IRC: #techbytes @ Techrights IRC Network: Saturday, May 07, 2022

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26 comments

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Warf Warf

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May 3, 2022 at 8:15 pm

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Why am i not surprised…sighs

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Concerned observer

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May 4, 2022 at 11:28 am

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Close observers of the EPO’s increasingly disdainful attitude towards those holding “dissenting” opinions will not be particularly surprised by this report of disrespectful and unprofessional behaviour. However, the big question here is whether the AC will be willing and able to hold the President to account.

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If the President were an ordinary EPO employee, then the behaviour attributed to him in the report would represent a clear breach of the standards of conduct set out in the Service Regulations. In particular, it would breach Article 14(2):

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“An employee shall at all times treat others, inside and outside the European Patent Organisation … with professional respect and discretion”.

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There is also a strong case that it would constitute harassment (of the staff representatives) under Article 14b(1) and (2):

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“(1) An employee shall contribute to a work environment in which each individual is treated with respect and dignity. An employee or former employee shall refrain from engaging in any act of harassment or sexual harassment.

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(2) Harassment is any unwelcome, severe or recurring, verbal, written or physical conduct which has the purpose or effect of humiliating or degrading any person, thereby creating an intimidating, hostile or offensive work environment, or of unreasonably interfering with that person’s work or their ability to perform their assigned duties.

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Harassment includes, but is not limited to:

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(a) behaviour which is intended to be, or can reasonably be perceived as, inappropriate, offensive, intimidating, or hostile;

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(b) vexatious assignments, requests or changes in duties or responsibilities; or

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(c) severe or persistent criticism which is either unjustified or expressed in such a manner that it harms the dignity of an individual or his reputation”.

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But of course the President is subject to a different disciplinary code. One that let the previous incumbent off the hook for very serious transgressions, including threatening the independence of the EBA. In this respect, if past is prologue, then the response of the AC will amount to nothing more than a deafening silence.

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It is astonishing to witness the double standards and hypocrisy evident in a system that enables the unlawful targeting of union officials (and other staff members) for undeserved punishment whilst failing to provide any accountability for the individual who not only masterminds that punishment but also commits multiple acts that, but for the position of that individual, would represent breaches of the Service Regulations of the organisation

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that they head.

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As long as immunity leads to impunity at the EPO, it is hard to see how things can improve. On the other hand, it is easy to see how things can get considerably worse. As the old saying goes, power corrupts. And as the events of the past decade illustrate, adding impunity to the mix only turbo-charges the negative effects of power.

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Caroline

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May 5, 2022 at 10:36 pm

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Very well said, it’s exactly that.

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Patent robot

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May 4, 2022 at 12:18 pm

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The UPC and the EPC are sinking ships but at least the EPC has a possible remedy:

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Article 4a EPC – Conference of ministers of the Contracting States

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A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system.

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This article has NEVER been applied and it is really time to do so!

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Concerned observer

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May 4, 2022 at 5:15 pm

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Robot, whilst I agree that a Diplomatic Conference in accordance with Art 4a EPC is long overdue, I think that waiting for this to happen will be like waiting for Godot.

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As I have previously observed, the problem with international treaties like the EPC and UPC is that there is no independent court that can address, or impose and enforce sanctions in respect of, breaches of the provisions of those treaties. Thus, the signatories to international treaties only avoid breaching their obligations under those treaties if, on balance, it suits them to do so. (A possible further reason might be a strong belief in

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important principles such as the rule of law. However, I really cannot see much evidence of this amongst the signatories to the EPC or, in particular, the UPC Agreement.)

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I believe that it is now very unlikely that the Contracting States will perceive any need to comply with their obligations under Art 4a EPC. This is because G3/19 established a precedent for relying upon the concept of “legislative intent” (of the AC) to rubber-stamp the use of an Implementing Regulation to effect an amendment of an Article of the EPC. If the AC can amend any part of the EPC by rule-making alone, what need is there for a

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Diplomatic Conference?

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Concerned observer

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May 4, 2022 at 5:37 pm

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Of course, using rule-making by the AC to amend the EPC might have unpleasant trickle-down effects for the national laws of the Contracting States. For example, if national patent offices fall in line with the “reinterpretation” (in a new Implementing Regulation introduced by the AC) of an EPC Article, national courts might be called upon to decide whether, and to what extent, the “reinterpretation” is valid under national law.

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Should any national court find the “reinterpretation” to be both valid and effective, that would make the Administrative Council of the EPO one of the most powerful legislators with respect to NATIONAL patent laws of EPC Member States. Apart from being horribly undemocratic, I really do not think that this was a role that the founding fathers of the EPC had in mind for the AC. Indeed, it would very much represent a case of the

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administrative tail wagging the legislative dog.

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Whilst this may sound a little far-fetched, all of the pieces are already in place for exactly this kind of scenario to play out regarding the interpretation of Article 53b EPC, especially due to the little “wrinkle” regarding the non-retroactive application of Rule 28(2) EPC in proceedings before the EPO. Whether the scenario actually gets played out is another question entirely, and is largely subject to chance (regarding the existence

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of a relevant case in which there is sufficient commercial interest).

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Thus, whilst I agree that the repeated breaches of the Contracting States’ obligations under Art 4a EPC are indeed troubling, I believe that not only has the EPC been abused in far more troubling ways but also that the scene is set for the EPC to be repeatedly abused in the same way in the future.

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Caramba

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May 4, 2022 at 8:26 pm

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paraphrasing who you know : you F….. want a F….. conference ? what the F… for ?

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F word

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May 4, 2022 at 1:23 pm

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The good news is that from now on we are officially allowed to refer to him as “the f***ing President”, merely citing his own words.

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jay

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May 5, 2022 at 10:07 am

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OMG you made my day!! 😀 so well spotted!

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Ipfrog

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May 5, 2022 at 12:29 pm

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🙂

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The other one is that since he is not French we can focus on jokes without xenophobic content

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Max Drei

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May 4, 2022 at 7:52 pm

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The path towards a better atmosphere at the EPO cannot be perceived until we work out the reason for the President’s fury. My guess is that he finds himself in an impossible position and has no idea how to navigate out of it.

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The way I see it, the President finds himself caught in an insoluble dilemma between his duty to the EPO’s employees and his duty to his employer, the AC, which sees the EPO as nothing more than a mature asset to be energetically sweated, an ageing cash cow to be milked until it is dry.

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The members of the AC are egged on by the lobby power of the EPO’s bulk users, multi-national corporations who demand ever larger piles of granted patents at ever reduced cost, with “quality” being of no interest to them whatsoever.

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The EPO employees who suppose that “quality” is something worth maintaining are sadly deluded, and the President can’t understand why they are so naive, why they “just don’t get it”. Hence his fury, and also his sincere conviction that he is the nicest person the employees are ever going to get, from now on, as President.

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Concerned observer

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May 5, 2022 at 11:17 am

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Max, that is an interesting take on the situation. Do you believe that there is any other evidence that supports the notion that the President is feeling a lot of pressure to deliver upon the objective of ensuring that as much cash as possible flows into the coffers of the Contracting States?

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From observing how the EPO has operated over the past couple of decades, it seems to me that the most likely explanation of events is that EPO’s senior management, together with select members of the AC, have formed a self-serving clique that engages in mutual back-scratching in order to achieve the objective of sharing out (to the members of the clique) as much as possible of the “profits” of the Organisation. However, as the

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operations of the EPO and the AC are shrouded in secrecy, I guess that there is no way to robustly test the validity of either this hypothesis or your take on matters.

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On the other hand, it really does not matter precisely why the President is motivated to “squeeze the pips” of the Organisation in such an extreme manner. This is because there is no escaping the fact that the Organisation has turned rogue (in that it has trampled over both the EPC and the fundamental human rights of its staff, and shows every sign of continuing to do so), and that, for whatever reason, the AC is doing nothing to address

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the situation. This is the tragedy of the matter, as is the fact that there seem to be no legal means by which any individuals (as opposed to the Contracting States) can seek redress.

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Bring about

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May 4, 2022 at 8:53 pm

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The job description when the Administrative Council was looking for a new President for the EPO was:

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Candidates must have a diploma of completed studies at university level and proven high-level management experience. Their past career in the private or public sector must give evidence of:

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in-depth understanding of the needs of an international organisation

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thorough knowledge and proven practical application of modern management methods, including an outstanding ability to establish and foster social dialogue

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a genuine aptitude for communication, negotiating skills and the ability to make their opinions count

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an excellent command of at least one of the official languages.

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Well done, AC.

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Attentive Observer

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May 4, 2022 at 9:15 pm

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What has started under the former tenant of the 10th floor continues with the present one.

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The tail is wagging the dog and the AC has completely given up its duty of controlling what is going on at the EPO.

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The AC has degraded itself to a rubber stamping authority which nods off everything that is proposed by the head of office. One wonders why?

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I take bets that the present tenant of the 10th floor will get is contract extended at the next AC meeting.

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As long as the head of the EPO offers the prospect of savings, be it by selling buildings, the AC will be happy. That in future members of national patent offices can be seconded to the EPO, so that new perks are on the horizon.

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It seems that the members of the AC have no idea what the EPC means and what the protocol on centralisation says. If they would, they should have stopped the destruction of the EPO a while ago!

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Art 4a should indeed be put to practice, but I do not see any chance for this with the present head of the office.

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Attentive Observer

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May 5, 2022 at 10:06 am

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Dear Max Drei,

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I do not think that the head of the EPO is in an impossible position. He has chosen his side, and what interests him is to make savings at any costs, even at the cost of ill-treating the EPC and EPO’s staff.

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By promising even more possibilities to milk the EPO by the contracting states, he wants to insure an extension of his contract. No more but no less.

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He his using the carrot and the whip at the same time. On the one hand he promised staff to even be allowed to work from their country of origin, knowing well that it could allow him to reduce certain allowances. It is only the potential tax problems which led him to reduce the breadth of this project.

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But he still wants to reduce the EPO to an empty shell by fully digitalising it. How can newcomers be integrated or first instance divisions properly cooperate when their members are disseminated all over Europe? The glossy brochures full of managerial buzzwords do not compensate for the emptiness of their content. But it sounds good to the ears of the AC members.

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Reducing salaries and allowances has also been a constant of his action. He managed on the basis of a faked pseudo-financial study to stop any evolution of the salaries and pensions.

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Money is not the primary incentive for motivation, but it contributes to it. More important, how does he thinks he can motivate his staff by insulting it?

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He thinks he can, as the AC has given up his role of controlling the EPO and its management, for the reasons mentioned above here.

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By behaving like this he should not be surprised not to obtain the staff’s approval.

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The only way he has then found to deal with staff is to showering it and its representatives with insults. He is not much better than his predecessor who claimed that only losers go into patents. But then he and is successors are also losers.

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By insulting staff and his representatives he has shown that he has not any valid and serious arguments for pushing his policies through. He promised even more savings to the AC and knows very well how to deliver: bashing the staff even more.

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It has also to be said that in his endeavour of dismantling the EPC he has the support from the BA and its chair. G 3/19 and G 1/21are exemplary in this matter.

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During the OP in G 1/21, the president’s representatives insisted heavily on the fact that the EPC can be revised by secondary legislation. What a strange way of insuring the rule of law! If the EBA and the AC had a minimum of spine, they would have opposed all those projects and changes.

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As Concerned Observer noted, there is no institution where the non-respect of the EPC can be queried. And on top of it, immunity has become the synonym of impunity in the higher spheres of the EPO.

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This is the core of the problem and without a deep thinking about the future of the EPO and its role in Europe, the future looks bleak. In this respect a conference pursuant Art 4a is badly needed.

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What is still astonishing is the lack of reaction of the representatives and their body. They do apparently not realise that they are sawing off the branch on which they are sitting.

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The apparent aim of the actual tenant of the 10th floor is to churn out as many patents as possible as it brings renewal fees, push the BA into an intensive production (re-appointment) and let eventually the UPC decide on the fate of the patents.

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This is what has been going on in Alicante, his previous posting. But there is a big difference: at the end of the chain in Alicante there is the CJEU. At the UPC this is fundamentally different, as the CJEU should be kept out of patent law.

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In this respect, I can agree with you that he clearly helps bulk users, i.e. “multi-national corporations who demand ever larger piles of granted patents at ever reduced cost, with “quality” being of no interest to them whatsoever”.

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Ausser Spesen nichts gewesen

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May 5, 2022 at 12:13 pm

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The idea that a “ministerial conference” under Article 4a EPC has the potential to sort out the affairs of the EPO is touchingly naive.

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Either the ministers of the contracting states are already fully briefed about the situation or they are not.

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If they are, then they are knowingly complicit in the abuses.

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If not, then they are arguably in dereliction of their duty.

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But who cares and who is going to hold them to account?

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They and their electorates surely have more pressing issues to worry about.

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The proposition that a conference of ministers should now materialise like a “deus ex machina” to save the EPO is – to put it as mildly as possible – “preposterous” …

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What would happen at such a conference?

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In the end the ministers would be briefed by the same “Sir Humphreys” that sit on the EPO’s Administrative Council. The are not going to have any independent advice (from whom ?).

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Just as the EPO President “wags” the Council, the Council delegates will “wag” their ministers.

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EPO staff – as always – will be excluded from the discourse (with the exception of a chosen few in the upper circle of “cronies”).

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So a ministerial conference will just end up being another – somewhat more glorified – echo chamber. I cannot see how it could produce any useful result.

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Experienced Examiner

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May 5, 2022 at 2:09 pm

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One problem of the EPO is that we have too many chiefs.

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Every new president brings an entourage which stays even after the president has already left. Did someone mention the late PD Human Resources? All these “chiefs” have no purpose. However, to justify their existence, they create projects and projects of questionable value. The long overdue diplomatic conference, in my opinion, indicates that they are afraid to be scrutinized by the member states.

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Staff is – so far – upholding a certain standard. We cannot sustain this for extended periods of time. We are tired of senseless projects and reorganisations, we are fed up with the management jargon glorifying everything and excluding a failure analysis, we are denied salary adjustments the member states accorded to their civil servants while the EPO makes a large surplus, the IT is very far behind, workflows are contradictory to each other,

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and my higher layers have, frankly speaking, no f***ing idea of the work we do and what we need to do it (I am trying to stick to the new language codex of the EPO).

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Judging from the language used by the current President, there is a certain level of frustation also on his side. Well, he is the man to change things. A diplomatic conference would be a good start, not renewing several of those chiefs on contract could be another step. Alas, the latest internal news run contrary to this. The EPO plans to open its doors for long term secondment of employees from national offices. This will doubtlessly solve all

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of the above issues.

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Concerned observer

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May 5, 2022 at 7:24 pm

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I too am fed up to the back teeth with the “management jargon glorifying everything and excluding a failure analysis” that oozes from every document and news report that the EPO produces. Frankly, it amounts to nothing more than propaganda.

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Why should the EPO wish to adopt a Trump-like attitude of never admitting to failures or weaknesses, even when those are plain for all to see? Does this mean that the EPO’s senior echelons are staffed with thin-skinned narcissists who are incapable of receiving even constructive criticism?

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Perhaps a more pertinent question is whether the EPO’s senior management really believe that their propaganda fools anyone, and whether they have any idea of quite how many of us feel insulted by it.

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Attentive Observer

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May 5, 2022 at 5:37 pm

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I have to agree with Experienced Examiner that the EPO is more and more resembling a Mexican army with lots of generals with doubtful attributions, other than being a president’s crony.

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The standard joke when a new director/principal director is appointed: does he come from the Iberian peninsula and/or does he have some connection with the tenant of the 10th floor?

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What all those people are good at, is to publish very verbose documents full of buzzing management jargon, alas without any tangible content. The AC seems very receptive for all those Potemkin’s villages.

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Those people decide how the job should be carried out, but have not the faintest idea of what it entails. Hence totally unadapted IT systems and procedures which only increase dissatisfaction. But since the IT systems are so wonderful, it allows to increase production/productivity.

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DG 4 and 5 have proportionally many more directors/principal directors than DG1. It happens in lots of cases that a director in DG4/5 sometimes has no more than a few people in charge.

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The suppression of directors posts in DG1 has robbed good examiners the possibility of climbing the hierarchical ladder within DG1. Also not very motivating. The only chance for examiners is to go to the BA, where the production pressure has reached similar levels as those in DG1.

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Directors in DG1 have been replaced by “Team managers” and directors in DG1 are now in charge of a vast number of people. They cannot know all the examiners they are in charge of.

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The interim committee set up before the opening of the EPO, proposed at the time that a director has around 12 examiners in charge. This might not have been feasible in the long run, but any figure above 30 ends up in the director not knowing his people.

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Team managers are cheaper as they are examiners with special duties vis-à-vis of their colleagues, but the pay increase is not comparable with that of an appointment as director.

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It is nice for “Ausser Spesen nichts gewesen” to belittle the possibility of a diplomatic conference, but without some input from outside the EPO’s management or from outside the AC, the tail wagging the dog will continue unabated.

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It remains presently, in spite of all drawbacks it carries with it, the only way to try to shed light in what is going on at the EPO. It cannot continue like this.

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When one sees the number of patents maimed in opposition or in national procedures, it is blatant that what is sold by quality by EPO’s management is no more than hot air.

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Patent robot

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May 5, 2022 at 6:07 pm

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What if epi and other IP associations filed an open letter to the AC and public media explaining all these issues at the EPO?

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Attentive Observer

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May 5, 2022 at 11:35 pm

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Dear Patent robot,

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Have you ever heard a peep from epi when the boards were moved to Haar in order to “increase the perception of their independence”?

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Or now, when the boards are meant to be repatriated to Munich?

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Those two moves have cost and will cost the users of the EPO millions in €.

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All clients of epi members!

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I never heard one public complaint about this throwing out money through the windows from the side of epi.

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Have you ever heard epi protesting against the dismantling of the EPO by setting up “virtual” divisions of first instance.

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Two former VP have complained.

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The only moment epi expressed its views and disagreed with EPO’s management was in G1/21.

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And CIPA did not agree!

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All in all, not a lot, to be honest. And the tenant of the 10th floor still does what it wants and might not even have a snigger towards epi.

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In the end epi will accept the new form of the e-EQE according to EPO’s vision!

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It might not realise it, but epi is sawing the branch on which it sits by keeping silent!

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Tout va très bien Madame la marquise!

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Epi wake up!

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Ausser Spesen n. g.

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May 6, 2022 at 11:46 am

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It would be interesting to know whether those contributors commenting so eloquently on the role of the epi have ever bothered to study Article 134a EPC.

https://www.epo.org//law-practice/legal-texts/html/epc/2020/e/ar134a.html

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-TechBytesBot/#techbytes-www.epo.org | Article 134a – Institute of Professional Representatives before the European Patent Office - The European Patent Convention, Convention on the Grant of European Patents – (European Patent Convention), Part VII – Common provisions, Chapter III – Representation

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This Article makes it clear that the “Institute of Professional Representatives before the European Patent Office” – a.k.a. the epi – is effectively a creature of the EPO, ultimately subject to the authority of the Administrative Council.

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To expect such an “institute” to bite the hand that feeds it appears rather naive.

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Let it not be forgotten that the epi includes among its members a former Vice-President of the EPO whose main area of responsibility was “Human Reources” (not patent law) and who now acts as a European Patent Attorney without any record that he ever qualified as such as prescribed under Article 134 EPC.

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Given that the epi has nobly held its silence concerning this curious – some might say “scandalous” – state of affairs, those expecting the “Institute” to open its collective mouth concerning other abuses at the EPO would be well advised not to hold their breath.

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Patent robot

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May 6, 2022 at 5:20 pm

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Thank you for your explanation: so in your opinion who should write to the AC about the EPO? BusinessEurope ?

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William Garry

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May 6, 2022 at 8:51 pm

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BusinessEurope is the association of large corporations writing the new examination rules, who controls SACEPO, where corporate members are appointed by Campinos.

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Where are SMEs in all this?

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Attentive Observer

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May 6, 2022 at 5:06 pm

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@ Ausser Spesen,

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Whilst it is possible to agree that epi is enshrined in Art 134a, it remains a legal body having a totally distinct legal personality than the EPO. Its members are not employed by the EPO, neither are its employees. They are employed under German laws and regulations.

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The legal division is just there to keep the list of members of epi.

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The annual membership fees paid by the members epi do not come out in the EPO budget.

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epi is thus in fact an autonomous body and although having its origin in the EPC (after the Diplomatic conference of 2000) it should thus be able to give its opinion on policy matters of the EPO without risking any retaliation. It is also at best observer at the meetings of the AC and has no access to confidential meetings of the AC or Board 28.

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As some PD once said, albeit in different context, where there is a will, there is way.

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If one follows your reasoning, epi should thus never have opposed the introduction of mandatory OP by ViCo. It was one of the most comprehensive negative amicus curiae brief sent to the EBA in preparation of G 1/21.

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It is not for epi to decide who is on the list of qualified representatives, but for the Legal Division. It is thus not possible to render epi responsible for the presence of a former VP on the list.

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If the Legal Division has admitted this former VP as qualified representative, for whatever reason, the epi has to accept him. That it kept silent at this moment was thus quite normal. epi had no other choice. In this case it is necessary to hold one’s breath. The scandal is that the former VP has been put on the list, but this is no surprise.

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This does not hinder epi to take position on other topics.

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Ausser Spesen n. g.

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May 6, 2022 at 7:13 pm

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In the end, it is immaterial who writes to the AC.

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The AC will simply ignore it, secure in the comfort of its bubble of immunity/impunity.

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Indeed it is very true that where there is a will, there is a way.

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However, in the case of the EPO, it is doubtful as to where there is any will …

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This was demonstrated clearly in February of this year when the European Council – composed of the heads of state or government of the EU member states, the President of the European Council, and the President of the European Commission – responded to a written question about developing a common position among the ministries of the EU states in relation to EPO governance.

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The evasive response of the Council speaks volumes:

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“The European Patent Office (EPO) is the executive body of the European Patent Organisation, an independent international organisation established by the European Patent Convention (EPC), which falls outside the institutional remit of the European Union.

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The EPO Administrative Council, composed of representatives of the 38 States parties to the EPC, supervises all EPO activities and related administrative matters, including human resources questions. As the Honourable Member points out, the Administrative Tribunal of the International Labour Organisation has ultimate jurisdiction over employment matters in the EPO.

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It is therefore not for the Council to comment on this body’s internal matters.”

https://www.europarl.europa.eu/doceo/document/E-9-2021-005130-ASW_EN.html

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Let us recall that the European Council represents – at least in part – the very governments who would be responsible for convening an EPO “ministerial conference” (i.e. the governments of 27 of the EPO’s contracting states).

-TechBytesBot/#techbytes-www.europarl.europa.eu | Answer for question E-005130/21

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The fact that there are two separate “jurisdictions” involved here – EU and EPO – is immaterial.

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The national governments in question have – at least on paper – responsibility for both EU and EPO matters.

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It would seem to make perfect sense for the member states of the EU to at least try to develop a common position on EPO affairs. But apparently the European Council doesn’t think so.

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Or is it perhaps the case that they see no need to alter their current position of “laissez allez, laissez faire”.

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Can anybody see evidence of any kind of a political “will” to tackle the abuses under discussion here? Because I must admit that I cannot.

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And I do not see a letter of complaint from the epi achieving anything on this front either.

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http://patentblog.kluweriplaw.com/2022/05/03/deepening-social-tensions-and-an-extremely-hostile-president-at-the-epo/#comments

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-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Deepening social tensions and an 'extremely hostile' president at the EPO - Kluwer Patent Blog

x https://cio.economictimes.indiatimes.com/news/social-media/bill-gates-unsure-of-elon-musks-motives-says-tesla-boss-could-make-twitter-worse/91371004

schestowitz

-TechBytesBot/#techbytes-cio.economictimes.indiatimes.com | twitter: Bill Gates unsure of Elon Musk's motives, says Tesla boss could make Twitter worse, CIO News, ET CIO

schestowitz

# bill sez

x https://www.economist.com/culture/bill-gates-explains-how-to-prevent-the-next-pandemic/21809103

schestowitz

-TechBytesBot/#techbytes-Bill Gates explains “How to Prevent the Next Pandemic” | The Economist

schestowitz

# bill sez

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