01.24.22

Has the Administrative Council Belatedly Realised What Its Job in the European Patent Organisation Really Is?

Posted in Europe, Patents at 9:02 am by Dr. Roy Schestowitz

Summary: The “Mafia” which took over the EPO (the EPO’s own workers call it “Mafia”) isn’t getting its way with a proposal, so it’s preventing the states from even voting on it!

TODAY we have some better news to share about the EPO, which participated in the parade of UPC lies a few days ago, in effect promoting illegal agenda (António Campinos keeps showing he’s no better than Benoît Battistelli, he’s just equally good at lying and breaking the law).

“New Ways of Working,” [euphemism warning] according to the Central Staff Committee of the EPO, got “[s]topped by the [Administrative] Council” (wait, what??? The Administrative Council ‘stopped’ something proposed by the Office???).

In the words of the Central Staff Committee: “The guidelines on New Ways of Working (CA/77/21) were originally tabled for opinion on the agenda of the 169^th meeting of the Administrative Council (CA/69/21) on 14 December 2021. On the day of the meeting, the document was rescheduled as for information only. The meeting report published on 21 December 2021 by the Office remains silent about the details. In fact, major concerns expressed by Member States, in particular host states and large states, took away the hope of a positive opinion. The topic of the New Normal remains controversial with the potential to drift into a governance crisis and further attacks on staff working conditions. Today, there is no certainty as to whether these issues will be solved in the March or June 2022 Administrative Council meetings, or even later in the future. More than one year after the Willis Towers Watson survey, the New Normal [euphemism warning] topic is now back to square one.”

“Citizens of Europe deserve to know better (than the face-saving whitewash in the EPO’s site) what’s happening in Europe’s second-largest organisation…”Circulated among staff of the EPO was the following publication — a “paper [which] explains in detail what happened in the Council,” according to the Central Staff Committee.

You don’t get to enjoy both immunity and secrecy. Citizens of Europe deserve to know better (than the face-saving whitewash in the EPO’s site) what’s happening in Europe’s second-largest organisation and in light of recent violations of the law on an unprecedented scale (Trojan horse for European software patents and many other bad things) it is imperative that full transparency is moreover imposed, revealing the gory situation of an ill patent office which hopes to hijack and subvert all patent courts across the EU, just as it subverted its own tribunals.

The Central Staff Committee has explained things as follows:

Zentraler Personalausschuss
Central Staff Committee
Le Comité Central du Personnel

Munich, 21-01-2022
sc22001cp – 0.2.1/4.2.2/4.4

New Ways of Working: Stopped by the Council

The guidelines on New Ways of Working (CA/77/21) were originally tabled for opinion on the agenda of the 169th meeting of the Administrative Council (CA/69/21) on 14 December 2021. On the day of the meeting, the document was rescheduled as for information only. The meeting report published on 21 December 2021 by the Office remains silent about the details. In fact, major concerns expressed by Member States, in particular host states and large states, took away the hope of a positive opinion. This paper explains what happened.

Warning signs in Board 28

Board 28 is a sub-group of the Administrative Council. It usually meets a few weeks before the coming meeting of the Administrative Council. According to the minutes of the Board 28 meeting of 19 November 2021 (B28/8/21), there were already warning signs that the guidelines on New Ways of Working remained controversial among the delegations:

“Some members indicated that their internal consultation process was not finalized yet. Some asked for clarification about the future organization of the activities of the Office or the potential impact on the social package benefitting EPO employees” (emphasis added)

From “for opinion” to “for information”

The guidelines on New Ways of Working (CA/77/21) were originally tabled “for opinion”, this means that a vote were to take place and, if positive, the Guidelines could be implemented by the Office.

Shortly before the meeting of the Administrative Council on 14 December 2021, Mr Campinos received various feedback from the delegations showing that the text “New Ways of Working” remained controversial. The document was then rescheduled as for information only. This is rather unusual. In this way, a vote on the document is postponed and no implementation can take place.

During the meeting, the delegations which took the floor against the document were essentially the host states and founding countries of the European Patent Convention:

Major concerns: too generous, governance issues and lack of clear legal basis

Germany

As a host state, Germany considered that it should have been involved earlier in the consultation process, as the guidelines have the potential to change the working basis of the Organization. Germany referred to Article 6 EPC which states that the Organization shall be located and have its headquarters in Munich. Germany found that it would be difficult to reconcile Article 6 EPC with the minimum compulsory presence of only 20 days. Indeed, an employee may combine 20 days of work in the Office in Munich with 20 days in Berlin to meet the requirement of 40 days per year in the Office.

Germany pointed out that the rules of the EU Commission required a stronger link to the place of employment. In this respect, Germany asked that the length of the “pilot” should be reduced from three years to one or two years to allow frequent revision. In its view, a period of three years allows staff to change their way of life and bears the risk that EPO employees get used to the new situation irreversibly. In addition, Germany pointed to a lack of a legal basis of the guidelines. Indeed, the Office does not foresee any amendment to the Service Regulations although Article 55a ServRegs still defines that “Permanent employees in active employment shall normally perform their work on the Office’s premises”. Furthermore, Germany asked for an impact assessment on the Protocol on Privileges and Immunities (PPI).

Germany considered that the document did not address the concerns raised earlier on the sense of belonging and the quality of the work. In its view, the Office was currently capitalizing during the pandemic on already existing strong teams and staff used to work with each other efficiently. On the other hand, the Office was not taking active measures to integrate new employees. Furthermore, Germany wondered whether all appropriate measures were currently being taken to ensure the confidentiality of unpublished patent applications.

Finally, Germany noted that working conditions of EPO employees could be reduced by shortening the home leave for instance.

France

France expressed concerns on the reduction of the minimum presence at work and considered that a better balance should be found. It also saw in the proposal decentralization aspects difficult to reconcile with collaboration, the sense of belonging and the development of an international Office culture. France even asked that the Office issues a report on the “New Normal” every six months.

The Netherlands

The Netherlands supported the positions of Germany and France and found the proposed guidelines too generous and difficult to revert: “Granting rights is easier than revoking rights.” It requested further discussions with the Ministry of Foreign Affairs and the Ambassador for International Organizations. In its view, the proposal raised many questions on the Protocol on Privileges and Immunities (PPI) even after the latest updates provided by Mr Ernst (Vice-President International and Legal Affairs). The Netherlands added that the role of the Office was to provide a consistent service and asked how data protection rules would apply if employees worked from their home country. Without specifically addressing the expatriation allowance, the Netherlands wondered whether the generous compensations and benefits would still make sense with teleworking. Finally, in its view Information Security would be at risk because it would also depend upon the behavior of employees working in other EPC Contracting States.

Denmark

Denmark stated that teleworking may become irreversible and that the Building Investment Program should be adapted accordingly. In its view, the Office should not have been so generous in granting teleworking at the beginning of the pandemic. The duration of the pilot should be reduced with a yearly revision. Otherwise, it would be difficult for the Office to solve potential problems arising from a lack of consistency in the work and quality. The minimum presence of 40 days in the Office per year was too low and would endanger the sense of belonging. The 60 days of teleworking in another EPC contracting state combined with other leave would amount to almost 6 months outside the country of employment. In this respect, Denmark asked for a revision of the salaries and allowances. Finally, Denmark pointed out the lack of clarity in the limitation or suspension of teleworking (Article 7(4) of the guidelines) and the exceptional circumstances (Article 5(1)) triggering compulsory teleworking.

Other countries

Croatia supported the intervention of Germany, remained very skeptical with respect to IT Security with increased teleworking and wondered why the office was only lately applying for an ISO 27001 certification on information security management. The United Kingdom supported the idea of reducing the period of the “pilot” and asked whether the Building Investment Program would be postponed by another three years. Sweden, Italy and Finland supported United Kingdom’s view. Sweden noted that the concrete proposals made in the guidelines were far-reaching. In its view, the world is fast-changing and a pilot project should therefore be shorter. Italy asked for a benchmark with other International Organizations (European Commission, WIPO, EUIPO). Although supportive of the document, Spain also acknowledged risks in the sense of belonging. Switzerland warned that staff might use German IP addresses not corresponding to their actual location to circumvent the rules. It also saw a risk of unequal treatment among staff in the application of the rules leading to an increase in conflicts at the EPO.

Conclusion

The 169^th session of the Administrative Council in December 2021 showed again that the topic of the New Normal remains controversial with the potential to drift into a governance crisis and further attacks on staff working conditions. Today, there is no certainty as to whether these issues will be solved in the March or June 2022 Administrative Council meetings, or even later in the future. More than one year after the Willis Towers Watson survey, the New Normal topic is now back to square one.

The Central Staff Committee

Notice that they describe as “too generous” the working conditions that already deteriorate, along with salaries. So the motivations or the rationale of the sceptics may be exceedingly insincere. Is there a glimmer of hope for oversight? Or does the Council want the Mafia (running the Office) to be even crueler to the staff? █

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