12.07.17

ILO is ‘Forcing’ Team Battistelli to Compensate the Banned Judge and Give Him Back His Job

Posted in Courtroom, Europe, Law, Patents at 1:27 am by Dr. Roy Schestowitz

But will Battistelli respect judges and obey the law or just snub courts, quite frankly as usual (flaunting immunity with an ongoing case as an excuse)?

Summary: ILO has, for a change, done some justice, but it comes three years too late and the compensation level (after salary got halved) is laughable, especially considering costs associated with legal fees and moral/reputational damage

REMEMBER 2014? Three years before Nazi-affiliated groups were marching the streets of the US and even entered the German ‘Parliament’ (Bundestag)?

Back then the term “Nazi” was pretty serious a thing (it still is, but it has become more banal/mundane) and to accuse a judge of being “Nazi” anything — let alone armed Nazi — can be pretty damaging to one’s career. It makes it hard to garner support/sympathy from one’s colleagues. It’s an effective smear. It’s a powerful discreditisation tactic (alongside “rapist”, “pedophile” etc.). Remember how Battistelli referred to SUEPO, accusing them of performing Nazi salutes and alluding to “snipers” et cetera (again the armed Nazi theme). He actually lied to French politicians about it, right there in front of cameras (we still have footage of it). That’s the very definition of defamation/slander/libel. But hey, this is the EPO we’re talking about here; the ‘king’ can do everything and can away with anything, right?

On Wednesday morning the EPO wrote: “The EPO offers a limited number of internship places for national judges of the EPC contracting states at the Boards of Appeal.”

The EPO desperately needs full-time judges at the Boards of Appeal, but Battistelli just keeps crushing them. He threatens them, punishes them, pushes them out of Town (Munich), and decreases their workspace/workload while increasing demands. Any sane outside observer can see what’s going on here; Battistelli does not want these boards to exist (they pose a threat by highlighting decline in patent quality), but he cannot squash them altogether because that would be the biggest violation yet of the EPC. Some stakeholders have already found the courage to point this out (notably Dr. Thorsten Bausch, whom we’ll mention further down).

We don’t know why the EPO tweeted the above at almost the exact same time as ILO’s 125th session (video here). Well, maybe an attempt to deflect, even though the timing could be just a coincidence?

Either way, the news is already out there. One of our readers said “lovely ILO!”

“Reinstated. Damages,” said another reader only a short time after the session had taken place. I was barely at home throughout the day and therefore I was unable to properly cover it.

“Dear EPO,” another person wrote, “how many lawyers and management experts it takes to spot a conflict of interest? Asking for friend.”

This could either allude to the CEIPI saga or Battistelli’s interference at the Boards of Appeal (including involvement in appointment of chiefs).

We assume that EPO insiders and stakeholders have already read the news elsewhere, but here is a recap/roundup anyway.

The ILOAT delivered 5 judgments regarding the EPO (the other 3 were not about the EPO). Judgment #3972 ended as follows:

For the above reasons,
1. The decision of 25 November 2015 is set aside in the part regarding
confirmation of dismissal for misconduct in accordance with
Article 93(2)(f) of the Service Regulations, as is the same part of
the earlier decision of 1 July 2015.
2. The case is sent back to the EPO in accordance with
considerations 15 and 16, above.
3. The EPO shall pay the complainant 20,000 euros in moral
damages.
4. It shall also pay him 1,000 euros in costs.
5. All other claims are dismissed.
In witness of this judgment, adopted on 2 November 2017,

Mr Giuseppe Barbagallo, President of the Tribunal, Mr Michael
F. Moore, Judge, and Sir Hugh A. Rawlins, Judge, sign below, as do I,
Dražen Petrović, Registrar.

Judgment #3960 as well (same person):

As a result, the impugned decision of 18 March 2016 to reject
the complainant’s request for review of decision CA/D 14/15 of
15 October 2015 extending the complainant’s suspension, as well as
decision CA/D 14/15 must be set aside. The complainant must
immediately be reinstated in his former post, and he is entitled to an
award of material damages in an amount equal to the deductions from
his remuneration made as a result of decision CA/D 14/15 extending
his suspension with reduced pay, plus interest at the rate of 5 per cent
per annum from the monthly due dates until the date of payment.
He is also entitled to an award of moral damages in the amount of
15,000 euros, and to costs in the amount of 5,000 euros.

[...]

For the above reasons,
1. The impugned decision of 18 March 2016 rejecting the complainant’s
request for review of decision CA/D 14/15, as well as decision
CA/D 14/15 itself, are set aside.
2. The complainant shall be immediately reinstated in his former post.

Judgment #3958:

For the above reasons,
1. The Administrative Council’s decision CA/D 12/14 of 11 December
2014 is set aside and so is the impugned decision of 10 April 2015,
insofar as they concern the complainant’s suspension, the imposed
house ban, the relinquishment of EPO property previously at the
complainant’s disposal, and the blocking of his User ID.
2. The Administrative Council’s decision to maintain the complainant’s
suspension pending completion of the disciplinary proceedings
against him (decision taken at the Administrative Council’s
143 rd meeting and communicated to the complainant by a letter of
26 March 2015) is also set aside.
3. The complainant shall be immediately reinstated in his former post.
4. The EPO shall immediately allow the complainant access to the
EPO premises and resources; it shall return to him any EPO
property it requested him to hand over pursuant to decision
CA/D 12/14, and it shall immediately unblock his User ID.
5. The EPO shall pay the complainant 10,000 euros in compensation
for moral injury.
6. It shall also pay him costs in the amount of 5,000 euros.
7. All other claims are dismissed.

The other judgments have been largely ignored by the media because not much happened. Judgment #3896, regarding Mr S. C. F., ends as follows:

Considering the application for interpretation of Judgment 3785
filed by Mr S. C. F. on 19 April 2017 and corrected on 6 June, the reply
of the European Patent Organisation (EPO) of 18 July, the
complainant’s rejoinder of 25 August and the EPO’s surrejoinder of
4 October 2017;
Considering Articles II, paragraph 5, and VI, paragraph 1, of the
Statute of the Tribunal;

Judgment #3895. concerning Mr T. C., yielded a dismissal of the appeal:

Considering the application for interpretation and execution of
Judgment 3694 filed by Mr T. C. on 19 April 2017 and corrected on
6 June, the reply of the European Patent Organisation (EPO) of 18 July,
the complainant’s rejoinder of 25 August and the EPO’s surrejoinder of
4 October 2017;
Considering Articles II, paragraph 5, and VI, paragraph 1, of the
Statute of the Tribunal;
Having examined the written submissions;

[...]

For the above reasons,
The application for interpretation and execution is dismissed.

We don’t know who S. C. F. and T. C. are. We also have not — at least not yet — had the time to properly read through these decisions (some are about 10 pages in length).

The media focused on relatively good news. SUEPO wrote the following announcement titled “SUEPO Central on the Extraordinary Session of the ILO Today” and it said:

Dear colleagues,

In an exceptional session today the Tribunal delivered Judgments 3958 and 3960 in which it ordered the immediate reinstatement of the suspended Board of Appeal member to his former post.

It further ordered the EPO to allow him access to the premises, return any EPO property it had requested him to hand over and immediately unblock his EPO User ID.

The Tribunal further ordered the EPO to pay a sum in costs as well as compensation for moral injury.

SUEPO central

SUEPO got vindicated. Again.

The Register — rightly or wrongly — finally blurted out the name Patrick Corcoran. We’re not sure why Kieren McCarthy decided to put “Nazi” in the headline and then namedrop the judge’s identity. Here are some fragments (it’s a long and detailed article):

The European Patent Office (EPO) has been commanded to immediately reinstate a judge it suspended two years ago and pay him tens of thousands of euros in compensation and damages.

In an extraordinary judgment delivered in public by the president of the International Labor Organization (ILO) in Geneva, the patent organization, its management and its administrative council were all excoriated for their treatment of Patrick Corcoran.

But the sharpest criticism was reserved for EPO president Benoit Battistelli, who for years has been accused of targeting his own staff in an effort to force through unpopular reforms and threatening them with disciplinary action if they resist.

Battistelli was repeatedly chastised by the ILO for his treatment of his own staff, for involving himself in disciplinary proceedings and for forcing the suspension of Corcoran through the EPO’s administrative council despite a clear conflict of interests.

Corcoran’s case is far from the only one – Battistelli has fired no less than four EPO union officials, among others – but it stands out as particularly egregious given the judge’s standing as a member of the EPO’s independent Boards of Appeal.

[...]

That intervention, incidentally, may cause the demise of Europe’s Unitary Patent Court (UPC) after a German patent lawyer pointed to the resulting lack of independence of the Boards of Appeals as evidence that the UPC broke German constitutional law – the case is still being heard but it has prevented it from becoming German law.

[...]

That may not be the end of it either.

The ILO president strongly implied at the public hearing that the decisions against the EPO were going to be repeated in a range of other EPO cases that have been lodged with the ILO.

Earlier this year, the ILO published an extraordinary paper for discussion at a meeting of its governing body later that complained about how the EPO’s management was causing so many complaints that it was undermining its ability to do its job.

The decisions in those cases will be published in January and will almost certainly add more pressure to the current EPO management.

Overall, the ILO’s extraordinary public meeting was a damning verdict on Benoit Battistelli’s presidency.

Don’t miss some of the early comments. “Perhaps they should have added that the moral damages should be paid out of Battistelli’s own pocket and not reimbursed to him,” one person said. The next person wrote: “Is an exceedingly tony suburb of Paris, as befits the birthplace of Louis XIV, and as much a part of Paris as Hampstead would be in London. This is not at all to minimize the brazen and repeated abuses of power Mr Batistelli committed while in office. I hope his departure will lead to reforms in the EPO’s governance.”

“I bet Battistelli . . . . . . did Nazi that coming,” one comment joked. “If Battistelli is going to act like a junior Napoleon, they should put him in charge of the branch office in St. Helena,” joked another reader.

Here is what was probably the first report about it:

He said: “The allegations of bias against the president do not justify derogating from these rules in the present case: in view of the exceptional situation with which the EPO was faced, the president had to communicate both internally and externally. In doing so, he did not cross the boundaries of confidentiality and presumption of innocence.”

But, the ILO tribunal found that “[there] is a conflict of interest on the part of the president.”

It said: “It stems from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the president specifically, directly and individually.”

“This situation, by itself, casts doubts on the president’s impartiality. Considering the whole situation, a reasonable person would think that the president would not bring a detached, impartial mind to the issues involved. The argument raised by the president in his opinion to the council, quoted above, namely that pursuant to the applicable rules the president was acting within his competence and had the power and duty to take all necessary steps to ensure the smooth functioning of the office, is immaterial.

IP Watch wrote about it as well, but sadly it’s behind a paywall. Here is the outline:

In an extraordinary 6 December session, the UN International Labour Organization Administrative Tribunal (ILOAT) handed down five decisions involving the European Patent Office (EPO), one of which reinstated a suspended Board of Appeals judge. The cases are just “the tip of the iceberg,” said the Staff Union of the EPO (SUEPO).

Thorsten Bausch then came out with another long article about ILO (mind the headline). He shows that even EPO stakeholders like attorneys are royally pissed off at Battistelli. He ruined the EPO. To quote Bausch:

The decisions speak for themselves and I highly recommend reading them in full. To cut a long story short, the party that “misbehaved” here was found to be the President of the EPO and the Administrative Council (AC). The facts are quite complex, but in essence, the problem was that the President, who felt defamed and insulted by emails allegedly sent out by this Board member, issued a house ban against this Board Member and requested the AC to suspend him, which the AC did. The Board Member requested a review of this decision, asked the AC to afford him the right to be heard and requested that the EPO President should be excluded from this review process due to partiality. The AC rejected the request for review and continued to involve the EPO President in his advisory capacity for its decision-making process.

There are probably more reports on the way, even in French and German (maybe Dutch).

Will Battistelli comply with this ruling? If not, then maybe it’s about time to seriously consider removing his immunity and putting this thug on trial (maybe in jail). Corsica can have him back; nothing would be more epic (or poetic justice) than exile in Corsica, which he happens to have come from.

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