06.23.16

Benoît Battistelli Should Resign in Light of New Leak of Decision in His Vendetta Against Truth-Telling Judge (Updated)

Posted in Europe, Patents at 3:01 pm by Dr. Roy Schestowitz

Summary: Benoît Battistelli continues to break the EPO’s own rules, not just national laws, as a new decision helps reveal

THIS afternoon we wrote about the EPO ‘trial’ and people were eager to ‘leak’ to us the outcome, as we had hoped all along. We urge readers to inform their delegates and maybe even Heiko Maas regarding the matter. Enough is enough.

Battistelli, judging by his blog today [warning: epo.org link], has just gone to Albania (champion of patents!), which makes one wonder what he told or promised them other than free dentists.

Here is the decision’s text, which could use some brushing up (we shall do this as we go along and highlight bits in yellow).

Internal distribution code:
(A) [X] Publication in OJ
(B) [ ] To Chairmen and Members
(C) [ ] To Chairmen
(D) [ ] No distribution

Datasheet for the decision
of 14 June 2016

Case Number: Art. 23 1/16

Language of the proceedings: EN

Petitioner:
Administrative Council of the European Patent Organisation

Respondent:

Headword:
Request for a proposal for removal from office

Relevant legal provisions:
EPC Art. 23(1), 23(3)
RPEBA Art. 12a(9), 12a(10), 18(3)

Keyword:
Decision on the request of the Administrative Council under
Article 23(1) EPC to make a proposal to remove the respondent
from office: The Enlarged Board decides to make no proposal”
Petitioner party to adversarial proceedings (yes)”
Publication (yes)”
Reimbursement of all the respondent’s procedural costs
proposed”
Violation of Article 23(3) EPC, judicial independence, by
Office President’s letter of 10 June 2016 (yes)”

Catchword:
For the Enlarged Board to be able to continue with these
proceedings the position of the Petitioner would have to be
that it did not agree with the Office President and
acknowledged that, from an institutional point of View, the
pressure exercised by the Office President in the present case

EPA Form 3030
This datasheet is not part of the Decision.

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- 2 -

was incompatible with the judicial independence of the
Enlarged Board guaranteed by the EPC. As the Petitioner did
not clearly distance itself from the Office President’s
position, there is the threat of disciplinary measures against
the members of the Enlarged Board. It is then the Enlarged
Board’s judicial independence in deciding on this case which
is fundamentally denied.

EPA Form 3030 06.03

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Case Number: Art. 23 1/16

D E C I S I O N
of 14 June 2016

Petitioner: Administrative Council of the
European Patent Organisation
Bob-van-Benthem-Platz 1
D-80469 Munich

Representatives:

Respondent:

Representative: Senay Okyay
Rechtsanwaltin
Sonnenstrasse 6
D-80331 Munich

Composition of the Board:
Chairman: M.-B. Tardo-Dino
Members: E. Liiv
A. Dimitrova
I. Beckedorf
D. Rogers
U. Oswald
H. Meinders

C 1 0 9 5 8 . DA

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Summary of Facts and Submissions

I. These proceedings began on 11 February 2016 and concern
the request of 11 January 2016, confirmed on 27 January
2016 (hereafter AC Request 3), from the Administrative
Council of the European Patent Organisation (hereafter
the Petitioner or AC) asking for a proposal from the
Enlarged Board of Appeal that Mr X (hereafter the
Respondent) be removed from office as a member of the
Boards of Appeal, such a request being made under
Article 23(1) EPC and Article 12a of the Rules of
Procedure of the Enlarged Board of Appeal (RPEBA).

II. The request in these proceedings is the third such
request made by the Petitioner. The first request was
found to be inadmissible because it failed to fulfil
the formal requirements of factual substantiation
prescribed by Article 12a(5) RPEBA (decision in case
Art. 23 1/15 of 17 September 2015). The Petitioner
itself withdrew its second request at the oral
proceedings in case Art. 23 2/15 on 11 February 2016.
Following said withdrawal, the proceedings were
terminated by the decision in case Art. 23 2/15 of
11 February 2016.

III. The orders of the Enlarged Board of Appeal (hereafter
the EBA or Enlarged Board) that both the above
mentioned decisions were to be published have not yet
been executed by the competent authorities of the
Office.

IV. The filing of these three requests by the Petitioner in
this matter, and in this fashion, led not only to
delays in the treatment of this matter, but forced

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various changes in the composition of the Enlarged
Board due to the non-availability of some of its
members, thus adding further delay.

V. In order to understand the current proceedings a review
of the background and history of these requests is
required. Only the most relevant facts will be set out
below.

VI. On 3 December 2014 the President of the EPO (hereafter
the Office President) ordered a house ban and the
suspension of the Respondent.

VII. On 11 December 2014 (CA/D 12/14) the AC, on a proposal
from the Office President (CA/C 8/14), decided to
confirm the suspension of the Respondent, considering
that this was the most appropriate measure to take and
was in line with the house ban decided on by the Office
President. It also decided that the Office
investigative unit (hereafter IU) was the competent
body to pursue this investigation and to deliver its
report to the AC and to the Office President.

VIII. On 5 March 2015, the IU delivered its report (hereafter
IU Report).

IX. On 26 March 2015 the AC initiated disciplinary
proceedings against the Respondent (CA/28/15, Summary
of decisions item 10.1, page 5). It also mandated its
Chairman to take all necessary follow-up actions.

X. The AC set up a Disciplinary Committee, (hereafter DC),
which upon the basis of the IU Report delivered a
report on 23 June 2015, (hereafter DC’s opinion), to

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the Chairman of the AC. The DC found that the
Respondent had carried out several acts and that these
acts constituted misconduct, for which the appropriate
sanction was dismissal.

XI. In the present proceedings, based on AC Request 3, the
Petitioner relies on the IU Report and on the DC’s
opinion and has redrafted its request.

XII. AC Request 3 contains two allegations:

Allegation 1: Unauthorised disclosure of non-public
information and critical opinions related to Board of
Appeal activities outside the EPO while using
pseudonyms.

Allegation 2: Spreading of false accusations and
unjustified attacks or threats against the EPO and its
members either directly or indirectly using anonymous
statements and pseudonyms.

XIII. The parties were summoned to a first non-public oral
proceedings on 10, 11 and 12 May 2016. The purpose of
these oral proceedings was to discuss the competence of
the Enlarged Board, the admissibility of AC Request 3
and the Respondent’s request for summary termination of
the proceedings.

XIV. By a letter dated 2 May 2016 the Petitioner stated that
it did not consider itself a party to the proceedings,
it represented only the institutional interest of the
AC. It initiated the proceedings, pursuant to
Article 23(1) EPC, in its capacity as the competent
appointing authority.

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XV. The written and oral submissions of the Respondent can

be summarised as follows:

1. Procedural status of the AC in the proceedings.
The Respondent requested in the May 2016 oral
proceedings that the position of the Petitioner as
a party to the proceedings be confirmed, or, if
not, that it be excluded.

2. Competence of the Enlarged Board, its independence
and its legitimacy to deal with the case on the
following grounds:

(a) The conflict between Article 12a RPEBA and
the higher ranking legal norm of Article 23(1)
EPC.

(b) Perversion of the procedure foreseen under
Article 23(1) EPC: AC usurps the provisions
of the EPC and their spirit.

(c) The failure to comply with the fundamental
principles of judicial independence set forth
in the “European Charter on the statute for
judges” and the “Magna Charta of Judges” in
the composition of the Enlarged Board in
proceedings under Article 12a RPEBA (lack of
elected members).

(d) The impermissible attempt on the part of the
AC to instruct the Enlarged Board by means of
CA/D 14/15, which constitutes a perversion of
the procedure foreseen under Article 23(1)
EPC.

(e) The consequence of the amendment of
Article 95(3) of the Service Regulations

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(hereafter ServRegs) (CA/D 18/15) on the
independence of the Enlarged Board.

3. Admissibility issues on the following grounds:

a) The power delegated to the Chairman of the AC
in CA/D 14/15 was exhausted upon termination
of the proceedings in case Art. 23 2/15, with
the withdrawal of the request.

b) The principle of Res judicata should apply.

c) The principle of N6 bis idem should apply.

d) AC Request 3 fails to heal the deficiencies
in the preceding requests and is no more
substantiated than in case Art. 23 1/15.

4. Request for summary termination of these
proceedings on the following grounds:

a) The proceedings should lead the Enlarged
Board to immediately terminate or stay the
proceedings until the AC adopts appropriate
measures to ensure that the independence of
the members of the Enlarged Board is
guaranteed.

b) Lack of lawful basis of the proceedings.

c) Attempts to undermine the presumption of
innocence.

d) Flawed composition of the DC.

e) Flawed disciplinary procedure.

f) Deficient opinion of the DC.

g) Flawed investigative procedure initiated by
the EPO administration.

h) CA/D 12/14 failed to heal the flaws of the
investigative procedure.

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i) Procedural abuses.

j) Flawed IU Report.

5. Relating to the substantive subject-matter on the
following grounds:

a) Failure to consider the circumstances in
which the alleged misconduct occurred.

b) Failure on the part of the AC to address the
issue that the IU Report is neither neutral
nor objective in its presentation of facts;
observations on the DC’s opinion.

c) Inconsistencies in the DC’s opinion.

d) Suppression and/or deliberate omission of
evidence.

e) Unresolved issues concerning exhibits B43 to
B45.

f) Attempts to reintroduce previously abandoned
allegations.

g) Failure to respond to issues previously
raised by the Respondent.

h) Observations about the events of 3 December
2014.

XVI. During the non-public oral proceedings of 10 to 12 May
2016 the aforementioned issues under numbers 1-4 were
discussed with the parties. A discussion of the issues
raised under number 5 above was postponed to the June
2016 oral proceedings on the merits. The Enlarged Board
concluded that the AC Request 3 was admissible. It also
decided not to summarily terminate the proceedings.

XVII. The Enlarged Board gave case management directions for
the oral proceedings foreseen for June 2016 to discuss

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the merits of the case, in particular as regards the
notion of serious grounds and probative and formal
aspects of the evidence.

XVIII. Upon the request of the Respondent, and after
discussing with the parties, the Enlarged Board decided
that the oral proceedings on the merits in June 2016
would be held in public unless the Enlarged Board would
decide to exclude the public, which it would do
whenever the nature of the debate made this necessary.

XIX. The oral proceedings on the merits of the case were
arranged for 14 to 16 June 2016. The parties were
invited to prepare their submissions for that debate.
The Chair informed the parties that the Enlarged Board
had decided that three members of the IU would be
called as witnesses.

XX. Both parties filed their submissions with letters of
6 June 2016. Thus the parties and the Enlarged Board
were in a position to discuss the merits of the case at
the public oral proceedings on 14 to 16 June 2016, and
the Enlarged Board considered that it would then be in
a position to issue a final decision on the merits.

XXI. The Vice-President Appeals was given, and took, the
opportunity to submit his observations in the
proceedings in accordance with Article 12a(2) RPEBA.

XXII. In addition to the submissions of the Petitioner, on
6 June 2016, the Chairman of the AC sent a letter
directly to the Chair of the Enlarged Board expressing
general reservations in respect of the decision to hold
the oral proceedings of June 2016 in public. Further,

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he asked for confirmation that the file would not be
made available to anyone other than the members of the
Enlarged Board in its present composition.

XXIII. The Chair of the Enlarged Board replied to the Chairman
of the AC on 7 June 2016, confirming that there had
been no disclosure of the file by the Enlarged Board
other than to the members of the Enlarged Board in its
present composition. In addition to this the Chair
repeated the wording of the decision on the holding of
public oral proceedings on the merits, as taken in the
oral proceedings of May 2016. In addition to that, the
Chair confirmed that the Enlarged Board was fully aware
that the proceedings should not jeopardise the
interests or honour of any person, in particular
persons whose names might arise during the proceedings.

XXIV. On 14 June 2016 the Petitioner confirmed, during the
in camera conference, that this letter by the Chair of
the Enlarged Board addressed the general reservations
raised in the earlier letter of the Chairman of the AC.

XXV. By a letter of 10 June 2016 the Office President, who
is not foreseen as a party to these proceedings under
Article 23(1) EPC and Article 12a RPEBA, wrote directly
to the Chair of the Enlarged Board with copies to the
other members of the Enlarged Board in its present
composition.

The letter is titled “Office representation in the case
Art. 23 1/16”. This letter stated:

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“With due respect to the principle of independence of
the Board of Appeals enshrined in Art. 23 EPC, by
Virtue of the powers under Art. 5(3) and 10(1)(2)(h)(i)
EPC, I would like to bring to your attention certain
concerns expressed in the attached position prepared by
my legal counsels.”

XXVI. The attached document, an English QC’s opinion, is
entitled: “In the matter of a procedure in front of the
Enlarged Board of Appeals”, “Position Statement for the
President of the European Patent Office”. The following
passages appear to be relevant for the proceedings:

“19. It will be recalled that the role of the EBOA
under Article 23 EPC is to make a proposal on the
removal from office, having regard to the fact that
this sanction has been recommended by the DC and
endorsed by the AC. This article does not confer an
appellate or investigative power, let alone a free
standing and further fact finding mandate. The
nature and extent of the evidence already available
to the EBOA means that the attendance of these
witnesses is not necessary for the Article 23(1) EPC
proceedings to be conducted fairly and effectively.”
“21. It is quite inappropriate that a full re-
hearing of the facts take place on 14-16 June; there
are no Vires in this forum to conduct an appeal
process nor indeed to recommence an investigation;
accordingly, the personal presence of any witnesses
from the Office will not be required or authorised
by the President.”

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“23. With that in mind, the President will not, we
are also instructed, hesitate to take any
appropriate steps available to him to ensure the
orderly running of the Office and the safety of its
employees.”
“27. In View, in particular, of the gravity of the
reputational, security, welfare and public order
risks identified, there is a strong case for saying
that any decision to conduct this hearing in public
would be unlawful because it could not be defended
as either proportionate or reasonable.”
“28. For all these reasons, the President deems it
necessary in the interests of the whole Organisation
that there is an assurance that this matter will
proceed in camera and that no witnesses will be
called from the Office.”

XXVII. Although it was foreseen to open the public oral
proceedings on the merits of this case at 9:00 hours on
14 June 2016, the Enlarged Board decided to hold a
preliminary in camera conference with the parties in
order that the Petitioner could clarify its position as
regards the Office President’s letter of 10 June 2016.
This conference was adjourned from 11:40 to 14:30 hours
to permit the Petitioner’s representatives to take
instructions on this matter.

XXVIII. At 14:30 hours, the Petitioner’s representatives were
finally in a position to submit a statement from the
Chairman of the AC relating to the Office President’s
letter of 10 June 2016.

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XXIX. At 17:15 hours, the in camera conference ended and the
public oral proceedings began. The Chair of the
Enlarged Board then made the following statement:

“The Enlarged Board of Appeal has received a letter of
an authority not party to the proceedings, in which it
expressed the opinion that the Enlarged Board, in
deciding to hold public oral proceedings, took an
unlawful decision. It was discussed with the parties,
whether this letter could be considered, from an
objective point of View, as a threat to the
independence of the Enlarged Board in this case. The
petitioner was requested to express clearly whether it
endorsed this position or not, since the petitioner is
the appointing and the disciplinary authority for all
members of the Enlarged Board. The petitioner made a
declaration which did not distance it from this opinion
and which does not remove the threat. Under these
conditions, the Enlarged Board cannot legally continue
with the present proceedings, and therefore terminates
them with the decision that it does not propose the
removal from office of the respondent.”

XXX. The public was then excluded and the oral proceedings
continued without the public in order to deal with the
remaining requests of the parties.

XXXI. The final request of the Petitioner was

that the Enlarged Board of Appeal make a proposal
that the Respondent be removed from office as a
member of the Boards of Appeal.

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XXXII. The final requests of the Respondent were that:

1. The Petitioner’s request be dismissed,

subsidiarily that the proceedings be terminated;

and

2. The reimbursement of all of the costs incurred by
the Respondent in these proceedings be proposed;

and

3. The decision in case Art. 23 1/16 be published;

and

4. The Enlarged Board includes in the reasoning of
its decision obiter dicta in respect of the
Respondent’s requests set out in its letter of
24 November 2015.

XXXIII. At the end of the non-public oral proceedings the
present decision was announced.

Reasons for the decision

Nature of these proceedings

1. The present proceedings are in respect of the
Petitioner’s request for a proposal for the removal
from office of the Respondent. They are governed by
Article 23(1), first sentence, EPC. They are conducted
independently of any disciplinary proceedings
(Article 12a(8) RPEBA).

2. A proposal to this effect has to emanate from the
Enlarged Board of Appeal, and the Enlarged Board comes
to such a proposal exclusively by way of a decision, as
evidenced by Article 18(3) RPEBA. As it concerns a

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member of the judicial body of the EPO, who enjoys the
guarantee of judicial independence pursuant to

Article 23(3) EPC, this decision must itself also be
arrived at in accordance with the principle of judicial
independence pursuant to Article 23(3) EPC.

3. Neither the European Patent Convention nor the Rules of
Procedure of the Enlarged Board of Appeal foresee these
proceedings as an appeal from a decision or opinion in
the disciplinary proceedings or establish these
proceedings as a legal or factual part of the
disciplinary proceedings governed by Article 11(4) EPC
and the ServRegs. It is rather for the Enlarged Board
to establish, to its own satisfaction, by an
examination of the facts, evidence and arguments,
whether it is in a position to make the requested
proposal for removal from office.

INADMISSIBILITY OF THE PETITIONER’S REQUEST AND SUMMARY

TERMINATION OF THE PROCEEDINGS

Procedural status of the Petitioner in the proceedings

4. The procedure as adopted in CA/D 3/15 establishing the
Rules of Procedure of the Enlarged Board of Appeal in
this respect, is an adversarial judicial procedure (see
the Enlarged Board’s decision in case Art. 23 1/15,
point 5.7 of the Reasons). Filing the request,
representing the Petitioner’s interests and supporting
allegations against the Respondent, corresponds to the
role of a party in such proceedings. The Board merely
underlines that the adversarial nature of the
proceedings aims, as is usual under the rule of law in
democratic countries, at guaranteeing the Respondent a

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fair trial and not at undermining the power of the
disciplinary authority to take a final decision.

Competence of the Enlarged Board, its independence and
legitimacy to deal with the case

5. The Respondent insisted that Article 23(1) EPC was at
the core of the case, and the independence of the
members of Boards of Appeal was at stake. According to
this article the members of the Enlarged Board of
Appeal and of the Boards of Appeal shall be appointed
for a term of five years and may not be removed from
office during this term, except if there are serious
grounds for such removal and if the AC, on a proposal
from the Enlarged Board of Appeal, takes a decision to
this effect.

6. The Respondent argued that the procedure foreseen under
Article 23(1) EPC must be carried out entirely by the
Enlarged Board, in the sense that it was incompatible
with the wording of Article 23(1) EPC for the AC to be
able to initiate such proceedings by itself making a
request for a proposal.

7. In its decision in case Art. 23 1/15, point 5.7 of the
Reasons, the Enlarged Board already determined that the
procedure under Article 23(1) EPC is further specified
by Article 12a RPEBA. The AC as legislative power under
the EPC has endorsed these supplementary regulations by
its approval of them.

8. Neither Article 23(1) EPC nor Article 12a RPEBA
requires that the Enlarged Board and the Enlarged Board
alone has the power to initiate such a procedure.

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9. The Respondent has raised the issue that the amendment
of Article 95(3) ServRegs affects the independence of
the members of the Enlarged Board because it permits
any board member to be indefinitely suspended by a mere
decision of the AC. This amounts to a de facto removal
from office, since the suspension can be extended until
the member’s five year term expires. Upon expiry of the
five year term, re-appointment of the member in
question can then simply be denied, without a proper
Article 23(1) EPC proposal of the Enlarged Board. The
Respondent has not, however, raised this issue as part
of an objection under Article 24(3) EPC that is that
the members of the Enlarged Board might be suspected of
partiality by a party.

10. In the light of this the Enlarged Board considers that
it has to address the issue under Article 4(1) RPEBA,
that is whether any members of the Enlarged Board in
its current composition consider that because of the
amendments made to Article 95(3) ServRegs, they should
not take part in this procedure as they no longer
consider themselves to be impartial and independent in
their decision making.

11. The Enlarged Board notes that the amendment to
Article 95(3) ServRegs was decided upon by the AC in
its December 2015 meeting, during the course of this
series of proceedings. With this amendment it cannot be
excluded that the suspension of the Respondent will
continue to the end of his present five year term. The
Enlarged Board further notes that this is possible
because the period of suspension has been raised from 4
to 24 months specifically for board members, and it can

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now be extended by the AC in “exceptional cases”. A
limit to this extension is not given, and no guidance
as to what may constitute exceptional circumstances is
provided.

12. This amendment of Article 95(3) ServRegs therefore
gives the possibility, de facto, to the AC to remove a
member of the Boards of Appeal from office without
following the procedure in Article 23(1) EPC.

13. At the time this issue was raised in these proceedings,
during the May 2016 oral proceedings, the members of
the Enlarged Board, making their own individual
assessment of their situation, considered that the
threat to their judicial independence was a general,
abstract threat that would be present in all cases
before the boards, not just the present case. In fact,
taking it as a reason to exclude oneself would
necessarily imply that one could neither sit on any
normal Board of Appeal case, nor on referrals,
including petitions for review, to the Enlarged Board.

14. This situation has now changed as a consequence of the
Office President’s letter of 10 June 2016, (see para
XXV above, and para 36 to 47 below).

15. The Respondent has also objected to the Enlarged Board
of Appeal being composed of members none of whom is
elected, (see facts and submissions, para XV, 2(c)).
Neither the European Patent Convention, nor the Rules
of Procedure of the Enlarged Board in Article 23(1) EPC
cases have constituted the Enlarged Board with elected
members. The Enlarged Board has already decided upon
this point in its decision in case Art. 23 1/15,

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point 5.6 of the reasons. The Enlarged Board remains of
the same opinion in the present proceedings and adopts
the reasoning of that decision, without seeing any
necessity to repeat it here verbatim.

Admissibility issues

16. The Respondent has argued that the power delegated by
the AC to the Chairman of the AC to pursue this series
of proceedings was exhausted upon termination of the
proceedings in case Art. 23 2/15, when the Petitioner
withdrew its second request.

17. The Enlarged Board is of the view that the present
proceedings fall within the scope of the mandate of the
Chairman of the AC, which authorises him to act for the
AC until the AC’s final decision (see CA/D 14/15,
point 2).

Res judicata

18. The Respondent raised this issue in view of the
decision in case Art. 23 1/15. The Enlarged Board
considers that this case concerned procedural issues
rather than the actual “legal cause of action”. Hence
the doctrine of res judicata finds no application to
the present case.

Ne bis idem

19. The Respondent has raised this issue under two aspects.
The first aspect is that in the present case the
Respondent was the subject of the same allegations,
which were already decided upon in the earlier case

C10958 .DA

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Art. 23 1/15 and which were withdrawn in case
Art. 23 2/15.

20. The Enlarged Board considers that the first decision is
a procedural decision not on the merits of the case.
The second proceedings did not even get to the stage of
the merits, as the Petitioner withdrew its request.
These circumstances cannot be assimilated to an
“acquittal” or “conviction”. In this respect, the
Enlarged Board concludes that the present case is not
hindered by the existence of these earlier proceedings.

21. The second aspect raised by the Respondent concerns the
question of further disciplinary sanctions based upon
the same facts as were considered sufficient by the
Enlarged Board for a removal from office, such as the
proposed dismissal. This is only of relevance if the
Enlarged Board were to make a request for removal from
office. As this is not the case, (see Order, point 1,
below), there is no need to deal with this second
aspect.

Article 12a(5) RPEBA

22. Article 12a(5) RPEBA provides that a request to the
Enlarged Board shall set out all the facts, arguments
and evidence relied on. The Respondent’s objections to
the admissibility of AC Request 3 are that this request
is still not sufficiently substantiated so that the
Respondent is not in a position to know which
allegations, facts and evidence it has to respond to.

23. In AC Request 3, the five allegations maintained by the
Petitioner in the first request and by the Petitioner’s

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declaration at the oral proceedings in case
Art. 23 1/15, have been reduced to two.

24. In comparison to the first request, which was found
insufficiently substantiated, the Petitioner has made
in AC Request 3 a clearer distinction between facts,
evidence and arguments/conclusions, and has sought to
structure its request in a more logical manner. The
Enlarged Board is of the View that from AC Request 3 it
can discern what case the Petitioner is attempting to
make for the purposes of Article 12a(5) RPEBA.

25. The Petitioner stated in the oral proceedings held on
10 May 2016 (point 12 of the Minutes) that it did not
wish to pursue a request based on allegations 3, 4 and
5 that were present in its earlier requests. The
Petitioner has adopted the position that it is seeking
to remove the Respondent from office only upon the
basis of the two allegations that it has sought to
substantiate in these proceedings.

Request for summary termination

26. A summary termination of proceedings is only possible
in the light of manifest and substantial procedural
violations of such a nature as to lead to a serious
prejudice to the legal and procedural position of a
party.

27. The Respondent has argued that such violations are
present in this case due to the lack of a lawful basis
for the proceedings, the flawed composition of the DC,
its deficient opinion, the flawed disciplinary

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procedure and the flawed investigative procedure as
initiated by the AC.

28. The Enlarged Board is of the View that these issues
rather go to the quality and reliability of the
evidence gathered against the Respondent. Hence they do
not lead the Enlarged Board to the conclusion that it
should summarily terminate the proceedings.

29. The Respondent has also argued that no fair procedure
is possible given the undermining of the presumption of
innocence in his favour due to the public airing of
what can be described as the “Nazi” allegations, both
in the statement of the Office President (CA/C 19/15)
to the AC (in direct contradiction with the findings of
the DC’s opinion at para 131 and 142), and the press
campaign of October 2015. This was aggravated by the
alleged influence improperly exerted on the Enlarged
Board (meetings of 5 and 8 December 2014 with
respectively the Principal Director of the IU and the
Office President) and the clear prior endorsement by
the AC of the flawed DC’s opinion.

30. As regards summary termination of the proceedings due
to the undermining of the presumption of innocence, the
Enlarged Board does not consider itself to be
prejudiced against the Respondent by these events.
These public disclosures and statements by high-ranking
EPO officials constitute part of the factual background
to this case. For the Enlarged Board, what counts is
the reliability of the evidence gathered against the
Respondent and of the credibility of the investigation
carried out by the IU. These issues fall to be dealt
with under the merits of this case and are not such as

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to lead the Enlarged Board summarily to terminate these
proceedings.

Oral proceedings open to the public

31. According to Article 12a(9) RPEBA, unless and to the
extent that the Enlarged Board decides otherwise, the
proceedings shall not be public and shall be
confidential.

32. The Respondent himself requested that the oral
proceedings relating to the substantive merits of the
case be public.

33. The reason why the Respondent requests to have the oral
proceedings open to the public is because the
confidentiality of the proceedings has already been
breached by the Office. Public oral proceedings give
him the opportunity to explain his case and defend his
reputation.

34. The confidentiality of proceedings tends to protect the
interest of the persons concerned as well as the
Office’s interest. The Enlarged Board therefore also
has to consider whether it would be contrary to the
interest of the Office and the Organisation and the
employees in question to have the oral proceedings in
this matter open to the public.

35. Given the history of the case, in particular the fact
that the Office sought publicity for its point of view
on the matter, the Enlarged Board is of the opinion
that it is also in the interests of the Office and the
Organisation to have transparent proceedings. It should

---

be avoided that the proceedings are perceived by
objective observers as expedited proceedings based on
questionable or suspect evidence, in particular as
these proceedings involve the removal of a member of
the Boards of Appeal from judicial office. In any case,
the Enlarged Board reserved to itself the power to
exclude the public from the oral proceedings, whenever
the nature of the debate made it necessary, which
corresponds to the “extent that the Enlarged Board
decides otherwise” provision of Article 12a(9) RPEBA.

THE INDEPENDENCE OF THE ENLARGED BOARD AND THE OFFICE

PRESIDENT’S LETTER OF 10 JUNE 2016

36. In his letter of 10 June 2016 (see quotations in
point XXVI. above), the Office President expressed his
View that the Enlarged Board’s decision to hold public
oral proceedings was unlawful. He further elaborated
that the Enlarged Board does not have the competence to
determine the facts in these proceedings. Finally, he
indicated that he would not hesitate to take any
appropriate steps available to him to ensure the
orderly running of the Office and the safety of its
employees in respect of the present case.

37. The making of an unlawful decision is clearly
misconduct. Hence the general, abstract threat to the
independence of the Enlarged Board resulting from the
amendment of Article 95(3) ServRegs (see para 8 to 13
above) has now crystallised as a result of the Office
President’s procedurally irregular intervention in
these proceedings.

---

38. As the present case has shown, the Office President
assumes the power to investigate and to suspend members
of the Boards of Appeal and bar them from the Office.

39. In addition, he may also propose any other disciplinary
measures to the AC, pursuant to Article lO(2)(h)EPC.

40. Thus, in the presence of these facts, ascertainable by
any objective observer, all present members of the
Enlarged Board find themselves threatened with
disciplinary measures if they continue with these
proceedings in the presence of the public, and seek to
determine the facts of this case. This undermines the
fundamental principle of judicial independence as set
out in Article 23(3) EPC. Thus the conditions of
Article 23(3) EPC are not fulfilled, unless the AC as
appointing and disciplinary authority for all members
of the Enlarged Board, including its external members,
distances itself from this position of the Office
President.

41. After having been given time during the in camera
conference held on 14 June 2016 to reflect upon this
situation, the Chairman of the AC made the following
remarks in writing concerning the Office President’s
letter and enclosure of 10 June 2016:

Such a communication does not emanate from a party to
the proceedings. In View of the fact that the
Administrative Council is only represented in the
proceedings pursuant to Article 12a(2) of the rules
of procedure of the EBA, it cannot take position on a
communication from the Executive Head of the Office.

---

In this respect, and as per Article 23(3) EPC, the
EBA members are not bound by any instruction but must
abide by the provisions of the EPC. This cannot be
prejudicial to them, bearing in mind that the Council
is the sole competent disciplinary authority for
them…”

42. The Petitioner in this case is the AC. The AC is the
appointing and disciplinary authority for the Office
President (the highest ranking appointee of the AC), as
well as for the members of the Enlarged Board, (the
highest judicial authority of the EPO). The Petitioner
thus has an institutional obligation to clarify whether
it endorses or not the Office President’s position as
set out in his letter of 10 June 2016 and referred to
above.

43. For the Enlarged Board to be able to continue with
these proceedings the position of the Petitioner would
have to be that it did not agree with the Office
President and acknowledged that, from an institutional
point of View, the pressure exercised by the Office
President in the present case was incompatible with the
judicial independence of the Enlarged Board guaranteed
by the EPC. As the Petitioner did not clearly distance
itself from the Office President’s position, there is
the threat of disciplinary measures against the members
of the Enlarged Board. It is then the Enlarged Board’s
judicial independence in deciding on this case which is
fundamentally denied.

44. As can be derived from the statement of the Chairman of
the AC, there was no clear and unequivocal declaration

---

that the AC distanced itself from (or did not share)
the Office President’s position. In such a situation,
the Enlarged Board cannot legally continue with these
proceedings. As a consequence it cannot make a proposal
to the Petitioner to remove the Respondent from office.

45. Thus to summarise, the Enlarged Board was reduced to
the following alternatives:

either,
to take an “unlawful decision”;

or,
to take a “lawful decision” according to the
demands of the Office President, i.e. setting
aside its decision on the public oral proceedings
and taking as granted the facts established in the
IU Report and/or the DC’s opinion.

46. In either case, the respective decision would be
inherently vitiated because it would have been made
under pressure from the executive and without the
serenity and independence needed for a fair trial.

47. The intervention of the Office President, and this
intervention alone, prevented the Enlarged Board from
continuing the proceedings as had been planned, (see
above points XVI to XXI), from examining the case on
its substantive merits as put forward by the Petitioner,
and from establishing whether serious grounds for the
removal from office of the Respondent existed in
accordance with Article 23(1) EPC.

---

Respondent’s request that this decision deal with certain

issues by way of obiter comments

48. In its letter of 24 November 2015 the Respondent set
out nine requests which it has repeated mutatis
mutandis in the present proceedings.

49. These requests may be divided into four categories.
Category 1: Requests that are now without purpose
Request II, that the request that initiated the current
proceedings be withdrawn.

As the Enlarged Board will not make a proposal to the
AC for the removal from office of the Respondent, this
request is now without purpose.

Category 2: Requests that fall outside of the
competence of the Enlarged Board in these proceedings
Request IV, that the house ban be rescinded.

The Office President, who decided upon the house ban,
is not a party to these proceedings. The Enlarged Board
does not have a respective jurisdiction over him, nor
is the house ban itself a subject of these proceedings.
Request VI, that the Respondent be reinstated with
immediate effect as a member of the Boards of Appeal;
and

Request VII, that the Enlarged Board make a legally
binding order to the effect that the investigation and
disciplinary procedures, and the procedures before the

---

Enlarged Board with reference numbers Art. 23 1/15 and
2/15 shall constitute no obstacle for reappointment
following the current appointment period which expires
on 31 December 2017. Further that all documents
associated with the aforementioned procedures shall be
removed from the Respondent’s personnel file.
The Petitioner is the appointing authority for the
members and chairmen of the Boards of Appeal. Its
exercise of this authority is outside the competence of
the Enlarged Board and is beyond the scope of these
proceedings.
Request IX, that an award of moral and or exemplary
damages shall be made, in the amount of at least one
gross annual salary.
The Enlarged Board does not have the power to order
such an award.
Category 3: Independence of Enlarged Board proceedings
from disciplinary proceedings
The Enlarged Board cannot grant the following requests
of the Respondent because of the present proceedings
being independent from any disciplinary proceedings
(Article 12a(8) RPEBA):
Request I, that the disciplinary procedure D 1/15
before the AC is to be terminated without prejudice to
the Respondent; and
Request III, that the suspension be lifted; and

---

Request V, that all withheld components of remuneration
are to be repaid with interest.

Category 4: Requests that the Enlarged Board may deal
with

Request VIII, that all costs of the proceedings, in
particular the cost of legal representation shall be
borne by the EPO. For this request, see below.

Request for reimbursement of costs

50. The Petitioner referred to Article 12a(10) RPEBA and
stated that it would leave it to the Enlarged Board to
decide on this matter.

51. Pursuant to Article 12a(10) RPEBA, the Enlarged Board
may on request propose the reimbursement of some or all
of the costs incurred in the proceedings by the
Respondent if the request to make a proposal for
removal from office has been rejected.

52. The Enlarged Board has decided not to make a proposal
for removal from office of the Respondent; therefore
reimbursement is proposed.

Request for publication

53. The Respondent contended that public declarations have
been made in the press that are detrimental to him. In
order to offset that, he requested the publication of
the present decision.

---

54. According to Article 18(3) RPEBA, the final decision of
the Enlarged Board in proceedings under Article 23(1),
first sentence, EPC, may be published, due regard being
taken of the confidentiality of the proceedings.

55. In the present case the Enlarged Board has made a final
decision that it does not make a proposal for removal
from office of the respondent.

56. The decision is to be published.

---

Order
For these reasons it is decided that:

1. The Enlarged Board of Appeal does not make a proposal
for removal from office of the Respondent.

2. Reimbursement of all costs incurred by the Respondent
in the present proceedings before the Enlarged Board of
Appeal is proposed.

3. The decision in case Art. 23 1/16 is to be published.

The Registrar:

N. Crasborn

The Chairman:

M.-B. Tardo-Dino

The above was the result of quick and dirty OCR. We should stress strongly that for accuracy readers must look at the original PDF and bear in mind that this ‘masterpiece’ might force the dismissal or resignation of Battistelli, unless he has the skin of an elephant and enough ‘brought’ delegates in his pocket (like Clinton with her biased/corruptible superdelegates). █

Update: While still working on the text some people told us that IP Kat had published a portion of the text (not highlighted in yellow above) and added these remarks about the original: “Merpel has now got her paws on several copies of the Enlarged Board of Appeal’s decision in the latest round of the “House Ban” disciplinary action (reported here). If you like your IP decisions to be explosive, then she can’t recommend it highly enough. The case reference is Art. 23 1/16, incidentally.

“Readers can access the document here. It arrived in several copies today thanks to a number of correspondents who would no doubt prefer not to be identified, for reasons of modesty and career security. The decision is marked for “Publication in OJ”, but the Board notes with admirable deadpan that its orders in the two earlier sets of proceedings, to publish those earlier decisions “have not yet been executed by the competent authorities of the Office.”

“It was already known that this third set of proceedings collapsed due to what was seen as an improper intervention by Mr Battistelli, the EPO President, regarding a decision by the EBA to hold oral proceedings in public, and that this was aggravated by the fact that the Administrative Council refused to distance itself from the actions of Mr Battistelli. Bear in mind, in what follows, that Mr Battistelli was not party to these proceedings, which were instigated by the Administrative Council (“Petitioner”) and the only other party was the impugned Board Member (“Respondent”).”

Her concluding words are that “some AC delegates will not be fans of this decision (this being their third rebuff from the Enlarged Board in relation to a single disciplinary matter). Bear in mind that the AC was already given the opportunity to distance itself once from Mr Battistelli’s actions and did not do so, or at least not unambiguously. One must assume that Mr Battistelli still enjoys the love and support of at least a faction within the AC (though Merpel hears that the faction shrinks at each meeting…).”

Well, see the above about Albania, which is one among many (we gave other possible examples in the past). We urge readers to contact their representatives and German readers to contact Heiko Maas.

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Fake Patents on Software From Fake Australian ‘Inventor’ of Bitcoin and the Globally-Contagious Nature of EPO Patent Scope

Posted in America, Australia, Europe, Patents at 1:26 pm by Dr. Roy Schestowitz

Laws can ‘hop’ from one continent to another

Summary: News from Australia regarding software patents that should not be granted and how patent lawyers from Australia rely on European patent law (EPO and UK-IPO) for guidance on patent scope

THE following remarkable article by Mike Masnick (of TechDirt) is titled “Fake Satoshi Nakamoto Trying To Patent All Sorts Of Bitcoin Related Ideas” and it speaks of one of many charlatans who claim to have invented Bitcoin. Masnick has already written a great deal about other fake inventors, notably regarding E-mail. “Earlier this week,” Masnick wrote, “I got knocked out by some pretty serious food poisoning. The few times I would try to do some work or pop in on Twitter, all I was seeing was people mocking the London Review of Books’ somewhat insane 35,000-word-long profile of Craig Wright, the guy who earlier this year claimed to be the real Satoshi Nakamoto. While he even convinced Gavin Andresen (the guy who really turned Nakamoto’s original work into actual Bitcoin), many others quickly pointed out that Wright’s “proof” appeared to be a giant scam. Why write a 35,000-word profile on a guy who isn’t Satoshi Nakamoto? I don’t know, but thankfully the food poisoning and the few snarky tweets I saw saved me from digging into the entire thing and wasting an afternoon. Fusion posted a much shorter summary of the piece, in case you’re wondering.”

Watch how corporate media repeats these lies about this Australian poser who claims to have invented Bitcoin and now wants a monopoly on it. To quote Reuters: “Craig Wright, the Australian who claimed to be the inventor of bitcoin, is attempting to build a large patent portfolio around the digital currency and technology underpinning it, according to associates of his and documents reviewed by Reuters.

“Watch how corporate media repeats these lies about this Australian poser who claims to have invented Bitcoin and now wants a monopoly on it.”“Since February, Wright has filed more than 50 patent applications in Britain through Antigua-registered EITC Holdings Ltd, which a source close to the company confirmed was connected to Wright, government records show.”

Well, these are basically software patents (like those which USPTO is still happy to accept, unlike courts) and they are assigned not to an original inventor but somewhat of a scammer, who ‘stole’ attribution. What has the world sunk to?

Sadly, Australia’s fascination with software patents is becoming a real problem and in the face of a Commission's report against software patents in Australia parasitic firms like Shelston IP and AJ Park started somewhat of a lobbying campaign. Yet another lawyers’ firm, Phillips Ormonde Fitzpatrick, has just published “Full Court looks into Best Method requirements” where it says “attacks against patents for lack of best method have been relatively rare.”

“Sadly, Australia’s fascination with software patents is becoming a real problem and in the face of a Commission’s report against software patents in Australia parasitic firms like Shelston IP and AJ Park started somewhat of a lobbying campaign.”Well, it’s patents that attack. They are still using misleading language where those who pursue sane patent policy (or patent quality) are “attacking”. Lawyers’ reversal of the narrative is rather typical. The article from Malcolm Bell says: “The trial Judge had held that Servier had failed to describe the best method known to it in performing the invention where it described only the general method of salification rather than any specific method. Such specific methods include the 1986 or 1991 methods which would have provided the reader with information as to a method that met the characteristics of the claimed invention. The Full Court held that Servier had not shown that the trial Judge was wrong.”

That last part frames the situation as one where the judge is right or wrong, almost as though the Full Court is an ultimate arbiter that can just discredit ‘unwanted’ decisions. Phillips Ormonde Fitzpatrick published this marketing piece and also — on the very same day in fact — published “Software patents in Australia: where to from here?”

“They are still using misleading language where those who pursue sane patent policy (or patent quality) are “attacking”.”So the mask comes off. They’re among the lobbyists for software patents, probably alongside Shelston IP and AJ Park. In principle, software patents are out of scope; moreover “[i]n May 2016,” to quote the above, “The High Court of Australia dismissed an application for special leave to appeal the RPL Central decision of the Full Court of the Federal Court of Australia. The Full Federal Court found that RPL Central’s invention was not patentable as it was simply a scheme or idea implemented on a generic computer, using standard software and hardware.”

So both the Full Court of the Federal Court of Australia decided that software patents are invalid. Who would the lawyers thus lean on? The USPTO, where Alice crushes software patents on a daily or weekly basis? No, the EPO. Under the section “Moving closer to Europe” it says: “The Full Court looked to the UK Aerotel decision in determining that a claimed invention must make a ‘technical contribution’. Recently received Examination Reports appear to indicate that the Australian Patent Office is applying a European style ‘technical contribution’ approach to patentability, albeit in a less structured manner than is the case before the UK Patent Office or the EPO.”

“So both the Full Court of the Federal Court of Australia decided that software patents are invalid.”Surely this helps remind us of the dangers posed by Battistelli's race to the bottom when it comes to patent quality. Software patents are being granted in Europe under pressure (if not collusion) from companies like Microsoft and this can have a knock-on effect far away from Europe, maybe even in New Zealand and in India where loopholes for software patenting are eerily similar to those which exist in Europe (Brimelow’s bad legacy). █

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Patent Lawyers Love (and Amplify) Halo and Enfish, Omit or Dismiss Cuozzo and Alice

Posted in America, Law, Patents at 12:32 pm by Dr. Roy Schestowitz

Lobbying or marketing dressed up as ‘analyses’

Reference: Selective perception

Summary: By misinterpreting the current situation with respect to software patents and misusing terms like “innovation” patent lawyers and others in the patent microcosm hope to convince the public (or potential clients) that nothing in effect has changed and software patents are all fine and dandy

THE USPTO gradually moves away from software patents, whereas the EPO moves closer to them. That’s quite a twist and an unexpected development, but that’s where we are today.

Two days ago we wrote about the Cuozzo decision. We are very pleased as it is another major blow to software patents. Patent lawyers’ sites are still talking about it, but not so much (interest has been lost exponentially). Patently-O, for example, says about another case that “Chief Judge Prost likely held the decision release to await the Cuozzo affirmance that implicitly supports the court’s ruling here.”

“In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a “death squad” will have to find another lobbying strategy.”Cuozzo coverage from MIP’s Natalie Rahhal said that the “Supreme Court’s decision in Cuozzo v Lee maintains the different standards for claim construction used in the Patent Trial and Appeal Board (PTAB) and the district courts. The ruling indicates that the Court believes the USPTO is performing its inter partes reviews (IPR) in accordance with the America Invents Act (AIA).”

In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a “death squad” will have to find another lobbying strategy. TechDirt wrote about the decision as follows:

Supreme Court Says, Yes, The Patent Office Can Review Crappy Patents Using Broad Standards

Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn’t have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there’s a “reasonable likelihood” that it will invalidate some of the patent claims due to the submitted evidence.

In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used “the broadest reasonable construction” of the claims rather than the “ordinary meaning as understood by a person of skill in the art.” CAFC sided with the PTAB, saying that the law says that you can’t appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.

There is not much coverage of this from pro-software patents people, as one might expect. It’s that propaganda by omission as we noted here before. More than a month after Enfish Arent Fox LLP publishes “Enfish Database Case Brings New Twist in Software Patentability Saga” (no, not really). Growing desperate there for good news, don’t they? Enfish is old news and it was quickly contradicted by the very same court only a few days later.

“There is not much coverage of this from pro-software patents people, as one might expect. It’s that propaganda by omission as we noted here before.”Here is IP Kat‘s very latest on SCOTUS. It mentions the Halo case (pro-patent trolls) and says: “Is the U.S. Supreme Court pro-patent or anti-patent? One of my favorite books on patent reform is by economists Adam B. Jaffe and Josh Lerner titled, “Innovation and its Discontents: How Our Broken Patent System is Endangering Innovation and Progress and What to do About It,” published in 2004 by Princeton University Press. One of the insights from the book is the recognition of how patent legal protection moves like a pendulum throughout history. Notably, we tend to swing either too far in favor of protection or too far away from protection. We have trouble finding the middle way. On June 13, 2016, the U.S. Supreme Court in Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer (Halo) made it easier to obtain enhanced damages for willful infringement in patent infringement cases.”

It’s not a bad post actually and a comment on the above says: There is a clear common theme among most of the patent cases decided by the US Supreme Court in the last couple of years: the CAFC should stop laying down hard-and-fast rules for judging inventive step, patent-eligibility, damages, attorney fees, injunctions, etc. etc. etc. If there is a connection with fear for patent trolls, it is probably that inflexible rules create too many opportunities for abuse.”

“Funny how they mostly evade cases that are not — shall we say — so “convenient” to patent lawyers…”In this particular case not patent scope but the scope of damages was at stake. Those quite likely to benefit from this decision are patent trolls, which most often use patents on software (hence the relevance to patent scope too). IP Kat has also just published this
analysis from Taly Dvorkis (Allen & Overy LLP). It’s about the Halo case as well. Funny how they mostly evade cases that are not — shall we say — so “convenient” to patent lawyers… this particular analysis was posted by a Bristows employee and longtime proponent of software patents, the UPC, etc.

To be frank, my feelings towards IP Kat soured recently, especially in light of the censorship. It’s not about my particular comment but about input I receive about other people whose comments too are being censored, presumably for not concurring with the ‘party line’ (I have repeatedly asked IP Kat on what basis my comment was deleted and I am still waiting for a response, probably in vain). The worst situation is one where people like Merpel hardly write anymore and people from patent law firms write the lion’s share of the blog’s articles. “I’m fully aware of this,” told us someone from the EPO about IP Kat. “Unfortunately I have to agree with you and since Jeremy left the Kat their EPO reports leave a lot to be desired. Also the frequency of reporting (as you already mentioned in Techrights before) dropped remarkably. I suspect pressure from the Dark side…” (EPO management, which earlier this month banned IP Kat). █

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Looks Increasingly Plausible That Battistelli is Covering up Bogus and/or Illegally-Obtained ‘Evidence’ From the EPO’s Investigative Unit

Posted in Europe, Patents at 11:32 am by Dr. Roy Schestowitz

Summary: Why we believe that Benoît Battistelli is growingly desperate to hide evidence of rogue evidence-collecting operations which eventually landed himself — not the accused — in a catastrophic situation that can force his resignation

EARLIER this month there was an EPO ‘trial’ against a judge, as previously covered in [1, 2, 3, 4, 5, 6]. It’s not really a trial because in Eponia there is no real justice and no real courts. It’s just a monarch’s execution den, where largely bogus (or exaggerated if no cherry-picked) charges are brought up and then used mercilessly in spite of what's supposed to appear like a jury (it’s being ignored by the monarch, Battistelli, who is typically an omnipotent accuser, plaintiff, judge, jury and executioner).

In our previous posts on this subject we ended up mentioning not only the illegality of the surveillance but also the possibility of Parallel Construction (details in this recent post about IP Kat censorship of comments).

Now we have a translation of this original German report from Mathieu Klos. We got a translation as it was published in SUEPO’s Web site and we made an HTML version of it. The more important (or original) bits are highlighted in yellow below:

Coup at the EPO: Battistelli intervenes in dismissal proceedings

The Enlarged Board of Appeal of the European Patent Office (EPO) yesterday put an end to proceedings for the dismissal of a suspended judge, by refusing to reach a decision. The dismissal had been prompted by the Administrative Council, but a coup was scored on the first day of the oral hearing when EPO President Benoît Battistelli intervened beforehand in the independent disciplinary proceedings by demanding that the public be excluded. A lot of people watching developments see this as an attack on the independence of the court.

Benoît Battistelli

Even before the proceedings got under way, there had been a major conflict among the people concerned about holding a public hearing in the dismissal proceedings. The Enlarged Board of Appeal had ultimately decided to act in public, in line with the petitions by the suspended judge and his attorney Senay Okyay.

According to Okyay, last Monday the Chair of the Administrative Council Jesper Kongstad raised the issue of the proceedings being held in public. The Administrative Council is the
disciplinary body for all EPO judges.

Last Friday the Enlarged Board of Appeal received a letter from EPO President Battistelli. He had arranged for the suspension of the judge, but was not taking part in the dismissal proceedings. “In the letter Battistelli demanded that the hearing be held behind closed doors”, says Okyay, the attorney. “The President is maintaining that a public hearing is contrary to the statutes of the Office.” Okyay also says that further questioning of witnesses, as the court had in fact scheduled for three days of the proceedings, from 14 to 16 June, is being regarded by Battistelli as “inappropriate”. The President accordingly would not authorise the presence of witnesses from the Office. The court had planned to question three witnesses from the Office’s own investigation unit.

According to a number of observers, however, yesterday’s planned oral hearing did not in fact happen. A few minutes after the start the court excluded members of the public, so as to inform the parties of Battistelli’s letter and the concerns it raised.

Battistelli’s letter causes confusion among the judges

Again according to Okyay, the judges regarded the letter as interference with their independence of action. They demanded that the representatives of the Administrative Council at the proceedings obtain a response from the supervisory body as whether its members shared the President’s interpretation of the legal situation or not, but the reply was somewhat ambiguous.

The Enlarged Board of Appeal yesterday informed the participants that it regarded the letter as a massive exertion of influence on its independence, according to observers. The fact that the Administrative Council had not unambiguously distanced themselves from the letter caused the court to terminate the proceedings, without issuing the proposal needed in order for the judge to be dismissed.

It also remains unclear whether there would have been a normal course of the proceedings at all. Okyay says that “the Administrative Council actually cannot now decide on the dismissal of my client at their next meeting. According to the statutes, my client should be reinstated in office with his reputation and dignity intact. The Administrative Council now only has recourse to disciplinary measures such as a reprimand or censure.”

Battistelli himself did not make any comment on the accusations in response to an enquiry from JUVE. The EPO pointed out that the Administrative Council is the body responsible for appointments and disciplinary procedures. And to protect the integrity of the proceedings, and of all the parties concerned, the disciplinary proceedings are confidential – according to the rules of the EPO.

Highly explosive proceedings

The dispute about the suspended EPO judge has been smouldering for the last year and a half. In December 2014 Battistelli imposed a ban on the judge entering the EPO premises. This decision came in for a lot of criticism among the European patent community, who saw it as a threat to the independence of the Board of Appeal.

A good year later, in October 2015, the Administrative Council initiated the dismissal proceedings against the judge. Since the establishment of the Office in the 1970’s, no proceedings like this have ever been attempted. According to EPO regulations, however, the dismissal of a judge is only possible on the recommendation of the Enlarged Board of Appeal.

By taking this step, however, the Administrative Council was not following Battistelli’s proposal, who had tried for a direct dismissal. According to sources close to the Board of Appeal, the EPO President was under the threat at yesterday’s hearing of questions being raised also about the internal investigation into the events. This would have thrown up the matter of whether there was truth in the reports that publicly accessible computers at the EPO had been monitored. The Administrative Council had already been insisting that the investigations and disciplinary proceedings were being handled correctly.

Struggle for the independence of the EPO court

A good number of the observers see the letter from Battistelli as being further proof of his interfering in matters which concern the court. At the forthcoming meeting on 29 and 30 June the Administrative Council will be deciding on a package of reforms aimed at greater independence for the Boards of Appeal.

For a good two years now, the Office has been confronted by a vociferous public debate, in which criticism has been increasingly sharply levelled against too close an amalgamation between the Office management and the EPO court. The actual aim of the Boards of Appeal is to examine the decisions by the patent authority, such as the issue of European patents. In May 2014, however, the court declared that its own president was proving an embarrassment with excessively close links to the EPO management, and set a laborious reform process in motion. A number of proposals for solutions have so far remained without result. The only thing that is clear is that the 38 Member States of the European Patent Organization really do not want the court to part company from the Office.

In the light of yesterday’s events, however, whether the Administrative Council will now in fact, as planned, decide on the reforms at the end of June, is entirely in the lap of the gods.

(Mathieu Klos)

From the above we learn quite a few things, including the reasons for Battistelli’s phobia. It sure looks like he’s hiding something from the public for fear of backlash. It has nothing whatsoever to do with the integrity of the process as the accused and his representatives sought transparency, the board wanted transparency, and the names of Investigative Unit staff are mostly public knowledge by now [1, 2, 3, 4, 5, 6, 7]. Battistelli and his goons are most likely worried that defamation of the accused will be more widely realised, challenging the narrative which Team Battistelli ‘planted’ in the Dutch and German media just weeks after signing the FTI Consulting 'crisis control' contract (later paid specifically for Dutch and German propaganda).

Battistelli is digging his own grave these days. He’s doing a fine job. █

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As Decision on the UK’s EU Status Looms, EPO Deep in a Crisis of Patent Quality

Posted in Europe, Patents at 10:46 am by Dr. Roy Schestowitz

Not Battistelli Exit, not until next week at least

Summary: Chaotic situation at the EPO and potential changes in the UK cause a great deal of debate about the UPC, which threatens to put the whole or Europe at the mercy of patent trolls from abroad

JUSTICE is long dead at the EPO and our concerns about software patents in the EPO grow bigger. The EPC is simply being ignored by Benoît Battistelli whenever it suits his personal objectives. It should be noted that the UK’s role and membership in the EPO (through the EPC) is disconnected from the EU (a subject of great confusion and debate in The Register comments nowadays), but either way, today’s referendum plays an important role not just in the future of the UPC but also the EPO itself. Many British workers have already left the EPO and given Battistelli’s mistreatment of an Irish judge, one might wonder if the same is true for Ireland. We published/highlighted some statistics about this yesterday.

“Many British workers have already left the EPO and given Battistelli’s mistreatment of an Irish judge, one might wonder if the same is true for Ireland.”Having examined this week’s news we found not so much coverage in English-speaking media, unlike German media for instance (translations welcome), probably as it is closer to ‘the action’ (the same applies to Dutch media).

Where would the EPO be if the UPC failed? Probably a vastly superior position than if UPC ever becomes a reality and we shall explain why. In short, the UPC isn’t about improving the EPO but about optimising it for billionaires who aren’t even necessarily European. These are the sorts of billionaires whom ENA graduates (such as Battistelli) traditionally serve. “I already fought against this thing called EPLA at the time,” wrote to us one reader, alluding to a previous incarnation of the UPC. “10 years ago I hoped it would be stopped,” this reader added (slightly modified quote).

EPLA is not to be confused with EPLAW, but it sure seems like EPLAW is now one of the big ‘engines’ behind it. They’re becoming rather worried about Battistelli as a flag bearer because as his popularity sinks (to 0% approval rate) it looks like the UPC (or EPLA) will sink with him. EPLA is the European Patent Litigation Agreement, whereas EPLAW is a patent lawyers’ body which we mentioned here before as it had grown tired of Battistelli's behaviour and even cited Techrights (which Battistelli’s EPO basically banned, probably out of fear). Speaking of the UPC (previously known as EU Patent, Community Patent and so on), watch what the EPO’s own mouthpieces say about the UPC in light of what Battistelli and his minions recently admitted to the media, as we last noted yesterday. With Brexit, they openly admit, “Unified Patent Court project is likely to be put on hold for a few years…” (or just die altogether, if not get renamed/rebranded yet again). Also watch a longtime UPC booster from Bristows (part of the conspiracy to create and pass the UPC) worrying about Brexit. To patent lawyers, being self-serving as they tend to be, Brexit is all about their own profession [1, 2, 3] and nothing else. Witness some of the very latest UPC lobbying and opportunism from patent law firms [1, 2, 3]. At whose expense are they promoting it? Follow the money.

“Yesterday we said more on the subject and also yesterday a Senior Director with FTI Consulting (the EPO’s PR firm) and Karel De Gucht’s spokesperson suddenly started following me in Twitter (those who are familiar with Karel De Gucht’s ugly political legacy would probably have a good laugh over the connection to the EPO and UPC).”Last year we showed the connection between UPC lobbying and EPO budget (the connection was FTI Consulting). Yesterday we said more on the subject and also yesterday a Senior Director with FTI Consulting (the EPO’s PR firm) and Karel De Gucht’s spokesperson suddenly started following me in Twitter (those who are familiar with Karel De Gucht’s ugly political legacy would probably have a good laugh over the connection to the EPO and UPC). I must have made it into their list of “enemies” or something…

Many things are happening right now in the media, which FTI Consulting was hired to help 'manage' (see the original contract which was later expanded to be worth over a million Euros!). It must not be pleasant for Battistelli, who has just earned the derogatory title “King Battistelli” from Kieren McCarthy of The Register (UK). McCarthy’s latest article gives coverage to the EPO-FLIER Team and speaks about patent quality — one of those things that UPC would demolish (give way to software patents and invite patent trolls over to European member states). To quote the bits about patent quality:

It also makes the serious claim that the EPO’s quality checking system has been designed to always return positive results, regardless of actual quality.

“The EPO’s own quality measuring system ‘CASE’ suffers from a built-in conflict of interest. The way it has been designed, it will always indicate excellent quality, no matter what the actual quality is,” the letter states.

It goes on to highlight several specific proposals for reform put forward by the Administration that undermine the rights of staff, including the ability to fire examiners if they don’t get through what the administration feels is a sufficient number of patent applications.

Changes at the EPO, including the dismissal of staff that have resisted reform efforts, are causing knock-on impacts, the letter claims, and potential recruits are staying away. “The Office no longer attracts the same caliber of staff and therefore has had to resort to recruiting what it gets,” the letter claims. It says that the EPO has dropped language and geographical requirements due to the inability to attract sufficient applicants.

For those who think this is just some EPO-FLIER Team ‘propaganda’, look no further than pro-EPO publications. They too admit there’s a profound problem. A few days ago Thorsten Bausch wrote in a patent lawyers’ blog that “Scary Figures Call for Action by the EPO,” to quote just the headline. Here is the ‘meat’ of the article:

Yet the really scary figure in the Annual report 2015 is the number of vacant positions of Board of Appeal members. The report shows that the number of BoA chairpersons went down from 27 to 22 and the number of technical and legal BoA members from 132 to 120. At the same time, the number of appeal cases remained more or less the same. What does this mean? It means that the duration of EPO appeal proceedings, which even now is excessively long (in the order of three years on the average, and in the chemical and biotech fields even more, according to this author’s experience) will continue to rise in the not too distant future. This author has already been put on notice by one board of appeal that in view of its current backlog of cases, a decision can only be expected in about six years.

This is a dramatic development against which swift action must be taken. Stakeholders in the patent field need nothing more urgently than legal certainty, which includes quick decisions within 1-2 years at most. This is not the time and place to play the blame game and to investigate why we are where we are. Yet it is the time and place to really call the EPO President and the Administrative Council to their duty to fill up the gaps in the Boards of Appeal as soon as possible. If the objective to have a BoA decision within 1-2 years is to be achieved in a few years’ time and if the quality of the decisions is not to suffer, then it is in my view inevitable to set up significantly more Boards of Appeal and to appoint additional capable members standing up to this challenge. Whether or not Brexit will come and whether or not the UPCA will eventually be ratified, the Boards of Appeal will continue to be one of the most important cornerstones of a functioning patent system in Europe. This should not be put at risk.

Basically, appeals (i.e. boards of appeals) are being systematically crushed by Battistelli so that he can make bogus claims about patent quality having been maintained. The EPO too more or less admits doing this. But how? Well, it’s a little more subtle. Watch Battistelli’s EPO trying to crush the appeal boards (again) for that UPC ‘conspiracy’ under the guise of “go-faster”, as explained yesterday by Jonathan Radcliffe of Reed Smith [1, 2, 3] and today by another author. When is it effective from? Just a couple of days after the Administrative Council’s meeting. Incredible timing!

“Battistelli won’t be man enough to take responsibility when the value of European Patents (EPs) suffers a sharp fall or a freefall.”Articles by people like Mark Ness use words like “streamlined”, but anyone with an IQ of elementary school level can see what’s really going on here. Under Battistelli, who has systematically 'cheapened' patents for his own glory, oppositions to patent grants don’t matter. They simply interfere with ‘production’ as measured using ENA-esque yardsticks. Worth or value of EPO patents is now a ticking time bomb; not just for newly-granted patents but also retroactively, i.e. for patents granted decades back. Everyone with stakes at the EPO, more so than just European citizens, should be up in arms. Battistelli is killing our patent office.

As a side note, we’re amused to see this morning’s piece from EPO mouthpieces (funded also by patent lawyers and patent trolls). They are justifying anti-whistleblower laws and design patents as if patent scope and quality matter not at all. As for the EPO itself (not its indirect mouthpieces), it is still milking a lobbying event from a fortnight ago. Well, they wasted millions of Euros on this distraction, so what better way to distract the public? Based on this morning’s tweet from the EPO, the Battistelli loyalists are going to the US in an apparent effort to prop up software patents (“ICT” is one tricky phrase which is growingly being used). They certainly don’t care about patent quality anymore and they are not doing a good job hiding it, either.

Battistelli won’t be man enough to take responsibility when the value of European Patents (EPs) suffers a sharp fall or a freefall. He won’t even be at the Office anymore. █

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Another Demonstration by European Patent Office (EPO) Staff on Same Day as Administrative Council’s Meeting

Posted in Europe, Patents at 9:30 am by Dr. Roy Schestowitz

Institutionally violent EPO management (which baselessly projects this onto staff) cannot be tolerated by staff

Summary: SUEPO (staff union of the EPO) continues to organise staff actions against extraordinary injustice by ‘ringleader’ Benoît Battistelli and his flunkies whom he gave top positions at the EPO

“SUEPO organises on Wednesday 29 June 2016 a demonstration in Munich,” it said this morning, “in front of the EPO Isar building starting at 12.30h.” The staff union of the EPO fights a good fight in the name of staff and in the face of an oppressive regime like I have never before — in my entire life — encountered, not even outside Europe (not in Turkey and not even in notoriously repressive countries like Singapore). There is, in my humble opinion, a moral obligation for European citizens to support SUEPO, which fights not only for EPO staff but for labour rights in general (in Europe and in the West, by extension).

As longtime readers are aware, I now cover mostly EPO matters as I find that lack of information about what goes on there is the only thing which prevents or keeps away people from crystal clear realisation that it is a lot worse than what happened at FIFA and Volkswagen. It’s what keeps most politicians from intervening (to the extent possible).

“The EPO’s information war is a war on truth itself and even a war on justice, which EPO management downplays in spite of the fact that justice is the very cornerstone of this whole system — a system which strive to or at least claims to do patents justice.”The plethora of abuses by EPO management have been covered here in nearly a thousand articles/posts. The information we share here, however, is being ‘drowned out’ by an EPO PR campaign. EPO management, having paid MILLIONS of Euros for newspapers to write puff pieces, is now fighting an information war. It long ago blocked Techrights, simply for daring to inform people about what goes on, including the criminal charges against the EPO's Vice-President from Croatia (speaking of Croatia, see what EPO management wrote yesterday). The EPO’s information war is a war on truth itself and even a war on justice, which EPO management downplays in spite of the fact that justice is the very cornerstone of this whole system — a system which strive to or at least claims to do patents justice. This crucial point was mentioned yesterday by the EPO-FLIER Team. If the EPO cannot serve justice to its very own employees, what hope is there for the rest?

Looking at some recent comments on the lack of justice (at least those comments which IP Kat is not deleting^*), one person notes regarding the injustice against a real judge (not ‘judge’ Battistelli): “Shall we expect the EBA [Enlarged Board of Appeal] to issue a decision based on what happened and/or minutes of the hearings? Maybe in time for the next meeting of the AC? Obviously, don’t expect the Office [management, i.e. Team Battistelli] to publish them…”

“Since the hearing was public,” one person noted, “it would seem logical that the decision (and reasoning) would be public. Of course, in camera discussions would be excluded but it would be likely that some people would/could be concerned in advance about the scope of disclosed information relating to third parties? Perhaps sufficiently concerned as to ‘advise’ the EBoA about what they should disclose and not? I’m intrigued.”

Alluding to the deeply defamatory allegations against the judge, one person added: “What one would definitely expect from the EBoA is that it considers whether the accused judge really is the dangerous, armed Nazi propagandist depicted by BB [Battistelli] in several public interventions and newspapers to justify the immediate house ban imposed upon him since December 2014. If not, they should absolutely exonerate him publicly from such charges.”

“What one would definitely expect from the EBoA is that it considers whether the accused judge really is the dangerous, armed Nazi propagandist depicted by BB [Battistelli] in several public interventions and newspapers to justify the immediate house ban imposed upon him since December 2014.”
      –AnonymousWith judges being treated as criminals by ENA graduate Battistelli, it’s understandable that they worry about their independence. In our next post we’ll explain why their fears are very much justified. “To what extent,” asked one person, “is the EBoA (or any board) able to function as a court? I’m not clear what their ability is to hear witnesses and what the consequence of perjury is. Can they refer such cases (and I’m not suggesting that is relevant here) to local authorities? Would they be able to require witnesses to make affidavits before local authorities? I ask this only with regard to the EBoA’s ability to make statements of innocence or guilt. I thought their brief was limited to answering the request placed before them according to EPO laws.”

A previous EPO protest/strike was titled “lawfulness at the EPO” and since Battistelli has done virtually nothing to restore even the perception of lawfulness (he has only escalated his union-busting since) we know that hopes of an EPO that respects the rule of law — be it patent law or human rights laws — is farcical at best. Degradation of patent examination protocols will be discussed in our next post. █
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^* Some readers have contacted us since we published an article regarding IP Kat. They say that they too have had polite comments of theirs deleted.

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Links 23/6/2016: Red Hat Results, Randa Stories

Posted in News Roundup at 8:12 am by Dr. Roy Schestowitz

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Interview With FOSSForce/All Things Free Tech

Posted in Interview at 7:17 am by Dr. Roy Schestowitz

Summary: New interview with Robin “Roblimo” Miller on behalf of FOSSForce

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