06.10.16

The EPO is in a Mess So Sordid That It Pays for Positive Publicity, Further Abolishes Labour Rights (to Punish Whistleblowers) and More

Posted in Europe, Patents at 6:03 pm by Dr. Roy Schestowitz

Battistelli, who has been buying European media, is politically connected to Sarkozy

Summary: Taking stock of recent articles (including bought puff pieces) and some comments from EPO insiders who express concern about the direction the Office has taken

THE EPO is not an ordinary patent office. It’s a state within a state (or several) and it literally buys ‘articles’, or puff pieces that look like news and help groom/improve the image of the Office.

As of this afternoon, just moments before writing this earlier/previous article about the Financial Times (FT), the EPO became active again in Twitter (for the first time today) and ‘found’ media partners (i.e. paid media companies) doing some puff pieces, soon thereafter retweeting these. There are four tweets in total.

“How does the FT feel about being exposed as ‘journalism’ for sale and how does the EPO feel about being exposed as buyer of ‘journalism’?”The first, which got mentioned by Cambridge, is another new example of FT acting like/serving as a mouthpiece of the EPO after receiving money (it is behind paywall, probably printed in the presses to be disseminated around the world, even offered to passengers on airplanes). This is an example of paid coverage. How does the FT feel about being exposed as ‘journalism’ for sale and how does the EPO feel about being exposed as buyer of ‘journalism’? “The harm caused by patent trolls extends beyond the legal sphere,” wrote United for Patent Reform about another article from FT (this one too behind a paywall). What’s noteworthy though is that FT, having received money from the EPO, does a lot of EPO puff pieces and shortly afterwards the EPO links to these.

The second came from INPI, the former employer of Battistelli where a lot of top-level management at the EPO came from (because Battistelli wanted his old buddies to become his “yes men”… and woman [1, 2, 3, 4]). INPI doing puff pieces for Team Battistelli makes perfect sense.

“INPI doing puff pieces for Team Battistelli makes perfect sense. “The third one also came from France. It’s from the EPO’s French media partner. Les Echos learned no lessons from last year (self-censorship for Battistelli) and it is still producing puff pieces for Battistelli after receiving money, then having them promoted even by the EPO itself (same as in the FT example above). How shallow a distortion of media…

The fourth and last tweet of today came from English-speaking German media. This one is the only one (among four) which does not seem to be financially connected to the EPO. When 75% of the news you link to comes from paid partners and nepotism, what does that really tell about you? Maybe the popularity is just an illusion, or maybe it is manufactured using one’s money.

“When 75% of the news you link to comes from paid partners and nepotism, what does that really tell about you?”“According to the previous post of Mr. Joss Wild, the future of patents in Europe is rosy,” wrote one commenter today. Joff Wild (not Joss), however, is always repeating the EPO’s party line and then getting cited by the EPO as ‘proof’. To put it metaphorically, he’s in bed with Battistelli and to suggest everything is great at the EPO is to perpetuate a lie, just like those paid ‘studies’ and ‘surveys’ conducted/commissioned by and for Battistelli.

Is there no sense of shame left?

Well, later at night (way after working/office hours) the EPO also retweeted a press release. There is the obligatory Battistelli grooming in that press release, pretending Battistelli is some kind of cancer scientist after helping to promote this major scam that may have cost thousands of people their lives (and never mind the EPO's unethical position on cancer). Sixth (and last) for today was something from the French media. Money well spent? How many millions of Euros were spent on this charade and how much of the resultant coverage was manufactured and/or paid for?

“How many millions of Euros were spent on this charade and how much of the resultant coverage was manufactured and/or paid for?”There have been some interesting discussions at IP Kat recently. In spite of EPO articles there being less than 10% of the whole, about 80% of all comments are about the EPO. No wonder the EPO tried gagging IP Kat (and failed, as usual). Now we just see provocation or trolling there instead. We alluded to this before, but we don’t want to feed the provocateurs. Instead, let’s look at and focus on some recent comments of interest.

One person wrote that “we’re in the protective bubble zone of EPO employment law – literally a law unto itself.” Here is the full comment:

Seems to me that the EPO, whilst refusing to admit applicability of national employment law, is attempting to impose extra-jurisdictional employment law obligations on its former staff. One could easily imagine, for example, the case where a former employee is hired by a government or military department under whose own rules they would not be allowed to divulge the fact to others, i.e. the EPO, that they were employed by said department.

Other questions spring to mind :

Has the expression “for a certain time” been defined ?

Is any compensation for potentially limiting a former employee’s freedom of movement to work provided for ?

Oh I forgot, we’re in the protective bubble zone of EPO employment law – literally a law unto itself.

Another person then said that “if the President engineers the dismissal of a staff representative – a purely hypothetical scenario of course ! – under the new regulations he can then prohibit that person from engaging in any union-related activities (whether gainful or not).”

That refers to Hardon for example, as we noted the other day. Here is that comment in full:

“Hardly Draconian”

Try reading the small print: “any occupational activity, gainful or not.”

“If the envisaged activity is related to the work they carried out immediately before leaving the service, and could lead to a conflict with the legitimate interests of the Office, the former employee could be exceptionally prohibited from taking this activity, by decision of the appointing authority. In order to make the prohibition relevant, only the duties carried out during last up to three years of service would be taken into account.”

For example, this means that if the President engineers the dismissal of a staff representative – a purely hypothetical scenario of course ! – under the new regulations he can then prohibit that person from engaging in any union-related activities (whether gainful or not).

“Observer” than appeared, making a long remark about current and former staff. The use of the term “CII”, which is a sneaky way to say software patents, caught our attention. Part 1 of the comment went like this:

A slightly different view, trying to balance the needs of the EPO and the needs of its former staff:

Part I

To be fair, the question of what a former permanent employee can do immediately after leaving the EPO is indeed a problem. Actually, why should it be limited to permanent staff? Even staff under contract can gain information which might be useful in a future employment, the more so if the contract is plurennial or has been renewed a few times.

Just a few examples:

It all started with G 2/94. G 2/94 is only dealing with a former member of a Board of Appeal, appearing shortly after retirement as an accompanying person wanting to address his former colleagues. That his former colleagues did not appreciate is fully understandable. The time limit of three years imposed on former members of Boards is too long, but a cooling off period seems reasonable.

G 2/94 only applies to a very specific situation. What about a former member of a Board of Appeal, who was a qualified representative before joining the EPO, and who regains its quality of qualified representative as soon as he has left the office? Should he come and address his former colleagues as representative shortly after he left the office? May be in ex-parte proceedings it would not matter so much, but I would not like to be the other party in inter-partes proceedings. I would I least utter some protest.

The same applies mutatis mutandis to former examiners regaining their quality of qualified representative when leaving the office.
The problem is not acute with staff members of the EPO having passed the EQE. They cannot be immediately taken on the list of qualified representatives. A cooling off is indirectly provided.

When you also see two former chairman of Boards of Appeal taking sides with a party, by drafting a legal advice going plainly against the Office, one is puzzled, to say the least, cf. R 8/13.
When you see a former chairman acting for a firm of representatives in the field of CII, you may feel ill at ease.

Soon afterwards came part 2 (“BB” means Battistelli):

A slightly different view, trying to balance the needs of the EPO and the needs of its former staff:

Part II

Simply negating that there could be a problem is a bit too easy.
What is not correct is to push such a reform through without any proper discussion and concertation. It would be wrong to apply this measure as of a given date, without taking into account existing situations.

I could well imagine a twofold solution:

For any new member of EPO, including members of boards of appeal, joining the EPO as off a given date, he should be informed of a possible bar, of let’s say two years, when leaving the office. For those people, no compensation should be given. This might not ease recruitment, but one cannot have it both ways.

For member retiring as off a given date, and for which the above does not apply, then compensation should be given. You cannot change afterwards the conditions which have motivated a person to work for the EPO in a way which was not foreseeable. There is plenty of ILO case law on this topic.

One situation in which the EPO should not have any problems with, is when a former member engages in education or training. This could even be in the interest of the EPO, and could represent an exception to a possible ban.

I do not think that the problem just came up when BB became president. It was apparently a problem raised by the auditors. It is just another point BB wants to push through in its effort to show that he is the boss and that staff of the EPO needs to be put on short reins.

A clear source of concern is how this new regulation will be put into practice, whatever it might be, especially when somebody like BB is in power. For a long time, Presidents of the EPO had extensive powers. They used them with care, and in general not in order to take personal revenge. With BB this changed, but not to the better.

It should certainly not be allowed that the President can decide at his whim which type of activity is to be authorised or not. The present draft is much too vague and opens the door to arbitrary decisions. This should not be allowed.

The regulation for former staff of the USPTO seems a good compromise. A corresponding rule could apply only for staff having been involved in prosecution of applications and oppositions. Then it should be seen that a corresponding regulation is taken for staff having worked in other areas of the EPO, for instance IT.

Here as well, the mere fact that there is no simple and quick mechanism in dealing with conflicts between staff, actual or former, and the Office is in place is badly felt. The system of internal appeals and of going to the ILO tribunal is not adapted at all to such circumstances. A former member of the EPO might have died before the ILO Tribunal takes a decision……

Between a complete ban and the possibility to act in technical area in which a former member of EPO has not worked in the last three years, lots of different scenarios are possible. But this should be discussed, and not left to a decision per ordre de mufti.

Yes, the EPO deserves some reforms, but not reforms which do even further promote the arbitrary, especially in view of the totally deficient mechanism of conflict resolution.

To make things clear I am not one of BB’s admirers, the contrary is even true.

“Sad Examiner” then said: “Thank you, Observer, for your balanced analysis.”

Here another response to Observer, taking stock of INPI staff that Battistelli brought after him (we mentioned INPI as a Battistelli mouthpiece earlier in this article):

you write “I do not think that the problem just came up when BB became president. It was apparently a problem raised by the auditors.”

Do not forget that among the 3 “auditors” is a former Battistelli’s obligé and ex close INPI staff.

So nothing stated by this group can be taken as genuinely independent hence matching real standards such as those applying in the EU institutions.

Auditing at EPO is a farce and yes the reason behind this new abusive rule is precisely to forbid fired staff reps to get employment with SUEPO in the future.

Of course since Battistelli is generous and wants to treat his ennemies (and he has many) equally, the nre rule will be used for other individuals he and his clique want to destroy.

A brave new world

Some people give Battistelli ideas like:

a SALOMONC solution mght be a one line amendemnt

“in case of conflict , the European Patent Organistion accepts the rulings of the labour courts of the last place of employment of the former emplyoe”

I can imagine the extatic reaction of BB to that

Here is the harsh reality that EPO workers are facing, even if they choose to leave the EPO:

Well, if you stayed only 5 years, you can have your pension rights paid out as lump sum (up to ten years of EPO employment this is possible, after that the money is stuck in the EPO pension system and cannot be transferred out to your pocked).

So, someone who stayed only 5-10 years is nearly immune to threats by the organistaion to not work, as his pension is payed out already, and there is nothing the administration can take hostage anymore.

Enforcement by the administration would have to be through national courts.
But our leader will find ways. Like making the hiring very risky for companies which employ registered representatives… New regulations can be implemented which would allow administration to revoke the right to represent before the EPO for anyone in contractual employment relations with a former employee not observing any restrictions the appointing authority “saw fit”.

As another person noted, “the proposal in CA/29/16 would grant the president of the EPO ridiculously broad – and essentially unfettered – powers,” e.g. against SUEPO’s current head (whom he already sacked). To quote the whole message:

The above comments mirror the discussion on another thread.

http://ipkitten.blogspot.co.uk/2016/05/does-upc-spell-disaster-for-epo-boards.html

As many have pointed out, the proposal in CA/29/16 would grant the president of the EPO ridiculously broad – and essentially unfettered – powers to interfere in the future employment of EPO employees. Whilst in practice this may only amount to powers to withhold pension payments, it still represents a steam hammer to crack a nut.

Merpel – it seems that you have seen a copy of CA/29/16. Does that mean that it is publicly available? If so, then can you point me to where I might find a copy, so that I can raise my concerns about that proposal with my country’s representative to the AC?

Here are some thought on the pension idea:

Charley,since in your scenario, no pension benefits would have been accrued, the ex BoA member would most likely tell the President to take a running jump.

Here started a bunch of provocative comments, e.g. ones that compare examiners to people who can start wars with thousands or millions of casualties (among other improper comparisons), for example:

Misanalyse the small print at your leisure.

It isn’t draconian, but standard practice in many walks of life and is needed more in some. e.g. Defence secretaries obtaining immediate employment with arms dealers.

There was a discussion about potential conflict when Robin Jacob acted for Samsung a few years ago. It is a real concern that needs addressing. I’m not of the opinion that EJ should have been banned from acting as he did, but I mention it as a relevant example.

Even the EPO unions more surely agree that its members spend too much time on this website?

Someone called “PB” basically then derailed the entire thread, making it a non-constructive argument over the very basics. “Mister Battistelli said he is not a “sun king” but if he promotes these new rules he shows that he is,” one person noted. Here it is in full:

The new EPO Service Regulations the Council members will vote on at the next council meeting – and you can guess if they will agree on it with a majority vote – includes among other a clause that makes it mandatory for permanent staff to ask the EPO president for permission to stand for elections at any (national, community or other) level, including staff representation, even after they left the EPO.

Standing for elections is a constitutional right the President has enjoyed and still enjoys very much for his present employment.

I agree that there should not be a conflict of interest between the functioning of an employee of the EPO and his personal interests but making such a decision dependent on the personal opinion of the President who is himself involved in such a conflict of interest is disproportionate and in itself a conflict of interest.

With these new Service Regulations staff are one step further to be deprived of even more of their national constitutional and civil rights.

Mister Battistelli said he is not a “sun king” but if he promotes these new rules he shows that he is.
The new version of the service regulations will be voted on after nice dinner with plenty of good wine for the delegates, all paid for by the EPO.

Versailles has its own rules of governance… and PB much enjoys…

Taking note of improper (and potentially offensive) analogies, one person then wrote:

You may not have noticed but the EPO staff member isn’t quite at defence secretary level. And what may be normal is negotiated garden leave, not extra-legal whim of a single person. There are ways to address the issue – see the USPTO – which do not place absolute power in the hands of an employer. Or do you think that the right to fire someone comes with a right to block their employment anywhere else for 2 years?
What is clear is that staff’s contract of employment is being unilaterally changed, again, without a clear or explained need but in a manner which can only ever be applied to staff’s detriment and without any notion of negotiation or compensation.

Under Battistelli the EPO has been killing patent quality for the sake of so-called ‘production’. “This is squarely aimed at further weakening the Boards of Appeal,” another person noted, later mentioning the potential role of the UPC in all this:

This is squarely aimed at further weakening the Boards of Appeal. (The separation of this proposal from the now separate proposal for reform of the Boards, is just as fatuous as making the Boards more independent by moving them geographically…)

Say I am a lawyer or patent attorney, 50 or so years old with 25-30 years experience under my belt. Just the kind of person who might be ideal as a board member. But now, if I get the job at 50 I only have 5 years “tenure” (i.e. no tenure at all) then I am possibly out on my ear at 55 and blocked from returning to private practice as a consultant or of counsel. I probably won’t apply for that board member position then.

This is all part of the overall intention to weaken the boards. BB was told that he had to end the crippling block on new appointments to the boards, so now tries to make the position unattractive to quality candidates…in favour of what, the UPC?

Incidentally a 2 year restrictive covenant would be unenforceable in most if not all EPC states; 6 months if one is lucky (e.g. to prevent a lawyer from immediately poaching clients when s/he leaves a law firm). And how could the EPO enforce it? It could not. But it could try to withhold pensions, for example. Withholding an accrued benefit would also be highly suspect, but the affected person would only have eventual recourse to the ILO AT…and so it goes.

Hope this one gets laughed out of the room at the next AC meeting.

“One more whip to crack over staff at all levels,” one person reckons:

How is this intended to be enforced? In the broad form drafted, it appears that any examiner leaving voluntarily (or laid off for not meeting his norms under the 5 year plan) could be banned from any paid or unpaid contact with patents for two years. This is in my (non-specialist) view restraint of trade and as such unenforceable under most circumstances under UK & EU law. To which tribunal would the EPO apply to injunct the ex-employee from taking up a relevant job? Surely no national court would enforce such a contract term? The EPO appealing to the ILO?!

The only effective enforcement means that I can see is the EPO holding the ex-employee’s pension rights hostage – “take that job and we will cancel your pension” – leaving the ex-employee as the plaintiff trying to find a tribunal respected by the EPO.

One more whip to crack over staff at all levels, I reckon

On the impact on patent quality one person wrote:

“Perhaps a table of number of grants against number of ex-parte appeals may help (or refusals even). Given the increase in productivity, could there be a simpler link – less refusals = less appeals”.

Not according to EP Bulletin, which shows more refusals in 2015 (4336) than in 2014 (4146), but less than in 2013 (4591). Based on these figures the appeal rate seems to have dropped from 26% in 2013 to 24% in 2014, to 19.9% in 2015.

Of course, it is difficult to say what is the “right” level of appeal, and perhaps the “quality” of refusals has grown so high in the last two years that fewer applicants dare appeal.

Perhaps.

Speaking of herself as a third person:

Merpel sincerely hopes that this mad proposal will be ditched before then, or rejected by the Administrative Council.

What the Administrative Council will see is “Increased appeal fees = More Money for us”.

You can imagine the rest.

Someone then recalled a “2008 increase in claims fees that resulted in a collapse in the number of claims,” which is probably a very bad thing that even predates Battistelli:

Just like the 2008 increase in claims fees that resulted in a collapse in the number of claims, and consequent damage to claims fee income?

One person notes:

Appeal fees do not translate to patent renewal fees, the only fee the Member States receive/keep a share of.
Higher appeal fees = less appeals, likely also lees DG3 decissions reversing refusals, ths even less renewal fees for MSs.

As one person noted, “the EPO pension is conditional on their loyalty to the EPO (or at least to its management).”

The full comment:

It should perhaps be made clear to new recruits that the EPO pension is conditional on their loyalty to the EPO (or at least to its management).

I heard the other day that the EPO’s health insurance may soon be brought in-house. This probably makes sound financial sense. It would enable the EPO’s management to keep a closer eye on all those spurious medical expenses claims. There will be vast savings to be made. And it would be yet another loyalty lever to be pulled when needed – another string for the President’s puppetry finger.

Looking at another thread, we generally find that some threads have been seriously derailed by provocative comments that make readers rather angry and unable to not respond. A cynic might say that looks like EPO management may have changed the censorship strategy (blocking the site) and instead adopted some kind of plan to post provocative (trollish) comments there. It’s not impossible (albeit not probable either, and for a good reason), especially based on responses to “PB” in this part of the thread.

“The only opposition to the destruction of the EPO is SUEPO,” one person correctly put it. This is why some people are eager to just attack SUEPO and it says a lot about what they wish for. To quote a relevant comment:

I find your post curious. On the one hand you seem to have knowledge of some “new” investigation guidelines, which seems to imply that you are an insider of some kind. On the other hand you repeat the lie that until Battistelli’s “reforms” employees were paid to do nothing and promotion had a nothing to do with merit. If you are an insider you know that this is not true. Merit (productivity, quality, aptitude and attitude) had a very strong effect on promotion. Yes, seniority was taken into account as it is everywhere, to reflect experience. Nothing wrong with that. And, pray tell, where did the EPO get its former global reputation when staffed by idle good-for-nothings who just had to turn up and sit on their chairs to earn vast amounts of money.

The truth is that in the pre-BB era not only did we work hard, but we knew we were privileged, and the prevailing ethos was one of delivering the best possible quality and service to our colleagues and to the public in return for that privilege. This ethos was also supported by management. Unfortunately this ethos has been destroyed by the actions of the President. The only opposition to the destruction of the EPO is SUEPO. If it were indeed the case that all the staff care about is money then there would be no support for SUEPO’s actions. You imply that EPO employees should just take the money, keep their heads down and collaborate with the destruction of everything they have dedicated their working life to.

SUEPO has no power or means to intimidate anyone. Instead the very brave few who try to fight for the EPO as it was are subject to the most fearsome sanctions.

To the previous “anonymous”, Nigel Farage is usually seen with a pint of beer, not a coffee cup!

How does the destruction of the boards relate to the UPC? One person explained it as follows:

This regulation seems to be designed inter alia to prevent BoA members to jump ship and apply to sit on the UPC after having duly left service. They will forced to remain on board as the RMS Eponic goes down with all hands…

The question is whether this regulation would be binding on the UPC. Would there be a secret instruction at the UPC secretariat to discriminate against EPO BoA members?

Here is one reasonable suggestion of what should be done to end these abuses by the EPO’s management:

Reading some of the comments above, I start thinking that it might have sense to consider the transformation of the EPO into an intergovernmental agency, thereby integrating it into the government structure of the Contracting States.

It would remove partially an “international organisation” nature of the EPO and would better bound the functionality of the EPO with national policies and organisation, in particular, with judicial system of Member States.

For the EPO’s management, or for people like Battistelli, “postage stamp member states will go along with anything that keeps the money flowing into their coffers,” this one person explains, alluding to 'buying' of votes. Here is the full comment:

Many within and without the EPO have been saying this for quite a while.

The organisation has clearly overgrown its structure. But the prospect is bleak, as what ails the EPOrg is pretty much what ails Europe at large.

How can you create and implement an IP policy when small or postage stamp member states will go along with anything that keeps the money flowing into their coffers, and disregard anything other consideration?

How can you have a discussion about the rule of law when the populistic or authoritarian streak befalling places such as PL, HU, SK, and TR is contagious?

How can you find a solution when large states (GB, FR, DE) are too busy navigating at sight dealing with disasters (Brexit, refugee crisis, the so-called “war on terror”) to deal with the festering situation at the EPO?

As long as BB keeps up the “success” narrative with his clients too happy to feign to believe him, the scandal will go on.

Where does the buck stop?

“I forgot to add,” this person said, that “politicks are too busy creating new problems (TTIP, CETA & co.) to be interested in solving those they already have.”

Well, the UPC is one of these “new problems”. The EPO’s bought media is trying to promote the UPC, as we showed earlier today. █

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