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12.16.14

Keeping Software Patents Out of Europe Following the Demise of Software Patents in the US

Posted in America, Europe, Patents at 3:59 pm by Dr. Roy Schestowitz

Finally seeing the light?

A lighthouse in Denmark

A lighthouse in Denmark

Summary: Instability in the EPO seemingly prevents further expansion of patent scope, which is the subject of scrutiny of EPO staff

TECHRIGHTS has neither actively observed nor spotted much discussion/debate about the Unitary Patent as of late; either it’s being silently stalled or it is being pushed forth in secret (behind closed doors). Truth be told, the EPO is now wrestling with much bigger issues and we will continue to expose damning facts about people who currently run the EPO. They need to be sacked or forced into resignation.

Watch how a lawyers’ propaganda site, IAM, tries to defend the Mafia of the EPO (very much expected from such a zealous site), though as this site puts it:

Keep in mind that this is a poorly attempt to disguise oneself’s doubtful actions! The IAM interview with Battistelli is in my opinion a one-sided version of events. The origin and core of this conflict isn’t about salaries or that 1 judge who was suspended solely rather than violation of National, European and International Law’s in respect of Social Security, Basic Rights and Human Rights! The list of suspended and dissmissed, in some cases, illegal dissmissed servants is long! Do not forget, and here is the point where it starts to get really nasty, in case of dissmissal, wrongfully or not, proven or not, EPO servants do have absolutely NO RIGHTS!!! NO SOCIAL SECURITY, nothing Nada, Niente whereas every European Citizen do own this Rights!
Why does Battistelli don’t comment on why he rules out the labour union first?

Battistelli will most likely be out quite soon. Our EPO series is far from over and it will continue when the time is right (many newspaper journalists go on vacation soon, so it might be worth waiting).

” It is important to impede or altogether prevent the proliferation of software patents; the place they spread from is cracking down on them.”The USPTO, unlike the EPO, is gradually treading away from software patents. Due to the bias of software patents-centric lawyers in the media is may appear like nothing is changing, but actually, a lot is changing quite rapidly in the US. Here is a new example of selective coverage by lawyers’ media and blogs of software patents proponents like Dennis Crouch, who says: “The US Patent Office has released a new set of guidelines for judging patent eligiblity based upon the Supreme Court’s recent quartet of Bilski, Mayo, Myriad, and Alice. The guidelines do not carry the force of law but are designed to serve as a manual for examiners when determining eligibility.”

These guidelines will be hard to change unless SCOTUS gets involved again, which is rare (happens perhaps twice per decade). We are thankful for these developments which not only will hurt patent trolls but also villainous extortion operations such as Microsoft’s. It is important to impede or altogether prevent the proliferation of software patents; the place they spread from is cracking down on them.

12.13.14

News From France and Germany: Battistelli Under Fire, But Not Fired Yet, Just Firing His Opposition

Posted in Europe, Patents at 6:39 am by Dr. Roy Schestowitz

Benoît Battistelli

Benoît Battistelli with one of his bosses from the multinational corporations

Summary: The régime headed by Benoît Battistelli and his criminal deputy continues to overthrow or pressure out everyone who is not ‘loyal’ to the régime

Benoît Battistelli’s reign of terror is coming to an end. He has become a laughing stock inside the organisation he proclaims to be managing. He is being vastly outnumbered by his opposition, so claiming that his opposition is a small dissenting voice or “muck raking” won’t work. People no longer need to fear him, especially if they remain united against him (he cannot lay off or euphemistically “suspend” half of his staff).

According to various reports, like this one from Switzerland (not part of the European Union but definitely EPO-focused), says that both patent scope (or quality) and independence are under fire. The EPO is not a corporation and managing/aligning it against the interests of European people should not be tolerated. Not even EPO staff – i.e. potential short-term benefactors in case of patent maximalism (in the long term it discredits the system and repels clients) – is willing to tolerate that. IP Watch says: “While some European Patent Office (EPO) employees strike on 10 December, many are waiting to see what the Administrative Council (AC), the office’s supervisory body, will do about the growing tension between EPO President Benoît Battistelli and his staff.

“The AC, composed of representatives from EPO member states, has been confronted with claims that patent examiners will no longer be able to ensure patent quality standards if Battistelli’s proposed “New Career System” (NCS) is approved.”

Another European site covered recent events involving the Administrative Council and according to Merpel from IP Kat, Battistelli has come under fire from yet more judges, namely:

  1. Sweden: Per Carlson, President of the Market Court
  2. Switzerland: Katherine Klett, Swiss Federal Supreme Court
  3. Cyprus: Stelios Nathaniel, Judge Supreme Court of Cyprus
  4. Denmark: Henrik Rothe, Chief Justice the Maritime & Commercial High Court
  5. Romania: Octvia Spineanu-Matei, High Court of Cassation and Justice
  6. Finland: Ari Wiren, Judge

Some “muck raking”, eh? That’s what Battistelli might wish to label it, albeit this would backfire on him. Some also serve as external members of the Enlarged Board of Appeal, so basically these are in some sense colleagues not ‘loyal’ to the authoritarian and arrogant Battistelli.

There is already political action and pressure from the press against Battistelli.

“There is already political action and pressure from the press against Battistelli.”Jean-Yves Leconte, of France, was recently mentioned here for his actions on this matter. Here is more from him. A new press article from Les Echos writes about what goes on at the patent office and covers the action taken by judges after an unprecedented suspension by of Battistelli. This shows that the biggest stakeholders at EPO no longer want Battistelli. He is probably on his way out (sooner or later).

Not only the French press writes about this (because of Battistelli’s French nationality). The German press too covers it. The Frankfurter Rundschau reports about the revolt against Battistelli (at many levels) and other German media provides coverage of the protests (in German). Watch a patent maximalists’ site framing the problem as a transparency issue. Complete nonsense from patent lawyers. It’s a straw man, just like Battistelli’s (he pretends that “transparency” or lack of understanding is the problem).

German lobbyist Florian Müller published a decent analysis and roundup of the recent developments following the suspension of a judge by Battistelli’s régime:

On its website, the European Patent Office has published a “communiqué” concerning this week’s meeting of the Administrative Council (AC) of the European Patent Organisation (the international body running the EPO) that contains a sybilline sentence on the suspension of an EPO-internal judge (member of a board of appeal) for disciplinary reasons. The suspension was widely criticized, including but not limited to a letter by (internal) members of the Enlarged Board of Appeal (EBA) to the AC, a letter by two external EBA members, Lord Justice Floyd and high-ranking Dutch court official Robert van Peursem, which was subsequently endorsed by leading patent judges from six other countries, and an email sent by a German patent litigator to his country’s AC member.

[...]

If this sentence explicitly mentioned a reprimand of President Battistelli for compromising judicial independence, its meaning and its significance would be clear. However, “an incident unique in the history of the EPO” is vague enough that this could also mean unanimous backing of the executive’s action and concern over whatever the suspended judge may have done. That interpretation is less likely to be correct than disagreement with the way the executive leadership handled the matter, but it can’t be ruled out completely in light of the unanimous endorsement of the suspension.

[...]

Coverage of this scandal in the general press will also play a key role. I heard that a Munich area center-right newspaper, Münchner Merkur, published an article in yesterday’s print edition, entitled “Die letzte Diktatur auf deutschem Boden” (“the sole remaining dictatorship on German soil”). Things can’t stay that way forever. The AC’s “communiqué” should be interpreted by the IP sector and by innovative companies depending on high-quality patents (I heard from an unofficial source that a compensation scheme with potentially disastrous implications for European patent quality was approved yesterday) as an invitation to push even harder for serious reform. It shows that all these recent efforts, by EPO staff and by others, didn’t go unnoticed, but they will one day have been in vain unless there’s even more pressure now.

The EPO is now in ‘damage control’ mode. It has published two updates in one day (yesterday) after almost 2 months of silence. Here is the first update:

Communique on decisions taken by the Administrative Council at its 142nd meeting concerning senior employees and appointments and reappointments to the Boards of Appeal

The Administrative Council of the European Patent Organisation held its 142nd meeting in Munich on 10 and 11 December 2014 under the chairmanship of Jesper KONGSTAD (DK).

The Council addressed a number of points concerning senior employees and the Boards of Appeal. Specifically, the Council addressed disciplinary arrangements applicable to senior employees appointed by the Council under Article 11 (1)(2)(3) EPC and, noting its obligations under Article 11(4) EPC, agreed to set up a Council Disciplinary Committee.

The Council took this opportunity to reiterate its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence.

The Council also made four re-appointments of members of the Enlarged Board of Appeal and Chairmen and legally qualified members of the of Boards of Appeal pursuant to Art 11(3) EPC, as well as a total of twelve appointments and re-appointments of legally qualified members of the Enlarged Board of Appeal pursuant to Art 11(5) EPC.

On a proposal from the President of the Office, the Council addressed and carefully considered a particular issue concerning alleged misconduct by a Council appointee under Article 11 (3) EPC. As a precautionary and conservative measure without anticipating any further steps which may ensue, the Council unanimously decided to suspend the person concerned from active duty on full salary until 31 March 2015. The Council requested the investigation to be completed as soon as possible, in order to allow it to decide on the next steps. The Council expressed its concern at an incident unique in the history of EPO.

Details of the appointments and reappointments as well as of other decisions taken by the Council at this meeting will be published separately.

Council Secretariat

Kongstad exists to protect Battistelli and his cronies, so he too is part of the problem, not the solution. Here is a later update about Kongstad’s flawed ‘regulation’/administration:

142nd meeting of the Administrative Council of the European Patent Organisation (Munich, 10 and 11 December 2014)

The Administrative Council held its 142nd meeting in Munich on 10 and 11 December 2014
with Jesper Kongstad, Director General of the Danish Patent Office, in the chair.

After the Chairman’s report on the last meetings of the Board of the Administrative Council, the President of the European Patent Office, Benoît Battistelli, presented his activities report. The Council expressed its clear satisfaction.

The Council then exchanged information on strategic matters within the Organisation and on the social climate and addressed a particular issue concerning alleged misconduct by a Council appointee under Article 11 (3) EPC, reported separately on this website.

Further, the Council proceeded with a series of appointments and re-appointments to positions in the boards of appeal.

Later, the Council heard status reports on the Unitary patent and related developments as well as on substantive patent law harmonisation.

Lastly, the Council adopted a reform of the career system as well as the draft budget for 2015.

Council Secretariat

So basically Kongstad (one of the president’s cronies) keeps attacking the EPO’s staff. This is the sort of behaviour that even Stalin would be envious of. An activist site of EPO staff says that “EPO President Battistelli threatens the staff representatives – again!!!”

To quote the site’s framing of the latest developments: “Each Central Staff Committee (CSC) member has personally received a series of three highly threatening letters from the President, dated 4 December 2014. The members of the LSCs have also received the letter dealing with nominations to the Internal Appeals Committee (IAC). Within one week after receipt of the letters, 2 local members in Munich and 1 central member in The Hague have resigned. The staff representation has now lost 4 members 6 months only after the new elections under the “Social Democracy” framework. In this publication, the CSC responds to the threats of the President.”

Battistelli and his cronies need to be toppled before they managed to sack or drive out all of their opposition scaring the rest into silence and passivity. The crimes of Battistelli or his cronies will be the subject of future posts in Techrights. Battistelli’s tactics against his opposition are similar to how proponents of “War on Terror” handle dissent; if someone disagree, then just label that someone a threat and eliminate him/her to eradicate an uprise.

12.12.14

Dreaming of a Just Christmas: When a Third of EPO Walks Out to Revolt and European Judges Attack the EPO Over Abuses

Posted in Europe, Patents at 5:44 am by Dr. Roy Schestowitz

EPO scandals making it into the press now…

Window

Summary: Information about the abuses of Battistelli et al. at the EPO are finally receiving wider coverage and increasing the strain on Battistelli’s authoritarian reign

TECHRIGHTS forecasts that heads will roll at the EPO within weeks or months. Our community also expects the corporate media to increase its level of coverage of these issues. It’s already happening, so citizens are being informed in many languages.

“The responses from the management of the EPO are telling because they in no way refute what we have covered here for months.”Yesterday we found a good summary of recent events, aptly titled “Is the EPO in Crisis” (detailed article from Managing IP).

The article gives the accused an opportunity to respond, but Konstad refuses to respond to Managing IP, which is pro-patents (it’s not hostile). Staying silent was his implicit policy all along, perhaps realising that he needs to harbour and shelter a bunch of bullies. The report has some new points and it’s rather revealing. The responses from the management of the EPO are telling because they in no way refute what we have covered here for months. Managing IP says that on November 20th more than a third of the staff walked out and protested. SUEPO (the staff union representing and defending EPO staff) is mentioned as well.

There is another interest new report from IP Kat and it shows increased involvement from prominent figures:

Leading European IP Judges join the chorus of condemnation

[...]

A week ago today, a member of one of the EPO’s Boards of Appeal was escorted out of the building, and banned from the premises pending an investigation of alleged misconduct.

It is believed that the reason for the “house ban” or suspension was the alleged dissemination of defamatory material.

Widespread criticism ensued immediately both inside and outside the office, both on the grounds that this directly breached guarantees of judicial independence (Art. 23 EPC), and that this was a further instance (among many) of heavy-handed suppression of criticism, dissension and debate within the EPO.

The ultimate governing body of the EPO, the Adminstrative Council (AC), meets this week. It is this body alone that would be empowered to impose sanctions such as suspension or dismissal on a Board member.

On Monday, members of the Enlarged Board of Appeal (EBA), which is the highest judicial authority in the European Patent system took the unprecedented step of complaining about the conduct of the President, and of his interference in their judicial independence, directly to the AC delegates arriving for their meeting.

Simultaneously, another letter emerged from a Partner in Bardehle Pagenberg, exhorting the head of the German delegation to the AC to take the lead in rectifying the President’s actions.

Anonymous comments, many of which from EPO staff, can be seen at the bottom. It sure is becoming quite a huge thing and in France the politicians have taken an interest (our French-speaking audience may be interested in [1, 2, 3]). To sum up some recent developments in the words of a source, “the socialist Deputy Leborgn (for the French citizens living abroad) already was in touch with various Ministers (including foreign affairs : Fabius, Industry : Pellerin, economy : Moscovici) in April this year. However, he was told in substance “before Mr. Battistelli there was no legal system framing the right to strike so that it should be regarded as a progress. Presented with the fact that the new strike law was below French standard, the deputy was answered that the EPO is made of 38 countries so that compromises should be made. For the record, Fabius, Moscovici, Pellerin and now Marcon all come from the same school as Mr Battistelli: that is the ENA (Ecole Nationale d’Administration). ENA’s alumni is one of the most powerful French networks [and] may be even more powerful than freemasonry” (words of the source, not ours).

Now that this scandal’s coverage makes it into newspapers in German, French, English etc. we can rest assured that something big will happen. In the coming weeks we are going to cover corruption charges to add fuel to the fire.

12.11.14

France Gets Involved in Battistelli’s Abuses in the EPO – Part XII (Updated)

Posted in Europe, Patents at 11:32 am by Dr. Roy Schestowitz

Berlin views

Summary: The EPO scandal has officially spilled over to France, where a French Senator got involved and starts asking serious questions

ONE of our sources for the EPO stories handed to us this letter in French. If any of our French-speaking readers could kindly provide us with an English translation, that would greatly help raise awareness.

Our source says that our dozens of articles “may even be causing some ripples in the outside world. According to our information, the French Senator Jean-Yves Leconte wrote a letter to the French Ministry in charge of the INPI on 14 October.

“He doesn’t mention the Topić affair, but he refers to the INPI-cronyism in a lot of senior EPO appointments and he requests that the Minister exercise more control over France’s delegate to the AC (the current Director of the INPI and Battistelli’s successor in that position).”

Update: We now have a translation of the letter into English. It states:

Mr Minister,

I hereby confirm that I have read your letter dated September 15th 2014 relating to the social climate currently prevailing within the European Patent Office (EPO). I note as well that you support the idea of setting up a social audit within the Office and that you have notified this to our representative in the Administrative council.

Nevertheless, you certainly know that both the President Mr. Benoit Battistelli and our representative in the Administrative Council (AC), Mr. Yves Lapierre, come from the French National Institue of Industrial Property (INPI), and that one of the topics which make the atmosphere extremely tense at EPO is that former members of INPI are taking over the direction of this organism in a disproportionate manner.

For this reason, it seems legitimate that, regarding the mandate exercised by Mr Lapierre for the INPI, the former should effectively and regularly be framed by instructions issued by your services, notably in order to spare us situations where we would end up at odds with the management of his President, being noted that certain members of the AC insistently refer to his French citizenship.

Rolling of Heads Likely Imminent at EPO

Posted in Europe, Patents at 11:16 am by Dr. Roy Schestowitz

French revolution

Summary: The European patent system is shaking as management breaks the rules, staff is protesting against the management every week, and charges of corruption resurface

OUR sources inside the EPO are telling us that tensions run high inside the institution. Earlier this week we wrote about Battistelli's violation of the rules as highlighted by the Enlarged Board of Appeals (full text was later appended) and we also wrote about popular staff actions, which include marching in the streets. The technical staff at the EPO should carry on protesting and even going on strike in a public showing of unity and solidarity to colleagues. This is essential because sooner or later Battistelli will come to them, unless they dethrone him first. Battistelli borrowed his standards from corrupt regimes. He discredits the EPO as a whole.

“Heads Will Roll” is a phrase quite common in popular culture and songs. but “heads will roll” might as well be a phrase that relates to a French decapitation device, used extensively during the French Revolution (and remember that there is a French President at the EPO, much worse than his British predecessor).

One blog of the protesters at the EPO reveals an interesting Administrative Council letter. The conclusions are as follows:

Mr Battistelli as President has shown a profound lack of respect for staff and their rights, including fundamental rights such as the right of due process. This has led to a massive yet still escalating social conflict. Any worsening of the situation risks impacting the external image and good-functioning of the Office.

It would appear that the Administrative Council has not been fully informed by the President of the EPO either of the underlying reasons of the current social unrest or of the possible risks that several of the changes that have been implemented under his presidency will ultimately be considered illegal. The Staff Committee has tried to make the Administrative Council aware that there are serious problems: the Administrative Council must have noticed the demonstrations of staff in front of its meetings.

However, simply being badly informed about the changes taking place in the EPO and the risks they engender does not take away the responsibility of the delegations in the Administrative Council vis à vis staff at the EPO and vis à vis their national governments.

The Staff Committee strongly urges the Administrative Council to become better informed of the decisions which have been or are being taken in its name, in particular any decisions that affect the rights of staff, some of which already seem to be in disaccord with commonly accepted legal principles, if not European law. The potential consequences of doing nothing may be grave for the functioning, governance and overall reputation of the Organisation.

The Staff Committee also requests the Administrative Council to take its responsibility and arrange mediation between the President and EPO staff in order to avoid further escalation of the situation.

“In 2013,” quotes a source of ours from the EPO’s Web site [PDF]: “There were two mass appeals against Investigation Guidelines (Circular 341, 342). One mass appeal with 89 appellants, the second with 61.” Right now the Enlarged Board of Appeal privately complains about Battistelli, so he seems to have gotten himself surrounded not by an angry mob but by his own colleagues, both internal and external. Together they can oust both Battistelli and his cronies, whom he uses for ‘protection’ from colleagues who are not loyal to him.

Expect some major changes.

Battistelli cannot last long. A lot is going on and the public cannot always see it (Battistelli and others try to save face). It is going to explode sooner or later.

“A lot is going on and the public cannot always see it (Battistelli and others try to save face). It is going to explode sooner or later.”Our coverage about the complaint against Battistelli was simultaneously mentioned in some other blogs which say that “under Article 23 EPC, only the AC can remove a Board Member from office, on a proposal from the Enlarged Board. In this case, the President bypassed that safeguard and imposed a “house ban” using his general disciplinary powers over all staff members.”

As one blog of a lobbyist for hire put it: “From what I hear, one can see a printout of this webpage, on which the patent firm of Zimmermann & Partner (known for work on behalf of blue-chip clients in multiple fields of technology) expresses its support for the EPO staff, on many doors at the EPO’s different locations (Munich, The Hague, Vienna, Berlin). And I venture to guess that an English translation of an email sent by one of Germany’s leading patent litigators, Bardehle Pagenberg’s Dr. Tilman Mueller-Stoy (“Müller-Stoy” in German), whose work on behalf of Microsoft I’ve mentioned various times (and whose other clients include, inter alia, Amazon and a major automotive company) to German Federal Ministry of Justice official and EPO Advisory Council member Christoph Ernst will also rise to tremendous popularity in the corridors of the EPO (this post continues below the document)”

“I keep my fingers crossed,” he wrote, “that a tipping point has been reached now or will be reached over the next few days, and that even wider parts of the European IP community will stand up in support of fundamental rights, due process, patent quality, and judicial independence. But this is not just about a few individuals at the top of that organization. There are serious structural deficiencies that have led to the current situation, and they must be addressed as soon as possible.”

He then alluded to Željko Topić‘s corruption charges as well: “IPKat has published and commented on “a letter which is unprecedented in the 40 year history of the European Patent Organisation”: a reqest by the members of the Enlarged Board of Appeal (the highest in-house judiciary body) of the EPO that the Administrative Council act against President Battistelli’s “clear challenge to the judicial independence of the Boards of Appeal.” The letter also mentions that the suspended judge’s “computer was confiscated by the [President's] investigation unit, which has given them access to possibly confidential information regarding the preparation and deliberation of cases by the member’s board, without proper, legally sound guarantees.” I’m speechless. There’s a banana republic-style enclave in the heart of Munich (notably with a vice president facing multiple corruption charges in his own country but having stayed in power nevertheless), and so far this banana republic has been condoned and supported by governments that constantly preach human rights and democracy to countries like China and Russia. But it’s not a banana republic at all levels (as the Enlarged Board’s letter shows, there’s plenty of principled people at work). Only at the very top. [/Update]”

Topić and Battistelli, as we have stated before (but elsewhere), will hopefully both be gone by Easter. It’s probably too close to Christmas now for them to be abruptly discharged from service or even for legal action to be launched against them (there are ground for such an action). We are hoping to see Topić and Battistelli both facing “house bans” quite soon and we are pretty certain that their time is running out. In the coming months we will share with readers more of their dirty laundry. We urge our readers from EPO to disseminate information (acquired internally) within the EPO in order to raise awareness. The only reason Topić and Battistelli get to keep their job (for now) is that they keep staff ignorant and ban staff which they deem a threat to their job.

12.09.14

Exclusive: The Enlarged Board of Appeal Complains About Battistelli’s Corrupt Management to the Administrative Council (Updated)

Posted in Europe, Patents at 9:48 am by Dr. Roy Schestowitz

That was then…

Software patents protest against EPO

Summary: Text of the complaint from the Enlarged Board of Appeal (EBoA) reaches Techrights, demonstrating just how rampant the abuse in Battistelli’s EPO has become

FIVE YEARS ago the EPO was in a state of turmoil and the Enlarged Board of Appeal got involved after important changes and a continual battle for restoration of the EPO’s integrity. Unrest at the EPO is not exceptionally novel, but it does help show the systemic presence of dissent, which emanates from genuine concerns. There is often a battle within and outside the EPO; the greedy parties want to prey on and exploit the EPO, whereas the smart people inside the organisation just wish to do their job with professional integrity. Patent examiners are not to be confused with patent lawyers; in fact, patent examiners are scientists, not lawyers.

“It sure looks like Battistelli and his cronies have begun attacking the Enlarged Board of Appeal…”A new article has been published by IPKat, where one of the bloggers has been covering the EPO scandals for a while. Titled “Enlarged Board appeals – direct to the Administrative Council,” the article speaks of a curious “suspension of a Board of Appeal member by the EPO President, under the guise of a “house ban” [which] has generated enormous disquiet, not only among bloggers, attorneys and EPO union officials, but now also within the Enlarged Board of Appeal.”

It sure looks like Battistelli and his cronies have begun attacking the Enlarged Board of Appeal as well, having shut down some other departments whose purpose was to oversee them. It’s like some kind of slow-motion coup d’état. Sooner or later there will be nobody left to topple or even investigate Battistelli. He is systemically eradicating dissent, hopefully not quickly enough to eradicate many hundreds of his staff who march against him in numerous streets in Europe.

The IPKat blogger “cannot remember any such internal EPO dispute spilling out into the public domain with such vehemence. The letter from the Enlarged Board should dispel any preconceptions that the current troubles at the EPO and the complaints about Mr Battistelli are confined to a few disgruntled examiners looking to protect their cushy jobs (a view she has heard from several quarters).”

Anyone who claims it was a grudge “confined to a few disgruntled examiners” (or anything along those lines) was either the editor of the Establishment media in Europe or someone from within Battistelli’s circles. Techrights has been in contact with numerous people from the EPO (people who work at high levels too) and there is no denying that there is a massive issue. It’s shocking that Battistelli still keeps his job. His dismissal or resignation should be imminent and sources tell us that he already resorts to desperate “damage control” measures.

Someone has just passed to us a copy of a new letter from the Enlarged Board of Appeal. It highlights what has been going on at the EPO and it comes from a high authority. Many people added their signatures to it. We are working to get a textual (plain text) version of it, but in the mean time we present the scanned pages below. Updates likely to follow.

Update: Here is the full letter as text.

CONFIDENTIAL

Members of the Enlarged Board of Appeal
of the European Patent Office
c/o Secretariat Room 206

Munich, 8 December 2014

To the Representatives of the Delegations to the Administrative Council of the European Patent Organization

And

To the External Members of the Enlarged Board of Appeal.

On December 2014, a member of the Boards of Appeal was escorted out of the Office by the Investigation Unit (0.6.1.1), a unit operating directly under the responsibility of the President. As the other members of staff wer informed by Communique 64 on the Internet on the same day, the President has imposed a “house ban” on him. It appears from this communique that the staff member is accused of having disseminated defamatory material.

A house ban may very well be considered a de facto suspension, because the Board member can no longer perform his duties.

The provisions unde which the above action has been taken, namely the Investigation Guidelines, do not – and cannot – provide a legal basis for such actions. According to Part 1, their purpose is to establish, in cases of possible misconduct, the underlying facts on the basis of which the President can come to a reasoned assessment regarding the initiation of disciplinary proceedings.

Article 95 of Service Regulations provides that if an allegation of serious misconduct is made against a permanent employee and if the misconduct alleged is of its nature incompatible with his continuing in service, the “appointing authority” may decide to suspend him forthwith.

The appointing authority for this purpose is the Administrative Council (Article 11 (3) EPC). The President may propose such a disciplinary measure to the Administrative Council (Article 10(2)(h) EPC). It is however the Administrative Council as the disciplinary authority who has to decide on it (Article 11(4) EPC).

This specific distribution of roles is part of the concept of separation of powers and the independence of the Board of members as enshrined in Article 23 EPC. However, in the present case, the President decided in lieu of the Administrative Council, for which no provision appears to exist.

To this is added the fact that his computer was confiscated by the investigation unit, which has given them access to possibly confidential information regarding the preparation and deliberation of cases by the member’s board, without proper legally sound guarantees.

The undersigned members of the Enlarged Board of Appeal are deeply concerned about this conduct which could affect the validity of the whole proceedings if the results of the enquiry were in fact to lead to disciplinary proceedings. They are aware that independence does not imply impunity.

The actions of the investigation unit on the orders of the President also appear to be a clear challenge to the judicial independence of the Boards of Appeal.

It is therefore urgently requested that the Administrative Council in its capacity as appointing and disciplinary authority ensures the independence of the Boards of Appeal, one of the pillars of the European patent system. What is needed is a clear limitation on the executive power, as far as the Boards of Appeal are concerned, in situations like the present, so as to avoid any impression of undue influence on their judicial work, contrary to the independence requirements of Article 6 of the European Convention on Human Rights.

Yours sincerely,
Gabriele Alt
Graham Ashley
Gianni Assi
Ingo Beckedorf
Fritz Blumer
Tamas Bokor
Brnhard Czech
Albert de Vires
Eugene Dufrasne
Franz Edilinger
Gunnar Eiasson
Kevin Garnett
Pascal Gryozka
Andre Klein
Thomas Kriner
Albert Linder
Hugo Meinders
Rainer Moufang
Ulrich Oswald
Michael Poock
Giovanni Pricolo
Gaston Raths
Joseph Riolo
Marco Ruggiu
Werner Sieber
Fred van der Voort
Bianca ter Laan
Claude Vallet
Martin Vogel
Gerard Weiss
Stefan Wibergh
Manfred Wieser
Michael Harrison
Marie-Bernadette Tardo-Dino
Wolfgang Seretaruk

cc Mr. Benoit Battistelli
annex: Circular 342 with the Investigation Guidelines


EBoA letter regarding EPO


EBoA letter regarding EPO


EBoA letter regarding EPO

Update: Here are the enclosed rules (part of the EBoA letter regarding EPO) which show how Battistelli et al. are breaking the law in an attempt to silence their critics.

EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules


EPO rules

Protests Against EPO Corruption Approach 1,000 in Attendance

Posted in Europe, Patents at 8:59 am by Dr. Roy Schestowitz

Protest in one location among several

EPO protest
Protest image via IPKat (click image for a larger version)

Summary: EPO staff at all levels is revolting against the management of the EPO, whose dismissal seems to be only a matter of time

IT NEED not be emphasised that EPO staff can be free-thinking and suitably educated. Many inside the institution (except management perhaps) have doctoral degrees and/or extensive experience in very specialised fields. Nobody who is serious would dare label EPO staff a herd, a mob, or a bunch of hooligans with vengeance. These people are barely nationalists either, so using the race card (or xenophobia) won’t work here. Management is not being witch-hunted by so-called ‘disgruntled’ staff because of their nationality/ies. The EPO’s staff (many thousands of people) has legitimate concerns and these are widely shared across the institution, albeit individuals dread identifying themselves as they are very much fearful; a thug’s tactic (or the Mob’s modus operandi) involves aggressively and publicly punishing people (like public hanging) to earn a sort of bogus “respect”, earned through fear alone. This is where the EPO stands at the moment, due to a large degree to President Battistelli and his cronies (with a notorious track record, preceding their time at the EPO and involving bullying too).

Techrights has covered EPO staff revolts for about 7 years and intensified coverage in recent years, got involved by writing letters to regulators, and identified the culprits who have stooped far lower (very low!) than Brimelow ever did. The EPO has become a laughing stock and the corporate/establishment press is finally covering this, perhaps motivated by some reporting in smaller, independent sites. The recklessness of the media can be characterised by its longstanding pattern of dismissal, i.e. ignoring the genuine grievances of European citizens, EPO staff included. This ought to change.

At Techrights we going to accelerate our coverage of the EPO fiasco, as material leaked to us is piling up faster than we can publish it and the EPO is now in state of rapid collapse (especially the management), based on several separate sources inside the EPO.

Microsoft Florian, who lives in the area of the EPO, wrote about the protests which we covered yesterday (pro-actively). IPKat has done a decent job covering parts of these protests and preceding ones (there are several simultaneous ones and it’s a recurrent event), which are long overdue given the long series of serious abuses inside the EPO (especially its management). According to this other post from IPKat, there is a lot going on very fast. To give some recent figures, “600 participants joined the peaceful demonstration organised yesterday by SUEPO in front of the French and the Danish Embassies.”

“The recklessness of the media can be characterised by its longstanding pattern of dismissal, i.e. ignoring the genuine grievances of European citizens, EPO staff included.”There’s a lot going on in Munich and The Hague. It is spreading. Staff in large numbers becomes better equipped and better able to defend itself from identification, singling out, etc. thereby shielding itself against retribution. SUEPO did a good job. It’s growing to be somewhat of a revolution and we are being contacted by more and more people from the EPO — people who put at risk their career because they are so eager to cause changes at the institution, at the very least toppling the corrupt management (that alone would not be enough, albeit a good start).

Quoting IPKat again: “The suspension of a patent examiner who was also a former member of the Internal Appeals Committee (IAC) that handles internal disputes, working in Munich, that apparently happened in October.”

There is also this: “The reported suspension of another former IAC member, who worked in The Hague office, and was allegedly suspended last month.”

Finally they add “[t]he departure of the head of communications Oswald Schröder in October.” We covered that at the time. Oswald Schröder has been in touch with IPKat, but he is now being gagged. That’s what these surprise suspensions seem to be all about. As one activist site puts it, “a whistle-blower informed me that if following a specific link on the Intranet, one could observe and possible record the EPO’s promises and the surrounding public traffic at their branch in Rijswijk, 24/7, via the EPO’s security cameras! Is the Dutch governement and public informed about those practices?”

Be sure to also read the anonymous comments in this article (EPO staff is afraid to be identified, hence the anonymity).

To quote just one comment: “President Battistelli likes to eliminate free thinkers. For example in 2011 he got rid of the Principal Director responsible for the Internal Audit, in 2012 of the Principal Director responsible for Quality Management and in 2014 of the Principal Director responsible for Communication. He also destroyed the appeal system, weakened the staff representation and now is attacking the Boards of Appeals. The administrative council is silent and thus is not fulfilling its role. What else should happen before somebody in the council wakes up and stops Battistelli?”

In the next post we are going to show one of the latest debacles. We are, in general, going to write a lot more about the EPO in weeks to come, so anyone who is interested in the topic is advised to subscribe and where applicable contact us with information. We have a 100% track record of protecting our sources in 8+ years of existence.

12.08.14

EPO Staff Protests Today and Protested Last Week, Targeting Corruption in the Institution

Posted in Europe, Patents at 5:12 am by Dr. Roy Schestowitz

Benoît Battistelli
Photo from the European Commission

Summary: EPO staff is demonstrating against abuse by the management of the EPO, today we well as in prior days

THOSE who have not been paying close attention over the weekend may wish to read yesterday's article about Benoît Battistelli, who last week was reported to have ousted yet another regulator (once again in his very aggression-filled and abrupt fashion). Battistelli is trying to oust his opposition quicker than any opposition is able to take him down. It is a classic sign of collapse and misery — the acts of fallen tyrant. Staff is trying to seek help from the outside (European authorities and anti-corruption groups) and it does so anonymously for fear of retribution. Those who do this publicly under their own name are being tossed out.

“Staff is trying to seek help from the outside (European authorities and anti-corruption groups) and it does so anonymously for fear of retribution.”One week ago we heard from an EPO insider. “You are probably aware of what is going on at the EPO,” he said, having followed our long series of articles about the EPO. He sent us a demonstration poster/flyer for last week’s solidarity demonstrations in The Hague and Munich. He further attached a publication (by an unknown group of authors) illustrating the worksphere within the Office.

“The background,” explained our source, “is that two colleagues currently face disciplinary measures for their activity as members of the Internal Appeals Committee although persons carrying out such duties are protected against such measures.” This may relate to what we covered some days ago. Battistelli and his cronies are totally out of control. “It is simply another example of an abuse of power of EPO president Benoît Battistelli,” explained our source.

Today there is another demonstration going on if all goes as planned. The EPO flyer (pamphlet) is joined by an open letter to the Administrative Council. This is the second demonstration in December alone (EPO staff has been marching in protests for years now, for one reason or another, usually the extension of patent scope, as outlined below).

The documents included herein were distributed to EPO staff this morning (via private E-mail addresses) and this was the text of the message:

Dear colleagues,

Please find enclosed EPO-FLIER No. 13 – The spirit of the regulations

It comes together with an Open Letter to the Administrative Council dated 5 December.

If you are not on strike today, it would be good if you could bring a few copies to the Office in order to enhance the oil-spill-effect.

Many thanks for your support!

With our best regards,

The EPO-FLIER team

For completeness we include below the text of these documents, as they also help explain the nature of the abuse and reasons for dissatisfaction.

Full text (flyer #1)

EPO flyer 1

Aurélien Pétiaud (Munich, FR) and Michael Lund (The Hague, DK) are members of the EPO’s Internal Appeal Committee nominated by the Central Staff Committee. They have highlighted the deficits in the legal protection of EPO employees with means at their disposal, namely IAC opinions and appeals filed by members of the IAC. This is interpreted as misconduct by the president, who is threatening the two with disciplinary measures, in Aurélien’s case with dismissal.

The restrictive policies used and abused have been introduced by Benoît Battistelli (FR) with the consent of the Administrative Council, chaired by Jesper Kongstad (DK).

The Demonstration on 2 December 2014 organised by SUEPO TH gives us the opportunity to show solidarity with our colleagues. It starts at 11:00 h at the French Embassy and comprises a march to the Danish Embassy. It ends at about 12:30 hrs. Munich is simultaneously marching to the Palace of Justice to show the public what goes on in an international organisation in the heart of Europe
in the 21st century – under the knowing eyes of the governments of the Member States. It starts at 13:00 hrs in front of PH 8.

“With the slogan “Liberté, Égalité, Fraternité”, the French revolution started a long-lasting and difficult development to today’s understanding of human rights. A European organization must set an example of the principles of democracy and freedom of opinion.“
(Zimmermann & Partner, November 2014, http://www.zimpat.com/en/strike/page.html )

We have nothing to add to that, other than thanking them for so clearly voicing their support. Come and voice your dissatisfaction with the prevailing management by fear and intimidation!

Full text (flyer #2)

8 December 2014

EPO FLIIER No. 13

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict.

The spirit of the regulations

“We are not here trying to build a reform which is compatible with each of your nation’s, with each of your state’s law. We are trying to build something which is useful for the Office, for the Organisation. So, if in some cases, it is not compatible with the German law, or the UK law, or the French law, this is not the issue. The issue is: is it useful for the Organisation?” 1

This statement of the president raises a number of questions:

1. If Mr Battistelli thinks that a (career) reform does NOT need to comply with national law, does he take care that it respects any other (labour) law standard, such as the European Convention on Human Rights, or conventions of the International Labour Organization?

There is no evidence that he does.

Modern democracies usually work by the rule according to a higher law. It means that no law may be enforced unless it conforms with certain universal (written or unwritten) principles of fairness, morality, and justice 2.

Mr Battistelli does not see a need to respect this general rule 3:

During the past two years, the president has repeatedly demonstrated that he respects no standards other than his own. He has managed to win the delegations over to support regulations which can only survive in the context of the Office’s immunity 4. He undertakes a structural dismantling of legal recourse. He introduced investigation guidelines that would have made Securitate, Stasi or NSA happy. He undermined the right to freedom of association. When the president introduced the strike regulations, he showed that international conventions ratified by the Member States do not count. He muzzles unions and staff representatives. He abuses powers to discipline dissenting voices 5. He shows a complete disregard for (even unanimous) opinions of the Internal Appeals Committee or the Disciplinary Committees by passing harsher judgment than recommended 4, 6. He repeatedly demonstrated that neither the letter nor the spirit of the Service Regulations count 7. This applies to those parts of the regulations he inherited and even to those he wrote himself 8.

______
1 Mr Battistelli, commenting on the career reform during the BFC meeting on 20 November 2014
2 https://en.wikipedia.org/wiki/Rule_According_to_Higher_Law
3 SOCIAL CONFLICT AT THE EUROPEAN PATENT OFFICE, http://www.suepo.org/public/su14294cp.pdf
4 EPO-FLIER No. 8 – Balancing views, Annex: “Des Sonnenkönigs neue Kleider”
5 http://www.worldipreview.com/news/epo-suspends-former-committee-member-7363
6 Letter of Union Syndicale Fédérale to the Administrative Council’s chairman (21.03.2014), http://suepo.org/public/su14076cp.pdf
7 Communiqué No. 41 and IFLRE strike notification, www.suepo.org/archive/sc13173cl.pdf
8 http://www.sueddeutsche.de/muenchen/europaeisches-patentamt-beschaeftigte-begehren-auf-
1.1826233


The above clearly shows that – for Mr Battistelli – standards for legal recourse as defined for instance by the European Court of Human Rights do not count.

Also public observers, represented by newspapers 9 and patent attorneys’ homepages 10, come to realise that – under the presidency of Mr Battistelli – there is an absence of the rule of law at the EPO.

2. Is the proposed reform useful for the Organisation? Can the EPO examiners – in the absence of the rule of law – still correctly and consistently apply the EPC and Guidelines to patent examination? Can the EPO still fulfill its mandate of providing legal certainty to the public?

The SUEPO Central Committee recently posed a similar question:

“If the EPO is granting patent rights to inventors and European industry, how credible
are those rights if delivered by an institution that is ostensibly unable to comply with the
rule of law in its own internal affairs?” 3

Let’s try to find an answer to these questions. Mr Battistelli recently said:

“Most of our managers have not been chosen for their managerial capacities. They have been chosen because they were acknowledged experts in their field. We have to transform these managers into real managers.” 1

What does the president have in mind when he talks about “real managers”? Technical expertise is obviously no longer required. Are “real managers” expected to follow the example of our VPs and PDs, who (already) obey and blindly follow our larger-than-life president? 11 An entirely performance-based career system puts managers and employees under pressure to increase production. With the rule of law being absent, and in a working environment being dominated by fear and intimidation, not only ill-motivated managers but also weak and intimidated ones are tempted to put their subordinate employees under pressure to fulfill even the most unrealistic targets. And in the presence of threats, many of them will fulfill these expectations, while lowering the search and examination standards.

Mr Battistelli further said:

“Except an exceptional professional conscience and personal motivation, nothing incents them to work harder or to work less.” … “By opening this technical career … we will provide incentives until the very last day of their professional life.” 1

Mr Battistelli has apparently no respect for the professional attitude of EPO employees which made the European patent system a success. The EPO is not listed at the stock exchange. It is a public service provider. And blotting out professional conscience and ethics produces adverse effects. Some examiners already started distancing themselves from their work. This leads to a lower examination quality, and – consequently – to less legal certainty of the granted patents.12 A consequence of a lack of dialogue. The New Career System was developed without acknowledging receipt of, without discussing, and certainly without taking account of any of the elements and arguments of the career counterproposal of the CSC.

_____
9 Revolte an der Isar, FAZ am Sonntag, 23.11.2014, http://www.suepo.org/public/ex14289cp.pdf
10 http://www.fosspatents.com/2014/12/european-patent-office-pays-for-health.html
11 EPO-FLIER No. 11 – “You break every rule of good man-management”
12 Patent examiners more likely to approve marginal inventions when pressed for time

http://news.illinois.edu/news/14/0813patent_examiners_MelissaWasserman.html


If voted by the Administrative Council this week, the New Career System will be introduced without any transitional period. All current EPO staff will be exposed to a radical change of their working contract. For the examiners, this means that – due to the entirely income-based incentives – the EPO abruptly stops rewarding efforts for compliance with the EPC mandate. Being pushed by their managers, they will be forced to fulfill unrealistic targets, and many will react to this pressure by lowering their quality standards for search and examination.

Mr Battistelli can consult the spirit of the regulations whenever he runs out of arguments 7. But it would possibly lead to some irritation amongst the patent applicants if examiners – being pressed for time – would rather generally refer to the spirit of the EPC, instead of developing a sound reasoning based on the Articles and Rules of the EPC.

Mr Battistelli’s decision to introduce a fully performance-based career system has either been taken on the ground of wrong assumptions, or for ulterior motives. He still insists to introduce this system, against the will of staff, and in an environment where the rule of law is absent. It is already difficult to deliver high quality work in the current hostile working climate. If the New Career System is introduced in its current form, the EPO will no longer be able to fulfill its mandate of providing legal certainty to the public.

3. Is Mr Battistelli good for the Office, for the Organisation?

The EPO employees have already given their answer. During a staff union General Assembly held on 4 March 2014 in Munich, 750 staff members voted for the following resolution:

“The staff has lost trust in Mr Battistelli and is concerned not only about its own future, but also about the negative repercussions on the functioning of the European patent system as a whole. It has become clear that the proper performance of the tasks of the individual staff members, and therefore of the European Patent Office, is incompatible with the continuing presidency of Mr Battistelli.” 13

The answer to this question should normally be given by the members of the Administrative Council who are responsible for ensuring good governance in the Organisation. Voting for the New Career System on 11 December would implicitly confirm a mandate to the president to continue on a destructive course. At least some delegations seem to share the discomfort of staff and interested circles. And the EPO employees are not the only ones waiting for their answer. Also the stakeholders of the European patent system and others being interested in intellectual property rights expect an answer to this question 14.

The attached Open Letter to the delegations in the Administrative Council, of 5 December 2014, elaborates on the implicit change of patent law entailed in the New Career System.

_____
13 http://munich.suepo.org/archive/su14047ml.pdf
14 http://ipkitten.blogspot.de/2014/12/in-suspense-about-european-patent.html

Full text (flyer #3)

18 November 2014

EPO FLIER No. 11

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict.

“You break every rule of good man-management …”

In 1981, John Hoskyns, advisor to the UK Prime Minister at the time, wrote the following words to Margaret Thatcher:

You break every rule of good man-management. You bully your weaker colleagues. You criticise colleagues in front of each other and in front of their officials. They can’t answer back without appearing disrespectful … You abuse that situation. This demoralisation is hidden only from you. People are beginning to feel that everything is a waste of time. You have an absolute duty to change the way you operate.

This text will strike a chord with staff at the European Patent Office. What annoys them so much about their president is not only WHAT he is doing, but HOW he is doing it. The EPO is out there with the best when it comes to employing well-educated professionals. And yet the president1 treats this body of decent, intelligent people like fools. He is fooling no one, except perhaps the Administrative Council, but even there it looks more like he is coercing rather than convincing.

It is sickening to observe how one dictate after another is implemented, how constructive ideas are crushed and how nothing may get in the way of the leader’s will. He has not modified any proposal of any importance by as much as one word as a result of feedback from the Office’s staff representatives. For all his preaching about “social democracy”, the president does not discuss anything; in effect, his modus operandi is to ask, “Are you in favour, or do I have to threaten you (for staff), or reward you (for Administrative Council delegations)?”

Mistakes in life usually come back to haunt you. The mistakes this president is making will be no exception. He is setting a ticking time-bomb that has the potential to destroy the European Patent Office the day it explodes. Staff at the EPO understand the complexities of European politics, they understand economical arguments and they understand that change comes to any organisation that has been in operation for as long as the EPO has.

But they do NOT understand rights being taken away from them that they had as European citizens before joining the EPO. They do not understand an arrogant prima donna style of leadership based on oppression, threats, propaganda and manipulation. They do NOT understand the piece-by-piece dismantling of their working conditions without any effort to explain to them why this should be necessary. They do NOT understand what they have done that gives the president and his cohorts the right to treat them like pariahs or parasites. By his actions, Battistelli is demoralising a workforce that has served the European public with remarkable commitment and loyalty for nearly four decades. He is the catalyst for legal battles that will pass through national, and international courts, leaving a trail of unknown damage

____
1 There is no reason in English grammar to use a capital letter at the beginning of “president”, and no moral reason either. Reverence does not come with office, but has to be deserved.


behind them. It may take ten years or more for some of the judgments in these cases to be finalised, but there will be chaos if the Office loses and is forced to wind back ten years of unacceptable behaviour and decisions. He is risking that the entire governance of the European Patent Organisation will be put into question and that the Office will be subject to political scrutiny at the highest levels. In the meantime, he, at some point, will depart, presumably to a cosy life of retirement divided between Biarritz, or some such luxury coastal town, and Paris. Behind him, he will leave an exhausted, emotionalised, demotivated staff, led by top managers who were weak under his leadership and are unlikely to find their spines back after he left.

Today, these managers – these feeble yes-men and yes-women – allow themselves to be reduced to uncritical mouthpieces, pathetically regurgitating the latest mantras coming from the tenth floor of the Isar Building and loyally toeing the party line. They repeat over and over again what they have been instructed to say, but are not able to answer any challenging questions. Can they ever regain credibility as capable managers once Battistelli is gone?

The Ivey Business Journal has a fascinating article on toxic leadership2. It says:

The real tragedy of the human condition is not that we all must die, but, rather, that we choose to live by grand illusions, rather than to face our fears. Hence, we fall into the clutches of toxic leaders who promise us the moon, knowing full well they cannot deliver. In the worst of all cases, toxic leaders fall under the spell of their own grand illusions and believe that they can.

Battistelli is worse than this. He doesn’t promise the moon; he can’t be bothered with trying to convince us, but prefers straightforward nastiness.

Some staff say they cannot afford to go on strike.

We ask:

Can staff afford NOT to go on strike?
Make this Thursday count!

Please help to distribute this flyer, especially to anyone who may still be hesitating!

____
2 http://www.iveybusinessjournal.com/topics/leadership/the-allure-of-toxic-leaders-why-followers-rarelyescape-
their-clutches#.VFExr4ddC6

Open letter to Heads of Delegation

By email to Heads of Delegation 5 December 2014

From EPO-FLIER team
mailto:epoflier@runbox.com

Open letter

EPO examiners will no longer be able to ensure appropriate quality standards

Dear Heads and members of the Member States’ delegations to the Administrative Council of the European Patent Organisation, dear Chairman, dear Mr Grandjean,

The European Commission’s Industrial Property Rights Strategy for Europe of 20081 summarises

“High quality rights are an essential requirement for all aspects of the system – support for business including SMEs, facilitation of knowledge transfer and effective enforcement of rights to combat counterfeiting and piracy. Only with a quality system can Europe benefit from new opportunities in the global economy and fulfill its responsibilities.”

The Commission had already stressed in 2006 that an innovation-friendly, modern Europe2 urgently needs “IPRs based on tough examination standards for novelty and inventive step. A low-quality patent system is a source of legal uncertainty and litigation”.

The Commission’s stated aim of strengthening IP matches the motivation and ethics of EPO examiners since 40 years. The EPO’s career systems so far have secured a predictable compensation package and career progression based on a mix of merit and seniority. This allowed examiners to focus on delivering high quality search and examination in a team effort rather than on competing for the sake of income differentiation.

The proposal for a New Career System (NCS) is a strong push for more production. Absolute production already counts more than reliable grants. Priorities are set for best effect on presentation of production to the Administrative Council (AC) rather than for serving the European public. But so far, the seniority-criterion in career-advancement gave examiners – being motivated to deliver work that adds value to society – the necessary leeway to attain reliable quality levels despite management pressure, despite insufficient IT tools and despite short-termist policy-making.

Is this about to change? The EPO’s president has already received strong support for the principle of the NCS in the Budget and Finance Committee (BFC). Are you going to decide on 11 December 2014 to introduce an entirely performance-based career proposal? This proposal is based on elements which will shift the focus of attention. Salary increases and bonuses depend only on performance. Seniority will no longer be a balancing factor. Those who do not enter into competition or fail to deliver what is defined by their manager (whose bonus is also dependent on the production achieved), will suffer economic losses. Due to the margin of discretion the examiner can apply, the level of quality is not strictly defined. Applying a higher quality level can be interpreted as excessive by the manager and can lead to a lower appreciation. Securing attractive remuneration will rely on maintaining an individual advantage in competition with colleagues, by comparison of production.

It is not as if the negative effects of such policies weren’t known. There is an abundance of academic studies on the undesired effects of performance-related pay systems on public service

____
1 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0465:FIN:EN:PDF
2 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52006DC0589&from=EN


motivation. It is not suitable for work requiring cognitive skills. The article (based on an US study) „Patent examiners more likely to approve marginal inventions when pressed for time”3 puts it in a nutshell. Yet, the change will still be purported to be in line with ISO 9001 for compliance with rules set by the Office. But it will not deliver quality results.

Should you decide in favour of the proposal on 11 December, examiners of the EPO

· will no longer be able to give their main attention, during prior art search and the examination of the presence of novelty and inventive step, to legal certainty of patents without directly eroding their individual remuneration and pension prospects

· will no longer be able to support the priorities of the EU by delivering high quality patents, as maintaining the required professional standards seems to be against the political will of the EPO’s president, and apparently of most of the member states

The interventions in the BFC meeting show that the delegations are not unaware of these issues. It is worrying that most of them still supported the proposal.

Low quality patents will harm business, primarily SMEs, private inventors and Universities, since the legal costs for an infringement and/or litigation procedure are so high that they normally threaten their financial foundation.

The European Commission, BusinessEurope and epi are observer delegations on the AC of the European Patent Organisation. There appeared to be declining interest amongst the observer delegations for attending AC meetings recently. The intended change in labour law is at the same time an implicit change in the (effect of) patent law. On this there should be stakeholder consultation beyond purely the members of the European Patent Organisation.

EPO staff have this year been on strong industrial action including strikes and high profile demonstrations, but Mr Battistelli seems unimpressed. EPO staff has got used to being ignored by the AC delegations. The president has now ensured that the staff’s perspective can no longer be voiced by our elected representatives during meetings of our Governing Body4. Concerned examiners had in mind to present you with a petition signed by the colleagues, but the president’s brisk pace in pushing through proposals did not allow for organising it in time for your meeting, hence this open letter.

There now is very little the EPO’s employees can do to fence off the perverse effects – of what on the surface looks like ‘only’ a change to employment conditions – on the quality of patents. Are Member States committed to the Industrial Property Rights Strategy for Europe in the framework of the Lisbon strategy for growth and jobs? If so, we fail to see how at least those amongst you also representing EU Member States could possibly vote for the NCS proposal during your meeting in Munich on 11 December.

Please do not support this quality erosion. Vote against.

The EPO-FLIER Team,
a group of concerned staff of the EPO who wish to remain anonymous due to the prevailing harsh social climate and absence of rule of law at the European Patent Office

Copies to: Competent Ministries of the Member States
President of the European Patent Office

____
3 http://news.illinois.edu/news/14/0813patent_examiners_MelissaWasserman.html
4 Central Staff Committee illegitimacy?, 14.11.2014, sc14273cp

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