THE LEGACY of Battistelli -- irrespective of when he leaves the Office -- will be one for the books. Battistelli won't be remembered as anything but a tyrant who was so widely loathed by his own employees that his approval rate stood at a flat 0%, triggering warnings of a crisis inside the Organisation. Some top managers have left (or decided to leave) since.
A determined effort to oust European Patent Office (EPO) president Benoit Battistelli amounted to nothing this week, as representatives from European countries instead spent two days rehashing a reform proposal.
The meeting of the EPO's Administrative Council in Munich had threatened to become a showdown over Battistelli's increasingly autocratic behavior – a situation the EPO's staff encouraged by attempting to serve legal papers on the president and sending messages to council members asking them to fire him.
The council decided to effectively ignore ongoing disputes between staff and management however, punting the relevant agenda items to their next meeting in October.
Instead, the meeting focused on reform of the organization's Boards of Appeal (BOA), which had themselves proved controversial due to Battistelli's efforts to afford himself additional powers over what is supposed to be an independent body and process.
The council threw out the powergrab, approving a reform system that saw a new Boards of Appeal Committee set up as a subsidiary of the Administrative Council, and a newly created President of the BOA that will absorb some of the powers currently held by the EPO President.
"Battistelli won't be remembered as anything but a tyrant who was so widely loathed by his own employees that his approval rate stood at a flat 0%, triggering warnings of a crisis inside the Organisation."George Brock-Nannestad, an occasional commentator who writes about the EPO, left a strongly-worded comment today. He said "it is no longer responsible to recommend obtaining a patent via the EPO," directly as a result of Battistelli's actions that can kill the Office in the long run. Don't take the EPO for granted; when millions of Euros are spent essentially buying the media and tens of millions of Euros get thrown at private companies without even a tender we probably need forensic accountants to pay a visit, if Eponia permits it (even a bailiff is hardly allowed near the postbox and Croatian authorities struggle to successfully summon Željko Topić, who refuses to attend hearings about his alleged corruption). Here is Brock-Nannestad's full comment:
The development, or rather winding down of the quality at the EPO is very saddening and yet another blow to the stability that permitted a certain amount of complacency of the professionals.
Apparently, nobody among those who are responsible for carrying out the letter and intentions of the EPC have any historical perspective. Like politicians they are only concerned with getting re-elected and of financing their seat [almost like in the US, where fundraising seems to be the main activity of those elected to Congress, at least by some reports].
However, changes that may be carried out in one year to what was a complete application processing system will have repercussions for 15+ years, and those users that need to consider where to put their “insurance” money cannot risk obtaining superficially shiny patents that hide structural weaknesses, and on the other hand they cannot tolerate similar quality patents from their present or future competitors.
For consultants to smaller enterprises at least, the lesson is clear: it is no longer responsible to recommend obtaining a patent via the EPO, and the sooner alternative solutions are found on an individual basis, the better, because then the reforms at the EPO will not be felt.
The remaning problem will be an overabundance of unworthy patents from the competition, compounded by the ease with which the wise fathers expect the Unified Patent to be obtainable, that is, what defences can smaller enterprises muster against patents that go from irritants to (almost) trollls? We are not foreseeing a move to remove the European Opposition as a legitimate means of defence (but who am I to predict anything?), and that is what is needed.
9 months (and much more, if you have an early awareness) is definitely sufficient to structure supplementary searches and to study the paltry arguments for patentability that we see more and more. There is indeed a matter of cost, but smaller enterprises have ganged together in the past in order to protect their mutual interests, and paying a patent opposition membership fee corresponding in some agreed way with their turnover. And remember, due to the asymmetry of the EPC, the losing proprietor cannot go to the courts to try to reverse the decision and thereby gain further extortion time. Even if the EPO were to reject all oppositions, the opponents still have the courts available.
I think we need to think this way, and the AC members will not really be opposed: their patent offices will once more have responsibilities, and if they cannot lift them now, due to complacency and heavy reliance on EPO examination service contracts, they will b....y well have to re-charge their batteries. The EPO project will be a parenthesis in history, a brain trust of huge dimensions will disintegrate, and there will be human sacrifices. Let us celebrate the 30 years during which we were proud, but we must move on.
My candidate for a single country in Europe in which it would be worthwhile to apply in all cases, is Germany. Dependent on your purse and competitive situation you would choose other countries as well. We are back to before 1978! Luckily there are still some practitioners out there with experience that goes that far back.
I fear that we have seen BB using the BBB principle to good effect (BBB = "Bullshit Baffles Brains", and old UK Armed Forces saying). I know nothing about the AC delegates, but it seems to be a law of nature (as expounded many decades ago in the classic textbook "Parkinson's Law"), that the sort of person who ends up in a committee like the AC, has seldom had "hands on" experience in the day-to-day operation of the organisation that they represent (often having come in from another field at high level), and, not wishing to show ignorance, will tend to follow the herd, especially if arguments are presented forcefully enough.
National patents are suddenly much more attractive. Especially as many of the main patenting states have relaxed their requirements for local representation. The national route is now highly cost effective, and much less risky than putting all your eggs into the EPO basket. The EPO's new appeals regime makes the whole EPO route much too expensive and unpredictable. It may be OK for the big boys, but it's no longer a sensible option for SMEs.
Upon further reflection, it is possible that some interesting (deliberate) tactics may have been employed by BB at the latest AC meeting.
The reason for reflecting is this: why was the discussion of the reform of the BoAs so pressing (i.e. no. 1 item on the AC's agenda), so complex (i.e. involving multiple proposals that, for no good reason, were tied together by the Office) and so controversial (i.e. so blatantly against common sense as to guarantee vigorous debate at the AC meeting)?
It could perhaps be that BB believes that the best form of defence is attack. If he can control the agenda and tie the AC in knots with a debate on the first item, then he neatly side-steps an issue that could have truly seen him in the firing line. He also gains months (instead of only days) to prepare his defence to any criticisms stemming from the recent EBoA (Article 23 EPC) debacle.
It may well be a lot more complicated than that. However, if it really was that simple, then the delegates to the AC need to wake up to the fact that BB may well be playing them for fools.