10.19.21

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The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc

Posted in Europe, Patents at 5:22 pm by Dr. Roy Schestowitz

Series parts:

  1. The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
  2. The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
  3. The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
  4. The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
  5. The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
  6. The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage
  7. The EPO’s Overseer/Overseen Collusion — Part VII: Luxembourgish Laxity
  8. The EPO’s Overseer/Overseen Collusion — Part VIII: Perfidious Albion and Pusillanimous Hibernia
  9. The EPO’s Overseer/Overseen Collusion — Part IX: More Holes Than Swiss Cheese
  10. The EPO’s Overseer/Overseen Collusion — Part X: Introducing the Controversial Christian Bock
  11. The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” – Battistelli’s Swiss Apprentice?
  12. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection
  13. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli’s Iberian Facilitators – Spain
  14. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli’s Iberian Facilitators – Portugal
  15. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…
  16. The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper
  17. YOU ARE HERE ☞ The Non-Monolithic Nordic Bloc

Jesper Kongstad and his deputy Anne Rejnhold Jørgensen
The Danish representatives: Jesper Kongstad and his deputy Anne Rejnhold Jørgensen

Summary: We start our investigation of how countries in northern Europe ended up voting on the unlawful “Strike Regulations” at the EPO and why

In this part we turn our attention to the delegations representing the EPO’s Nordic states and look at the positions that they took on Benoît Battistelli‘s “Strike Regulations” in June 2013.

To begin with, it’s worth noting that three of these states – namely, Denmark, Norway, Iceland – have established a regional body called the Nordic Patent Institute (NPI) for the purpose of promoting collaboration in patent-related matters, in particular in the area of the Patent Cooperation Treaty (PCT) administered by WIPO in Geneva.

The establishment of such a regional institute was first mooted at a meeting of the Nordic Council of Ministers in September 2003. This led to the publication of a “Feasibility Study on the Establishment of a Joint Nordic PCT Authority” in September 2004 which proposed various models for co-operation.

“Such fundamental divergences of opinion among the Nordic delegations commonly occur in relation to EPO affairs. Each delegation tends to follow its own line and they rarely, if ever, achieve an overarching consensus or act as a monolithic bloc.”However, when discussions started, no consensus could be achieved on the question of which model should prevail. This led to Finland and Sweden backing out of the discussions and, to this day, they remain outside the NPI.

Such fundamental divergences of opinion among the Nordic delegations commonly occur in relation to EPO affairs. Each delegation tends to follow its own line and they rarely, if ever, achieve an overarching consensus or act as a monolithic bloc.

Back in June 2013, the Administrative Council was chaired by the head of the Danish delegation: Jesper Kongstad, a figure who needs no introduction to readers of Techrights.

“…it is rumoured among EPO insiders that Battistelli literally had Kongstad “in his back pocket”. According to these rumours, Battistelli arranged for “his” Council Chairman to be paid the equivalent of a Principal Director’s salary from EPO funds.”Kongstad had previously acted as the Deputy Chairman of the Council following Battistelli’s election as Chairman in March 2009.

In the summer of 2009, both Battistelli and Kongstad – the Chairman and Deputy Chairman of the Council – announced that they were standing as candidates in the race to elect a successor to Alison Brimelow, the departing President of the Office.

After a couple of inconclusive rounds of voting, the two rivals eventually agreed to a “pact” which saw Battistelli being elected as President of the Office and Kongstad assuming the position of Council Chairman.

In his subsequent role as Council Chairman Kongstad always acted in very close concert with the Office President Battistelli.

“Although no official investigation has ever been carried out into this suspected act of corruption, the rumours come from credible inside sources and have a high degree of plausibility.”Indeed, it is rumoured among EPO insiders that Battistelli literally had Kongstad “in his back pocket”. According to these rumours, Battistelli arranged for “his” Council Chairman to be paid the equivalent of a Principal Director’s salary from EPO funds.

Although no official investigation has ever been carried out into this suspected act of corruption, the rumours come from credible inside sources and have a high degree of plausibility.

If true, these rumours would certainly explain a lot about Kongstad’s behaviour as Council Chairman during the “Battistelli era” and why he was prepared to endorse so many manifestly flawed and controversial measures submitted to the Council by Battistelli.

Battistelli and Kongstad

It is rumoured among EPO insiders that Battistelli literally had Kongstad “in his back pocket” and had arranged for “his” Council Chairman to be paid the equivalent of a Principal Director’s salary from EPO funds.

In any event, Kongstad gave his unqualified endorsement to the “Strike Regulations” submitted to the Council by Battistelli for adoption in June 2013.

“…Kongstad gave his unqualified endorsement to the “Strike Regulations” submitted to the Council by Battistelli for adoption in June 2013.”However, Battistelli’s Great Dane only had a partial success in persuading his Nordic peers to support the proposed full frontal assault on the fundamental rights of EPO staff.

More precisely, the pro-Battistelli position taken by the Danish delegation was followed by Iceland and Finland but opposed by Sweden and Norway.

Borghildur Erlingsdóttir and her deputy Elfa Íshólm Ólafsdóttir
The Icelandic representatives: Borghildur Erlingsdóttir and her deputy Elfa Íshólm Ólafsdóttir

At the time in question, the Icelandic delegation was headed by Borghildur Erlingsdóttir who was assisted by her deputy Elfa Íshólm Ólafsdóttir, the Head of the Icelandic Patent Office’s Finance and Operation Division.

“In the case of the “Strike Regulations” of June 2013, Icelandic support for this contentious proposal may have been influenced by another factor.”Historically, the Nordic microstate of Iceland used to be a dependency of Denmark until it became independent in 1944. In relation to EPO affairs, the Icelandic delegation generally tends to follow the position taken by its Danish hegemon.

In the case of the “Strike Regulations” of June 2013, Icelandic support for this contentious proposal may have been influenced by another factor.

By a curious coincidence, a mere fortnight before the 136th Council meeting took place in Munich, the great and good of the “European Patent Network” convened in Reykjavík to discuss “how to bring co-operation forward in order to improve the quality and efficiency of the European patent system, and thus better serve industry”.

“It’s not clear who exactly footed the bill for this extravaganza but it’s quite probable that the bulk of the funding came out of the EPO’s coffers.”This “co-operation meeting” which was hosted by the Icelandic Patent Office was attended by representatives of the EPO and its member states as well as representatives of the EUIPO/OHIM in its observer capacity.

It’s not clear who exactly footed the bill for this extravaganza but it’s quite probable that the bulk of the funding came out of the EPO’s coffers.

Needless to say Battistelli was in attendance and he took advantage of the occasion to pose for a photo-op with the Icelandic Minister of Industry and Commerce, Ragnheiður Árnadóttir, and the Director General of the Icelandic Patent Office, Borghildur Erlingsdóttir.

Lutz and Battistelli in Iceland
Lutz and Battistelli with Minister of Industry and Commerce Ragnheiður Árnadóttir (2nd from right) and head of the Icelandic Patent Office Borghildur Erlingsdóttir (right) in Reykjavík (12 June 2013).

Given the attention which Battistelli lavished on the Icelanders in advance of the Council’s 136th Meeting, it’s hardly surprising that he succeeded in capturing their vote for all of the “reforms” which he put on the agenda at that meeting, including the “Strike Regulations”.

“Given the attention which Battistelli lavished on the Icelanders in advance of the Council’s 136th Meeting, it’s hardly surprising that he succeeded in capturing their vote for all of the “reforms” which he put on the agenda at that meeting, including the “Strike Regulations”.”All things considered, the voting record of the Icelandic delegation on the EPO’s Administrative Council during the Battistelli era at the EPO gives the impression that it was well and truly "captured".

In March 2015, the Icelandic press reported excitedly that the head of the delegation – Borghildur Erlingsdóttir – had been appointed to the Board of the Administrative Council, the exclusive “inner circle” which prepares the agenda for the Council’s quarterly meetings.

“All things considered, the voting record of the Icelandic delegation on the EPO’s Administrative Council during the Battistelli era at the EPO gives the impression that it was well and truly “captured”. “A couple of years later at the 159th meeting (warning: epo.org link) of the Council in March 2019, she advanced to the position of deputy Chair of the Council.

Borghildur’s advancement among the ranks of the Administrative Council delegates may have been a coincidence but many EPO insiders believe that it was intended as recognition of her earlier support for “le système Battistelli”.

“Borghildur’s advancement among the ranks of the Administrative Council delegates may have been a coincidence but many EPO insiders believe that it was intended as recognition of her earlier support for “le système Battistelli”.”In her spare time, Borghildur who comes from Seltjarnarnes near Reykjavík has enjoyed something of a career as a sportswoman. She is well known in Iceland as a keen practitioner of powerlifting at the Grótta sports club in Seltjarnarnes.

According to Icelandic reports, she was the national champion in the 57 kg category and has also held the Icelandic record in the knee-bend in that weight category. 

Unfortunately, like most of her peers on the EPO’s Administrative Council, Borghildur seems to have been a bit too eager to bend the knee before the tyrant Battistelli.

Powerlifiting-Borghildur-Erlingsdottir
The former Icelandic powerlifiting champion Borghildur Erlingsdóttir seems to have been a bit too eager to bend the knee before EPO tyrant Battistelli.

Her current performance as deputy Chair of the Administrative Council – in particular her continued eagerness to bend the knee before Battistelli’s successor António Campinos – is unlikely to win her any awards, at least not among EPO staff.

Borghildur-Trophies
Borghildur’s performance as deputy Chair of the Administrative Council – in particular her continued eagerness to bend the knee before Battistelli’s successor Campinos – is unlikely to win her any awards among EPO staff.

Getting back now to the events of June 2013, the official record shows that even if the Icelanders were prepared to follow the lead of their Danish hegemon, other Nordic states were less positive about the merits of Battistelli’s proposals.

As we will see in more detail later on, both Sweden and Norway withheld their support.

As a matter of fact, the Norwegian delegation was one of the few delegations that bothered to perform due diligence by referring the matter to the national Ministry for Labour.

“In the end, the well-founded scepticism of Sweden and Norway was not sufficient to dissuade the remaining Nordic state – Finland – from following the Danish lead.”The Norwegian Ministry of Labour [PDF] responded by issuing a negative opinion on the compatibility of the proposed “Strike Regulations” with generally recognised principles of international law which are enshrined in conventions of the International Labour Organisation. This was enough to deter the Norwegian delegation from voting in favour. The Swedish delegation followed suit.

In the end, the well-founded scepticism of Sweden and Norway was not sufficient to dissuade the remaining Nordic state – Finland – from following the Danish lead.

In the next part, we will take a closer look at the Finnish delegation and consider what might have induced it to give its agreement to the adoption of such a patently unlawful proposal.

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