12.11.14

Rolling of Heads Likely Imminent at EPO

Posted in Europe, Patents at 11:16 am by Dr. Roy Schestowitz

Summary: The European patent system is shaking as management breaks the rules, staff is protesting against the management every week, and charges of corruption resurface

OUR sources inside the EPO are telling us that tensions run high inside the institution. Earlier this week we wrote about Battistelli's violation of the rules as highlighted by the Enlarged Board of Appeals (full text was later appended) and we also wrote about popular staff actions, which include marching in the streets. The technical staff at the EPO should carry on protesting and even going on strike in a public showing of unity and solidarity to colleagues. This is essential because sooner or later Battistelli will come to them, unless they dethrone him first. Battistelli borrowed his standards from corrupt regimes. He discredits the EPO as a whole.

“Heads Will Roll” is a phrase quite common in popular culture and songs. but “heads will roll” might as well be a phrase that relates to a French decapitation device, used extensively during the French Revolution (and remember that there is a French President at the EPO, much worse than his British predecessor).

One blog of the protesters at the EPO reveals an interesting Administrative Council letter. The conclusions are as follows:

Mr Battistelli as President has shown a profound lack of respect for staff and their rights, including fundamental rights such as the right of due process. This has led to a massive yet still escalating social conflict. Any worsening of the situation risks impacting the external image and good-functioning of the Office.

It would appear that the Administrative Council has not been fully informed by the President of the EPO either of the underlying reasons of the current social unrest or of the possible risks that several of the changes that have been implemented under his presidency will ultimately be considered illegal. The Staff Committee has tried to make the Administrative Council aware that there are serious problems: the Administrative Council must have noticed the demonstrations of staff in front of its meetings.

However, simply being badly informed about the changes taking place in the EPO and the risks they engender does not take away the responsibility of the delegations in the Administrative Council vis à vis staff at the EPO and vis à vis their national governments.

The Staff Committee strongly urges the Administrative Council to become better informed of the decisions which have been or are being taken in its name, in particular any decisions that affect the rights of staff, some of which already seem to be in disaccord with commonly accepted legal principles, if not European law. The potential consequences of doing nothing may be grave for the functioning, governance and overall reputation of the Organisation.

The Staff Committee also requests the Administrative Council to take its responsibility and arrange mediation between the President and EPO staff in order to avoid further escalation of the situation.

“In 2013,” quotes a source of ours from the EPO’s Web site [PDF]: “There were two mass appeals against Investigation Guidelines (Circular 341, 342). One mass appeal with 89 appellants, the second with 61.” Right now the Enlarged Board of Appeal privately complains about Battistelli, so he seems to have gotten himself surrounded not by an angry mob but by his own colleagues, both internal and external. Together they can oust both Battistelli and his cronies, whom he uses for ‘protection’ from colleagues who are not loyal to him.

Expect some major changes.

Battistelli cannot last long. A lot is going on and the public cannot always see it (Battistelli and others try to save face). It is going to explode sooner or later.

“A lot is going on and the public cannot always see it (Battistelli and others try to save face). It is going to explode sooner or later.”Our coverage about the complaint against Battistelli was simultaneously mentioned in some other blogs which say that “under Article 23 EPC, only the AC can remove a Board Member from office, on a proposal from the Enlarged Board. In this case, the President bypassed that safeguard and imposed a “house ban” using his general disciplinary powers over all staff members.”

As one blog of a lobbyist for hire put it: “From what I hear, one can see a printout of this webpage, on which the patent firm of Zimmermann & Partner (known for work on behalf of blue-chip clients in multiple fields of technology) expresses its support for the EPO staff, on many doors at the EPO’s different locations (Munich, The Hague, Vienna, Berlin). And I venture to guess that an English translation of an email sent by one of Germany’s leading patent litigators, Bardehle Pagenberg’s Dr. Tilman Mueller-Stoy (“Müller-Stoy” in German), whose work on behalf of Microsoft I’ve mentioned various times (and whose other clients include, inter alia, Amazon and a major automotive company) to German Federal Ministry of Justice official and EPO Advisory Council member Christoph Ernst will also rise to tremendous popularity in the corridors of the EPO (this post continues below the document)”

“I keep my fingers crossed,” he wrote, “that a tipping point has been reached now or will be reached over the next few days, and that even wider parts of the European IP community will stand up in support of fundamental rights, due process, patent quality, and judicial independence. But this is not just about a few individuals at the top of that organization. There are serious structural deficiencies that have led to the current situation, and they must be addressed as soon as possible.”

He then alluded to Željko Topić‘s corruption charges as well: “IPKat has published and commented on “a letter which is unprecedented in the 40 year history of the European Patent Organisation”: a reqest by the members of the Enlarged Board of Appeal (the highest in-house judiciary body) of the EPO that the Administrative Council act against President Battistelli’s “clear challenge to the judicial independence of the Boards of Appeal.” The letter also mentions that the suspended judge’s “computer was confiscated by the [President's] investigation unit, which has given them access to possibly confidential information regarding the preparation and deliberation of cases by the member’s board, without proper, legally sound guarantees.” I’m speechless. There’s a banana republic-style enclave in the heart of Munich (notably with a vice president facing multiple corruption charges in his own country but having stayed in power nevertheless), and so far this banana republic has been condoned and supported by governments that constantly preach human rights and democracy to countries like China and Russia. But it’s not a banana republic at all levels (as the Enlarged Board’s letter shows, there’s plenty of principled people at work). Only at the very top. [/Update]”

Topić and Battistelli, as we have stated before (but elsewhere), will hopefully both be gone by Easter. It’s probably too close to Christmas now for them to be abruptly discharged from service or even for legal action to be launched against them (there are ground for such an action). We are hoping to see Topić and Battistelli both facing “house bans” quite soon and we are pretty certain that their time is running out. In the coming months we will share with readers more of their dirty laundry. We urge our readers from EPO to disseminate information (acquired internally) within the EPO in order to raise awareness. The only reason Topić and Battistelli get to keep their job (for now) is that they keep staff ignorant and ban staff which they deem a threat to their job. █

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