Bonum Certa Men Certa

The European Patent Lawyers Association (EPLAW) is Again Protesting Against EPO as More Crackdowns by EPO Management Reveal Depth of Abuse

Summary: The European Patent Lawyers Association complains about lack of effective and independent oversight, revealing yet again that EPO critics are far beyond disgruntled employees

About a month ago we noted that the European Patent Lawyers Association (EPLAW) had complained about the EPO's management for its ill conduct. A bit less than a week ago EPLAW cited Techrights [PDF] in its analysis involving members of the Boards of Appeal (BoA) and the way they are treated by the EPO's management. Days ago Merpel from IPKat wrote about threats to the future of the BoA, noting based on sources the following:



From the fact that the current business distribution scheme for the Boards of Appeal extends only to the end of March, it seems likely that the intention is for a proposal to be decided by Board 28 next week, approved by the Administrative Council in March, and implemented in April. Put another way, whatever the proposed new arrangements are for the administration of the Boards of Appeal, they are likely to be implemented very quickly and with no consultation. Users have certainly not been consulted, and Merpel understands that until now, neither have the Boards of Appeal themselves.


"The EPO is out of control and if it gets its way, patent scope will be thrown out of the window and Europe's door will be opened to patent trolls."Merpel's analysis is long but worth reading. Someone familiar with EPO affairs must be feeding her relevant information, as raising concerns internally is too risky for this organisation, which now operates its own Stasi-esque Investigative Unit. As EPLAW's analysis was contained inside a PDF we worry that it would not reach the broad audience it deserves to reach, so here it is as HTML:

EPO – The independence of the Boards of Appeal – Responsibilities of the Administrative Council

This Blog has recently published an open letter1 of the European Patent Lawyers Association (EPLAW) to the Delegations of the Administrative Council (AC) of the EPO. EPLAW joined the chorus of patent professionals expressing their concerns about the temporary removal of a member of the Boards of Appeal (BoA) from office, as ordered by the President of the EPO and confirmed by the AC.

In addition to public discussions among patent professionals, further developments regarding the status of the BoA have taken place "behind the scenes". The following is a summary of proposed or already enacted measures that have come to my attention: Among others, the AC adopted in its December meeting an amendment to the Service Regulations2 affecting the status of the members of the BoA as civil servants of the EPO. Inter alia, this amendment provides the following:

- Introducing a probation period for Board members; - Including the members of the BoA in the category of employees of the EPO who are subject to reporting on their ability, efficiency and conduct; - Defining the drawing up of appraisal reports as a managerial task; - Introducing a new salary adjustment procedure o replacing step advancement based on seniority; o providing step advancement and payment of bonuses based on performance and competence as assessed by the responsible manager.

This may open the possibility of giving a reward to Board members producing the expected numbers (or kinds) of decisions with the expected results and penalizing those members not measuring up to the expectations of the EPO management.

In the same meeting, the AC decided on appointments and re-appointments of Chairpersons and members of the BoA. From the Council Secretariat’s Communique and the new Business Distribution Scheme for the BoA as published in the meantime, the following points are apparent:

- No new appointments of Chairpersons and members of the Technical BoA have been made; - The re-appointments of members whose term of appointment terminates in early 2015 have been delayed – deviating from previous practice – until the last minute.

___ 1 http://www.eplawpatentblog.com/eplaw/2014/12/eplaw-blog-judicial-independence.html 2 http://www.epo.org/modules/epoweb/acdocument/epoweb2/159/en/CA-D_10-14_en.pdf




As a result of this conduct, two chairs of Technical B0A have been vacant as of January 1, 2015, one of them being BoA 3.5.01 competent for the field of business methods, having a particularly heavy backlog. No new appointments were made in the December meeting for technically or legally qualified members, nor have, so far, any vacancies been announced by the EPO with the consequence that no selection procedures preceding a proposal for appointment have been initiated. On the contrary, as alleged in one of the comments in IPKat, several candidates already selected in terminated selection procedures have not been proposed for appointment by the President since decision R 19/12 was issued. It is not apparent on which basis the President of the EPO and the AC can assume that a substantial reduction of the number of chairpersons and members can remain without serious effects on the working of the BoA, in particular on the pendency of appeal cases.

In the Council Secretariat’s Communique on the December meeting, the AC expressed “its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence”.

Alas, the reality appears to be different. The decision on the amendment to the Service Regulations was taken having recognized that the status of the BoA had become an extremely delicate political and legal question following the unprecedented action of the Office Administration against a Board member. It would have been an easy matter to exempt the members of the BoA from the new career and salary system. The omission to do this is difficult to understand.

Similar concerns appear to be justified by assessing the role of the President in re-appointment proceedings. Having only the right to be heard on re-appointments under the Convention, he obviously has extended this right to a right of proposing re-appointments. In the context of the reporting system under the amended Service Regulations, the present manner of handling the matter would allow the President to restrict re-appointments to members who are seen as particularly compliant with the management’s objectives.

It is the task of the AC to supervise the EPO. Having seen that AC documents on re-appointments had not been produced in good time, it would have been a proper task for the Chairman of the AC to put the re-appointment of Board members on the AC’s agenda. If necessary, the Chairman could have simply asked for a list of members due to re-appointment. In this way the impression would have been avoided that the President could take the instrument of re-appointment for exercising pressure on members of the BoA.

The task of supervision implies that there is a certain distance between the Office and its supervising body. In the present context, the public and the users of the European




patent system could expect that the AC would examine the President’s temporary removal of a Board member from office and its effects on the independence of the BoA independently. Instead, the Chairman of the AC gave a common interview with the President of the Office conveying the impression of a common conviction that everything is under control and in order.

Lack of separation and control and delays in readying the BoA for the future is not what the users of the EPO, in particular the applicants financing the EPO with their fees, expect from EPO management and the AC. The public concern expressed in many letters and in numerous discussions about the recent actions clearly shows that not everything is in order and that the AC should use its authority to supervise the Office in order to implement the necessary short-term and long-term changes. Co-operation between the AC and the EPO is in many situations the best choice. However, for the sake of safeguarding the independence of the BoA, simply avoiding independent and critical assessment of obvious flaws for the sake of the appearance of “business as usual” is not good enough and is not in the long-term interest of the EPO users. Obviously, the President has intervened in the activities of the BoA and information obtained in the meantime has not indicated that this will not happen again in the future. Transparency is of crucial importance and the AC should try to regain the lost confidence of the users of the EPO, e.g. by seeking external advice from judges, users and last but not least by members of the BoA before taking far-reaching decisions.

According to the President, the AC “decided that in full respect of the Office regulations concerning investigation, the Office Investigative Unit is the competent body to pursue this investigation and to deliver the report”. This sounds like a general approval of the Investigative Unit’s activities based on the Guidelines for investigations at the EPO. These Guidelines became known by the letter of the internal members of the Enlarged BoA requesting the members of the AC to take appropriate measures for ensuring the independence of the BoA.

The users expect that the AC reviews the role of the Investigative Unit in general and in particular as far as members of the BoA are concerned. It is not to be reconciled with the international recognized principles of independence as confirmed by the AC that an Office acts as prosecutor against its judiciary. As rightly stated by Sir Robin Jacob in his letter to the Chairman of the AC written on behalf of the Intellectual Property Judges’ Association (IPJA)3, if there are criminal charges this is a matter for action by the criminal law enforcement authorities, not the Office Administration. In this context, it appears necessary for the AC to scrutinize the powers and actual activities of the Investigative Unit. For example, EPO staff requests that it should be examined whether the applicable data protection requirements4 comply with international standards and whether there is an independent body ensuring that the

_______ 3 http://ipkitten.blogspot.de/2015/01/judicial-independence-europes-ip-judges.html 4 http://techrights.org/wp-content/uploads/2014/10/DPG-2014.pdf




Investigative Unit’s way of actually collecting and using such data complies with such requirements.

In any case, parties to appeal proceedings should be given an unrestricted guarantee that the first instance is denied any access to means of communication used by the members of the BoA. Particularly, for a number of parties who have filed objections based on allegations of suspected partiality of the Chairman of the Enlarged BoA, it might be a rather disturbing consideration that the Investigation Unit may have access to the communication between members of the Enlarged BoA.

Finally, the representatives of the EU member states in the AC may be reminded of their responsibility to make the EPO fit for its tasks under the regulation on the unitary patent. Spain has based its action against this regulation on the main and first argument that a regulation has been established on the basis of a right granted by the European Patent Office, whose acts are not subject to judicial review. The Advocate General succeeded in his opinion to avoid this problem by arguing that the Regulation does not affect the EPC. However, the ECJ has not yet taken its decision and the recent actions of the President of the EPO demonstrating his powers over the BoA may prompt the ECJ to look closer at the matter and to ask the question whether it is in agreement with EU law that the unitary patent as an EU industrial property title may be revoked by the EPO’s opposition division. Juliane Kokott concludes in her opinion written for the Advocates-General in the previous case G 1/095 that this is a body whose decisions are not subject to judicial review complying with the requirements of an efficient judicial control within the meaning of Article 47 of the EU Charter of Fundamental Rights.

The dangers for the independence of the BoA based on the fundamental problem of the BoA's administrative integration into the Office (see Festschrift "50 Jahre Bundespatentgericht", Cologne 2011, p. 911) have materialized in an unforeseen manner. The EPO has buried the project for a revision of the EPC implementing the organisational autonomy of the BoA of the EPO within the European Patent Organisation by taking the basic proposal for a Diplomatic Conference, Doc. CA/46/04 of May 28, 20046, from the EPO’s website. Now, it is up to the AC to take legislative initiative.

____ 5 http://www.ipeg.eu/blog/wp-content/uploads/Advocates-General-Opinion-1-09.pdf 6 http://legaltexts.arcdev.hu/law-practice/legislative-initiatives/autonomy.html


The abuse by EPO management (probably breaking the most fundamental rules) is bound to erode legitimacy of a Unified Patent Court -- a landgrab by and for corporations which wish to dominate through patent protectionism. Watch what this new "Intellectual Property Edition" tells us about the European patent legal system that is envisioned by the occupying lobbyists. "25 EU Member States signed the Unified Patent Court (UPC) Agreement in February 2013," says the analysis, "laying the foundations for a Court common to all participating Member States and having exclusive jurisdiction for both European patents with unitary effect (Unitary Patents) and European patents validated in one or more of the participating Member States (European Patents). Accession to the UPC Agreement is open to any EU Member State and, to date, all EU Member States except Spain, Poland, and Croatia have signed the Agreement."

Notice how they simply marginalise states that antagonise the idea, rather than take them into account and perhaps reconsider the entire thing. This is a nasty, undemocratic process -- aligning perfectly with what we have been seeing and reporting about. The EPO is out of control and if it gets its way, patent scope will be thrown out of the window and Europe's door will be opened to patent trolls.

Recent Techrights' Posts

For the First Time in a Month OSI's "OpenSource.org" Blogs and It's Basically a Microsoft Blog Post (Microsoft Controls OSI)
For the first time in a month OSI writes something and it is Microsoft propaganda composed by a Microsoft-salaried operative
Microsoft, Already Borrowing 3 Billion Dollars a Month, is Trying to Cause Many People to Resign
MSN (i.e. Microsoft) and others openly admit it
They Want Activists to Just Barely Walk and Eat, Not Do Activism Anymore
It's sort of like the ending of '1984'
Non-Free JavaScript Programs in Banks Aren't Even the Biggest Problem
Technology was supposed to make life easier; in practice, however, for most of us the opposite effect can be observed
IBM is Obliterating Fedora
"Fedora releases were shipping with an increasing number of bugs on launch day even while I was using it for a several year stretch."
 
Links 07/08/2025: US Punishes India Instead of Russia, Attacks Law Firms to Prevent Scrutiny
Links for the day
Read Us in Geminispace as Well
it's definitely a lot simpler than using a Web browser
Once a Site About BSD and GNU/Linux, and After Months of Silence, LinuxBSDos.com Comes Back Only as a Slopfarm
very frustrating
Links 07/08/2025: Hardware Wars, Mass Recall of Colgate Total Clean Mint, More Microsoft Holes Found
Links for the day
Gemini Links 07/08/2025: "Right To Manage" and LoRa Analysis
Links for the day
GAFAM 'Says' is Front Page "News"
The point of journalism is to check and assess facts, not parrot what people and companies merely claim
Links 07/08/2025: Apple Makes False Promises, More Trouble for Microsoft
Links for the day
OSS Didn't Always Mean Open Source Software
"oligarchs all the way down"
The Register MS Does More Microsoft Sez or GitHub Sez (Says) Pieces
60 minutes ago
Quit Perpetuating the Narrative of Gemini Protocol 'Dying' (It's False)
The "whisper campaign" against Gemini Protocol
Criticising Social Control Media in Social Control Media
Many people are quitting Social Control Media (fewer of them announce this in public)
Slopfarms Are Typically Fake News
Slopfarms typically relay falsehoods
Gemini Links 06/08/2025: Replacing a Pocket Watch and Buying in Bulk
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 06, 2025
IRC logs for Wednesday, August 06, 2025
August Hits Microsoft Hard: Dead Divisions, Dead Products, Layoffs Again (on Week 1)
Microsoft's debt is soaring
Slopwatch: Slow Day for LLM Slop, Serial Sloppers Still at It in Their Slopfarms
The Web would be better off if those sites went offline
Red Hat Layoffs Expected in 5 Days (Monday)
"They will announce and proceed with the cuts on 08/11."
Links 06/08/2025: Substack in Trouble, Slop Sceptic Shira Perlmutter Seeks Emergency Injunction Pending Appeal
Links for the day
Gemini Links 06/08/2025: Pinephone, Reverse-Engineering, and More
Links for the day
Links 06/08/2025: Faked Values of Slop Companies and Government Bailouts
Links for the day
FOSSY 2025 Conference Safety
The GAFAM-funded FOSSY 2025 is over
Microsoft's Favourite Pay-to-Say 'Analyst' Firm Has Just Collapsed
'Analysts' that helped propel Microsoft to fictional values akin to Ponzi schemes
Ask Google (Jeeves)
What does Google "know", not know, or would rather forget (or embellish)?
They Want You To Talk About Trump or 'The Other Bill' in Relation to Trafficking of Underage Girls for Sexual Exploitation
Just something we wanted to say...
How to Quadruple Your "Goodwill" Value and Grow Your (Wall) Street "Value" From $152B to $4000B Without Producing a Single Successful Product/Service
The longer it goes on for, the bigger the implosion will be
Staying Productive
Two very reputable institutions recently told us they now reckon Microsoft is somehow funding those SLAPPs against us
A Blow for Patent Ambitions of Bill Epsteingate
It's about money
66 Countries Where More People Use iPhones (or iPads) Than Microsoft Windows, According to statCounter Data
a list of countries where iOS now exceeds Windows
Apple's iOS Bigger Than Microsoft Windows in Many Countries
This ought to alarm Microsoft
The Mainstream Media Talks About Spotify Share Price and Price Hikes, Not Its Debt Increasing by About 33% in Just 12 Months
Spotify isn't a company in good shape
New "US Editor for The Register" is 80% Microsoft and Windows
they typically just treat Microsoft like the "Holy Grail" of "IT"
Microsoft is Apparently Sending Gag Orders or NDAs to Staff That Got Laid Off (“We were told not to post on LinkedIn. Not to say anything.”)
The main lies we keep seeing
Richard M. Stallman Has Published AI Memos Since 1980 (45 Years Ago)
Back when the term AI actually meant something
Gemini Links 06/08/2025: BitTorrent and Feedly Bots
Links for the day
Windows All-Time Lows, Android All-Time Highs in Kuwait
New lows for Windows can be found in many countries this month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 05, 2025
IRC logs for Tuesday, August 05, 2025
Openwashing Slop... Using Slop!
So get ready for "open" "hey hi" with its proprietary models to engage in openwashing, helped by serial sloppers who use the LLMs to produce fake 'articles'.
On "Tragedy of the Commons in the Production of Digital Artifacts"
There's a better way to do things. None of that should involve GAFAM.
Gemini Links 05/08/2025: Opel Zoo near Frankfurt and Alhena 5.2.5
Links for the day
The Inflammatory Influence of Social Control Media Giants
CPC's ByteDance says it's cool
Microsoft v Planet Earth
Is Microsoft profitable?
IRC Turns 37
Internet Relay Chat (short: IRC), which started in 1988, turns 37 this month
Shortly After a Microsofter Took Over The Register as Editor in Chief Microsoft Tim (Tim Anderson) is Back and It's Still Microsoft Propaganda, Sometimes Funded by Microsoft
Notice his focus
Stricter Enforcement of Worker Adjustment and Retraining Notification (WARN) Act is Sorely Needed
Who's keeping track anyway?
Calling Plagiarism "Intelligence" is Pure Genius, Brilliance!
One thing to "like" (or dislike) about LLMs is how they're falsely marketed using various buzzwords
Geminispace Promises Simplicity But Also Provides a "bunch of forums that get flood-filled by agitation against the very essence of Gemini itself"
claims of stagnation in Geminispace started because of a person who spent a long time agitating against GNU/Linux as well
Zimbabweans Aren't Into Windows or Microsoft
This cannot be good news for GAFAM
Microsoft's Washington Layoffs Aren't Everything, They're Definitely Not Happening in Just One State in the US
Washington is just more strict with WARN notices
Gemini Links 05/08/2025: Lagrange v1.18.6, No Stagnation in Geminispace, and Fake Coding (Slop)
Links for the day
The Register's Editor in Chief (Who Left for Google) Told Me "AI" Was a Bubble, But Now The Register Gets Paid to Participate in Inflating This Bubble
A lot of the online media is a scam
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Some Cola Formulas Aren't Secret, But the Barrier is the Branding
That's the power of the channel/distribution, marketing, and brand recognition (accomplished through endless marketing)
Introducing Mission:Libre and FreeXR (and BreakXR)
efforts that accompany the foundations put there by the Free Software Foundation in 1985
Slopwatch: WebProNews, LinuxSecurity, and Some Success Stories
Google News still has a slopfarm issue
Links 05/08/2025: Hey Hi (AI) Passing Fads and GAFAM "Embracing the Military"
Links for the day
Links 05/08/2025: Samsung and Microsoft Layoffs
Links for the day
Rumours of Mass Layoffs at Red Hat Next Week (August 11th, 2025)
The eleventh means next Monday
IBM is Shutting Down (Piecewise)
IBM is basically being liquidated
The Debian Language Police Department (PD)
"there has never been complaints about anyone that was offended by this -off package"
Tesla's Debt More Than Doubled in 2 Years and the Company Will Operate in the Red (at a Loss) Quite Soon
If your first-quarter net income is $409 million and you borrow billions from banks, plus interest to pay on those loans, then you're not far from returning to losses
When The Register MS Says "Linux Backdoor" It Actually Talks About Malware
The leading story in The Register US/MS this morning is Microsoft
Microsoft Windows Fell to 19% "Market Share" in Montenegro
Microsoft must be well aware of this trend
Why We Also Include Gopher Links in Our Gemini (Protocol) Links
There are still many people who use Gopher to relay their messages (like blog posts). They're mostly technical people.
Shouting is an Indication of a Lack of Convincing Argument
Beware what they are attempting to distract from
Mongolia: Microsoft Windows at All-Time Low
in 2009 when Windows was at 99.45% in Mongolia the company was "worth" less than 200 billion dollars
About a Quarter of Today's "linux" News in Google News Came From One Domain and It's a Slopfarm
Not kidding!
Gemini Links 05/08/2025: Zombie Threat and Switching to NixOS
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 04, 2025
IRC logs for Monday, August 04, 2025
ChatGPT in Trouble
Watch out for the newer buzzwords
The Register MS Links to the Wrong statCounter Page
They link to older data
Dr. Andy Farnell Explains How Google Turned From "Librarian" Into "Oracle", Telling Us What to Think Instead of Where to Look
Google was always a lousy librarian
Microsoft Layoffs Continue in August 2025
If Microsoft is doing so well, how come about 10 rounds of layoffs in about 7 months in 2025?