11.23.20

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Dutch Delegation and German Delegation at the Administrative Council of the EPO Upset at the Office for Secrecy, Working Behind the Scenes to Crush Productive Staff

Posted in Europe, Patents at 3:22 pm by Dr. Roy Schestowitz

They eventually got rid of one Benoît Battistelli, but will they remove another and overthrow the entire cabal?

Circus Elephant
There’s a new ‘elephant in the room’, treading carefully as pressure grows

Summary: Less than halfway through his term at the Office, Battistelli’s buddy already faces growing criticism and, according to the Central Staff Committee, he “was emotionally affected by the intervention such that he was not able to effectively reply to the questions of the delegates.”

FOUR weeks ago the Central Staff Committee of the EPO wrote to staff about the ‘meeting’ (videoconference) it had experienced remotely with people who are in theory supposed to supervise António Campinos. The experience was mostly positive, according to them, calling it “short” (“Yet another short meeting by videoconference”).

“As a reminder, the “New Normal” is just some fancy term for crushing the staff.”We don’t want to just throw the Council out the window or out with the bathwater because it might be the best chance staff has (albeit not last resort) if order is to be restored at the Office. The Office management is the most corrupt element; the problem with the Council is mostly complicity by toothlessness (or apathy caused by fear of ‘shaking the boat’).

Free elephantThe Central Staff Committee wrote about 4 weeks ago: “The virtual meetings of the Administrative Council are in marked contrast to the previous face-to-face meetings. The debates are much shorter, but some presentations are longer. The desire of many delegations for the possibility of informal meetings is well understandable. In particular, a discussion on the “New Normal” is also urgently needed.”

As a reminder, the “New Normal” is just some fancy term for crushing the staff. Never be misled by EPO euphemisms, which are all too common…

“We have every right to expect the President to come to staff’s defence,” the Central Staff Committee wrote, “especially in times of crisis. There are still opportunities for development here. The report of the Chairman of the Boards of Appeal shows that even self-critical statements are not taboo in the Administrative Council. Finally, we would like to pass on the thanks and congratulations which some delegations have expressed explicitly to the staff.”

We thought we’d pass along the full report, seeing there’s nothing sensitive in it (the ‘meeting’ wasn’t secret). There’s a mention of “progress report on the unitary patent” (albeit there’s none) and the software used was KUDO:

Munich, 22.10.2020
sc20161cp/en – 0.2.1/3.1

Report on the 164th meeting of the Administrative Council on 13 October 2020

Following an informal video conference on 25 March 2020 and the official meeting via video conference on 30 June and 1 July 2020, this was the third virtual meeting of the Administrative Council. The video conference platform KUDO is used, which now caused far fewer problems than in spring. However, many delegations said that they missed the informal exchanges that are usually held at face-to-face meetings.

The agenda was one of the shortest in the history of the Administrative Council. Only the President’s activities report together with the interventions on the matter took up more time. The few other items on the agenda, such as the report of the Chairman of the Boards of Appeal, the election of the new Chairman of the Budget and Finance Committee or the progress report on the unitary patent, became a minor matter.

President’s activities report

Interacting with all Vice-Presidents and his Chief of Staff, the President gave a presentation of about 50 pages, which was intended to highlight the situation of the Office during the pandemic and the status quo in the implementation of the Strategic Plan 2023. Unfortunately, the presentation was overloaded with so many details that the real achievement of the staff, namely maintaining in an impressive manner the functioning of the European Patent Office during this difficult period, was almost lost. Who would have thought with the enormous pandemic-related changes in spring, for example, that the number of patents published is now 6% above plan?

The interventions of the delegations thus focused more on the plans of the Office to assist national patent offices in IT development than on our core tasks. Apparently, the Dutch delegation and the German delegation were unpleasantly surprised by the previously hidden activities of the management on “New Normal”. In a diplomatic tone, they asked for early involvement in the Administrative Council and for more information on the survey results and on the building plans.

The Staff Representation referred to the great stress situation to which staff are currently exposed. In the midst of this emotionally charged period, especially for families, the President then announced reform plans for the education allowance and payment of school fees. As far as the plans for “New Normal” are concerned, the participation of the Staff Committee is long overdue in order to find sustainable solutions. Hurrying is not the order of the day, but pausing for a moment to take stock of the situation.

Unfortunately, the President then missed the opportunity to jump to the defence of staff and make up for the perhaps somewhat neglected appreciation. He used the rather awkward argument that he had talked to more colleagues than the staff representative who had taken the floor before thus knowing the situation better. It seemed that the President was emotionally affected by the intervention such that he was not able to effectively reply to the questions of the delegates.


President of the Boards of Appeal’s activities report 2020

The President of the Boards of Appeal limited himself to 15 clearly structured slides to present the activities in this year. He did not hesitate to mention also the downsides and the decline in productivity over the past months, which was well understood because of the few possible oral proceedings. However, his delight during the presentation of the pilot project of paperless working with iPads seemed a bit exaggerated.

The delegations expressed their appreciation. With regard to the points raised by the Staff Representation, the President of the Boards of Appeal showed his ability to take criticism and even reacted with appropriate humour.

Chairmanship of the Budget and Finance Committee

Pascal Faure (FR) was unanimously elected Chairman of the Budget and Finance Committee for a three-year term of office to replace Lex Kaufhold (LU). For the first time an online voting system was used.

Unitary patent and related developments – progress to date

The German delegation reported on the legislative process which is now well under way, looking back to the fact that in March 2020 the Federal Constitutional Court annulled the previously adopted law. As the German Federal Council had raised no objections, the intention was to have the draft law in Parliament by Christmas.

Conclusions

The virtual meetings of the Administrative Council are in marked contrast to the previous face-to-face meetings. The debates are much shorter, but some presentations are longer. The desire of many delegations for the possibility of informal meetings is well understandable. In particular, a discussion on the “New Normal” is also urgently needed.

We have every right to expect the President to come to staff’s defence, especially in times of crisis. There are still opportunities for development here. The report of the Chairman of the Boards of Appeal shows that even self-critical statements are not taboo in the Administrative Council.

Finally, we would like to pass on the thanks and congratulations which some delegations have expressed explicitly to the staff.

Your Central Staff Committee


Annex: Interventions of the Staff Representatives

On the President’s activities report

Dear Mr Chairman, dear delegates, dear Mr President, dear António, dear colleagues,

The Staff Representation thanks the delegations for recognising the huge efforts done by all staff during this ongoing pandemic and will transmit this message to them.

I would like to depict an additional view to the presentation given by the President on the last months. The numbers, honestly, look great! It shows the strong commitment of our staff to contribute to the results of the Office and all this during the biggest ongoing pandemic.

But what are the numbers omitting?
These numbers don’t reflect the feelings of staff!
How is staff actually feeling? Similar to the residents of your countries, EPO staff is juggling between reaching their goals at work and home schooling while adapting constantly to the new tools linked to digitisation.

I can tell you: staff is stressed, exhausted – the actual situation since mid-March is stressful, exhausting! Parents with young children are the hardest hit by this pandemic as they don’t have enough support to deal with the situation. Although we appreciate the flexibility put in place by the Office such as no more core hours, and working from home. However, the extended availability of the tools up to midnight may have a detrimental effect on the well-being of our staff. This is because our career is based on a competing factor: who can produce the most and more? and not a collaborative one. In the President’s activity report, the “Collaboration” Balanced Scorecard is at 52%, in the past this number was higher. Staff know that in order to even be eligible for a reward they have to reach the ever-increasing targets set be the management. How can a constant decreasing number of FOs and examiners produce every year more and more? And so, after putting the kids to bed rather than taking a break to regenerate many work until midnight to catch up! How long can this situation be maintained??? For how long is this situation sustainable? Parents feel left alone by the administration…

Because, as if this would not be enough to deal with, we, the Staff Representation and staff have been surprised by a survey on the New Normal which was conducted recently, while excluding the Staff Representation. The scenarios presented in the survey will possibly affect the whole structure of the Organisation. This uncertainty adds to the previous feelings of stress and anxiety of our colleagues.

Additionally, the administration presented end of July a reform on the childcare and education allowances foreseeing harsh cuts in these allowances for most of staff, including nationals, e.g. Dutch citizens working in The Netherlands. Although this reform is portraited as a measure of fairness towards our national colleagues, at a closer inspection it turns out to be another measure of saving money in the mid-term. The President assures us however that this is not the intention and we would like to believe him. However, the reform as it is designed now and the way the discussions are ongoing in the working group with the policy designer speaks a different story. And so, no wonder that the management and we are approached by hundreds and hundreds of desperate parents feeling extremely stressed, betrayed and frankly disrespected by the administration…

On social dialogue: we are very happy to hear that the administration is willing to solve the issue of the PhDs, but news reached us, just 30 minutes ago, that colleagues are receiving letters from the administration denying recognition of the PhD years.

This is only one example for the social dialogue.


Now, how can we turn into the right direction? How can we, all together, you, the President and Staff Representation, give support and space to breath to our colleagues? How can we reassure staff?

We, the Staff Representation, request:
- a constructive education and childcare allowance reform with site specific solutions,
- a slowing down of the definition of the New Normal to a time after the pandemic,
- a fair assessment with rewards for ALL staff, for their contribution in 2020,
- a career based on collaboration, with fair career advancement for all staff.

In the name of staff, we urge the Administrative Council to work together with the Staff Representation and the President of the Office to pave the way for a trustful and respectful future for the benefit of our staff and our organisation!

Thank you very much for your attention!


On the President of the Boards of Appeals’ activities report 2020

Der präsentierte Zwischenbericht ist eindrucksvoll und zeigt, daß die Kolleginnen und Kollegen in den Beschwerdekammern in den Zeiten der Pandemie Bemerkenswertes geleistet haben. Ich möchte drei Punkte herausgreifen, die aus Sicht des Personalausschusses im Bericht etwas zu kurz kommen.

Da ist erstens das Personal selbst. Nicht nur dadurch, daß nur wenige mündliche Verhandlungen stattfinden, mußten die Kolleginnen und Kollegen zahlreiche Arbeitsabläufe umstellen. Dies geschah oft von zu Hause aus mit der zusätzlichen Belastung durch die Sorge um Familie und Angehörige. Viele Kolleginnen und Kollegen sind bis an die Grenze der Belastbarkeit gegangen und manche sogar darüber hinaus. Wir sollten gerade jetzt besonders an die Gesundheit der Kolleginnen und Kollegen denken, um tatsächlich eine nachhaltige Anpassung an die neuen Umstände zu gewährleisten.

Zweitens wird von einem Pilotprojekt über papierloses Arbeiten berichtet. Auch hier sollten wir nicht übertreiben. Zwar befürwortet der Personalausschuß, daß die Arbeit der Kolleginnen und Kollegen durch geeignete Tools unterstützt wird, allerdings ist die Technik noch nicht so weit, daß eine Arbeit ganz ohne Papier in naher Zukunft überhaupt denkbar ist. Fraglich ist in der Tat, ob die derzeit verwendeten iPads für papierloses Arbeiten überhaupt adäquat sind, so die Rückmeldungen von den Kolleginnen und Kollegen aus den Beschwerdekammern. Arbeit ausschließlich am Computer oder Tablet ist nicht gesund. Auch hier sollte die Gesundheit der Mitglieder der Beschwerdekammern ganz im Vordergrund stehen.

Drittens wird im Dokument von Arbeitsgruppen berichtet, die zu bestimmten Themen eingesetzt wurden, beispielsweise zu mündlichen Verhandlungen per Videokonferenz oder zu Qualitätsaspekten. Hier müssen noch Strukturen entwickelt werden, wie der Personalausschuß und repräsentativ gewählte Vertreter geeignet eingebunden werden. Denn gerade kritische Stimmen sind notwendig, um Veränderungen auch nachhaltig zu gestalten. Weder der Personalausschuß noch das Präsidium der Beschwerdekammern ist derzeit im Beschwerdekammerausschuß vertreten, wo zum Beispiel das Karrieresystem und die Arbeitsbedingungen der Patentrichter auf der Agenda sind. Dies ist noch ein Relikt aus der Battistelli-Zeit, und hier sollten wir baldmöglichst und unbedingt im Interesse der Europäischen Patentorganisation eine Änderung vorsehen. In diesem Sinne möchte ich abschließen und Ihnen versichern, daß der Personalausschuß auch weiterhin die Gestaltungsprozesse in den Beschwerdekammern aufmerksam beobachten und kritisch begleiten wird.

It’s very easy to relate to the bits about working parents with young children; the EPO has done just about nothing for them. We keep hearing those stories about young workers who sit on the computer working until midnight or even past midnight. Here’s a touching paragraph: “staff is stressed, exhausted – the actual situation since mid-March is stressful, exhausting! Parents with young children are the hardest hit by this pandemic as they don’t have enough support to deal with the situation. Although we appreciate the flexibility put in place by the Office such as no more core hours, and working from home. However, the extended availability of the tools up to midnight may have a detrimental effect on the well-being of our staff. This is because our career is based on a competing factor: who can produce the most and more? and not a collaborative one. In the President’s activity report, the “Collaboration” Balanced Scorecard is at 52%, in the past this number was higher. Staff know that in order to even be eligible for a reward they have to reach the ever-increasing targets set be the management. How can a constant decreasing number of FOs and examiners produce every year more and more? And so, after putting the kids to bed rather than taking a break to regenerate many work until midnight to catch up! How long can this situation be maintained??? For how long is this situation sustainable? Parents feel left alone by the administration…”

There’s meanwhile also the question about the illegality of oral hearings over video. This topic was covered repeatedly by SUEPO, citing the relevant laws being broken (pretty serious violations of human and labour rights).

Incidentally, days ago (November 18 2020) Max Walters wrote: “EPO president Campinos says the time is right for virtual hearings, while in-house counsel offer mixed views on the benefits of video conferences…”

Notice, as we’ve noted before that they never speak about the illegality of the whole thing. Almost never. What kind of journalism is that? One can see past the paywall here:

In-house counsel revealed mixed views to Managing IP on the benefits of video conferences this week – while the EPO’s president agreed that stalling tactics by some parties had denied access to justice.

The EPO announced last week that all hearings below appeal level – namely examination and opposition proceedings – would be virtual until September 2021.

Until now, virtual hearings had been permitted so long as both parties agreed. From January 4 2021, the need for both parties’ consent will be removed.

Miriam Colling-Hendelkens, head of patents in crop science at Bayer in Germany, suggests that the EPO’s decision is a bad one because it’s important for parties to be able to observe each examination/opposition division member’s reaction on the arguments provided.

She added: “The interpretation that opting for video conferences is a delay tactic might miss some additional real pain points and seems to be the underlying rationale in rare and very specific cases.”

So even some stakeholders are complaining, contrary to what the Office claims. “From January 4 2021,” it notes, “the need for both parties’ consent will be removed.” So they’re forced to do or participate in something illegal.

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