THE EPO's abandonment of the law isn't news. That happened a long time ago under Benoît Battistelli, yet that trend continues with António Campinos, whom the Council said would be better. If he's so much better, why does EPO staff trust him even less than it trusted Battistelli after 2 years at the Office?
Why is Campinos meddling in the affairs of supposedly independent judges, e.g. in advocating software patents in Europe? Why is the Campinos regime publicly boasting about illegal practices? Why isn't European media covering any of these scandals?
To make matters worse, European media along with law firms (and especially media in the pockets of these law firms) celebrates those illegal practices. Only a couple of days ago World Intellectual Property Review (WIPR) put it like this: "The European Patent Office (EPO) has revealed that it will extend a pilot project for holding opposition hearings by videoconferencing in response to the pandemic, which will become compulsory in order to clear a substantial backlog of hearings." (from "EPO makes videoconferencing mandatory for hearings until September 2021" with a paywall)
Andreas Schmid (Hogan Lovells) promoted in Lexology his update that said: "By way of an update, on 10 November 2020, the EPO has decided that all oral proceedings in opposition cases shall be held by videoconference as standard. Only if there are serious reasons preventing the use of video conference (e.g. if evidence needs to be taken directly), oral proceedings will be postponed until after 15 September 2021. It is important to note that the EPO will not allow mixed proceedings where one party attends in person and the other party attends by videoconference. However, contrary to the previous practice, it is no longer required that both parties need to agree to the videoconference."
Kilburn & Strode LLP's Gwilym Roberts did the same (in Lexology) to say "Video killed proceedings in Haar" (pop reference). To quote: "The European Patent Office has been edging towards videoconferencing (VC) hearings for several years. The advent of coronavirus drove an almost instant shift towards compulsory VC for lower level cases, but overnight the EPO has announced that all hearings below Appeal will shift to VC for at least the majority of next year. We’ve seen this as inevitable for some time and, as early adopters and major EPO users, outline here just how vital it is to embrace this shift, and what a powerful tool VCs can be if used well.
Watchtroll ("IPWatchdog") wrote the following:
EPO VICO Report Shows Zoom Success, Substantial Backlog in Opposition Hearings – On Tuesday, November 10, the European Patent Office (EPO) issued a progress report on the pilot program for holding opposition hearings by videoconference (VICO), which started this May, showing that the VICO program has successfully incorporated the Zoom platform for multi-party VICO opposition hearings. However, a substantial backlog in opposition hearings has developed leading the agency to announce that the VICO pilot project, as well as the postponement of in-person hearings, will be extended until September 15, 2021, and that consent from all parties for VICO hearings will no longer be necessary after January 4, 2021.
Munich, 24.04.2020 sc20068cp – 0.2.1/6.2.1
Report on the meeting of the General Consultative Committee (GCC) of 1 April 2020
For obvious reasons, the GCC meeting could not be held in person, as is intended in normal times1. The President therefore stated before the meeting that the present difficult times would allow for a departure from a strict application of the rules and that a videoconference (ViCo) would be an appropriate (and legal) alternative.
The matters on the agenda
The followings items were submitted to the agenda for consultation:
1.Revision of Circular 355 – Regulations for the Staff Committee Elections - (GCC/DOC 02/2020)
2.Revision of Circular 317 - Investment strategies and procedure for the salary savings plan (GCC/DOC 03/2020)
3.Reimbursement policy for COVID-19 related medical expenses – (GCC/DOC 04/2020 REV 2)
The ViCo went reasonably well despite the fact that for most of the time we could not see the other attendees of the meeting. The President departed from his original intention of proceeding to individual, consecutive votes on the agenda items. We think that this indeed would have been a poor replacement for the already awkward simultaneous “show of hands” foreseen in the Rules of Procedure of the GCC. Instead, he asked us to give him our opinions in writing before midnight on Monday 6 April 2020.
We gave him our opinions within the set time limit. They reflect the collective view of the CSC members in the GCC. They are also annexed to the present report.
Additional matters
We also discussed additional matters at the end of the meeting.
______ 1 Normally at the headquarters of the European Patent Organisation according to Article 4(1) of the Rules of Procedure of the GCC.
Registration in MyFIPS
The President repeated his claim that registration of (voluntary or mandatory) teleworking in MyFIPS was merely aimed at knowing “what staff were doing”.
Alert system / personal mobile phone numbers
Data protection issues and undue intrusion into the personal life of staff members / their families might arise from the use of personal data (e.g. personal (mobile) phone numbers) by the external (American) contractor OnSolve. The President announced he would look into the matter.
Salary Adjustment Procedure (SAP)
We stressed once more that none of our four successive proposals had been properly assessed by management, who had made no attempt to meet “in the middle of the bridge”. Our proposals do indeed save enough money – also according to the analysis of the consultants – and are legally solid. In the meeting it appeared, however, that the President was not aware of this analysis. Instead management has been sticking from day one to their own claim that salaries (and pensions) should be capped for the next 20 years, regardless of the circumstances. The President was not ready to address any technical aspect of the SAP but added that staff should be happy to have a nominal guarantee. The discussion went nowhere.
The President then argued that the present health crisis and the upcoming economic and social crisis would have consequences, e.g. in the number of filings, that might require an early reconsideration of the measures. He also mentioned that other stakeholders might not be so ready to carry their share of the effort. In particular, users would be insisting on a decrease to the level of fees2. We can therefore safely bet that savings to the detriment of staff and pensioners will never be enough.
Conclusion
The meeting was mostly noteworthy for its “virtual” format. The President is obviously very enthusiastic about virtual meetings3. For our part we think that face-to-face meetings with senior management cannot be completely replaced when serious problems need to be discussed. In particular, the GCC is supposed to be the highest body for social dialogue and its meetings should remain in person, the present health crisis excepted.
We would like the positive development of us providing reasoned opinions in writing instead of “showing hands” to become the rule rather than the exception. We have always pleaded that our opinions should be as nuanced as possible. Let us therefore hope that the present crisis has triggered at least one (bitterly needed) improvement in social dialogue.
The Central Staff Committee
______ 2 By not adjusting them to inflation. 3 See also his report on the successful mock e-Council of 25 March 2020 (erroneously mentioned as having taken place on 26 March in the intranet)
Opinion of the CSC members of the GCC on GCC/DOC 02/2020: Revision of Circular 355 – Regulations for the Staff Committee Elections
The CSC members of the GCC give the following opinion on the proposal to amend the Regulations for the staff committee elections.
On the substance of this document
We appreciate the Administration’s willingness to amend the document following discussion in the GCC, namely by the clarifying of Articles 1(3) and 8(3). With regard to the new paragraph Article 1(4) (“at least one representative”), we requested having (at least) two representatives in job groups 5 or 6. Provided, of course, as is the case in Article 8(3), that elected members of any Local Staff Committee (LSC) of these job groups have stood for the (indirect) election to the Central Staff Committee (CSC). As a result, the LSC will themselves guarantee that all categories of staff (job group, gender...) will be fairly represented in the CSC, as far as possible.
In addition, we appreciate that the number of additional members for each LSC in view of the possibility for indirect election to the CSC has been taken into account for these Regulations (see Article 1(2)).
We would also like to refer on a positive note to Article 7(5), in which the number of votes per voter has been equalised to the number of seats available in the respective LSC.
Proposals for further minor amendments
Article 8(2) provides that “[i]n the event of a tie between candidates, seats shall be allocated to the persons with the longest length of service.” We propose changing this to read “In the event of a tie between candidates, seats shall be allocatedto the persons with the longest length of serviceby drawing of lots under the supervision of the Supervisory Committee.”
As regards Article 7(1) “Voting shall be conducted by electronic means”: whilst we also strongly prefer the electronic vote, in the event that it would not be possible to do so, and the Supervisory Committee would need to revert to an alternative (e.g. paper ballot), we propose that Article 7(1) be amended as follows: “Voting shall preferably be conducted by electronic means”.
Those proposals have not (as yet) been introduced into the final version.
On a general note
Whilst the above-mentioned amendments, taken in isolation, can be considered positive, they overcome only a portion of the deficiencies which were introduced in 2014 by document CA/D 2/14 (the new Social Democracy framework). Already in the last GCC meeting of 2 March 20201 we stressed that an opportunity to fundamentally reform this inadequate framework had been missed.
______ 1 See our report: Report on the GCC meeting of 2nd March 2020
We reiterate that:
âËâ as a general rule, management should stop interfering with staff representation matters; âËâ imposing rigid rules ensuring that management – instead of staff – controls the electoral process does not allow the autonomy and flexibility needed, such as for dealing with unforeseen circumstances; âËâ presidential decisions concerning the electoral process unnecessarily create litigation.
The phrase “Social Democracy” remains entirely inappropriate, since the current proposal does not offer true democracy – the proposed Regulations do nothing to encourage meaningful social dialogue. The Staff Committees and all forms of staff representation in the Office continue to be under the control of the President. Prior to the 2014 reforms the EPO Staff Committee was organised in a way which was similar to that of the EU. This is no longer the case.
We conclude, therefore, that the proposed Regulations will unnecessarily impede acconstructive relationship between staff and the President of the Office in a similar waycto the currently applicable Regulations.
The CSC members of the GCC
Opinion of the CSC members of the GCC on GCC/DOC 03/2020: Revision of Circular 317 – Investment strategies and procedure for the salary savings plan
The CSC members of the GCC give a positive opinion on the proposal to amend the Annex to Circular No. 317 concerning the funds available under the Salary Savings Plan.
There has been a long-standing wish to provide an alternative conservative investment option to fill the gap between the conservative Fidelity Demografiefonds and the dynamic target funds. The proposed option, a weighted average of the Fidelity World Fund (20%) and the Fidelity Euro Bond Fund (80%), appears reasonable.
The risk-reward analysis graphically presented in Annex 1 of GCC/DOC 03/2020 covers the period from 1 July 2014 to 31 May 2019. An more up-to-date analysis would have been appreciated, in particular because of recent market developments due to the Coronavirus pandemic.
Still, the above weighting of 20% equity and 80% bonds justifies the conclusion that the gap has been reasonably filled. According to SC/SSP 6/20, page 24, the asset allocation of the most mature target funds was 75% cash, 21% fixed income, 4% equity (FF Target Fund 2020) and 44% fixed income, 56% equity (FF Target Fund 2025) as of December 2019. The asset allocation of the Demografiefonds was 16% equity and 84% fixed income and cash as of December 2019, see SC/SSP 6/20, page 25.
It is unfortunate that Annex 2 of GCC/DOC 03/2020 does not list the full ISIN codes for the Fidelity World Fund and the Fidelity Euro Bond Fund. It is assumed that these codes should be LU0069449576 and LU0048579097 respectively.
The CSC members of the GCC
Opinion of the CSC members of the GCC on GCC/DOC 04/2020: Reimbursement policy for COVID-19 related medical expenses
The CSC members of the GCC give the following opinion on the proposal to amend the Guide to Cover under the healthcare insurance scheme:
On the substance of this document
At the time of writing this opinion, eleven cases of COVID-19 have been confirmed among EPO staff in Munich and three cases in The Hague, with two of our colleagues currently in hospital. The pandemic is still progressing despite the containment measures applied in Germany, and the situation in The Hague is expected to become worse as long at the Netherlands continue to deviate from the recommendations of the World Health Organization (WHO).
Cigna has advised its customers, including the EPO, to address the exceptional circumstances of the COVID-19 public health emergency. Following this input, the Office now proposes to adapt the internal reimbursement policy for medical expenses relating to COVID-19 by reimbursing all COVID-19 related costs at 100% with retroactive effect from 30 January 2020.
The Office initially proposed that this date be 1 March 2020. During the GCC meeting we highlighted the possibility that staff, dependents or pensioners could potentially have incurred medical expenses before this date, for example by being in Asian countries that were infected earlier than those of Europe. We therefore appreciate the willingness of the Office, following the discussion, to change the date to 30 January 2020, which is when the WHO Director-General declared the COVID-19 outbreak to be a public health emergency of international concern. We would have appreciated the addition of a sentence clarifying that potential cases that might have occurred prior to this new date would also be considered by OHS/MAU for 100% reimbursement. We hope that the Office will be flexible in practice.
On a positive note, we appreciate the amendment made after the meeting to clarify the duration of this temporary measure, namely by stating that the temporary changes to policy cover will apply “until the COVID-19 epidemic has officially been declared as contained by the WHO or the national authorities of the countries concerned”. We also fully appreciate the amendment made after the meeting that not only one COVID-19 test will be reimbursable at 100% but also all “[l]aboratory tests (e.g. COVID-19 test) for the purposes of preventing or actively treating COVID-19”.
It is to be expected that all EPO staff will make use of COVID-19 tests at some point in the future, as such tests may become a precondition imposed by governments for withdrawing the containment measures and allowing freedom of movement for individuals again.
We give a favourable opinion to the proposal.
On a general note
The proposal from the Office should be complemented with real preventive measures and a stronger focus on other treatments required by the COVID-19 crisis.
High risk groups
In an open letter dated 30 March 2020, the Central Staff Committee (CSC) drew the attention of the President to the report of the WHO-China Joint Mission on Coronavirus Disease 2019. This document identified that patients who reported no comorbid conditions had a crude fatality ratio of 1.4%, offset against the much higher rates for patients with comorbid conditions (13.2% for cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer).
Colleagues in the high-risk groups listed above, or living with such vulnerable people in their homes, should be discharged from any duty on Office premises, or if teleworking is not possible from all duties, so that they can stay in containment and focus on the health of both themselves and their family members.
The Office should also continue to provide EPO health benefits to high-risk dependents for the duration of the Coronavirus crisis.
Treatment outside the place of employment
In 2015, Mr Battistelli imposed a health reform requiring staff who are sick or in incapacity to request authorisation from the Office to leave the place of residence (see Circular 367, Art. 1(C)). Such measures should never have been put in place. It also de facto gives the power to the Office to decide where staff members can be treated.
There are also specific facts to consider regarding the population and work of the Office. The staff in our Office is relatively old and includes a substantial number of colleagues between 50 and 65 who are potentially at higher risk. Moreover, they are often expatriates. This situation may not be a favourable factor for access to the medical systems of our host countries, especially the Netherlands, once they have become overloaded because of the COVID-19 crisis.
The requirement for authorisation to leave the place of residence should therefore be immediately and officially quashed.
Psychotherapy treatments
Over the last few years, colleagues have reported to us that approval by Cigna for psychotherapy treatments has become more and more difficult, especially for long-term therapies. The Employee Assistance Program is not a sufficient answer to the unique crisis we are living in right now which is said to be changing the face of the world.
Colleagues are now seeing relatives and friends infected or even killed by COVID-19, leading to worry and grief. Combined with containment measures causing loss of rights and fear of the future, this will result in the need for large numbers of colleagues to have access to psychotherapy. The Office should encourage distressed colleagues to seek support, and there should be no petty penny-pinching when it comes to reimbursing the cost for such support.
Production pressure
Stress is a recognised aggravating factor for many diseases and medical conditions. Therefore, we maintain that the Office should flatten the (production) curve in order to support staff in maintaining their health.
The activity of the Office is not vital for our host countries or for Europe at the present time, and can therefore be slowed down for as long as is necessary to protect the health of staff.
The CSC members of the GCC
