Bonum Certa Men Certa

Inside the EPO During Corona: The EPO Recklessly Breaking the Law With Videoconference (ViCo) for European Patents

Funnelling Microsoft some EPO money to spy on everyone while engaging in technically and legally invalid practices

Romanian Money



Summary: The Central Staff Committee (CSC) of the most corrupt patent office (run by autocrats with no relevant qualifications and experience) rightly bemoans yet more illegal practices being adopted in a rush to prioritise rich monopolists at the expense of already-besieged EPO staff

SEVEN months ago the Central Staff Committee of the EPO wrote to António Campinos (and his cohorts) about the illegal practices adopted by the Office in the wake of the pandemic sprawling across Europe. "In an open letter to Mr Campinos," they said, "the Central Staff Committee (CSC) raises (legal) concerns and points to those of our users regarding the generalisation of oral proceedings by video-conference with the possibility of distributed divisions."



"We've decided that now the time is right for the CSC's letter to be put in the public domain..."For the rest of this month we shall be focusing on the coronavirus and lock-down-related labour/legal aspects at the height of this deadly pandemic -- which more patents will definitely not save us from. Contrary to what the unfit-to-serve EPO management is trying to imply... (as if giving out monopolies would somehow scare away microorganisms that spread in the air/phlegm).

We've decided that now the time is right for the CSC's letter to be put in the public domain (seeing how deadly the virus is becoming and how fast). It's reproduced verbatim below.

Reference: sc20060cl-0.3.1/1.3.1 Date: 15.04.2020

European Patent Office | 80298 MUNICH | GERMANY

Mr António Campinos President of the EPO

ISAR - R.1081

Open letter

Oral proceedings by videoconference with distributed divisions

Dear Mr President,

On 1 April 2020, you made an advance announcement in the Official Journal about your upcoming decision concerning oral proceedings (OP) by videoconference before examining divisions, which should now be by default held by videoconference1.

In a communication of 26 March 20202 VP1 had already announced the possibility to hold oral proceedings as a videoconference (ViCo) with one or more members of the division participating at a different location in the Office or at home, in both examination and opposition proceedings. We presume the object is to enhance social distancing of staff. We note that many high and lower courts in our member states have suspended all oral proceedings which are not absolutely urgent, see e.g. Bundesverfassungsgericht3 (until end of April 2020), Bundesverwaltungsgericht4 in Leipzig, Amtsgericht in Munich or all Dutch courts5. The German patent office

_____ 1 See the Decision of the President of the European Patent Office dated 1 April 2020 concerning oral proceedings by videoconference before examining divisions https://www.epo.org/law-practice/legal-texts/official-journal/president-notices/archive/20200401.html 2 Oral Proceedings as Video Conference, http://my.internal.epo.org/portal/private/epo/organisation/dg1/?WCM_GLOBAL_CONTEXT=/epo/intranet/organisation/dg1/vp1_org/announcements/2020/1585242422850_work_from_home_op_vico 3 Maßnahmen zur Aufrechterhaltung der Funktionsfähigkeit des Bundesverfassungsgerichts, https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-019a.html 4 Eingeschränkte Tätigkeit des Bundesverwaltungsgerichts ab dem 18. März 2020, https://www.bverwg.de/pm/2020/16 5 Dutch courts closed until 6 April 2020,




DPMA will be closed to the public until further notice, no further summons to oral proceedings or invitations to interviews will be issued ex parte and inter partes and already agreed oral proceedings and interviews will be cancelled6.

Generally speaking, it would make sense to align the Office with the practice as well as with emergency provisions of its host countries. This would also appear mandated by the Protocol on Privileges and Immunities.

Also the EPO Boards of Appeal7 have suspended all oral proceedings until 17 April 2020 at least. DG1 nevertheless tries to uphold business as usual at the expense of the examiners and of quality and in disregard of legal, technical and practical problems associated with the holding of hearings as ViCos, or even as “distributed ViCos”. The Office is even ignoring the high risk that the Boards of Appeal might later set aside decisions which would rest on these new regulations.

Consultation issues

Holding oral proceedings as distributed videoconferences with the members of the division participating at different locations in the Office or at home is part of your initiative of generalising and making teleworking mandatory, which constitutes a fundamental change in the working conditions of an major part of staff. It must therefore be subject to statutory consultation with the COHSEC and the GCC in accordance with Articles 38(2) and 38a(3) ServRegs.

Since it has been decided to extend the new procedures for oral proceedings in examination beyond the current Corona crisis, in-depth consultation is necessary. The same applies to opposition oral proceedings for which this new procedure appears likewise here to stay.

The Institute of Professional Representatives before the EPO (epi) has also expressed its concerns and advocates much more extensive testing and extensive consultation as to the long-term effects before adopting the measures8.

Legal issues

Opposition oral proceedings are by law public proceedings, cf. Article 116(4) EPC. It is not at all clear how this is guaranteed if the hearing is conducted as a ViCo (see e.g. T1266/07, points 1.2 and 1.3). The preliminary guidance given in VP1’s announcement (cf item 2.3, last bullet point) states that if the division “receive[s] requests of public to attend opposition proceedings performed via ViCo” it should “contact [its] line manager”, presumably that of the first examiner. Aside from the fact that the line manager is not competent for interfering with the

_____ https://www.gtlaw-amsterdamlawblog.com/2020/03/dutch-courts-closed-until-6-april- 2020/ 6 Hinweis vom 18. März 2020 [...], https://www.dpma.de/dpma/veroeffentlichungen/hinweise/hinweise2020/hinweis_18032020/index.html 7 https://www.epo.org/law-practice/case-law-appeals/communications/2020/20200320.html 8 See the epi letter of 31 March 2020: https://patentepi.org/assets/uploads/documents/news/200331_epi%20letter-to-EPO-President_videoconference.pdf




discretionary decisions of the Divisions, the public does not need to “request” attendance, or to announce it in advance. A possibility for the public to attend should therefore be guaranteed in all cases, regardless of any advance request. The guidance thus brings examiners into a conflict between the expectations of management and the requirements of the EPC.

Moreover, in VP1’s announcement, only agreement of all parties to rearranged opposition OPs by ViCo is mentioned (cf item 2.3, 2nd bullet point) and no clear guidance is given as to future OPs which need yet to be arranged. However, apparently a “strong preference” is noted (same item, immediately preceding bullet point). epi sees in making OPs by ViCo without the agreement of all parties a breach of the fundamental right to be heard codified in Article 113 EPC, which must give a party the means to present its case properly.

A problem of breach of confidentiality might further arise if members of divisions were not able to adequately isolate themselves, especially during examination non-public OP’s and during deliberations.

Further technical / practical problems

In the letter mentioned above, epi draws your attention to practical and efficiency issues on the parties’ side.

The lengthy technical instructions given by VP1 to staff make it clear that each distributed OP is prone to mishaps and failures, especially in opposition proceedings. Examiners acting from home are faced with challenges similar to parties’ challenges. No training and sufficiently staffed testing similar to that available to external participants is available9.

For instance, problems with the speed and bandwidth of the connections often arise when multiple participants from different locations join a Skype-for-Business meeting. Already invested time and work might get wasted due to slow or aborted ViCos and could lead to procedural violations. Moreover, a yet unknown number of examiners cannot establish simultaneously both a Skype-for-Business connection and an EPO network connection via Pulse-VPN, as would be required for ViCo OPs, because the network hosts the application documents and the EPO email account. Only either connection works fine by itself.

Those and other practical problems must be solved before the measures are implemented full-scale.

Recognition of the work of examiners

The suggestion of replacing members of the divisions in case of unsuitable private accommodation (see e.g. the summary section, 4th bullet point) or in case of technical issues shows a lack of knowledge and recognition for the work of the members of the divisions.

In an intervention in the mock meeting of the Administrative Council on 25 March 2020, epi has warned that the practice of replacing a primary

_____ 9 Oral proceedings held as a video-conference at the European Patent Office – technical guidelines, https://www.epo.org/applying/online-services/proceedings/technical-guidelines.html




examiner or a chairperson would put quality at risk. We agree. In addition, replacing a member at short notice is clearly inefficient. If the member concerned is the primary examiner, the “product” would even be missing in their statistics, despite considerable work and time investment.

Conclusion

At present there are no clear laws, no guidelines and no technical facilities to allow distributed oral proceedings in examination and opposition proceedings. In the latter case, even “non-distributed” ViCos with divisions on the Office premises would at present not rest on a solid legal basis.

The measures presently foreseen should be immediately halted and reviewed, also involving the Staff Representation.

In view of the additional strain on the examiner’s mental health, we can at present only advise divisions to judiciously choose, weighing all circumstances, whether to conduct oral proceedings by ViCo or rather to postpone them to a later date until circumstances for conducting them either as a classical ViCo from the Office premises or as “standard” proceedings in person are restored. We also refer to our communication to staff in this respect10.

Yours sincerely,

Joachim Michels Chairman of the Central Staff Committee

cc.: Mr Stephen Rowan; Vice-President GD1 [sic] Ms Nellie Simon; Vice-President DG4 Mr Christoph Ernst; Vice-President DG5

_____ 10 See CSC publication: “Distributed oral proceedings in times of a pandemic”


Will the EPO's management listen? Readers (probably all of them) can predict the outcome, seeing how as recently as last week the EPO publicly gloated about these illegal practices. No sense of shame.

Recent Techrights' Posts

More on "Lunduke is Actually Sending His Audience to Attack People"
"pepe the frogs"
Dalai Lama Succession as Evidence That Determined, Motivated People Can Reach Their Nineties
And we need to quit talking about their death all the time
Many Lawyers (for Microsoft) and 1,316 Pages to Pick on a Litigant in Person Who Exposed Serious Microsoft Abuses
Answers must be given
Layoffs and Shutdowns at IBM, Not Just Microsoft
Same as Microsoft
With Workers Back From a Holiday Weekend, Microsoft Layoffs Carry on, More Waves to Come
Now it's Monday and people are bad to work, even some journalists
You Need Not Wave a Rainbow Flag This Month to Basically Oppose Arseholes Looking to Disrupt and Divide the Community
Don't fall for it
What Miguel de Icaza and Microsoft Lunduke Have in Common
Similar aims, different methods
 
Links 08/07/2025: "Cyberattack Deals Blow to Russian Firmware" and "Cash Remains King"
Links for the day
FSF40 T-shirt message
by Alex Oliva
Gemini Links 08/07/2025: Creativity, Gotify with NUT Server, and Sudo Bugs
Links for the day
Links 08/07/2025: Sabotage of Networking Infrastructure, Microsoft XBox Game Pass Deemed “Unsustainable”
Links for the day
Gemini Links 08/07/2025: Ancillary Justice and Small Web July
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 07, 2025
IRC logs for Monday, July 07, 2025
The FSF's (Free Software Foundation, Inc.) 2025 Summer Fundraiser Already Past Halfway Line
This is where GNU/Linux actually started
Mozilla Had No Good Reason to Outsource Firefox Development to Microsoft
What does Mozilla plan to do when GitHub shuts down?
Mozilla Firefox Did Not Die, It Got Killed
To me it'll always look like Mozilla got killed by its sponsors, especially Google, which had a conflict of interest as a sponsor
Dan Neidle, Whom Brett Wilson LLP SLAPPed (on Behalf of Corrupt Rich Tax Evaders), Still Fighting the Good Fight
Neidle fights for the poor people
Wayland Should Start by Dumping Its Very Ugly Logo
Wayland wins the "ugliest logo" award every year
Stop Focusing on Hair Colours, Focus on Corporate Agenda
If someone commits a crime, it does not matter if his or her hair was mostly white or there was no hair or a wig or whatever
Links 07/07/2025: Science, Conflicts, and a Fictional K-pop Group
Links for the day
Gemini Links 07/07/2025: Being a Luddite and Announcement of Gotify
Links for the day
Links 07/07/2025: XBox Effectively 'Dead', DMCA Subpoena Versus Registrar
Links for the day
The 'Corporate Neckbeard' is Not the "Good Guy"
Works for IBM
The Nasty Smear (and Stereotype) of "Neckbeard" or "Greybeard" is Ageism
This is the sort of stuff they might try to volley at critics of Wayland
Why Many of Us Use X Server and Will Continue to Use It For Many Years to Come
Don't make this about politics
Microsoft's Nat Friedman Became Unemployed the Same Time the SLAPPs Against Techrights Started Coming From His Friends (Weeks After We Had Exposed Scandals About Him and the Serial Strangler, His Best Friend, Who Got Arrested a Few Days Later)
Nat Friedman is not "Investor, entrepreneur"
Brett Wilson LLP Uses Threats to Demand Changes to Pages or Removal of Pages Without Even Revealing Which Staff Member Does That (Sometimes People From Another Firm!)
This has been in the public for years
Dan Neidle Said "It Really Then Became a Job of Tormenting" Lawyers Like Brett Wilson LLP (Who Threatened Him for Exposing Crimes, Just Like They Threatened My Wife a Few Months Later)
he and his wife decided to take on the evil people and their evil lawyers
Large Language Models (LLMs) Externalise Their Cost to the Free Software Foundation (FSF)
"The forty-sixth Free Software Bulletin is now available online!"
Weeding Out Extremism in Our Community
To me it seems like Microsoft Lunduke is rapidly becoming like a "hate preacher" who operates online, breeding an extremist ideology or trying to soften its image
Censorship Versus Fact-Checking and Quality Control
It's not censorship but a matter of quality control
Reinforcing the Allegations Some More, Bryan Lunduke Digs His Own Grave
In his latest episodes he merely repeats his own lies, which I debunked using evidence right from his own mouth
Global Warming and Free Software as a Force of Mitigation
we'll need to think about Software Freedom, not just brands like "Linux"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 06, 2025
IRC logs for Sunday, July 06, 2025
Gemini Links 07/07/2025: BaseLibre Numerical System and TUI Rant
Links for the day
[Video] "Copyleft Isn't a Bug."
"Copyleft isn’t a bug. It’s a feature. GNU GPL forced the world to treat code like a public good."
Being in Social Control Media Means Exposing Oneself to Heckling
Richard Stallman does not (either himself or directly) post to any social control media
Links 06/07/2025: Airlines Perils, Scams, and Breaches
Links for the day
Two Risks to Companies: The Microsoft Culture and the Microsoft Tools
Novell was killed by a form of "social engineering" by Microsoft
It's Hard to Trust People Who Worked - Not Only Those Who Still Work - at Microsoft
Bryan Lunduke is just what people would call an "arsehole of a person"
For the Second Time, Bryan Lunduke From Microsoft is Siccing Racist Trolls and Vandals at Me
You're only reinforcing the point we made yesterday
Links 06/07/2025: End to End Encryption at Risk, Reuters Twitter ("X") Account Withheld in India
Links for the day
Gemini Links 06/07/2025: Tinylog and Certification Rotation
Links for the day
Links 06/07/2025: Climate Change and "The Right to Criticise"
Links for the day
PCLinuxOS Sites Coming Back, Gradually
let's just be patient
Social Control Media, Even If Based on Free Software, Still Has Many Problems
a distraction from what actually mattered and still matters
IBM is Not Your Master
IBM makes friends with people who exclude the majority of the population: women
Help Fund the Free Software Foundation (FSF)
If you have some dollars to spare, go support the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 05, 2025
IRC logs for Saturday, July 05, 2025
A Short History of Attacks on Techrights (and Boycott Novell Before That)
good opportunity to tell again the story of several (not all) attempts to silence us
The Mainstream Media Took 4 Days to Realise Microsoft Shut Down Its Operations in Pakistan and Fired Everybody
We estimate that Microsoft has had about 29,000 layoffs since January
Leadership in Free Software
Don't let IBM lead. It's a terrible flag bearer.