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:
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.
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.
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 hireput 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. █
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.
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
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.
Albert de Vires
Fred van der Voort
Bianca ter Laan
cc Mr. Benoit Battistelli
annex: Circular 342 with the Investigation Guidelines
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.
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.
“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?”
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. █
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.
“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:
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)
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-
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
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.
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.
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!
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
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
“That’s why I am president!” –Benoît Battistelli in self-centric mood
Summary: Battistelli’s Nixon moment and the evasive nature of his approach towards external delegations that are troubled by his behaviour
THE EPO is a rotten institution where Željko Topić, Benoît Battistelli and other cronies of theirs basically oust everyone who does not agree with them or is tasked with a process of regulation/oversight. It’s more than an attitude issue. Not to be overly dramatic here, there should be toppling, and the sooner the better. The leadership is the problem, not its many critics. See what we wrote about Battistelli overthepastfew months. We attached sensitive documents to prove or at least strongly support our allegations. Battistelli’s deputy is even worse than Battistelli and he faces many criminal charges which he is eager to hide from his colleagues. What we have currently at the EPO is "Balkan standards" (to borrow a phrase from a respected person who is familiar with the culprits). This phrase alludes to corruption and it mostly relates to Željko Topić’s actions, not just his boss and colleague, the full-of-himself “President” Battistelli (some law/patent blogs sarcastically comment on the capitalisation of the word “President”, which he seemingly deems his new first name).
Battistelli and Topić are out of control. There are numerous complaints and calls for investigation for they reign like tyrants and they are hardly even hiding it. They are wasteful (wasting European tax money) and subservient to interests other than Europe’s. No wonder their staff hates them with a passion, let aside those who have to interact with them.
Techrights is now in possession of recordings where Mr. Battistelli gets grilled by delegations (people representing part of the European Union). Techrights has studied the recordings and produced this Ogg-formatted file, which most Web browsers may automatically embed below (if not, download and playback should be possible).
The audio was recorded at a meeting with delegations of the Administrative Council (which we wrote aboutbefore).
“Those who surround him join in the response squad, suppressing the delegations or preventing them from receiving any real answers.”Apart from the megalomaniac “that’s why I am president” there is a lot of stuff worth listening to, especially the nature of the concerns raised by the delegations and the response (of lack thereof) from Battistelli, EPO President, to these. Those who surround him join in the response squad, suppressing the delegations or preventing them from receiving any real answers. The audio is full of examples of this. Just because there are ‘too many’ issues doesn’t mean that Battistelli is obliged to address none.
“At the beginning,” tells us one who listened to the recording, “one can hear an intervention of the Slovenian delegation. It says that the EPO is not a company on the stock exchange and should focus on quality and careful handling of human resources. Battistelli insults and threatens the delegation. Then, Battistelli says that the career system will make “hundreds of millions for the office” and that “the Office should not care about FR, UK and DE law” but rather think only in terms of “what is good for the office”.”
Yes, this is typical Battistelli. He is very aggressive against critics and where possible he sacks or at the very least threatens them. There is a pattern here. In future parts of this long series (guaranteed to go on well into 2015) we will show more of Battistelli’s abusive behaviour, Topić’s allegedly criminal scandals, and output from the internal uprise (there are very strong sentiments within the EPO against Topić and Battistelli and one of them is internally compared to Vladimir Putin). █
Summary: Patent institution of Europe is showing signs of tear as protests intensify and suppression of these protests — as well as suppression of investigation — intensifies as well
THE corrupt EPO is facing backlash and there are several internal protests these days (we will cover these in another post). More insiders are coming to us with evidence, showing quite clearly that even those within the institution recognise the severe problems. Nothing demonstrates this better than Battistelli’s actions as covered the other day by IPKat. Battistelli, who already destroyed someregulatory/oversight structures, has just ousted part of the Investigation Unit. To quote IPKat: “In recent posts here and here Merpel has been spreading the word concerning the increasing disquiet and anxiety felt by her and many others regarding the running of the European Patent Office, its staff relations, finances and other issues. These posts, as well as those that preceded them, have generated a considerable amount of interest among readers, and a large email postbag from users of the Office from across the globe — though to her sadness neither she nor the IPKat have yet received so much as a peep from any of the members of the European Patent Organisation’s Administrative Council [even though she knows that quite a number of them are subscribers to this weblog].
“Merpel’s disquiet is moving up a gear now, since she has since learned that a Board of Appeal member has just been suspended from office and escorted from the building. Apparently the ground of suspension is alleged misconduct and the EPO’s Investigation Unit has been instructed to examine the matter. Merpel’s intelligence reveals that the suspension (technically a “house ban”, she believes, but with the same functionality as a suspension) was ordered by none other than President Battistelli himself. Now there is a structure for dealing with alleged misconduct on the part of Board of Appeal members — but there are also checks and balances in place. One such check is that the power to suspend Board of Appeal members lies in the hands of the Administrative Council and not the President: if this were not the case, we would have the executive branch of the EPO having effective control of the judiciary — a dangerous and undesirable situation.”
Battistelli is trying to scare his staff, but it won’t be long before they topple him. We welcome EPO staff to safely disclose information to us. We have never let a source down or failed to protect a source’s identity. █
Summary: Vesna Stilin speaks about her confrontation with EPO Vice-President Željko Topić, who has criminal lawsuits against him in Croatia
THE Croatian link in the EPO is causing some serious problems for the EPO, based on E-mails that we have received and will say more about in the future. The corporate media has joined the campaign to reform the EPO (potentially by letting heads roll) and people who are the victims of Željko Topić, the man faces criminal charges in Croatia, also speak out. This is important because he is the EPO Vice-President and simultaneously he is in the midst of very serious abuses that can potentially land him in prison.
Writing to IP Watch under the heading “Right of Reply”, Vesna Stilin, a famous victim of Topić, published the following item. To quote IP Watch and to give Stilin a voice that she deserves:
I refer to the article “EPO Internal Strife Spills Over Into European Parliament, Human Rights Court”, published by Intellectual Property Watch on 15 May 2014 (IPW, European Policy, 15 May 2014) and hereby request to exercise my right of reply by way of publication of the following statement:
Although the article is to be commended for giving a useful overview of the controversy surrounding Mr. Topić’s appointment as Vice-President of the EPO, several of the statements attributed to Mr. Batistelli and to Mr. Topić contain factually incorrect and/or misleading information. Moreover, in at least some cases it appears to me that these statements are damaging to my reputation and good name.
The claim attributed to Mr. Batistelli and Mr. Topić in the published article to the effect that the allegations which I have raised about Mr. Topić amount to a “smear campaign” is incorrect. My efforts in this regard represent a legitimate attempt to obtain legal redress, inter alia by means of judicial review, with respect to matters concerning my statutory rights as a citizen and as a former employee of the Croatian State Intellectual Property Office (SIPO). The legal actions which I have initiated in this regard have been widely reported on in the Croatian media in recent years and as far as can be determined, Mr. Topić has not made any request for a correction of the aforementioned Croatian media reports which he would clearly have been entitled to do under Croatian law if the allegations contained in these reports amounted to nothing more than a baseless and unfounded “smear campaign”.
The statement attributed to Mr. Topić according to which “Vesna Stilin was dismissed by the government of Croatia, not by me, from her position as my assistant at SIPO” is formally correct in so far as the power of appointment and dismissal of Assistant Directors of the SIPO lied with the Croatian Government. However, the statement is grossly misleading insofar as it obscures the key role which Mr. Topić played in the process of my dismissal from the SIPO. The fact of the matter is that the Government took its decision to dismiss me from my position based on Mr. Topić’s recommendation as set forth in two letters which he wrote to the former Croatian Prime Minister, Mr. Ivo Sanader: one of which was placed on the official record (abolishing Copyright and Related Rights Department, without any explanation, with less employees which has been contrary to the recommendation made by independent EU experts in field of Copyright and Related Rights and contrary of Topic’s statement in CARDS program No. 96022 and No. 60343 ) and a further version which was treated as “strictly confidential” with the evident aim of preventing disclosure of its contents to me (contrary to the Law on Access to Information) and which led to me filing a lawsuit for criminal defamation against Mr. Topić.
The statement attributed to Mr. Topić concerning my unsuccessful candidacy for the position of Director-General of the SIPO and his comments concerning the legal proceedings which I subsequently initiated in relation to this matter, including the remarks referring to “absurd complaints” with the ECtHR, amount to an unacceptable misrepresentation and trivialization of the facts of the matter which may be summarized as follows:
I applied for the position of Director-General of the SIPO in 2008. My application was submitted after Mr. Topić had unilaterally, contrary to the legal procedure, abolished the SIPO’s Copyright and Related Rights Department and thus my post as Assistant Director in charge of that Department. If Mr. Topić had not engineered the abolition of my previous post – which was used to justify my dismissal from the SIPO – I would have had no reason to apply for the position of Director-General.
In the decision Us-4201/2008-6 from September 24th 2008, the Administrative Court rejected my complaint against Mr. Topić’s re-appointment as Director General stating inter alia that I could not apply for the position because there had been no public vacancy notice. In subsequent proceedings concerning the same matter before the Constitutional Court, I submitted evidence that the lack of a public vacancy notice, in concrete situation was contrary to the applicable statutory requirements and the practice followed by the previous Government.
In the same complaint filed with the Administrative Court (Us-4201/08 from April 21th 2008), I pointed out inter alia that, at the time of Mr. Topić’s re-appointment, the Government had not been properly informed about certain actions on the part of Mr. Topić which prima facie appeared to constitute criminal acts under Croatian law, including a covert agreement with the former Minister of Science (in charge of inspection under SIPO, who suggests appointment/dismissal of Director General of SIPO to the Government), for whose benefit Mr. Topić had apparently arranged provision of an Audi 6 vehicle at the expense of the SIPO.
Following the various allegations which I raised in this regard, the Government demanded an official inspection of the SIPO in January 2009. However, this official inspection was never carried out as has since been confirmed in writing by the competent Ministry of Economy and Enterprise to which supervisory responsibility for the SIPO had been transferred. In an official Memorandum of February 3th 2012 which was signed by Mr. Topić himself, the nonexistence of the inspection of SIPO since 2008 was confirmed. In the absence of a proper independent official inspection into these matters by the competent Government Ministry, the assertion attributed to Mr. Topić according to which the allegations which I raised “have been rejected after examination as entirely unfounded” does not stand up to scrutiny.
Following the dismissal of my complaint by the Croatian Constitutional Court, which is the final domestic instance, I proceeded to submit an application to the European Court of Human Rights in Strasbourg (filed August 20th 2011) in accordance with my statutory entitlement as a citizen of a signatory state to the European Convention on Human Rights. This action is still pending before the European Court of Human Rights.
The article also contains a statement attributed to the EPO President Mr. Battistelli according to which neither the AC nor Battistelli knew of the allegations against Topić at the time of his appointment “but since the charges have been made public they have all been cleared” and a further statement attributed to Mr. Topić according to which “There are no civil proceedings or criminal charges against Topić in Croatia, and he has provided a required certificate showing no criminal record”. These statements are misleading because prior to Mr. Topic’s appointment to the EPO a second criminal lawsuit against Mr. Topic was pending in Zagreb. The evidence relating to this fact was communicated to the President of the EPO and the Administrative Council by the end of 2013 (Minutes of proceedings before the Criminal Court of Zagreb, May 4th 2010, No. K 163/09). This second criminal lawsuit against Mr. Topic was mentioned in two judicial decisions before the Criminal Court of Zagreb (May 31th 2010 No.K-163/09 and May 23th 2011 No.K-238/10) concerning the “defamation” version of my dismissal. Furthermore I also communicated the evidence of further criminal charges against Mr. Topić filed with the Croatian Public Prosecutor (January 9th 2013) to the President of the EPO and the Administrative Council. Under Croatian law, a criminal record is not registered until after a final court judgment has been made. As the aforementioned cases against Mr. Topić are still pending and have not yet reached that stage, this is the reason why he was in a position to provide the EPO with a certificate showing no criminal record.
The statement attributed to Mr. Topić according to which a private lawsuit which I initiated against him for alleged slander was dismissed with an order that I should pay all costs and legal fees is incorrect because suggests the issues underlying this lawsuit have been finally resolved before the Croatian courts which is not the case. The fact of the matter is that although the lawsuit in question was dismissed by the Appeal Court after being two times remitted back to the first instance from the Appeal Court, the decision of the Appeal Court forms the subject of a pending complaint which I submitted to the Croatian Constitutional Court on April 14th 2014. I have also lodged an appeal concerning the matter of costs which is likewise pending. Finally, there is a pending criminal complaint in which I challenged the veracity of the testimony provided by a witness who gave evidence in Mr. Topić’s favour and on which the impugned judgment relied. From these facts it should be evident that legal proceedings in relation to the above lawsuit are still ongoing before the Croatian courts and have not yet been resolved in a final manner contrary to what is implied by the above-mentioned statement of Mr. Topić.
I would be grateful if you could arrange for my response to be published in a suitable format and linked to the original article.
Stilin’s letter is framed as a rebuttal, but it actually serves to reinforce some of the other things published in the original article. Stilin preceded her article with the following words: “this letter is published under the legal right of reply of an individual referenced in a previous article published in Intellectual Property Watch. It is published upon her request.”
Being a statement from Stilin herself, we deem it quite an accurate representation of the Željko Topić affair. In the coming weeks we are going to publish more material highlighting what happened in SIPO and the role played by Željko Topić. █