05.24.16

Some Details About How the EPO’s President is Rumoured to be ‘Buying’ Votes and Why It’s Grounds/Basis for “Immediate Dismissal”

Posted in Europe, Patents at 3:12 pm by Dr. Roy Schestowitz

Bank robbery

Summary: Some background information and a detailed explanation of the systemic financial dependency, created by Battistelli at the cost of €13 million or more, which prevents effective oversight of Battistelli

THE PRESIDENT of EPO is not exactly a model manager. He is so widely loathed that he now believes he needs to surround himself with bodyguards (while lying to the press about his relationships) and people who work under him allege that he is buying votes in his support (0% of the polled staff actually approves/supports him), having allegedly done that for quite a while. We keep hearing this from many sources, some more reliable than others (like anonymous ones).

“We keep hearing this from many sources, some more reliable than others (like anonymous ones).”Is Battistelli digging his own hole (grave)? Will this end up any better than the Bygmalion affair? To summarise some information we have just gained, there was a rather recent discussion about the relationship between the EPO and its Council, i.e. the member states. It was pointed out that bigger member states, e.g. Germany, France and the UK, or more economically advanced member states like Switzerland, are traditionally applying for and receiving more patents. This is what everyone ought to expect, but how does that really scale when it comes to representation? Can Switzerland have an equal voice to that of the UK? And what about Croatia? Does it count as much as Germany? Under Battistelli, an ENA mindset adopter, none of this matters really; the main if not sole interest of the EPO is issuing as many patents as possible so as to receive a large share of the annual renewal fees. But then there is also the loyalty dimension, especially now that Battistelli risks losing his job and the UPC is at stake (nations vote on it or vote to ratify/reject it).

“The date is 2014, so this is a Battistelli policy.”There is a divide or a growing disparity when it comes to member states and also when it comes to patent applicants and their supposed representatives (or delegates). Policy at this level is virtually irrelevant to the vast majority of tiny states as they have very few patents designated to their citizens, but they have other things to be gained, other than favouritism at the patent examination process. Their delegates, as one might expect, work for their national patent offices (colleagues/friends) and for themselves, not for ordinary citizens, especially in nations where corruption is rampant. Thus, these delegates are probably more interested in EPO “co-operation” budget. In this context, as we noted here some years ago, see this EPO document [PDF] (“Co-operation Roadmap: update and plans” submitted by “President of the European Patent Office”). We have made an HTML version of it (thanks, Marius Nestor) in case the EPO removes the ‘evidence’ some time in the future. The date is 2014, so this is a Battistelli policy. How convenient a way to 'buy' the loyalty of members.

We mentioned this angle two years ago in relation to some of the Željko Topić affairs. This document as a whole merits careful reading. The total budget at hand is at least, as is often the case at the EPO, €13 million. Now, recall the delegates, who are typically heads of their national patent offices (with very few and rare exceptions). There is almost half a million at stake for each and these are the people who attend Administrative Council meetings. With so much money on the table, would they want to jeopardise the money by invoking the wrath of Battistelli? For large/affluent nations this money can be spared, but what about small and/or poor nations? Some of them have fewer controls that help combat corruption, so the temptation is high. If delegates get to decide how much their national patent offices get in co-operation money, then there is great pressure on them, even from within the national offices, to suck up to Battistelli. Such financial strings must never have existed in the first place, as here we have mutual financial dependence, which imperils supervision/oversight tasks. To some of the smaller states that don’t care much about patents (or have very few patents at the EPO) this is a lot of money, enough to buy their silence or complicity. The money passage is further disguised (made harder to track) because it’s part of bilateral agreements that are not at all transparent. We previously wrote about other potential 'sweeteners' such as dental care, but let’s leave that aside for now as the total value of that is a lot less than the per-nation budget (an average of about €350k for each nation).

“The money passage is further disguised (made harder to track) because it’s part of bilateral agreements that are not at all transparent.”How is proper supervision ever possible? The whole thing is basically rotten and Battistelli can get away with just about everything he does, even breaking the law, throwing out staff representatives, and causing a "crisis", as per Board 28. It shouldn’t be so shocking that EPO staff cannot stand Battistelli and delegates, especially those from small nations, suck up to Battistelli. There is apparently more to come on this front, as work is done to highlight such injustices. Well, “firstly,” said one person, “admittedly, the Staff Representation in its dramatically reduced capacity is very busy or, more to the point, kept busy by a lot of activism on several fronts, such as reviewing investigation guidelines, disciplinary guidelines, health insurance, surveys over surveys to measure the obvious presumably.”

Regarding why “in effect nothing concrete has really happened yet” we learned that: “While it is laudable to try to fix all that has been broken over the past years, attempting to pretend this will be done in a few months may indeed be seen as unrealistic or lacking good faith. Bottom-line is that the Staff Representation cannot report any positive signs nor genuine interest in fixing past reforms in the interest of staff and the organisation. Needless to say no effective changes have been proposed so far.”

We are not expecting much to happen until the next protest, but two staff representatives might learn this week if they can get their job back (which we doubt) or get their previous position back. In the mean time, as one person pointed out this week in IP Kat

Confidentiality restrictions are one thing, restrictions upon the freedom to choose one’s own employment is a completely different matter.

An employer might reasonably take action to prevent misuse of confidential information gained by an ex-employee. However, for an employer to impose a “ban” on an ex-employee taking up new employment with certain organisations represents an infringement of the civil liberties of that ex-employee. Such infringements are typically either not permitted or, if precisely defined in a contract of employment in a manner that protects only the legitimate interests of the employer (and no more), are permitted for only a very limited duration – certainly no more than 1 year. However, even in those exceptional circumstances, what is permitted is rarely a total “ban” on taking up new employment, but more frequently a limitation (for a short duration) on the permitted activities (e.g. a ban on contacting ex-clients) of the ex-employee in their new role.

If any employer wants their employee to not take up a new role for a set period after handing in their resignation, then they have to pay them to stay at home (i.e. put them on so-called “garden leave”).

What are the precise proposals from BB? I recall a period of 2 years being mentioned, but that seems way over the top (especially if those 2 years are not paid garden leave). And is there any precise definition of what “bans” can be imposed and for what reasons? Also, is there any scope for discretion in how or whether any “bans” are imposed? If so, are there any checks and balances that prevent such discretion being misused?

Finally, I note that there have been several references to BB “buying” votes at the AC from some of the “smaller” countries. Such a tactic would certainly be a “political” response to the fix that BB found himself in at the last AC meeting. However, is there any real evidence of such Machiavellian tactics being employed? If so, could that count as grounds for immediate dismissal?

So Battistelli ‘buying’ votes at the Administrative Council might be short on evidence, except some of the above (and the articles cited therein). “If so,” the commenter argues, this “could that count as grounds for immediate dismissal?”

“So Battistelli ‘buying’ votes at the Administrative Council might be short on evidence, except some of the above (and the articles cited therein).”Who would be behind dismissal of Battistelli? The delegates who want Battistelli to send money their way? Here is the last paragraph in full: “Finally, I note that there have been several references to BB “buying” votes at the AC from some of the “smaller” countries. Such a tactic would certainly be a “political” response to the fix that BB found himself in at the last AC meeting. However, is there any real evidence of such Machiavellian tactics being employed? If so, could that count as grounds for immediate dismissal?”

Several responses were posted, including:

listen mate, all your erudite arguments here to explain us how all these rules that are enacted by BB at the European Patent Office could never be in the … – shall I say, civil society: why don’t you put them in a letter and send it to the Representative of your country at the Administrative Council?

Because either he/she is as dumb as you get or he/she does not give a shit about what happens at the European Patent Office – as long as the money keeps flowing.

Thanks!

Yes, it could be a reason to fire Mister BB….
But! His immunit can only be lifted by the AC.
Any disciplinary measures can only be started and decided by the AC.
Any decission to fire, replace, send on “garden leave” with pay, … of the president of the EPO can only be taken by the AC.

The same people who either vote yes because they want the money for their country/office, or because “we are only one vote, despite being one of the big three”.

There was a time, not long ago, where it was diplomatic standard to not vote against the “big countries”, especially not against the host countries.
BB played that card by pushing the smaller ones to show a “we do not like you and vote out of spite against you” vote.

What does the Dutch Hoge Raad? The current situation shows they cannot hope for the problem to solve itself, witho the SUEPo having been destroyed. They are facilitating the “Justice denied” by taking their time….
The Dutch government is getting in a really difficult situation here by not demanding more respect from the other member states, who outvote the Netherlands and telling the Netherlands to deny citizens their Dutch rights when going to work.

Notice the argument about big nations in there. Heiko Maas, who is responsible for the largest such nation, gets criticised in this comment which says: “Don’t forget the hypocritical little weasel in Berlin who preaches to the world via Twitter that there should be no “legal vacuum” at the FIFA. But when it comes to the EPO where he derives an income of millions per annum he is completely silent.”

Maas has been getting many letters from EPO staff and their lawyers, but he never seems to be writing anything in return. Total stonewalling. How embarrassing for Germany. Does justice matter at all or just money and self interest?

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