11.03.15

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The Benoît Battistelli Way or the Highway: EPO Enlarged Board of Appeal is Being Discredited, SUEPO Web Site is Down Again

Posted in Europe, Patents at 2:09 pm by Dr. Roy Schestowitz

SUEPO site down

Summary: How the EBoA (Enlarged Board of Appeal) comes under attack from the EPO’s management, which does not tolerate challenge, as does the Web site of the staff union, which has been a target of censorship by EPO and is now down again (not for the first time in recent weeks)

ONE of the many themes in the EPO crisis has been an unrelenting assault on the boards of appeal, including the enlarged one, EBoA. We have covered many articles to that effect and shared some information exclusively. We also wrote about DDOS attacks on SUEPO's Web site (source unknown, but the likely suspect is known) and confirmed censorship by EPO of E-mails from SUEPO and some links posted in SUEPO's Web site (apparently takedown demands using threats). The assault on opposing opinions, not just on dissent (or even something which remotely resembles rebellion), is a terrible, unprecedented pattern that arguably goes further than Stasi-like surveillance on staff (a war on the minds, inducing self-censorship). Nothing is out of the question these days when it comes to preventing negative publicity. Today’s higher management at the EPO, collectively, has the moral level of Stalin’s regime. At this current pace of escalation, we’re not too far from mercenaries and snipers. The EPO’s management is already liaising with military-connected people and guarding Battistelli like he is some kind of a colonel visiting the Middle East. A bunch of people whispering within the European organisation (talking truth to each other) is treated like an act of treason or even a declaration of war by Battistelli et al. No wonder staff complaints are soaring.

Nothing is out of the question these days when it comes to preventing negative publicity.”“JUVE reports on the results of the user survey concerning the planned reform of the Boards of Appeals,” SUEPO wrote, but its Web site is down at the moment (it has had various different problems over the past month). SUEPO quotes from the article as follows: “45 patent attorneys took part in the survey, 13 in-house attorneys, and 22 international associations and user organizations, among them BusinessEurope, EPI or Union-IP. They were keen on the idea of greater independence for the Boards of Appeal, but criticised the planned regulations for the appointment and reappointment of the Board members included in the reform proposal [...] In the evaluation of the user survey, the EPO speaks only of divided opinions on the issue ofvlocation. The members of the Boards of Appeal, by contrast, have always regarded the proposals for a change of venue as being a kind of punishment for their uncomfortable stance in the discussion.”

It is actually an article from two weeks ago and there is this [PDF] English translation of it, which we are only able to retrieve from Google Cache at the moment (because SUEPO’s site is down again).

EPO: Users criticise Reform of Boards of Appeal

The people who use the European Patent Office (EPO) are keen on the idea of the independence of the Boards of Appeal being strengthened, but details of the planned reform are coming in for criticism, according to the results of a user survey published last week. The Boards of Appeal are the Office’s own court of instance, and plans are to reform it. Reform proposals by EPO President Benoît Battistelli are also coming under scrutiny.

45 patent attorneys took part in the survey, 13 in-house attorneys, and 22 international associations and user organizations, among them BusinessEurope, Epi or Union-IP. They were keen on the idea of greater independence for the Boards of Appeal, but criticised the planned regulations for the appointment and reappointment of the Board members included in the reform proposal. Specifically what criticism had been expressed was left unanswered by the EPO in its published evaluation, but it is fairly certain that those asked took particular exception to the planned involvement of the President. As well as this, participants also raised the issue that a higher proportion of members being recruited from outside, in comparison with former EPO examiners and jurists, could change the perception of the independence of the Boards of Appeal.

The planned new arrangement of a Board of Appeal Committee was welcomed by users. They pointed out, however, that this should not be allowed to undermine the independence of the Boards, while at the same time they pressed for participation in this committee.

The users also criticised the fact that the measures for strengthening independence are to be tempered by methods for increasing efficiency in one common package of reforms. From the user survey of the current patent system, the EPO drew the conclusion in particular that the “precise implementation” of the general guidelines described in the proposal for the reform of the Boards of Appeal is going to be the decisive factor.

The EPO is not revealing what conclusions it has drawn from the criticism, but in principle it is assumed that the results will be integrated into the planned reform.

Decades of conflict

The debate about more independence for the Boards of Appeal has been rumbling on for decades. This has involved above all representatives of the Boards of Appeal themselves, but patent attorneys and commercial concerns have also been demanding a clearer division between Office management and the EPO court. The conflict was escalated in December 2014, when Battistelli barred a member of the Boards from entering the building. The issues surrounding the judge have still not been settled, but in the wake of the incident the debate about the lack of independence has gained considerable momentum. In March Battistelli put forward his own proposals for reform, which provide for the creation of the Board of Appeal Committee as an independent supervisory body for the Boards but which is still subject to the influence of the Office management.

Battistelli’s plan provided for the implementation of the reform by the end of the year. The original timetable was blown off course in the summer, however, in the course of the user survey. Whether the Management Committee of the Office or its sub-committees will still be concerning themselves with the reform at the meetings still scheduled for this year is not yet known.

Vienna as possible location

In the debate, a spatial separation between the management and the patent departments on the one hand and the court branch of the organization on the other has come to play an important part. As well as a solution in Munich, Berlin had long been seen as an option. The German capital appears not to have a role to play in the considerations any longer, however. It has become known from sources close to the EPO that the management are also considering moving the Boards of Appeal to Vienna, where the Office maintains a small outpost. The EPO has not confirmed this.

In the evaluation of the user survey, the EPO speaks only of divided opinions on the issue of location. The members of the Boards of Appeal, by contrast, have always regarded the proposals for a change of venue as being a kind of punishment for their uncomfortable stance in the discussion. If the court were to move, they would have to shift the entire focus of their lives. By contrast with Berlin, EPO members who refused to go to Vienna would run the risk of dismissal under the statutes of the Office.

Critics have according accused Office Boss Battistelli of plotting this manoeuvre in order to replace the present team of judges and further eroding the capacities of the Boards of Appeal, inasmuch as he is not allowing vacant positions to be filled. In formal terms, the Administrative Council is responsible for appointing judges to free positions, but the President has a right of proposal. According to JUVE information, at present the chair positions of three technical Boards of Appeal and 20 further positions are vacant. In response to an enquiry by JUVE, the EPO was unwilling to indicate how many positions are still unoccupied, but referred to proposals by the President for reappointments in June. He is said to have made these, although the technical appeals being received are said to be declining.

A reduction in the number of judges, or an extensive change in the judge personnel, would nevertheless incur negative consequences for the quality of the jurisprudence and legal process, or so some experts fear. This has come at an extremely awkward moment. According to Battistelli’s plans, the structure reform of the Boards of Appeal should go into effect as from next year. A move to Vienna would take place at the earliest in the course of the coming year. In January 2017, in parallel with this, the Unitary Patent and the new European patent court (Unified Patent Court, UPC) are scheduled to start. This means that the two most important European patent courts would be going through a phase of massive change of personnel both at the same time. (Christina Geimer, Mathieu Klos)

The article above is interesting because it helps shed light on how big a scandal the treatment of the boards has been in its own right (putting other scandals aside). It is gratifying to see the EPO scandals hitting the German newspapers again. This can help apply further pressure for change of management, or something even more radical (albeit long overdue) than that.

Over the past year we occasionally covered many attacks on the boards and even several attempts to send them to exile, so to speak, thus forcing many of their members (unable to undergo job relocation) to exit and make way to people whom the EPO can choose (or perhaps prevent from entering).

There is a new article in IP Kat about the boards and the efforts to discredit the EBoA in particular. To quote Darren Smyth’s article: “From the reasons for the decision, it is clear that the petitioner had, during the underlying proceedings in T 1938/09, written to the Chairman of the Enlarged Board to ask whether Ulrich Oswald had ever deputised for him in his capacity as Vice President of DG3 of the EPO; if so, it was considered that the reasoning of R19/12 would apply equally to any deputy, so that Ulrich Oswald should be recused in the T 1938/09 appeal case. The Chairman of the Enlarged Board had not provided an answer to that question.

“The Enlarged Board considered that the circumstances justified the withdrawal of the original Chairman, so that it was ordered that the petition for review should proceed with the Enlarged Board in its amended composition with Rainer Moufang as Chairman. The outcome of that review is awaited.”

“In one aspect, this decision is just one procedural step in a much longer dispute. In another aspect, it is a welcome confirmation by the Enlarged Board that the independence of members of the Boards and Enlarged Board of Appeal must be seen to be beyond doubt in any case.”

The more interesting part, however, concerns Wim van der Eijk.

“The petition for review does not appear to be on the public file,” Smyth wrote, “presumably because of its content, and the decision itself is rather brief. However, it appears that the petitioner made an objection of suspicion of partiality against [...] presumably [...] Wim van der Eijk,” whom we mentioned here several weeks ago (MIA) and got “replaced by Rainer Moufang for considering the issue of suspicion of partiality.”

“The mystery behind Wim van der Eijk lingers on and we would appreciate input from anyone who knows what’s really going on.”To better understand the context of all this, consider this a possible attempt to discredit the board (surely projection by the EPO’s management). To quote the introduction to this: “This Kat has just learned of two cases, one not so new and one rather more recent, in each of which the Enlarged Board of Appeal of the European Patent Office (EPO) has been upholding the rights of parties before the EPO (in both instances, patent proprietors). Both cases are “R” decisions under Article 112a EPC 2000, whereby a party can request the Enlarged Board to review a decision of a Board of Appeal for an alleged fundamental procedural violation. Most such cases are hopeless attempts to overturn an unwelcome Board of Appeal decision, and are unsuccessful.”

The mystery behind Wim van der Eijk lingers on and we would appreciate input from anyone who knows what’s really going on. Additionally, it would be useful to know why SUEPO’s Web site has had many technical issues recently (glitches, slowdowns, and downtimes). It was never this bad…

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