I HAVE never come across anything quite as corrupt (and at the same time immune/resistant to scrutiny/above the law) as the EPO. It's truly astonishing. I thought we live in a society where the Rule of Law applies, but apparently there are some exceptions, for supposedly benevolent purposes.
The MPI has been courageous enough to invite an eminent speaker to give a lecture on a topic that may sound curious or even somewhat provocative to some – note the question mark, though: “The Patent Granting Practice under the EPC – Erosion of the Rule of Law?” Enter Professor Dr. Siegfried Bross (German spelling: Broß), an extremely cultivated elder gentleman who speaks in a soft voice with this inimitable Swabian accent that non-Germans may remember from interviews with Albert Einstein. Before summarizing his lecture, it may be appropriate to introduce the lecturer to the international readership of this blog. Professor Bross has had a long and splendid career as a German judge; in particular, he spent twelve years (1986-1998) on the Xth Civil Panel [Zivilsenat] of the Federal Court of Justice. This Panel is, among other things, responsible for all patent cases at this court and is thus Germany’s top patent instance. And to top even that, Prof. Bross was then appointed to become one of the sixteen judges of the German Federal Constitutional Court, where he served for another twelve years until he retired in 2010.
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Let us now turn to the message ofF’s lecture. His key thesis was that the basic framework of the EPC is not sustainable under the principles of the rule of law (“das Grundgerüst ist nicht tragfähig nach rechtsstaatlichen Grundsätzen”), and that the recent EPO reforms with regard to the Boards of Appeal are “ohne rechtsstaatliche Substanz” [without any substance in regard to the rule of law]. Boom.
Prof. Bross’ main criticism of the EPC framework was that it does not sufficiently respect the necessary separation of powers and does not sufficiently observe democratic rules and responsibilities. He argued that the Administrative Council and the EPO management negotiate structures without any parliamentary discussion, contrary to the established jurisprudence of the German constitutional court. He reminded the audience that the EPO legal order is not an integral part of the EU legal order nor is it identical to or even harmonized with it, even though many Member States of the EPO are also EU Member States. And he criticized the EPO Member States for having established an almost omnipotent executive with no proper checks and balances by an independent judiciary.
[PDF], published several days ago with the following concluding words:
The ILO-AT is one of the oldest and one of the largest Administrative Tribunals. It now serves more than 65 international organisations with more than 58.000 employees. If its size is a measure, ILO-AT is uncontestably a success. But the Tribunal risks to become a victim of that success if it does not find a way to deal with its increasing workload while meeting modern standards of justice.
SUEPO believes that there are a number of fundamental weaknesses in the way the Tribunal is organized and presently operates, many originating from the past. These weaknesses must be addressed if the Tribunal is to live up to the purpose for which it was originally created, namely to be a judicial tribunal that ensures to officials of its member organisations “the firm conviction of safety and security emanating from justice, provide a judge for every dispute, and preclude the possibility of one of the parties being a judge in his own causei.”
In 10 years the Tribunal will celebrate its 100 years anniversary. We encourage the Tribunal to reflect on what it wants to stand for, and how it wants to be seen in 10 years’ time: as a modern Tribunal that, through fair and transparent procedures, provides for the necessary balance of power between international civil servants and their organisations, or as a relic of the past that is seen by many as complicit with rogue administrations, not least the EPO?
To live up to their reputation as global defenders of peace and justice, International Organisations must themselves set the example and provide their staff with a justice system that operates, and is seen to operate, to the highest standards of transparency and fair play. This imposes on the Organisations that are Members of the Tribunal, first and foremost among these the ILO itself, to support the Tribunal in modernizing its practice.
The central staff committee of the European Patent Office has sent a letter to the organization's board warning it of proposed changes that would further undermine their rights.
The letter to the board of the EPO's Administrative Council comes one day before its preparatory meeting for the larger council meeting next month. That meeting is expected to center – yet again – on the breakdown of relations between staff and management.
On the agenda is reform of the EPO's disciplinary and investigative rules as well as its appeal process – something that has been pushed by critics of the EPO's current president Benoit Battistelli.
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The exact same process of tinkering with internal policies in order to award greater powers to the president's office has happened repeatedly at all levels of the EPO, and have led to him being dubbed "King Battistelli."
The situation has grown so dire that the staff has even taken the EPO to the European Court of Human Rights in an effort to impose some rules over their treatment (EPO management claims immunity from national laws due to its status as an international organization).
Ironically, reform to the disciplinary proceedings and appeals process has been championed by one of Battistelli's fiercest critics – Dutch secretary of state for Economic Affairs, Martijn van Dam – as an example of how concerned member states are imposing some kind of accountability on a president run amok.