05.02.20

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How Many More Lives Will the European Patent Office Destroy?

Posted in Europe, Law, Patents at 7:36 pm by Dr. Roy Schestowitz

The EPO’s severe violations of the (Rule of) Law are harming the health of innocent, law-abiding people such as Laurent Prunier, who represented his colleagues

Laurent Prunier (EPO) talking about the scandal at the EPO with Suzette Saint-Marc (Council of Europe)

Summary: Europe’s largest patent office, the European Patent Office, continues to bully its staff and it carries on breaking the law under António Campinos‘s Battistelli-like leadership, which EPO staff representatives rightly bemoan

THE old days are old, the newer days are rather gloomy. And not just because of the pandemic; it seems rather apparent that the EPO takes full advantage of this pandemic to wage further attacks on staff and on the law. This is done openly and shamelessly. They’re simply not afraid of any consequences. Who’s going to enforce the law? Even politicians are in quarantine.

A decade ago when we wrote about the EPO it was mostly about illegal software patents (same issue at the USPTO prior to 35 U.S.C. § 101/Alice) and rarely if ever about treatment of staff, which had already protested outside the EPO.

“Over the years we wrote about half a dozen articles about Mr. Prunier, whom EPO staff in Dutch territories loved (based on what we heard).”The EPO and the USPTO continue granting these illegal software patents, even if courts repeatedly reject those. Over at Watchtroll (“IPWatchdog”), for example, Jose Nunez has just published “The Long Reach of the Mathematics Patentability Exception is Overbroad and Absurd – Part II” and yes, they literally advocate monopoly on maths! So does the EPO; they’re not even pretending otherwise.

We recently saw in Kluwer Patent Blog a comment that said what we had been saying for a long time. A few days ago someone said that EPO staff had been put in a tough position: break the law (or participate in breaking of the law) or lose the job! It’s causing all sorts of mental issues; imagine being forced to harm people for a living; sooner or later consciousness kicks in and then the financial instinct (“gotta pay the mortgage!”) conflicts with morality. No worker should ever be put in such a position/dilemma.

Over the years we wrote about half a dozen articles about Mr. Prunier, whom EPO staff in Dutch territories loved (based on what we heard). We were disturbed to learn about health implications Battistelli’s bullying had on him; he wasn’t the first though and other victims include Judge Corcoran. The bullying is very much intentional; it’s psychopathic. Remember what led to the “Suicide Wave” in the largest French telecommunication company. Management styles play a major role in the wellbeing of staff and executives can be held criminally liable for an over-aggressive approach. But not at the EPO… it’s immune!

Yesterday we learned, based on insiders, tweets and this “Kluwer Patent Blogger” (anonymous) blog post, that Mr. Prunier chose to leave the EPO. SUEPO circulated information about it and here are some key bits (no comments yet and SUEPO has not linked to it):

Prunier was fired in of a period of deep turmoil, protests and conflicts at the EPO during the precidency [sic] of Benoit Battistelli, who was accused of creating a climate of fear, putting workers under intolerable pressure and ignoring the organization’s own rules. His controversial leadership lead to parliamentary debates in the Netherlands, France and Germany, to a conflict with the Dutch government and dozens of court cases at the ILOAT, among others (see, for instance, here and here). Several cases of suicide of staff members were linked to the working conditions at the EPO.

According to Battistelli, Prunier had been harassing a colleague. But the dismissal was widely linked immediately to his activities for the trade union and the CSC. Two other SUEPO leaders were fired in 2016 as well, another was downgraded. Prunier has always denied any wrongdoing and asked for transparency: ‘The easiest solution for the public to assess the truth vs. story-telling is for Mr Battistelli to lift the confidentiality he imposes on me and I will gladly publish all the documents’, he wrote at the time in an open letter.

Although the settlement probably means the EPO has acknowledged Prunier should not have been fired, he will not return at the office, according to the SUEPO’s announcement: “The ordeal, which has lasted more than 3 years, has severely impacted Laurent’s life and health. In light of this impact, and in spite of having been a truly committed and valuable EPO colleague, Laurent chose not to return to the Office to be able to properly recover.”

Since his start in office, almost two years ago, there has been pressure on Battistelli’s successor António Campinos to settle the previous administration’s sanctions against prominent SUEPO leaders. There is widespread disappointment (read this blogpost for instance) that it has taken so long to achieve this in cases like Prunier’s and that some have still not been resolved. “We take this opportunity to recall that two former Staff Committee experts remain abusively sanctioned: Aurélien Pétiaud in Munich and Michael Lund (now on pension) in The Hague. We hope that the President will finally provide relief to them, too”, SUEPO wrote.

Also on other fronts the relation between the presidency and staff has not at all normalized, as was initially hoped after the leadership change in July 2018. Late last year, hundreds of staff members in The Hague and Munich protested against working conditions, for the first time since Campinos took office. According to them, he had failed to restore the social dialogue. They were particularly concerned about plans of the EPO to cut costs.

The EPO needs to cut corruption, not costs. There’s profound EPO corruption that harms Europe, as well as EPO staff.

Will the above settlement help distract from the latest attacks on EPO staff? These attacks intensified during the pandemic. Kluwer has said nothing about these (it covered other angles).

Looking through Kluwer comments in another thread, we find further information on EPO abuses against staff, forcing them to violate the EPC while EPI looks the other way:

It’s a Small World, these days. Tendencies one notes in one jurisdiction are there to see, in many others, when you think of looking for them.

Imagine you are a scientist, occupying a vital post of Chief Scientific (or Medical) Adviser to The President (of the USA) or the Prime Minister (of the UK). The health and welfare of the population of your country depend on your retaining the attention of the President. If you disagree with him, the next thing that happens is “You’re fired”. How shall you then continue to damp down the President’s wilder flights of fancy

Likewise the EPI. Disagree with the EPO’s President and you lose his ear. Is this why the EPI behaves like a rabbit caught in the beam of the headlights?

Or is it that the Institute is frightened of offending its biggest clients, the world’s largest corporations.

When lawyers cease to defend The Rule of Law, what is the consequence i) for democracy ii) individual freedom? EPI officers should mull that over. Perhaps it would help them to find their feet and stiffen their backbone.

“Roufousse T. Fairfly” then added more information, including the (mis)use of Microsoft Skype for legal procedures:

Even when looking beyond the current situation, I firmly believe that video-conferencing can contribute to a more efficient, modern and sustainable European patent system, in line with the goals of the EPO’s Strategic Plan 2023.

“Efficient”, “modern”, “strategic”, “firmly believe”, yadda, yadda, yadda… I call BINGO! This hollow management speak (a.k.a. “xyloglossie” or “Betonsprache”), which has infected the EPO decades before the current regime, drives one to despair.

– Why are you doing this?
– Because.
– Because why?
– Because we can.

The reference to a “line manager” in the quoted text isn’t very clear. I understand that in the last years the responsibility of directors was extended to units of something like 50-100 examiners, where it had been 20-30 in earlier times. To compensate (?) for this, a network of “team leaders” (I believe this is their title) came into existence as a new “management” layer, to which is delegated the implementation of whatever unrealistic target is set from above. In other words: deputy cattle-prods. Needless to say, those examiners who volunteer — or are volunteered — for this job aren’t exactly popular, I heard them referred to with anfour-letter German word beginning with “K”…

Specifying that OPs are to take place by video might upend in some way the case-law denying applicants their choice of location for holding OPs (Den Haag or Munich). What happens if an applicant is adamant to have an in-person OP?

I expect this measure to backfire in another way. Even though conditional requests for OPs are fairly systematic in the European procedures, these are actually infrequently conducted once they are summoned. At that point, applicants often withdraw, or become serious and file new requests, and/or announce they won’t attend. There are only few applicants who will pay travel and board for their EPAs, even if they are next door to the EPO. OPs are therefore often quick, mostly formal affairs.

Since about EPA from Lisbon to Tallin would be roughly on an equal footing with those located closer to EPO locations, I believe that many more OPs would actually take place. I therefore expect the general availability Vicos to increase the real work load of examiners. In my day I already had some examining division colleagues dragging their heels considering that they were doing me a favour by providing “unpaid” work (in production points).

Technology therefore doesn’t necessarily mean progress…

With this new measure, virtually all interactions (filing of documents, requests and replies, payments) between applicants and the EPO are now performed in the electronic space, and official notifications by registered mail can be considered as a backup.

The question arises in my opinion as to the continued relevance of Article 133(2) and (3) EPC, which makes representation compulsory for EPC-foreign applicants. Even though a “Vertretungszwang” is compatible with the reservation of Article 2(3) of the Paris Union, how can you keep justifying it morally, or perhaps even legally in the view of other trade-related treaties?

I would expect new problems to arise. For example, should parties from overseas be allowed to participate in an OP, even under the control of the EPA? Would it be allowable to just pipe the ViCo to the applicant in Beijing or Chicago? After all, many EPAs want to show that they properly defended their clients’ interests. But then, can everyone resist the temptation of making a discreet private recording? After all, it’s 2 AM in the windy city when it’s 9 AM in Munich. An EPA might possibly be expected to respect the prohibition on recording, but is his customer bound by these rules? Or an irate pro-se applicant?

I very rarely use privately Skype, Zoom et al. In general, I find hands-free communications unnatural, and wouldn’t want to be forced to use it. Too many discussions sound like the infamous “cone of silence in “Get Smart”, even on quality facilities like those at the EPO.

The “Business” version of Skype appears to be offered for Windows, Android and Apple, but not for any *nix flavour. Skype has a bad reputation since at least Edward Snowden, and wouldn’t be accepted in some jurisdictions:

[Lexology, CH, 24.04.2020] COVID-19: Einsatz von Video- und Telefonkonferenzen in Zivilverfahren

Bei Video- und Telefonkonferenzen muss der Datenschutz bzw. die Datensicherheit stets gewährleistet werden. Die Übertragung von Bild und Ton muss “end-to-end” verschlüsselt erfolgen. Die benutzten Server müssen sich zwingend in der Schweiz oder der Europäischen Union befinden, was die Wahl der möglichen Provider erheblich einschränken dürfte. Eine unbefugte Datenweitergabe an Dritte muss verhindert werden. Im Rahmen dieser Grundsätze sind die Gerichte bei der Auswahl der entsprechenden Infrastruktur grundsätzlich frei. Es wird jedoch empfohlen, die Vorgaben und Empfehlungen der Datenschutzbeauftragten zu berücksichtigen.

Why should a EPC member state accept a lesser standard from the EPOrg?

But others are apparently less picky: [lto, 02.01.2020, DE] Richter, Anwalt und Zeuge beim Skype-Chat. German justice is however having a rough time currently…

[...]

For OPPO, I just realised there is another problem: language interpreters. How do you fit them in the process?

And how do you prepare them before an OP?

The interpreters are normally supplied with a copy of the paper file, and briefed about the case, important documents, special terminology of the field, and what to expect about the conduct of the proceedings. This isn’t trivial work.

A full two-way translation requires 2 pairs of interpreters (eg: 2x EN-FR, 2x FR-EN), with each pair working closely and taking over. How do you coordinate this when everyone of them sits elsewhere? The setup for the Vico would have to provide different channels depending on the party. Transmission delays would probably be horrendous. Does Skype-for-whatever even provide for this?

“German justice is however having a rough time currently,” the above says, which leads us nicely into our next article (about the UPC).

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