “improperly composed”. The ILO’s refusal to rule on the merits of the case in such circumstances – or to at least make an award to the complainant – amounts to nothing more than justice delayed … which can be the same as justice denied.

So, there are two possible outcomes to the new complaints: either complaints dismissed or complaints referred back to the EPO (to be decided again by a “properly composed” Appeals Committee). The effects for the complainants: justice denied. The effects for the EPO: at worst, an administrative headache. These are not the kind of outcomes that are capable of encouraging the EPO to provide proper access to justice. Indeed, there is a strong chance that EPO management might view the outcome as meaning that an “improperly composed” Appeals Committee is an excellent way to dissuade employees from filing appeals – and to add years to the time that it will take for a final ILO-AT decision on the merits to be issued in pending cases.

Of course, there is an alternative solution that would prove highly effective in bringing the EPO management to heel: threaten to kick them out of the ILO-AT system. That would remove the “fig leaf” of access to justice / human rights that the ILO-AT provides the EPO, and so enable the ECHR to step in. Worth thinking about …

The EPO is currently in a very bad situation. The media gags itself, EPO stakeholders are afraid to speak out against EPO management (JUVE offers them anonymity in some surveys, such as one showing 0% support for Battistelli), staff is very much afraid amid growing surveillance at the Office, and staff representation is understandably terrified (another member of staff got 'corcoranised' less than a week ago, as confirmed to us days later). This is the kind of atmosphere one might expect in North Korea or China.

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