11.06.22

The European Union’s Unspoken-About Blunder: EPO (Patent-Granting Office) Coup and Ongoing Coup Against Patent Courts

Posted in Europe, Law, Patents at 7:29 am by Dr. Roy Schestowitz

Video download link | md5sum b84d35a08a7dc4bb537710b6cea80ec1
Rectifying Lawlessness at EPO
Creative Commons Attribution-No Derivative Works 4.0

Summary: The EPO‘s “f*cking president” António Campinos (he actually referred to himself as “the f*cking president”) is going to face more and more challenges as scrutiny from outside the patent microcosm becomes inevitable if not imminent

The “patent microcosm” — an old term that refers to self-serving groups with no consideration or any regard/respect to “externalities” – is dominating the EPO and the overseeing body (mostly representatives of national patent offices, but not of nation states) must be challenged. The UPC lobby and the people who hijacked the EPO (overlapping groups) make people’s lives miserable, both inside the EPO and outside the EPO. The same people who hijacked the EPO (large corporrations and international law firms) try to do to patent courts what they did to Europe’s largest patent office, but that aspect shall be covered in the next post and today’s final video.

We’ve sadly not spent much time lately covering EPO scandals or even the lack of UPC progress. It’s mostly a matter of prioritising based on urgency. It has been about 3 weeks since we last covered EPO staff affairs except more minor aspects. The above video talks about this petition, which was brought up again some days ago in light of the union communicating “upwards”, seeking to get member states to intervene and disrupt EPO corruption (such as the violations of the EPC, resulting in European software patents among other monstrosities).

Some days ago the following message was circulated among examiners (for the most part):

Strong support for the petition to the Administrative Council to call for a Conference of Ministers of the Contracting States under Article 4a EPC

Dear Colleagues,

In total 1016 EPO staff members support the petition to the Administrative Council to call for a Conference of Ministers of the Contracting States under Article 4a EPC.

We would like to express our sincere thanks to all the signatories for their clear support. This strong signal has been sent to the Chairperson and to the Heads of Delegations of the Administrative Council in an open letter.

It is now up to the Administrative Council to ensure that the conference is convened as soon as possible. We will continue to monitor the progress of the issue and will keep you informed of further developments in a timely manner.

Your SUEPO Central Bureau

SUEPO is well aware that the Chairperson is pretty much in the pocket of Campinos. Nothing will be done by the Chairperson unless his own job is at risk; but this is what happens when the “patent microcosm” is being put in charge of the “patent microcosm”. Heck, maybe he’ll get a high-paying job at the EPO later on (like Dr. Ernst, his predecessor).

Here is the open letter to with annexes merged: (as discussed in the video at the top)

INTERNATIONALE GEWERKSCHAFT IM EUROPÄISCHEN PATENTAMT
STAFF UNION OF THE EUROPEAN PATENT OFFICE
UNION SYNDICALE DE L’OFFICE EUROPEEN DES BREVETS

Zentraler Vorstand Central Executive Committee Bureau central

21 October 2022
su22052cl – 0.3.1 – 5.3

To the Chairperson
and to the Heads of Delegation of the
Administrative Council of the
European Patent Organisation

SUEPO Central Executive Committee

OPEN Letter

To the members of the Administrative Council of the EPO
Call for a Conference of Ministers of the Contracting States under
Article 4a EPC

Dear Mr Chairperson,
Dear Heads of Delegation,

In total 1016 EPO staff members support the following petition on a call for a Conference
of Ministers of the Contracting States under Article 4a EPC and ask you to act accordingly:

“We, staff members of the European Patent Office (EPO) and the signatories of this petition, perceive that the development of the European Patent Organization (EPOrg) has increasingly departed from the structure and its mission as foreseen under the EPC and it appears that no appropriate countermeasures will be taken.

Therefore, we consider an external review of the EPO’s situation by a Conference of Ministers of the Contracting States under Article 4a EPC to be expedient; such a Conference is anyway long overdue in view of Article 4a EPC.

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We call on you to have anew a close look:

- at the development and administration of the organization’s resources, in particular the alarming reduction of staffing levels in the core tasks;
- at the development of EPO employment law, at the (absence of) internal dialogue with social partners; and
- at hidden attempts to de-centralize the EPO towards National Patent Offices and weaken the roles and competencies of the various organs defined under the EPC.

We also call you to reflect on whether the strategic governance of the EPO is compatible with the long-term continuity of the Organization’s existence and with the future fulfilment of its mission, also in the context of its role in the Unitary Patent system.

We ask you to transmit this petition to your Ministries in order to convene such Conference without delay.”

Additional more detailed information can be found in the annexes to this letter.

Yours sincerely,

C. Lopes
Chair of SUEPO The Hague

I. Brumme
Chair of SUEPO Munich

T. Czogalla
Chair of SUEPO Berlin

J. Schaaf
Chair of SUEPO Vienna

Copy: President of the EPO, A. Campinos

Attachment: Detailed information on the petition

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1 – 1 Date 30.09.2022

Update on the petition to the Members of the Administrative Council of the EPO to call for a Conference of Ministers of the Contracting States under Article 4a EPC

When the petition was launched in June 2022, compelling reasons had already been published as to
why such a Conference of Ministers of the Contracting States is necessary and, in fact, overdue. Since then, more events have occurred that speak for such an external review of the organisation and thus for the support of the petition, which are:

- The production demands for examiners are to be increased – increases of up to 10% are in the air – and this despite the fact that quality has fallen further;
- The office’s practice concerning patentability of business methods under Article 52(2)(c) EPC has become unclear again; and
- More embarrassing ILOAT Judgments showing the EPO’s violation of fundamental rights were issued three months ago and while implementation could be smooth and easy, it has yet to occur.

In more detail:

In the meantime it has been announced by senior managers and line managers that examiners will be required to produce more and that production pressure will be significantly increased for the coming year. This is even though staffing levels in core tasks are alarmingly low, examiner productivity is at its limits and at the same time the quality of issued patents has further deteriorated to below 75% compliance rate. In team meetings the figure of an increase of up to 10% of production has bee mentioned (see also the corresponding CSC publication ¹). It seems that management no longer has any meaningful answers to manage the office’s workload.

Concerning the assessment of patentability of business methods in substantive examination (Article 52(2)(c) EPC), a recently started debate illustrates that this issue still seems to be very unclear. A clear guidance at the level of the Contracting States of the EPC seems to be necessary.

In early July the ILOAT issued inter-alia the Judgments no. 4550 and 4551, the latter clarifying that again the EPO has violated fundamental rights of staff freedom of association for roughly a decade. With the Judgment, the ILOAT lifted the presidential ban on Staff Committee sending mass emails to staff.

However, even after repeated requests by the Staff Committee and SUEPO, the President has not yet removed his technical restrictions on Staff Representation in the office’s email system that were put in place to enforce the ban. Currently, it looks like the Office continues to refuse to comply with the court’s ruling and allows the illegal email ban to remain in place. It seems that the ILOAT will have to be called again in this matter, this time simply to obtain the enforcement of its judgment.

Thus, not only has the fear that further embarrassing ILOAT Judgments will be issued against the organisation been confirmed, but it is compounded by the lack of willingness in the office leadership to recognise the highest court having jurisdiction over the organisation and to comply with the EPC. This procedure could put the existence of the organisation, and thus our own, in jeopardy. It is unclear whether the Administrative Council can or wants to put a stop to this.

In view of the above, an external review of the situation of the EPO by the Contracting States has become even more urgent.

This external review is claimed by the petitioners to the Members of the Administrative Council of the EPO to call for a Conference of Ministers of the Contracting States under Article 4a EPC.

_____
¹ Open letter of the Central Staff Committee to the EPO President on the subject “Unsustainable productivity increase of +10% for 2023” dated 22.09.2022,

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[Redacted: a letter previously published here]

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[Redacted: a letter previously published here]

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Detailed information on the PETITION
To the Members of the Administrative Council of the EPO Call for a Conference of Ministers of the Contracting States under Article 4a EPC as launched by SUEPO Central in the EPO on 07.06.2022.

We, staff members of the European Patent Office (EPO) and the signatories of this petition, perceive that the development of the European Patent Organization (EPOrg) has increasingly departed from the structure and its mission as foreseen under the EPC.

It appears that the EPO is being more and more transformed into a profit center, which is – in our view – inappropriate for a public service with quasi-judicial bodies responsible for granting monopoly rights by sovereign acts, which have a wide impact on their owners, their competitors and on the public. The fact that almost all management decisions are made on the basis of financial figures calculated according to the accounting standards applicable to the private sector (IFRS) rather than to the public sector (IPSAS) has led to reforms focused on savings on the expense of staff and downsizing of staff in core business to an amount which endangers the good functioning of the EPO. Core tasks are evaluated increasingly more on a financial perspective, wherein internally a link between the number of patents granted and the financial health of the EPO is openly communicated. The EPO career system further adds to an individual preference for granting of a patent over refusing a patent
application.

Internal quality control mechanisms have been implemented, by which the President of the European Patent Office has increasingly assumed the position of an additional higher ranking, but hidden instance in the patent granting procedure above the Divisions defined pursuant to Articles 15, 18 and 19 EPC. This not only questions the authenticity and legal validity of the Division’s decisions but also leads to strong influence to quickly grant patents. While surveys among external “stakeholders” ran by the EPO appear to show a high quality of the EPO patents, internal audits disclose that since years more than 20% of the European Patents have severe deficiencies and shouldn’t have been granted.

Backlogs in examination and search are increasing and it appears that for tackling the problems the current line management is tempted to return to outdated management approaches like “challenging people” measures and management “by fear”, which are unworthy of a modern organization like the EPO with highly qualified personnel. At the same time the EPO plans to reduce the staffing level in core tasks even further. This adds to current plans squaring with a large-scale decentralization of EPO tasks, including transfer of tasks to NPOs. Such significant amendments of the Organization’s structure fall outside the prerogatives of the President or the Administrative Council as defined in Articles 10 and 33 EPC. Furthermore, such a decentralization of EPO tasks would also affect the legal certainties of the validity of the patents granted by the EPO.

Apart from that, virtually all reforms of employment law since 2013 have been legally challenged, a number of which were already considered as null and void by the ILOAT (see e.g. Judgments 4430 to 4435 or 4482) or even in breach of fundamental rights; no significant investments have been made for reviewing the other reforms at stake. The EPO has obviously been unable to develop and apply new policies in line with legal constraints as defined by the ILOAT, so that further embarrassing judgments are to be expected.

All these issues have not been appropriately tackled due to the long-lasting failure of the EPO Administration to engage in a genuine social dialog with the staff representation and trade unions, who have drawn attention to them repeatedly to no avail.

Therefore, we consider an external review of the EPO’s situation by a Conference of Ministers of the Contracting States under Article 4a EPC to be expedient; such a Conference is anyway long overdue in view of Article 4a EPC.

We call on you to have anew a close look:
- at the development and administration of the organization’s resources, in particular the alarming reduction of staffing levels in the core tasks;

- at the development of EPO employment law, at the (absence of) internal dialogue with social partners; and

- at hidden attempts to de-centralize the EPO towards National Patent Offices and weaken the roles and competencies of the various organs defined under the EPC

1 – 2

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We also call you to reflect on whether the strategic governance of the EPO is compatible with the long-term continuity of the Organization’s existence and with the future fulfillment of its mission, also in the context of its role in the Unitary Patent system.

We ask you to transmit this petition to your Ministries in order to convene such Conference without delay.

The non-exhaustive list of signs of derailment of the EPO includes:

Management of core business and Quality:
• Staffing level in core business has been reduced significantly during the past years and the office plans to continue the reduction of staffing level in core tasks by 25% of examiners and by 50% of formalities officers;
• Since the beginning of 2021 until the end of April 2022 an increase of the examination backlog by about 12% and search backlog by 5% is visible;
• Rather than adapting the recruitment plans in core business to the actual situation the Office continues to focus on prioritizing and re-shuffling examiners tasks in examination and search;
• The latest figures of the internal quality audit disclose a decreasing trend of quality of grant decisions from an already low compliance rate of 80% in April 2021 down to less than 75% at the end of March 2022.

Decentralisation initiatives:
• The EPO has proposed a new „mobility” program which includes secondment of patent examiners between the EPO and NPOs without limitations; it further focuses on harmonization of IT structures between NPOs and the EPO rather than primarily investing in the tools to support the core work;
• By the reorganization of 1 April 2022, EPO examining divisions and EPO formality officers were artificially separated geographically to different sites, without any added value for the EPO work procedures;
• The Office has departed from long-term and permanent employment towards high rotation short-term contract jobs for the members of the Divisions defined pursuant to Articles 15, 18 and 19 EPC.

Legal Certainty of Sovereign acts:
• Over the past years the President of the European Patent Office has issued instructions by which he increasingly assumed the position of an additional higher ranking, but hidden instance in the patent granting procedure above the Divisions defined pursuant to Articles 15, 18 and 19 EPC. Every notified action of the Division like a communication, summons to oral proceedings, refusal decision or grant of a patent application requires approval of the line manager in substance, although she or he is not a member of the Division;
• No legal means are available for the members of the Divisions for redressing interferences, like unlawful orders of the line manager to issue a communication instead of a decision to refuse an application as no legal instance is available (see e.g., Judgment 4417);
• The current electronic file and workflow system systematically implements resulting interference by management with the Division’s responsibilities and tasks and does not ensure an appropriate authentication of signatures of the responsible members of the Division.

2 – 2

Sooner or later they will need to (re)convene and all those massive problems will have piled up by then. Will they have the guts to admit they neglected/ignored the issues to the point where the patent system got flushed down the drain, instead rendering itself a cookie jar for law firms and monopolists? █

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