06.15.16

Benoît Battistelli Apparently Breaks the Rules Again and Says That Transparent Trial is Unlawful, Threatens Those Involved

Posted in Europe, Patents at 9:53 pm by Dr. Roy Schestowitz

Battistelli seems to have had another tantrum/temper attack which he’s already quite infamous for

Summary: The effort to make the hearing (or ‘trial’) secretive backfires on Battistelli as the media (that which Battistelli isn’t paying or manipulating with PR agencies he spends millions of Euros on) catches up and reports more widely the absurdity of this whole situation

We have already published numerous articles about the so-called ‘trial’ against a judge who said the truth about the EPO [1, 2, 3, 4]. The more one knows about it, the more infuriating it can become (it seems as though the judge is being defamed in the media, probably with direct involvement from Team Battistelli and maybe FTI Consulting as well).

As of midnight (a few hours ago), The Register has this article (screenshot above) which summarises some of the latest developments (but not all). To quote:

President of the European Patent Office (EPO), Benoit Battistelli, has been caught threatening an independent appeals board looking into the case of a judge he summarily dismissed.

In an extraordinary turn of events in Munich this week, a planned public hearing of the organization’s “Enlarged Board of Appeal” was abandoned after it said it had received a “threatening letter” demanding that the hearing be held in private.

The board did not say who the letter was from or precisely what threats it contained, but several sources have confirmed it was sent by Battistelli, and in it he warned the appeal board that holding its hearing in public was “unlawful.”

It is not known what Battistelli threatened to do if the board continued with its plan to hold the meeting in public, but under recent reform plans that his office has drawn up, the EPO president has introduced a range of measures that would effectively give him the right to hire and fire the president of the – supposedly independent – Board of Appeals.

According to those familiar with events, the appeal board responded to the letter by pointedly asking the chair of the EPO’s Administrative Council whether he agreed with the letter’s contents.

According to a brief public statement made just before the appeal board shut down its meeting, the chair refused to disown its contents. In response, the appeal board refused to continue with its disciplinary proceedings.

Someone also leaked to us SUEPO’s report. Since we already saw the original and can confirm it is the same, including the typos (like “treats” instead of “threats”), we might as well paste the comment below and add the formatting to it:

Further details, according to an internal post of SUEPO:

15/06/2016

Enlarged Board of Appeal dismisses the case against the DG3 member amid treats by the EPO President Battistelli

Newsflash

Public oral proceedings before the Enlarged Board of Appeal (“the Enlarged Board”) were scheduled to start yesterday, 14 June, at 9.00h, to decide on the request for removal from office of a member of the Boards of Appeal by the Administrative Council (Article 23(1) EPC). The Administration required members of the public to enrol on a list with their name and the information whether they were EPO employees or external to the Office. About 25 badges allowing entry to room 109 were then distributed essentially according to the order of the list.

The hearing did not start as scheduled. During most of the day a conference in camera (i.e. not the hearing as such) took place. The discussion apparently centred around a letter sent a few days ago by the President of the Office to the Enlarged Board. Essentially, it appears that the President condemned the decision to make the hearing public as “unlawful” and affecting the proper functioning of the Office. The exact content of the letter is, however, unknown.

The Enlarged Board apparently perceived the letter as a threat and asked the Chairman of the Council whether the Council endorsed – or not – the position taken by the President. Apparently the EBA did not receive a clear and/or reassuring answer.

The Chair only officially opened the hearing at about 17:15h. In the presence of the public, a decision along the following lines was announced (note: this is not verbatim):

The EBA received a letter from an authority which is not a party to the proceedings and which they perceive as a threat. The AC, as the disciplinary and appointing authority of the members, was asked whether it endorsed that letter. The Chairman of the AC did not distance himself from the letter. Under these circumstances, the Board cannot continue the proceedings and consequently does not propose to remove the respondent from office.

After the above announcement the Chair requested the public to leave the room.

SUEPO central

One person wrote about the typo, which is also in the original:

How nice of the President to have distributed treats to staff.
Jolly ungrateful of the EBA to have complained about this.

Here is a more serious comment:

Presumably, such a letter passed over the desk of the head of the legal division. It beggars belief that he didn’t consider the ramifications this would have on the case being heard. Having received such a communication seeking to influence the decision of the EBoA members, the members could have each declared themselves unable to take part in accordance with A.24(2) EPC but instead took the pragmatic decision to end the proceedings. Well done!

“Here [is] a further summary of the recent events,” says this commenter, linking to an article of Mathieu Klos from Juve (quite a few people have spotted this report by now, but we need an English translation).

The thing about this judge is, Battistelli tried to get rid of him repeatedly, i.e. many times, over a long of period of time (causing stress to the judge whose wife was apparently somewhat involved too — not the first time we heard of a spouse being subjected to abuse by proxy, probably by Team Battistelli), costing the Office reputation, money, time, and productivity.

Here are some tidbits from the article:

http://www.juve.de/nachrichten/namenundnachrichten/2016/06/eklat-am-epa-battistelli-greift-in-amtsenthebungsverfahren-ein

(link to a Google translation)

Ugly: the Court had requested the testimony of 3 witnesses from the Investigative Unit, but the President did not authorize them to depose because they could reveal how the computers were monitored, while the has always maintained that proper rules were followed …

A broader overview of this article was as follows:

The apparent source of the Juve article is the accused BoA member’s lawyer, Senay Okyay. This lends it some authority.

But where is Battistelli’s threat? From the other reports here, I would have assumed it was explicit: “If you hold these proceedings in public, then I will do [something bad]“.

But according to Juve, Frau Okyay merely reports that “The President described a public hearing as unlawful by the statutes of the Office.”

Certainly, it was both wrong and stupid for Battistelli to attempt to interfere directly like this. The right people to argue this issue were the Admin Council’s representatives (who are of course employed by Battistelli). Perhaps they had already tried and lost.

But in different circumstances, I think an appeal board or a national court would just have ignored such an intervention, perhaps rebuffing it with some trenchant comments. And then they would have continued to make an independent decision about whether to hold the proceedings in public.

So what this incident underlines is the fragile state of relations between the Boards of Appeal and Battistelli. Because of all the very real threats that Battistelli actually has made to the Boards (unwelcome reforms, removal to Berlin or Vienna), they are ultra sensitive.

The result is that the Enlarged Board feels threatened by a letter which, in different circumstances, they might just have ignored. They fear how Battistelli might retaliate, even if he makes no explicit threat.

The independence of the Boards of Appeal is still as big an issue as it ever was.

Questions remain, however, about whether it all ended and whether the judge will get his job back (it might be impossible as long as Battistelli remains in Office, simply because he would not reconcile). To quote a comment about this:

I wonder whether the Enlarged Board really closed the case, by taking a final decision on the merits. All reports are a bit vague on this point. If a decision had been taken, it would probably have been announced with the public present. It would make sense to simply put the whole procedure on hold, since every decision would be tainted by interference in the independence.

This approach would leave the current request from the Council in pending, with the procedure suspended. The nice side effect is that any new request – #4 according to my count – would not be admissible, due to the procedure still pending.

Another person wondered: “Did Juv[e] not also report that the President refused to allow witnesses from the EPO to be heard? Hardly a threat admittedly, but certainly interference.”

“It is rather revealing that Battistelli cannot stand the idea that his defamation of a judge will become evident and lay bare for all to see; maybe there’s also an element of penis envy because the judge is far more qualified than Battistelli and so are his colleagues at the board.”Battistelli cannot recognise a fair trial because it’s not his area. He is not a scientist and not a judge either. The accused judge is both. It is rather revealing that Battistelli cannot stand the idea that his defamation of a judge will become evident and lay bare for all to see; maybe there’s also an element of penis envy because the judge is far more qualified than Battistelli and so are his colleagues at the board. They’re just a lot more modest and professional. Battistelli is coming to grips with his inability to get his outlandish desires fulfilled (something he rarely encounters these days), whereupon he just acts like a spoiled brat instead. It’s self-discrediting.

What next for Battistelli? Buying some more media contracts and enhanced PR cooperations? How can the public be distracted/taken away from all that negative publicity now that it’s in the mainstream media? EIA2016 is already old news and millions of Euros down the toilet. This was just a truly stupid and spurious festival whose real purpose was to glorify or launder the reputation of a serial human right abuser, whom a retired high-level judge spoke about to Juve, making a comparison to torture sites and repeatedly shaming Battistelli (with his own reputation as a famous judge on the line).

At this stage, Battistelli would be wise to step down like Ciaran McGinley. He might lose his job (or face immense pressure) later this month anyway. █

Update: As of moments ago, someone posted an excellent explanation of why what Battistelli had done is totally unacceptable. To quote it in full:

The President described a public hearing as unlawful by the statutes of the Office.

Yes, of course: the narrative now is “The President only wanted to help and they overreacted”.

Please, read again Art 23(1) EPC:
(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.

Clearly, the Enlarged Board had decided otherwise, and in general they seem to be well-versed in the procedure – contrary to the President who has previously attempted to convince the AC to dismiss the member of the BoA without even passing through the EBoA, as the rules require.
If the Enlarged Board had decided otherwise, the President should have no say in that.

I think an appeal board or a national court would just have ignored such an intervention

They probably would, with the difference that:
1) Angela Merkel would never write a letter to some judges to tell them how to proceed:
2) the proceedings in a national court are public. Not so at the EPO, where Secret Trials are held on the pretense of confidentiality.

You did not refer to the fact that the President barred the witnesses from the Stasi – ehm, Investigative Unit, to appear at the proceedings.

Let me explain you why.

When the computers in the public – public – area of the Office were put under control, there was no request to the Data Protection Officer. The request was made only after the guy was caught doing whatever he was doing.

From the article Welcome to EPOnia, the strange land of European patents that is outside the law:

A strange letter from the head of the EPO’s Investigative Unit to the organisation’s internal data protection officer asked whether the spying described above “would have been authorised”—implying the request was being made after the fact. Also curious is the handwritten authorisation on the document, which is dated December 3, 2014—exactly when the Board of Appeals member was suspended for “alleged dissemination of material which was, as was also alleged, defamatory.”

Which means that the data collected from the public computers were obtained illegally. They cannot be used.

(Btw, Techrights has still a copy of the request to the DPO with the date clearly visible.)

Had the witnesses of the IU confirmed this, in a public proceedings, the case would have crumbled. So, the President barred them because their deposition could have helped the defendant.

To conclude, the president is trying to interfere with the proper administration of justice: did the Enlarged Board really overreact?

There is something rather awkward about the following comment because it seems to give Battistelli a carte blanche and it also dismisses the claim (which we heard from several sources) about a “threat”. The comment says:

The President’s refusal to allow EPO witnesses to be heard is neither a threat nor interference. However, it does weaken the case against the accused BoA member.

Perhaps requesting that the oral proceedings be public (guessing that the President would then withhold the witnesses) was a clever tactic by Frau Okyay?

Regarding the first line/sentence, it seems to have gone far beyond “refusal to allow EPO witnesses,” but we don’t know enough because it’s all shrouded in secrecy — a secrecy induced by Battistelli himself (no wonder).

As for the second paragraph (above), the rules are very clear about this and Battistelli disregards the rules.

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