11.04.15

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The EPO’s Investigative Unit Exposed: Part I

Posted in Europe, Patents at 8:01 am by Dr. Roy Schestowitz

Summary: Some new observations about the notorious Investigative Unit, which has turned the EPO into somewhat of a rogue state which necessitates rescuing from the outside (as it has become too rogue to self-heal)

NEW MATERIAL EVIDENCE has emerged to support our allegations that EPO is now an autocracy, at least partly above the law and sometimes covertly so. Speaking to a source we were able to retrieve documents that help show what we long suspected and sometimes knew for a fact about the shady Investigative Unit. It is sometimes referred to as the I.U. or the Investigation Unit. What it boils down to, irrespective of the name, is just a bunch of goons who are loyal to Battistelli. Guess who gave them power?

“Transparency is desperately needed here, especially since many outsiders wonder about the huge surge in complaints from staff, suicides, and so on.”This post is part of a series that will investigate the Investigative Unit and explain how it came about. It is a cautionary tale for any other European institution or politicians who dare consider creating another country within a country (not like Monaco, Luxembourg, the Vatican or Lichtenstein).

This series of posts contains several documents of interest. We also present some general observations about the EPO’s Investigative Unit and its organisational role. In future parts we will talk about individual members of the Investigative Unit and where they came from, what for, and so on. Transparency is desperately needed here, especially since many outsiders wonder about the huge surge in complaints from staff, suicides, and so on.

“As you may have heard,” said our source, “the EPO recently decided to publish its staff rules and regulations.”

The published version of the EPO Service Regulations which can be downloaded from the official web site [PDF] contains the by-now notorious “Guidelines for Investigations at the EPO (Circular No. 342).” The file has over 400 pages in it, so it’s easy to overlook these things.

One has to dig deeper in order to realise that something is amiss. As our source put it, “the published version of the Service Regulations omits a number of interesting documents, including one relating to the Investigative Unit, namely the “EPO Charter for internal Audit and Oversight“. Here is the text which includes the missing/overlooked parts [PDF], an image thereof (because not many people bother opening PDF files), and some excepts from it to follow:

FinRegs – Internal Audit and Oversight


EUROPEAN PATENT OFFICE CHARTER FOR INTERNAL AUDIT AND OVERSIGHT1

PDIAO

The EPO Charter for internal Audit and Oversight “was issued on 17th January 2013 as a “Decision” of the EPO President,” told us a source. It “defines the purpose, scope, authority and responsibilities of the Principal Directorate of Internal Audit and Oversight (PDIAO) also known internally in the EPO as PD 0.6.

“According to the Charter the functions encompassed by PDIAO include “Investigations: carrying out investigations of alleged misconduct, including harassment, in accordance with Circular No. 342, Guidelines for investigations at the EPO”.

“So, in simple terms, this isn’t really an objective apparatus but a means for subjugation.”The definition of harassment is often so vague and the scope is so broad that harassment by the EPO President is excused or altogether ignored. These are just instruments of power, to be used only by those in positions of power, selectively. It’s similar to the application of mass surveillance, where everyone is a suspect and anyone can be framed upon demand (there is so much data which can be put together in a misleading fashion).

“What is of particular interest here,” explained our source, “is Part IV of the Charter which deals with “Authority and responsibilities”.

“From section (5) we learn that the Head of PDIAO reports administratively to the President and is directly subordinate to him alone and answerable to him for disciplinary purposes.”

So, in simple terms, this isn’t really an objective apparatus but a means for subjugation.

Why is this significant? Our source tried to explain this in relation to some background information. To quote this in bulk:

When questioned about the Investigative Unit, the standard response of EPO management is that such units are commonly found in international organisations (IOs) like the EPO. Statements along these lines can be found in the article entitled “Staat im Staate” (“A state within a state“) which was published in the weekend edition of the Süddeutsche Zeitung on 20/21 December 2014 .

But the self-serving official narrative of EPO management conveniently omits to mention that in other IOs the Investigative Unit typically reports directly to the governing body.

The EPO seems to be unique in this regard because its Investigative Unit is entirely subordinate to the executive head of the organisation (the President).

Even more surprising is the fact that all of the rules and regulations relating to the operation of the Investigative Unit, such as Circular No. 342 and the PDIAO Charter, were single-handedly signed into existence by the President without any formal approval by the EPO’s governing body (the Administrative Council).

Another detail worth noting here is that in other IOs the appointment and dismissal of the head of the Investigative Unit is typically a decision of the governing body, or at least subject to the approval of that body. That means that the head of the Investigative Unit enjoys a certain degree of independence vis-à-vis the executive head of the organisation and, once appointed, can only be removed from office for serious reasons and if the governing body agrees. Compare that with the arrangement at the EPO where the President has unfettered discretionary control over the appointment and dismissal of the head of the Investigative Unit.

To put all of this into some kind of comparative perspective, recall that in June of this year, as reported by Gene Quinn of the US-based blog “IP Watchdog”, the Chair of WIPO’s General Assembly which is the governing body representing the 188 member states of that organisation, requested that the U.N.’s internal watchdog, the Organization of Internal Oversight Service (OIOS), initiate an investigation of the Director General of WIPO, Francis Gurry.

Such a scenario is unlikely to occur at the EPO, because the EPO lacks any mechanism for an independent investigation of alleged misconduct on the part of its executive head.

Under Circular No. 342, the President of the EPO has complete control over all investigative activity at the EPO and he has used this Circular to create an arrangement which for all practical intents and purposes renders himself immune from investigation. Even if the Administrative Council had the political will to investigate the President, it lack the means to do so!

So what we have here, in effect, is a situation in which the rules and regulations governing the operation of the EPO’s Investigative Unit place more or less absolute power into the hands of the President. What is even more extraordinary is that these rules and regulations were single-handedly signed into existence by the President himself without any formal approval from the Administrative Council.

To appreciate the wider implications of all this it necessary to recall that according to the European Patent Convention, the governing body of the European Patent Organisation, the Administrative Council, is responsible for the adoption and amendment of internal legislation governing the European Patent Office.

Article 33 of the EPC defines the competences of the Administrative Council to adopt and amend the various internal rules and regulations, in particular the Service Regulations for permanent employees and the conditions of employment of other employees of the European Patent Office.

By means of Circular No. 342, the President of the EPO basically signed new staff regulations into existence without going through the normal legislative process which would have necessitated the approval of the Administrative Council.

Now we know how the Investigative Unit came into existence and where it derives its power from and at whose command (or chain of command). The next parts will look deeper into who enabled the Investigative Unit to operate so recklessly and who is actually operating within it and how.

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