The 'suits' who run Europe's second-largest institution hate science and law; all they understand is money and power

Summary: In a publication circulated or prepared last week the Central Staff Committee (CSC) of the EPO explains a situation never explored in so-called 'media' (the very little that's left of it)

LATELY we've covered the lies from IAM and the severe patent quality (hence invalidity) issues at the EPO, as explained by the EPO's very own patent examiners.

Benoît Battistelli and António Campinos have been pampering Joff Wild and his fellow PR operatives (advertising company disguised as "news" site). So the public isn't supposed to know what's really going on and the Administrative Council will likely just pat itself on the back/shoulder, based on poor-quality misinformation in very large quantities.

"Who does the EPO actually work for?"In a newly-circulated communication, the CSC (elected staff representation basically) shares an item on "interferences in competencies of Divisions" (targeting the Committee on Patent Law or PLC). In its own words:

The Committee on Patent Law (PLC) shall advise the Administrative Council inter alia on any legal matters concerning a revision of the European Patent Convention (EPC) and on matters concerning the harmonisation of national law in the Contracting States relating to the implementation of the EPC. The 53rd meeting of this Council body took place on 24 November 2021. The Staff Committee informed the PLC about possible consequences arising from Judgment No. 4417 issued by the Administrative Tribunal of the International Labour Organization.

The Tribunal held that decisions taken by the President with respect to the law and/or procedures applicable to patent applications are not appealable by affected examiners. In the underlying case, the competent Examining Division apparently had taken the decision to refuse a patent application. The director, however, ordered the entrusted Examiner of the Division to issue a communication under Article 94(3) EPC. The Tribunal did not examine whether said order was lawful but simply declined jurisdiction because it allegedly concerned a decision with respect to patent procedures.

Examiners can thus not approach the Tribunal about potentially unlawful interferences in their competencies as members of Divisions. Nor can they appeal before the Boards of Appeal. In conclusion, examiners have no means of legal redress against potentially unlawful orders given by someone from management outside a Division to one or all of its members.

Therefore, one may also question whether decisions in examination and opposition proceedings are always taken by the competent body as foreseen in the EPC. As this affects not only the work of examiners but possibly national invalidity proceedings as well, the Staff Committee referred in its intervention in detail to the possible legal gap and the associated potential of violations of the law. The electronic tools currently used in examination and opposition proceedings make the situation even worse, since for example authentication of communications and decisions hardly meet the standards usually foreseen in Europe. Furthermore, the tools do not guarantee the confidentiality of the debate within a Division.

Here is the accompanying document about an intervention dated a fortnight ago:

53^rd PLC, 24.11.2021

Manuscript for the intervention of the Staff Representation under point any other business

Staff representation has the duty to make the PLC aware of a possible legal gap affecting examiners carrying out their duties as members of examining and opposition Divisions and which might have a bearing on the validity of EPO patents.

In a recent Judgment of the Administrative Tribunal of the ILO, Judgement No. 4417, the Tribunal held that decisions taken by the President with respect to the law and/or procedures applicable to patent applications are not appealable by affected examiners as they do not adversely affect staff members.

This is particularly remarkable since Judgment No. 4417 relates to a case, where the competent examining Division apparently had taken the decision to refuse a patent application. However, the director ordered the entrusted Examiner of the Division to issue a communication under Article 94(3) EPC instead, which eventually has been sent to the applicant.

The Staff Representation takes the view that such interferences in the Examining Divisions’ decisions amounts to a violation of several Articles of the EPC, inter alia Articles 15, 18, 94 and 97 EPC and, since the communication under Article 94(3) EPC presumably was sent for the examining Division and with the entrusted Examiner’s seal, also Rule 113(1) EPC.

Concerning the use of the Divisions’ seal the EPO Boards of Appeal decision J 16/17 may be cited wherein the Board found that Rule 113(1) EPC, according to which decisions from the European Patent Office must be signed by and state the name of the employee responsible, is not just a mere formality but an essential procedural step in the decision-taking process since the name and the signature serve to identify the decision's authors and express that they unconditionally assume responsibility for its content. This is to prevent arbitrariness and abuse and to ensure that the competent body has taken the decision. The Boards of Appeal furthermore ruled that any violation of the requirement pursuant to Rule 113(1) EPC amounts to a substantial procedural violation and renders the decision erroneous.

Unfortunately the Administrative Tribunal did not examine at all whether the order of the director was lawful but, as already mentioned, simply declined jurisdiction as it allegedly concerned a decision with respect to patent procedures.

On the other hand the Boards of Appeal are not competent to examine such cases, too.

As a result it appears that neither the Tribunal nor the Boards of Appeal can be called by examiners in such cases to examine whether unlawful interferences have taken place or unlawful orders have been given to Divisions’ members.

In conclusion examiners have no means of legal redress against unlawful orders given by somebody from management outside the examining or opposition Division to one or all of a Division’s members concerning patent procedures. Moreover, examiners even have to accept that their signature is misused and that the public as well as the patent applicants can be misled about the decisions’ authors.

It is noted, that the case dealt with in Judgment No. 4417 is not the only case of interferences with Divisions’ responsibilities and orders to Divisions, which Staff Representation is aware of.

With the electronic tools nowadays used in the examination and opposition proceedings the situation has become even worse since it is questionable whether the minimum standards usually foreseen in Europe for electronic authentication and signature are met.

It can therefore at present not be ensured that decisions in examination and opposition proceedings are always taken by the competent body. This not only affects the working conditions of the examiners but might also have a bearing in national invalidity proceedings.

In order to close the legal gap outlined here and to protect the Organisation’s far reaching immunity from national law, Staff Representation urges the Patent Law Committee

- to review the situation, - to ensure that the patent applicants and the public are transparently informed about the examination and opposition proceedings, in particular about all persons involved in each step of the patent granting procedure, as well as about all internal instructions and influences on the Divisions’ decisions, - and to ensure that there is independent jurisdiction available for examiners if they consider an interference with the responsibilities of the Divisions or a specific order to members of a Division being unlawful.

Tribunals at the EPO have long failed to function, but media controlled by patent litigation firms won't speak about it because their business depends on perpetuating the status quo instead of correcting injustices. Moreover, "the tools do not guarantee the confidentiality of the debate within a Division," the CSC says. Yes, well... confidentiality issues go much futher; Microsoft and the US government see everything, including data and interactions between Asia and Europe. Instead of tackling the issue, the Administrative Council worked hard to cover this up a few months ago (in summer and again again in autumn). Who does the EPO actually work for? ⬆