11.26.20

European Patent Office (EPO) Reduced to ‘Justice Over the Telephone’ and Decree by E-mail

Posted in Europe, Law, Patents at 7:20 am by Dr. Roy Schestowitz

Chinese labour “standards” (from the back door)

Summary: The EPO is trashing the EPC and everything that the Office was supposed to stand for, as it wrongly assumes demand for monopolies (typically from foreign corporations) comes before the rule of law and Europe’s public interest

WE are gratified to see responses to the EPO regime of António Campinos; after Benoît Battistelli ‘kidnapped’ judges from their offices (“house ban”) Campinos places staff on "house arrest". Because “innovation” or something…

“People’s general mood/spirit is already lowered by inability to travel (and see loved ones, exercise, meet friends); treat them with respect and dignity, at the very least.”What has EPOnia turned into? We’ve shown threatening if not menacing E-mails sent from management to examiners. Are they trying to shock people? Is the goal to induce stress and depression? People’s general mood/spirit is already lowered by inability to travel (and see loved ones, exercise, meet friends); treat them with respect and dignity, at the very least.

The problem is, today’s EPO isn’t run by qualified managers but a Praetorian Guard of Campinos. They bully anyone who dares to challenge their agenda, not their authority. Even if that agenda is outright illegal. In other words, people are given unlawful instructions and defiance of such unlawful instructions begets unwarranted bollocking.

One might expect this sort of autocracy in Red China, not the red (logo) EPO. And speaking of China, this morning the EPO spoke about (warning: epo.org link) the latest “discussion rounds” with China (and its smaller albeit patent-savvy neighbours to the east). When the EPO says “discussion” it means webchats rather than a roundtable discussions. And this one also misuses laughable buzzwords like “Artificial intelligence (AI).” (Or Hey Hi)

From this morning’s EPO so-called ‘news’: “Several important topics and issues were discussed over the course of three days including amendments to law, cross-lingual search possibilities and the opportunities presented by Artificial intelligence (AI).”

Notice the part about “amendments to law”; those “discussion rounds” aren’t permitted to change underlying legislation; that’s another branch, but at the EPO there’s no notion of separation of powers. If there was, a lot of that "new normal" would be blocked. Many things that the EPO did in the wake of the pandemic are completely illegal. Who’s going to be held accountable for it? Probably nobody.

The ‘discussions’ (webchats) weren’t supposed to tackle underlying law but instead focus on this: “The discussion rounds provided a platform for direct interaction between users and experts on topics such as Asian data in Espacenet and keyword searches in Chinese, Japanese and Korean full texts.”

Those are not affected by the pandemic because they’re less formal, almost informal. In fact, texts produced by automatic (machine) translation are technically and legally invalid.

We can recommend to our readers this one new comment on the latest article from Dr. Bausch, a European patent attorney. This one of many comments (over a dozen, with the original post now cited by SUEPO as well) correctly notes: “A reasonable interpretation of the term “oral proceedings” can only mean the physical presence of the parties before the EPO’s decision-making body. The terms “oral proceedings” are far from being ambiguous or obscure, let alone that their interpretation in good faith leads to a result that is manifestly absurd or unreasonable. [...] A videoconference is nothing more than a telephone conversation during which the parties can see each other.”

Here’s the full comment reproduced:

The Boards of Appeal regularly invoke the Vienna Convention on the Law of Treaties (VCLT) when it comes to deciding on how to interpret the EPC.

The interpretation of Art 116 given in the explanatory note for the proposal of Art 15a RPBA is in manifest contradiction with the VCLT in its Art 31 and 32. According to the VCLT, a treaty has to be interpreted in good faith and if this interpretation should not lead to a result that is manifestly absurd or unreasonable.

The mere assertion that “neither Art 116 nor any other article of the EPC or RPCR 2020 stipulates that the parties to the proceedings, their representatives or the members of the board must be physically present in the room”, amounts to ignoring the philosophy underlying Art 116.

A reasonable interpretation of the term “oral proceedings” can only mean the physical presence of the parties before the EPO’s decision-making body.

The terms “oral proceedings” are far from being ambiguous or obscure, let alone that their interpretation in good faith leads to a result that is manifestly absurd or unreasonable.

Nowhere in the “travaux préparatoires” to Art. 116 it has ever been envisaged that the parties are not physically present before the deciding body, and that for instance it could be held by phone. A videoconference is nothing more than a telephone conversation during which the parties can see each other.

What is said here applies mutatis mutandis to oral proceedings before examining and opposition divisions.

Neither the Chairman of Boards, nor the Chairman of the BOAC, and even less the president of the EPO, have the power to amend the EPC in the way they are attempting to do. They simply lack the legitimacy to do so. The same applies to the AC.

That in a period like the pandemic solutions have to be envisaged is not at stake. In exceptional situations, exceptional solutions can be envisaged, but as soon as the exceptional situation is over, then the exception should be stopped and the normal situation be re-established.

In any case, the possibility of holding oral proceedings by videoconference should be left to the parties and not decided ex-officio, even in exceptional circumstances. As explained by Mr Bausch, the parties also have an interest to come to decisions and not unduly keep their files open. Once a party is opponent, once it is proprietor so that a fair balance can be stricken between contradictory requirements.

Whilst I can have some understanding of Max Drei’s plea about representatives sitting at a distance from The Hague or Munich, I cannot fundamentally agree with him. When he speaks about the three members of divisions of first instance, I have to take away his illusions. See below.

It is not for the Office and its Boards of Appeal to decide what is good for the parties. After all, the income of the Office stems from the contributions of the parties, so that the parties must have a say about the way they are treated. Presently it is with morgue and disdain.

Under the pretext of the pandemic situation, both the EPO and the Boards want manifestly to dematerialise the EPO. This would in the long term allow to transfer its duties to national patent offices and get read of staff which is not as docile as the management would like to.

If you think that there are discussions within examining or opposition divisions, please abandon this idyllic vision. In vast areas of the EPO the three men divisions of first instance are long time gone and only exist on paper. In some areas there have even been oral instructions that if the first member has signed, the two other have to sign as well. Consulting the register recently, I even came across a Form 2035 in which only the first member had signed! If you take on top the difficulties imposed by videoconferencing among members of divisions, this trend has rather increased.

By isolating its staff, the EPO gains even more influence on it and concerted actions would be made more or less impossible. What a perspective for the head of (anti)personnel!

That by dematerialising the office it would then be possible to even sell some buildings has been clearly envisaged by the management.

The role of the EPO and its Boards is not to play Monopoly© but to offer an acceptable service to its users. Why was it then necessary to invest in rented accommodation for the boards when other buildings of the EPO are allegedly empty and can be sold?

By the way, the EPO wanted to sell the latest buildings of the EPO (BT8) on the other side of Grasserstraße, but the city of Munich refused as it had a contractual say in the matter.

For a while the EPO has become the playground of would be managers only having in mind juicy bonuses and relying on management methods from the 19th century. The EPO plays a big role in European IP, and it should not be left to the incompetent amateurs presently at its helm. If anything goes wrong, they can always rely on their immunity…..

The fathers of the EPC must be turning over at high speed in their graves.

If the EPO has no (real) physical location and it’s reduced to a bunch of workers across Europe (mostly based around two locations) granting monopolies from home and discussing those patents over E-mail/phone (serious data protection violations, including outsourcing to the United States), then what has it become? What “access to justice” is there, really? Those are the sorts of “hard questions” the EPO can only even attempt to distract the public from, sometimes with the veil of diversity (which it lacks).

There’s a severe crisis of (il)legitimacy when those who proclaim to stand for the law so routinely break the law themselves. █

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