An EPC-Violating Patent Granting Process: Unlawful Orders, According to the Central Staff Committee of the European Patent Office (EPO)
With the illegal UPC, this matter has become an EU issue.
THE Central Staff Committee of the understaffed EPO is ramping up some actions against António Campinos, who persists with the illegal actions of his appointer, Benoît Battistelli.
The recent General Assembly discussed the lack of Formality Officers, meaning a lack of coordination at the Office and no adherence to law (or compliance with rules). The Office is currently in the "business" of minting many monopolies, without any consideration/evaluation of what's legal, what's desirable, and what the aim of the Office really ought to be. Giving over a million pan-European patents to non-European corporations is not only bad for Europe; it is bad for science and technology. European software patents, for instance, are granted solely for the purposes of patent inflation.
Yesterday the Central Staff Committee disseminated or further circulated (to bypass the illegal censorship) the following communication:
Lack of legal remedies against PGP unlawful orders: Letter to the President
Dear Colleagues,
In some recent judgments, the Administrative Tribunal of the ILO (ILOAT) declined jurisdiction for possibly unlawful orders from managers to members of Examining or Opposition Divisions interfering with the Divisions’ sole competence to take decisions on patent applications or opposed patents. ILOAT held that such orders only concern patent law and not labour law.
This leaves members of an Examining or Opposition Division in the Patent Granting Process (PGP) without any means of legal redress against such unlawful orders from their managers. To close that legal gap, Staff Representation has drawn up a proposal and has requested the President by letter to submit it to the Committee on Patent Law CPL – one of the Administrative Council’s bodies - for decision.
The President has not submitted the proposal to the CPL and, when asked by the Staff Committee, finally rejected the request for submission of the document.
In this second letter to the President, we ask the President to reconsider his decision in view of potential consequences for the Organisation. An answer from the President is currently pending.
Sincerely yours,
The Central Staff Committee - CSC
There are two letters and a proposal in there. We're going to reproduce these as HTML, plain text, and GemText for the public to be able to assess objectively (sans our own interpretation of it).
First, here's the proposal:
CA/xx/23Orig.: en
Munich, xx.xx.2023
SUBJECT: Setting up an independent judicial body for disputes concerning the patent granting procedure
SUBMITTED BY: Central Staff Committee of the European Patent Office
ADDRESSEES: 1. Committee on Patent Law (for opinion)
2. Administrative Council (for decision)
SUMMARY
This document addresses a legal vacuum that Examiners face in their function as members of Examining and Opposition Divisions when the Divisions’ sole competence to take decisions on patent applications or opposed patents is interfered with.
It contains a recommendation to set up an independent judicial body, possibly composed of members of the Boards of Appeal, which is completely independent of the President, DG1 and DG5, in order to deal with disputes between management and the Examining and Opposition Divisions or some of their individual members concerning perceived unlawful interferences by the Office’s management with the responsibilities of the Divisions.
This document has been issued in electronic form only.
CA/xx/23 e
I. STRATEGIC/OPERATIONAL
1. Operational
II. RECOMMENDATION
2. It is recommended that a judicial body, which is completely independent of the President, DG1 and DG5, possibly composed of three members of the Boards of Appeal, is set up with jurisdiction to hear disputes between management and the members of Examining and Opposition Divisions against perceived unlawful interferences by the Office’s management in the Divisions’ responsibilities.
III. MAJORITY NEEDED
3. Simple majority.
IV. CONTEXT
4. In its 136th session the Administrative Tribunal of the ILO “ILOAT” made a legally conclusive finding in Judgement 4730 that decisions by hierarchical superiors to issue an order to one or several members of a responsible Examining Division on the procedure and its outcome for a particular patent application are not appealable by internal appeal under Article 108 of the Service Regulation - and consequently cannot be prosecuted further before the ILOAT – because such orders do not adversely affect an Examiner’s relationship with the EPO and their terms of appointment.
5. In the case underlying Judgment 4730, and the related Judgments 4417 and 4392, an Examining Division had decided to refuse a patent application and had signed the decision. Instead of notifying the decision to the patent applicant, the entrusted Examiner’s line manager ordered the entrusted Examiner under threat of disciplinary consequences to issue a further communication under Article 94(3) EPC. Despite even drawing up the ordered communication, the entrusted Examiner nevertheless was issued a reprimand for alleged obstructive behaviour.
6. The Administrative Tribunal did not examine whether the order of the director was lawful since it declined jurisdiction for decisions with respect to patent procedures. The Boards of Appeal are, on the other hand, not competent to examine cases of interferences with the Examining and Opposition Divisions’ responsibilities since an appeal can only be lodged by a patent applicant or, in case of opposition, by a patent proprietor or an opponent, but not by Examiners.
7. This means in effect that Examiners have no means of legal redress against potentially unlawful orders to one or all members of an Examining or Opposition Division concerning patent procedures.
V. ARGUMENTS
CA/xx/23 e 3/4
8. The Contracting States to the EPC defined a clear split between the functions and powers of the President of the EPO (Article 10 EPC) and the responsibilities of the Examining and Opposition Divisions (Article 15, 18 and 19 EPC).
9. The Examining Divisions, consisting of three technically qualified Examiners, are responsible for the examination of the European patent applications and for deciding on whether a European patent can be granted or whether the application is to be refused (Article 15(c), 18 and 97(1) and (2) EPC). Likewise are the Opposition Divisions responsible for the examination of oppositions against any European patent and for deciding on whether at least one ground for opposition prejudices the maintenance of the European patent (Article 15(d), 19 and 101(1) to (3) EPC).
10. For carrying out these tasks the Examining and Opposition Divisions have been given discretionary power under the EPC, inter alia, the discretionary power to invite a patent applicant as often as necessary to file observations and amendments (Article 94(3) EPC), to summon to oral proceedings (Article 116(1) EPC) or to give consent to further amendments (Rule 137(3) EPC). The EPC moreover vests in the Divisions the competence to finally decide on the patent application or the opposed patent (Article 97 and 101 EPC).
11. Several legal analyses by DG5 confirm, that the final decision to grant or refuse remains the sole competence of the Examining Division, that neither a director nor anybody else can replace a member of the Division when taking a decision under the EPC and that only members of the Division are entitled to vote and sign the relevant decision.
12. The case underlying Judgments 4730, 4417 and 4392 however shows that interferences with this competence take place and that Examiners have no independent judicial body for reviewing whether interferences in an Examining Divisions’ responsibilities are unlawful.
13. In order to close this legal vacuum and to protect the Organisation’s far- reaching immunity from national law, Staff Representation proposes to set up an independent judicial body, possibly composed by members of the Boards of Appeal. This also deems necessary in order not to jeopardise the legal validity of the patents granted by the EPO.
VI. ALTERNATIVES
14. None.
VII. FINANCIAL IMPLICATIONS
15. It is assumed, that approximately ten cases per year would end up before the judicial body and thus it is financially negligible.
VIII. LEGAL BASIS
16. Article 33(1)(c) EPC.
IX. DOCUMENTS CITED
17. Not applicable.
X. RECOMMENDATION FOR PUBLICATION
18. Yes.
CA/xx/23 e
Here is the corresponding letter to Campinos and people who were supposed to be in charge of him (but aren't; they're complicit).
European Patent Office
80298 Munich
GermanyCentral Staff Committee
Comité central du personnel
Zentraler PersonalausschusscentralSTCOM@epo.org
Tel. +49 -89- 2399 - 2120
Reference: sc23131cl
Date: 03.11.2023
European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos
President of the EPO
by email
Submission of a document to the Patent Law Committee (PL/59)
Dear Mr President,
The Central Staff Committee herewith requests in accordance with Article 9, paragraph 2.2(b) of the Rules of Procedure of the Administrative Council that you submit the annexed document to have it put on the provisional agenda pursuant to Article 9, paragraph 2.3(b) of the Rules of Procedure of the Administrative Council of the following meeting:
59th meeting of the Committee on Patent Law (PL/59) on 22.02.2024
In view of the importance of the matter, you may deem it appropriate to request the Chairperson of the Administrative Council to put the annexed document on the provisional agenda of the 58th meeting of the Committee on Patent Law (PL/58) on 16.11.2023 pursuant to Article 9, paragraph 2.3(a) of the Rules of Procedure of the Administrative Council.
Yours sincerely,
Derek Kelly
Chairman of the Central Staff Committeecc.: Council secretariat
Chairperson of the AC, Mr. Josef Kratoschvìl
Chairperson of the PLC, Mr. Antti RiivariAnnex (separate document): CA document to be submitted
Here is the second and more recent letter (dated earlier this month):
European Patent Office
80298 Munich
GermanyCentral Staff Committee
Comité central du personnel
Zentraler PersonalausschusscentralSTCOM@epo.org
Tel. +49 -89- 2399 - 2120
Reference: sc24004cl
Date: 02.02.2024
European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos
President of the EPO
by email
URGENT
Your email of 30 January 2024 rejecting our request to put a document on the agenda of the Committee on Patent Law
Dear Mr President,
In a letter dated 3 November 2023 (sc23131cl) the Central Staff Committee (CSC) has requested that you submit the document attached to the letter to the Committee on Patent Law for its 59th meeting on 22 February 2024.
In the document the CSC proposes that an independent judicial body is set up in order to deal with disputes between management and the Examining and Opposition Divisions, or some of their individual members, concerning perceived or actual unlawful interferences by the Office’s management with the responsibilities and competence of the Division as enshrined in the EPC.
The creation of such an independent judicial body appears necessary after the Administrative Tribunal of the ILO (ILOAT) has declined jurisdiction for such cases1. Otherwise, the Division’s members would be left without any means of legal redress for challenging unlawful orders regarding patent applications or patents and this could negatively affect the Organisations immunity from national jurisdiction. In the case that was brought to the ILOAT, an order was given to an entrusted examiner not to send the decision to refuse the patent application that had already been signed by all members of the competent Examining Division but to issue a further communication instead2. This order, prima facie, appears to be a violation of Article 97(2) EPC.
While the final judgement of this case is not ours to make, it becomes clear from it that an independent review body needs to be established for such cases in order to achieve the highest level of legal certainty for the patents granted by the EPO.
_____________
1 Judgment no. 4730 and related Judgments nos. 4417 and 4392.
2 see particularly Judgment 4392, facts p.1 second par. and Judgment 4730 cons.5 and 9.
In your email of 30 January 2024, you confirm our findings that decisions and working instructions from line management related to law and/or procedures applicable to patent applications are not challengeable before the Appeals Committee nor the Tribunal3 ; however, you refuse the submission of the document to the Committee on Patent Law for informing officially the representatives of the Contracting States on said lacuna and about possible solutions.
In view of the potential consequences for the Organisation, the CSC respectfully requests that you reconsider your decision and send the document to the Committee on Patent Law eventually.
Yours sincerely,
Derek Kelly
Chairman of the Central Staff Committeecc.: Council secretariat
Chairperson of the AC, Mr. Josef Kratochvìl
Chairperson of the PLC, Mr. Antti Riivari_____________
3 second to the last par. in the email.
There has been a lot going on at the EPO lately, especially compared to recent months and last year. One can hope there's another strike (work stoppage) planned. That would send a strong message to politicians and national delegates. █