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07.01.18

The EPO’s Attacks on Bloggers Other Than Me (and ILO-AT Being Utterly Unpredictable)

Posted in Europe, Law, Patents at 9:28 pm by Dr. Roy Schestowitz

Like a Trumpist witch-hunt

Some hand gestures

Summary: An infamous example wherein ILO-AT acted more like a parrot of EPO management (under Battistelli’s leadership, i.e. a one-person management) and ignored court rulings from outside the EPO

“TEAM Battistelli” at the EPO leaves an ugly ‘legacy’ of attacks on the media (or bribes for the media). They twisted the law to bully and manipulate people. They sent several legal threats to me (from several law firms), having already blocked the site for about a year. They’re not only liars but thugs too. They’re thugs. Remember that. The same people are, with few exceptions, still in charge of the Office. They’re a massive threat to free speech (or free press) and they SLAPP people, sometimes in court (not just threats but actual lawsuits). They exploit immunity. Will António Campinos at the EPO‘s top level end this clannish behaviour? Will he break apart “Team Battistelli”? We doubt so, but we can always hope so. He has the potential to be a good (ethical) revolutionary like his father was.

As regular readers are aware, we published several articles last week about the ILO-AT rulings, specifically those that affect staff representation — a target of Battistelli’s gruesome attacks. A lot is already known (publicly) about those cases, so mentioning names would probably do no harm (the name of Patrick Corcoran, by the way, wasn’t ‘outed’ not by us but by The Register; two defamatory articles from Team Battistelli had already ‘outed’ the nationality 2 years earlier, making it obvious to insiders who it was). In the interests of privacy, we’ll keep refraining from mentioning real names of people and instead use initials (or numbers).

A blogger mentioned Case 4052 over the weekend. Here’s what was said:

AT-ILO is unpredictable. They do not follow their own jurisprudence, for example. The recent cases of Elisabeth Hardon and Patrick Corcoran, for example, are decided on the similar grounds of procedural economy: the court only argued that the disciplinary process was invalid and remitted the case. In the two cases, the court did not seek to determine whether the staff member was innocent or guilty, they simply argued that the decision was flawed. But one person was reinstated and the other one was not.

[...]

There is another gem in the latest decisions. Case 4052 was discussed in another blog and considers the situation of an ex employee of the EPO (dismissed in 2009, despite a national court rendering an opposite decision). The EPO initiated disciplinary proceedings against him in 2015, 6 years after he stopped working for the EPO for publishing his opinions on a personal blog. Indeed the EPO service regulations Articles 19 and 20 lay some limits as to what ex-employees may do and what they may publish, but common sense would interpret these articles quite differently. The normal way to oppose a blog for the EPO would be to go to a civil court. That would ensure equality of chances between an ex-employee and someone who never was an employee if they both start a blog. Or does the EPO wish to treat differently patent attorneys who are also ex-examiners and patent attorneys who never worked at the EPO, for example?

We’re familiar with this case and many other cases. Now that Battistelli is out of the Office readers can expect more information (previously-suppressed information) to come out, albeit cautiously and gradually. People will get to see just how absolutely ugly the “Battistelli years” really were…

Mind yesterday afternoon’s comment from “anonymous”:

I would like to repost here that comment about decision 4049 which was posted on the kluwer patent blog:

The whiff of scandal does not end with judgement 4052. As noted on another blog, judgement 4049 makes for alarming reading. However, to fully understand the significance of the judgement, it is necessary to provide a little bit of background information.

On 6 July 2016, the ILO-AT issued judgement no. 3694, which reached the following (seemingly very significant) conclusion with regard to the composition of EPO’s Internal Appeals Committee:
“The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and the staff representation, is a fundamental guarantee of its impartiality. That balanced composition is an essential feature underpinning its existence. WITHOUT IT, IT IS NOT THE APPEALS COMMITTEE”.

On 1 January 2017, AC decision CA/D 18/16 amended the Service Regulations by introduction of Article 36(2)(a). This allowed the President to make appointments to the Appeals Committee “by way of exception”.

On 5 May 2017, the decision impugned in case 4049 was issued by an Appeals Committee composed of a Chair, two members appointed by the President (Article 5(1) and (2) of the Implementing Rules), and two members “nominated by calling for volunteers or drawing lots from among eligible staff members in accordance with Article 36(2)(a)”.

Against all of this background, one might have expected the ILO-AT to refer to judgement no. 3694, and to find that the composition of the Appeals Committee still did not guarantee its impartiality. Indeed, a member of the Appeals Committee wrote a dissenting opinion to this effect.

The outcome? The ILO-AT sees no problem with the composition of the Appeals Committee, because it was in accordance with the relevant rules in force at that time.

Now, one might argue that impartiality is still ensured by the fact that the members appointed under Article 36(2)(a) must (presumably) still be elected Staff Committee members. However, that does not take into account the influence that the President has over the numbers of elected members and the conditions under which elections take place (Article 35 of the Service Regulations). It also ignores the possibility of the President pursuing a vindictive campaign of harassment against all Staff Committee members, with the result that few (if any) staff members would willing stand for election … thereby making it easy for the President to secure election of his “stooges” (who would of course be guaranteed to be protected from harassment).

Now, if anyone doubts that the President (or at least the soon to be ex-President) would ever consider conducting a vindictive campaign of harassment against staff representatives, based upon little or no proof of wrongdoing, then please refer to my earlier comments on this thread, where I point to a clear pattern of behaviour in this regard.

I guess this is just illustrative of a key problem with the ILO-AT: because it only examines matters from a formalistic standpoint (based solely upon the internal rules in force at the time, and without any attempt at independent fact-finding), it simply fails to see the wood for the trees.

Judgment 4052 is something that was also mentioned in some other comments in Kluwer Patent Blog, so we began researching it further. We did manage to gather some bits of information.

“The person in question was actually acquitted at first (in 2010). Then, the person was acquitted again (in 2011) by the Dutch Criminal Court, citing lack of evidence.”What we deal with here is a person who was accused in 2008 (Brimelow years) and dismissed in 2009 (also Brimelow years). It was labeled “serious misconduct”, which probably meant something else back then (Battistelli just loosely threw the term at anyone who did not agree with him). The person in question was actually acquitted at first (in 2010). Then, the person was acquitted again (in 2011) by the Dutch Criminal Court, citing lack of evidence. So this “serious misconduct” became double acquittal under the Battistelli years, albeit outside the Office itself. Similar to the Corcoran case, no? A double acquittal after years in courts.

This dismissal of the person was subsequently challenged — albeit lost — in front of ILO-AT (judgment 3297) for rather dubious reasons. It’s believed that the ILO-AT judgment was practically a copy of the judgment issued by the Office’s disciplinary committee and internal Board of Appeal. In other words, the suspicion is that in the early Battistelli years the ILO (or its Tribunal) basically became a parrot of the EPO rather than actual, functional courtroom.

“This dismissal of the person was subsequently challenged — albeit lost — in front of ILO-AT (judgment 3297) for rather dubious reasons.”The EPO as well as ILO-AT (remember that ILO-AT is an administrative tribunal only; that’s what the A stands for) decided that there was enough evidence against the accused and that guilt was proven “beyond reasonable doubt” (a term generally used by criminal courts) which is hard to believe because the Dutch criminal court decided otherwise. Oddly enough, ILO-AT did not take the two acquittals into account and ILO-AT made it clear that they have more confidence in the internal Office investigation than in the police investigations carried out by the Dutch Public Prosecutor’s and the Dutch Judges.

In the second and much later case (4052), the same person was then again accused by the EPO of having run a blog named “icsfight4yourrights” (which the accused denied) in 2014 and a Twitter account named “EPOnymous” (which this person also denied). We linked to it a few times and so did several commenters in IP Kat (e.g. here and here). Apparently the EPO also accused this person of “collaborating” with Patrick Corcoran and working for SUEPO without permission from EPO administration. That’s apparently as ludicrous as it gets, but we already saw these tactics of guilt by association before, e.g. Hardon and Corcoran.

“To think that this is a basis for dismissal (mere suspicion of voicing one’s concern) is in itself worrying.”As we understand it, ILO-AT mentioned “serious misconduct” in Judgment 4052 but failed to refer to the judgment number, perhaps because they are ashamed of their own judgment. It then begs or raises the question: “Do they have something to hide?”

What has ILO-AT been reduced to? Is it politically motivated? And can’t people anonymously blog about the EPO? There’s still no actual evidence that the said person was behind the blog and the Twitter account. To think that this is a basis for dismissal (mere suspicion of voicing one’s concern) is in itself worrying. The blog, by the way, vanished some years ago without prior notice.

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