02.11.22

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The EPO’s Overseer/Overseen Collusion — Part XLVIII: The Unkindest Cut of All

Posted in Europe, Law, Patents at 2:35 am 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. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc
  18. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki’s Accord
  19. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States
  20. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group
  21. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”
  22. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League – North Macedonia and Albania
  23. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League – Bulgaria
  24. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League – Romania
  25. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League – Fresh Blood or Same Old, Same Old?
  26. The EPO’s Overseer/Overseen Collusion — Part XXVI: A Trojan Horse on the Budget and Finance Committee
  27. The EPO’s Overseer/Overseen Collusion — Part XXVII: Cypriot Complicity
  28. The EPO’s Overseer/Overseen Collusion — Part XXVIII: Benoît and António’s Loyal “Habibi”
  29. The EPO’s Overseer/Overseen Collusion — Part IXXX: The EPOnian Micro-States – Monaco and Malta
  30. The EPO’s Overseer/Overseen Collusion — Part XXX: San Marino and the Perfidious Betrayal of Liberty
  31. The EPO’s Overseer/Overseen Collusion — Part XXXI: The Abstentionists
  32. The EPO’s Overseer/Overseen Collusion — Part XXXII: “Plucky Little Belgium”?
  33. The EPO’s Overseer/Overseen Collusion — Part XXXIII: Swedish Scepticism
  34. The EPO’s Overseer/Overseen Collusion — Part XXXIV: An “Extremely Dubious” Proposal
  35. The EPO’s Overseer/Overseen Collusion — Part XXXV: Slovakian Scruples
  36. The EPO’s Overseer/Overseen Collusion — Part XXXVI: Serbian Sour Grapes
  37. The EPO’s Overseer/Overseen Collusion — Part XXXVII: Stubbornly Independent Slovenia
  38. The EPO’s Overseer/Overseen Collusion — Part XXXVIII: Ensnared in the Tentacles of the SAZAS Octopus
  39. The EPO’s Overseer/Overseen Collusion — Part XXXIX: On the Slippery Slope to Capture
  40. The EPO’s Overseer/Overseen Collusion — Part XXXX: The Idiosyncratic Italians
  41. The EPO’s Overseer/Overseen Collusion — Part XXXXI: Public Service or Self-Service?
  42. The EPO’s Overseer/Overseen Collusion — Part XXXXII: A Parcel of Rogues?
  43. The EPO’s Overseer/Overseen Collusion — Part XXXXIII: A Legal No-Man’s Land
  44. The EPO’s Overseer/Overseen Collusion — Part XXXXIV: Immunity = Impunity?
  45. The EPO’s Overseer/Overseen Collusion — Part XXXXV: In the Shadow of “Waite and Kennedy”
  46. The EPO’s Overseer/Overseen Collusion — Part XXXXVI: An Erosion of Fundamental Rights Protection?
  47. The EPO’s Overseer/Overseen Collusion — Part XLVII: Institutionalised Injustice at the EPO?
  48. YOU ARE HERE ☞ The Unkindest Cut of All

Baron Montesquieu quote
What would Baron Montesquieu have made of the EPO’s internal appeals committee and its shameful endorsement of Battistelli’s “Strike Regulations” in May 2019?

Summary: Benoît Battistelli‘s unlawful “Strike Regulations” (restricting basic rights of EPO staff) were boosted by the kangaroo courts of António Campinos, who continued to exploit these unlawful rules for 3 years

In the last part we saw how ILOAT Judgments Nos. 3694 and 3785 exposed serious deficiencies in the EPO’s internal justice system. Amongst other things, these judgments revealed how the EPO President had persistently interfered in the workings of the supposedly “independent” internal appeals committee.

“Back in 2012, Battistelli had already proposed one disastrous “reform” of the system which had been rubber-stamped by the Council, ignoring the well-founded objections raised by EPO staff, including the members of the Boards of Appeal.”The ILOAT’s interventions appear to have shamed the Administrative Council into attempting corrective action because Battistelli was asked to prepare a “reform” of the EPO’s internal justice system.

Back in 2012, Battistelli had already proposed one disastrous “reform” of the system which had been rubber-stamped by the Council, ignoring the well-founded objections raised by EPO staff, including the members of the Boards of Appeal.

The idea now was to try and undo some of the damage caused by the earlier “reform”, presumably in the hope of stemming the unrelenting tide of negative commentary in the “IP” blogosphere.

The intentions of the Council may have been good, but with Battistelli at the helm, any new “reform” was going to be a half-baked affair at best.

“Under the terms of this “reform” it was decided to revamp the internal appeals committee and to appoint an external person as the chair of that body.”After a number of reiterations and revisions, Team Battistelli dished up the final version of the “reform” proposal [PDF] (CA/58/17 [PDF]) on 9 June 2017. Shortly afterwards at the 152nd meeting of the Administrative Council held in the Hague on 28 and 29 June 2017, this proposal was adopted by the Council as decision CA/D 7/17. [PDF]

Under the terms of this “reform” it was decided to revamp the internal appeals committee and to appoint an external person as the chair of that body.

The new chair of the internal appeals committee was Sir Paul Mahoney whose appointment was confirmed by the Administrative Council in December 2017. (warning: epo.org link)

“n fairness to Mahoney it must be said that his committee did issue some opinions upholding staff complaints.”Because Mahoney was a retired judge of the European Court of Human Rights, his appointment gave rise to some initial hope among EPO staff that the organisation’s internal justice system might finally start to function in a more credible manner.

In fairness to Mahoney it must be said that his committee did issue some opinions upholding staff complaints. For example, one opinion issued by the appeals committee in 2020 belatedly excoriated an arbitrary and unprincipled act of censorship by Elodie Bergot.

The incident in question had occurred almost four years earlier in 2016 when Bergot had prohibited the intranet publication of a report by the EPO Staff Committee detailing the chronic deficiencies in the EPO’s internal justice system.

Sir Paul Mahoney
Sir Paul Mahoney, a former Judge at the European Court of Human Rights, was appointed as Chair of the EPO’s internal appeals committee in December 2017.

But if Mahoney occasionally dared to take a stand against abuses of power by individual officials such as Bergot, when it came to more politically sensitive cases involving decisions of the Administrative Council, he tended to tread more cautiously and to show more deference to the powers-that-be.

“For the record, it deserves to be noted that Mahoney’s endorsement of the “Strike Regulations” was not his only betrayal of EPO staff.”This became painfully evident in May 2019, when Mahoney endorsed a majority opinion of the appeals committee rejecting a challenge to Battistelli’s “Strike Regulations”.

Internal Appeals Committee on Strike Regulations
In May 2019, the EPO’s Internal Appeals Committee under the chairmanship of Sir Paul Mahoney placed its seal of approval on Battistelli’s Vichyite “Strike Regulations”.

After Mahoney and his committee had given Battistelli’s “Strike Regulations” what appeared to be a clean bill of legal health, EPO staff were forced to wait for another two years and two months before these manifestly unlawful measures were finally overturned by the ILOAT on 7 July 2021.

ILOAT-Strike-Regulations
The ILOAT did not share Mahoney’s positive assessment of Battistelli’s Vichyite “Strike Regulations”.

Mahoney’s endorsement of Battistelli’s liberticidal Vichyite "Strike Regulations" sits rather incongruously alongside the views which he expressed in an interview which appeared in the UK Law Society Gazette in November 2013.

On that occasion, he spoke about the role of the European Court of Human Rights and the Council of Europe, describing them as “a kind of insurance policy against backsliding into totalitarianism”.

Justice is blindBut for all his fine words about the need for vigilance against “backsliding into totalitarianism”, when the time came for deeds at the EPO, Mahoney failed to step up to the plate.

For some inexplicable reason, he did not appear to have any reservations whatsoever about placing his seal of approval on Battistelli’s scandalous interference with the fundamental right of EPO staff to “freedom of association”.

For the record, it deserves to be noted that Mahoney’s endorsement of the “Strike Regulations” was not his only betrayal of EPO staff.

As we shall see in the next part, the EPO’s internal appeals committee under Mahoney’s stewardship also saw fit to give a clean bill of legal health to Battistelli’s Orwellian "Social Democracy" project, another sinister liberticidal measure which was struck down by a seven-judge panel of the ILOAT on 27 January 2022.

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