06.24.21

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Virtual Injustice — Part 15: A Pandora’s Box… But for Whom?

Posted in Europe, Law, Patents at 1:46 am by Dr. Roy Schestowitz

Previously in the series:

  1. Virtual Injustice — Part 1: António’s Increasingly Wonky Legal Fudge Factory
  2. Virtual Injustice — Part 2: The ViCo Oral Proceedings of 28 May 2021
  3. Virtual Injustice — Part 3: All the President’s Men…
  4. Virtual Injustice — Part 4: Mihály Ficsor, the EPO’s Hungarian “Fixer”
  5. Virtual Injustice — Part 5: Benoît’s “Friends” in Budapest
  6. Virtual Injustice — Part 6: Best Buddies With António
  7. Virtual Injustice — Part 7: Musical Chairs and Revolving Doors
  8. Virtual Injustice — Part 8: A Well-Connected ‘IP’ Maximalist
  9. Virtual Injustice — Part 9: Heli, the EPO’s Nordic Ice-Queen
  10. Virtual Injustice — Part 10: Vapid and Superficial Coverage in the ‘IP’ Blogosphere
  11. Virtual Injustice — Part 11: Perceptive Comments and Caustic Criticism
  12. Virtual Injustice — Part 12: Carl Josefsson – Down But Not Out!
  13. Virtual Injustice — Part 13: Let the Games Continue…
  14. Virtual Injustice — Part 14: How Mandatory ViCo Became the “New Normal”

António Campinos in the pen

Summary: EPO insiders suspect that Campinos is trying to supplement the “absentee governance” of the Administrative Council with a new layer of “remote management” based in Alicante

The present series has taken advantage of the interruption of the referral procedure G 1/21 to review the current state of play in advance of the scheduled resumption on 2 July.

As we have seen, Carl Josefsson – together with his “handlers” on Team Campinos and his overlords on the Administrative Council – has been busting a gut in a misguided attempt to obtain fast-track rubber-stamped approval of mandatory ViCos in proceedings before the Boards of Appeal.

“As we have seen, Carl Josefsson – together with his “handlers” on Team Campinos and his overlords on the Administrative Council – has been busting a gut in a misguided attempt to obtain fast-track rubber-stamped approval of mandatory ViCos in proceedings before the Boards of Appeal.”The official storyline is that it’s all about safeguarding “access to justice” and ensuring “the functioning of the EPO”.

But who is really naïve and gullible enough to swallow that nonsense?

As long as Josefsson was directly calling the shots in G 1/21, there was never any indication of the possibility that the Enlarged Board might arrive at a different conclusion to that desired by the EPO’s senior management.

But the question remains as to why the Office President Campinos has been so keen to obtain the Enlarged Board’s rubber-stamped approval of the new procedural rule which empowers the EPO’s appeal boards to impose mandatory ViCos.

“But the question remains as to why the Office President Campinos has been so keen to obtain the Enlarged Board’s rubber-stamped approval of the new procedural rule which empowers the EPO’s appeal boards to impose mandatory ViCos.”And how did he manage to secure the obedient complicity of the President of the Boards of Appeal in this affair?

As is often the case at the EPO, it can be difficult to find the answers to such questions.

To appreciate what is really going on behind the scenes requires some effort to look beyond the carefully engineered PR smokescreen and join up the available dots.

Josefsson’s complicity in the judicial shenanigans of G 1/21 is probably the aspect of the affair which is easiest to account for.

As we saw in the last part, when the Covid pandemic began to impact in 2020 the Boards were initially hesitant about the use of ViCo for appeal hearings.

Despite this initial hesitancy, the Boards began to offer Vico hearings subject to the agreement of the parties in May 2020.

However, on 15 December 2020, a communication published on the EPO’s website (warning: epo.org link) contained the following announcement:

“From 1 January 2021 boards may conduct oral proceedings by VICO even without the agreement of the parties concerned, as has now been made clear in the new Article 15a RPBA adopted by the Boards of Appeal Committee.”

The timing of this U-turn is worth noting because it happened to coincide with the 165th meeting of the Administrative Council which took place – by ViCo! – on 15 and 16 December 2020.

At that meeting [PDF] the Council announced that Josefsson's appointment – which was not due to expire at the end of February 2022 – had been pre-emptively renewed “with effect from 1 March 2022 for another five-year term”, in other words until at least the end of February 2027.

It would appear that Josefsson’s public support for mandatory ViCos in appeal hearings – as expressed in the communication of 15 December 2020 – was linked to his reappointment by the Council which was decided upon and announced at around the same time.

All of this suggests a “tripartite pact” – involving the President of the Office, the Administrative Council and the President of the Boards of Appeal – for the purpose of making sure that the Enlarged Board delivered a rubber-stamped approval of mandatory ViCos in as “timely” a manner as possible.

“EPO insiders suspect that the “brain” behind the operation is the Office President, António Campinos.”But what exactly motivated this carefully orchestrated “joint enterprise” and who is in the driving seat?

EPO insiders suspect that the “brain” behind the operation is the Office President, António Campinos.

According to reliable sources, there is a close connection between the efforts of EPO management to obtain the “desired outcome” in the referral procedure G 1/21 and the plans of Team Campinos for the “New Normal” and a “dematerialised” EPO 2.0. [PDF]

A hint about this connection can be found in the comments about the hearing of 28 May 2021 which were posted on IPKat under the pseudonym “The fall of the EBA”.

What is at stake in G 1/21 is no more than an EPO 2.0 which is not covered by the EPC as it stands! It is not merely whether you can sit comfortably in your UK office when there is an OP, but it is about a total reshaping of the EPO. [...]

[T]hanks to Art 15a(3) RPBA in combination with Art 15a(1) RPBA every member of the BA and hence every member of examining and opposition divisions will be allowed to sit wherever he likes.

This is paving the way for the “New Normal”.

Without mandatory OP by ViCo there is no “New Normal”. This should not be forgotten.

The poster makes it clear that – according to his or her understanding – “mandatory OP by ViCo” is an essential prerequisite for the “New Normal” plans of Team Campinos because it would permit the members of appeal boards and – by extension – the members of examining and opposition divisions – to sit wherever they like.

This, in turn, would facilitate the planned “dematerialisation” of the EPO.

However, the difficulty which confronts Campinos here is that in its decision G 2/19 of 16 July 2019 (see G 2/19 [PDF]) the Enlarged Board previously declared that:

“Users of the European Patent Organisation’s services can legitimately expect that the European Patent Office’s departments will not perform acts at whatever other place they choose”.

“This, in turn, would facilitate the planned “dematerialisation” of the EPO.”On that occasion, the Enlarged Board relied on legal sophistry to arrive at a finding that the new premises of the Boards of Appeal in Haar were located only “slightly outside” the city boundaries of Munich and that despite being an administratively independent municipality, Haar could nevertheless be considered to belong to the greater Munich area.

In a remarkable and unprecedented display of “cakeism”, the Enlarged Board concluded that the relocation of the Boards of Appeal to Haar – one of the key elements of Battistelli’s 2016 “reform” – was consistent with the provisions of the EPC governing the location of the EPO and its official activities.

António's total reshaping of the EPO
António is dependent on the support of the Enlarged Board for his planned “total reshaping of the EPO”

However, it becomes somewhat more problematic to attempt to stretch this kind of “elastic interpretation” to cover the case of “dematerialised” appeal boards – as well as examining and opposition divisions.

According to the “New Normal” envisaged by Team Campinos, the members of such bodies convening by ViCo might be sitting in different locations, some of which could even be in countries other than those where the EPO itself has an official presence.

In order to obtain an official seal of approval for such “innovative” arrangements, the President of the Office is dependent on the support of the President of the Boards of Appeal and a “dynamic interpretation” of the law from the legal fudge factory in Haar.

“According to the “New Normal” envisaged by Team Campinos, the members of such bodies convening by ViCo might be sitting in different locations, some of which could even be in countries other than those where the EPO itself has an official presence.”But exactly what is Campinos hoping to achieve with such a “total reshaping of the EPO”?

As recently reported by Techrights, an anonymous third party submission [PDF] sent to the Enlarged Board of Appeal in the referral case G 1/21 makes claims about the suspected self-interest of Campinos and his “buddies” from Alicante in the “New Normal” project and the “dematerialised” EPO 2.0 which it envisages.

This submission – which appears to have been suppressed from public inspection by the EPO Administration – alleges that Campinos is using the Covid pandemic as a pretext for restructuring the EPO in a manner which will allow him and his buddies to “hang out and ‘chill’ in Spain” while remotely managing their serfs in Munich, Berlin and The Hague.

If these allegations have any substance – and EPO sources are inclined to regard them as credible – it seems that Campinos is planning to supplement the already chronically deficient "absentee governance" of the Administrative Council with a new layer of “remote management” based in Alicante.

Apologists for EPO management will undoubtedly try to dismiss such speculation as the stuff of “tinfoil hat conspiracy theorists”.

However, it’s worth noting that a number of serious and reputable commentators in the “IP” blogosphere have already expressed well-founded concerns about the direction in which the EPO seems to be heading in this regard.

“…Thorsten Bausch criticised the EPO’s gradual and disturbing transition from a “Patentamt” with a public service function to an “Oktroybureau” where decrees are simply handed down from above without any meaningful scrutiny by the Administrative Council and without an effective system of checks and balances to prevent abuses.”For example, back in November 2020 on the Kluwer Patent Blog, the Munich-based patent attorney Thorsten Bausch criticised the EPO’s gradual and disturbing transition from a “Patentamt” with a public service function to an “Oktroybureau” where decrees are simply handed down from above without any meaningful scrutiny by the Administrative Council and without an effective system of checks and balances to prevent abuses.

More recently, in April 2021, Bausch examined some aspects of the EPO’s plans for the “New Normal”. He noted that he was not opposed to change as such “if fair and well implemented” but feared that “it appears this will not be the case in many of the New Normal plans”. In particular, Bausch expressed his firm opposition to “the conduct of oral proceedings by ViCo against the will of a party to the proceedings”.

At around the same time another German patent attorney, Till Andlauer, published an article entitled “Videoconferences at the EPO – the desired new normal?”.

This article noted how the gradual expansion of the EPO’s use of ViCo without consent of the parties – first in examination, later in opposition and finally at the appeal stage – had become “the subject of a heated controversy in the European IP community”.

As Andlauer put it:

“The debate is not about the emergency use during the pandemic, which is well understood. It is about a felt misuse of the situation for an installation with permanent character as part of a ‘new normal’.”

“The CSC takes the position that any plans for the “New Normal” should stand on solid legal foundations and it has consistently argued that a conference of ministers of the contracting States would be appropriate for setting the course for the future of the Office.”The “New Normal” plans of Team Campinos have also come in for criticism from the EPO's Central Staff Committee (CSC).

The CSC takes the position that any plans for the “New Normal” should stand on solid legal foundations and it has consistently argued that a conference of ministers of the contracting States would be appropriate for setting the course for the future of the Office. However, Campinos reportedly responded that such a conference was “not necessary” and “could open a Pandora’s box in times of a pandemic”.

It would appear that Campinos is unaware of the fact that the “necessity” for a ministerial conference is foreseen under Article 4a EPC.

It may well be that such a conference – which has in fact never been convened and is by now long overdue – would open up a Pandora’s box but the relevant question which deserves to be asked here is: “For whom?”

It’s perfectly understandable that Campinos and his allies on the Administrative Council are less than enthusiastic about the prospect of having their activities – including their dubious plans for the “New Normal” – subjected to ministerial oversight.

After all, as previously reported on Techrights, systematic abuses of the EPO’s immunity and its autonomous legal status – which reached unprecedented levels during the Benoît Battistelli era – have caused this once proud “model international organisation” to degenerate into a rather grubby little self-service gravy train for those at the top.

When it comes to exercising control and oversight vis-à-vis the Office Administration, more often than not the Administrative Council has been found asleep at the wheel.

Indeed, over the last decade or so, the Council – which is supposed to act as the governing and supervisory body of the organisation – has come to operate more and more as a self-serving clique of national civil servants who are only too eager to obstruct any kind of ministerial oversight and scrutiny of their actions – despite the fact that this is foreseen by law under Article 4a EPC.

“When it comes to exercising control and oversight vis-à-vis the Office Administration, more often than not the Administrative Council has been found asleep at the wheel.”As for the Enlarged Board of Appeal, it remains to be seen whether the EPO’s highest judicial organ will remain under the sway of Team Campinos when proceedings in G 1/21 resume on 2 July or whether it will defy current expectations and make a belated effort to assert its independence by acting in a manner that would help to restore public confidence in the integrity of the procedure.

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