Brussels, 21 March 2014

Open letter to the President of the Administrative Council of the EPO Mr. Jesper KONGSTAD

Dear Sir,

Mr. Benoît Battistelli (FR), former Director General of the National Institute of Industrial Property (INPI, the French Patent Office) became President of the European Patent Office (EPO) in July 2010.

Since then, Mr. Battistelli, supported by an Administrative Council (AC) of the EPO of which you are the President, has almost systematically appointed to key positions at the European Patent Office persons who were his closest former colleagues at the INPI¹.

Such practices are incompatible with the obligation of ensuring a satisfactory degree of representation of all the nationalities within an international organization, with the aim of respecting the institutional balance enshrined in the European Patent Convention (EPC).

More than this, we are witnessing an unprecedented dismantling of the social contract which has been built up over more than thirty years in co-operation with the Administrative Council, the Presidents of the EPO, and the members of the EPO. This social contract has allowed for the development and success of the EPO. To break it in such a brutal manner will undoubtedly prejudice the performance of the organization.

It is not acceptable to see the current President:

1. Ignoring the unanimous opinion of a disciplinary commission attesting to the innocence of an agent of the EPO (January 2014) and imposing one of the most severe sanctions possible. This constitutes an abuse of rights and power which de facto discredits this body, established by the Council;

2. Obtaining from the Council “carte blanche” to define the right to strike, and then to suppress it. This is quite simply illegal (legal proceedings are in hand), and constitutes a double abuse on the part of the Council and the President of the EPO;

3. Introducing “investigation guidelines” contrary to any notion of a state of law, such as defined within the Member States, is scandalous in 2014 in European territory;

4. Simply ignoring the minimum constraints adopted in this matter, by virtue of the Treaty on the Functioning of the European Union, implementing a directive on data protection (March 2014) without involving the Administrative Council or the external users. This constitutes yet another abuse of power;

_________ ¹ Cf document ‘la galaxie Battistelli’

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5. Suppressing a system of designation, consultation, and participation by the personnel of the EPO which is stable and has been undisputed for close on forty years. This bears witness to a deliberate show of contempt towards the members of the EPO who are unanimously opposed to the “social democracy” project.

6. In view of the foregoing it is most regrettable that you, during your mandate as President of the AC, have not only failed to improve the transparency of the organization of which you are the head, but have also shown an assiduous zeal in satisfying the demands of the President without concerning yourself as to their legality or their social impact. You cannot be unaware that such “ultra vires” behaviour on the part of national functionaries incurs action under the penal code in the majority of national legislative structures, and potentially lays the members of the Council open to such proceedings.

The standards in matters of responsibility and transparency within the EPO remain very much on the side of those which govern the institutions of the European Union and the national administrative bodies. The actions of the President of the EPO, which the Council authorises and for which the Council bears responsibility are departing very substantially from the scope of action authorised by Articles 10, 33, and 35 of the EPC.

At a time when Brussels intends to assign the issue of the Unitary Patent to the EPO, it is becoming a matter of urgency to take action in order to harmonize the standards of governance and control within this great organization with those which are in force in the European Union. In view of the deleterious social situation and the points brought to your attention in this letter, we ask that you forthwith:

1) Postpone the vote on the “social democracy” project in order to define with the social partners a text which is acceptable to all parties concerned;

2) As an exceptional circumstance, not to allow the rule of abstentions provided for under Articles 33 and 35 EPC. It is essential that the principles of good governance and transparency are in fact respected at the EPO. The delegations must make it known whether they approve or if they oppose the “social democracy” project. Abstentions are no longer ethically admissible in the current crisis situation at the EPO.

Yours faithfully Sylvie JACOBS President USF

CC: Mr. Battistelli