Bonum Certa Men Certa

An EPC-Violating Patent Granting Process: Unlawful Orders, According to the Central Staff Committee of the European Patent Office (EPO)

posted by Roy Schestowitz on Feb 20, 2024

Grunge European Union Flag

With the illegal UPC, this matter has become an EU issue.

THE Central Staff Committee of the understaffed EPO is ramping up some actions against António Campinos, who persists with the illegal actions of his appointer, Benoît Battistelli.

The recent General Assembly discussed the lack of Formality Officers, meaning a lack of coordination at the Office and no adherence to law (or compliance with rules). The Office is currently in the "business" of minting many monopolies, without any consideration/evaluation of what's legal, what's desirable, and what the aim of the Office really ought to be. Giving over a million pan-European patents to non-European corporations is not only bad for Europe; it is bad for science and technology. European software patents, for instance, are granted solely for the purposes of patent inflation.

Yesterday the Central Staff Committee disseminated or further circulated (to bypass the illegal censorship) the following communication:

Lack of legal remedies against PGP unlawful orders: Letter to the President

Dear Colleagues,

In some recent judgments, the Administrative Tribunal of the ILO (ILOAT) declined jurisdiction for possibly unlawful orders from managers to members of Examining or Opposition Divisions interfering with the Divisions’ sole competence to take decisions on patent applications or opposed patents. ILOAT held that such orders only concern patent law and not labour law.

This leaves members of an Examining or Opposition Division in the Patent Granting Process (PGP) without any means of legal redress against such unlawful orders from their managers. To close that legal gap, Staff Representation has drawn up a proposal and has requested the President by letter to submit it to the Committee on Patent Law CPL – one of the Administrative Council’s bodies - for decision.

The President has not submitted the proposal to the CPL and, when asked by the Staff Committee, finally rejected the request for submission of the document.

In this second letter to the President, we ask the President to reconsider his decision in view of potential consequences for the Organisation. An answer from the President is currently pending.

Sincerely yours,

The Central Staff Committee - CSC

There are two letters and a proposal in there. We're going to reproduce these as HTML, plain text, and GemText for the public to be able to assess objectively (sans our own interpretation of it).

First, here's the proposal:

CA/xx/23

Orig.: en

Munich, xx.xx.2023

SUBJECT: Setting up an independent judicial body for disputes concerning the patent granting procedure

SUBMITTED BY: Central Staff Committee of the European Patent Office

ADDRESSEES: 1. Committee on Patent Law (for opinion)

2. Administrative Council (for decision)

SUMMARY

This document addresses a legal vacuum that Examiners face in their function as members of Examining and Opposition Divisions when the Divisions’ sole competence to take decisions on patent applications or opposed patents is interfered with.

It contains a recommendation to set up an independent judicial body, possibly composed of members of the Boards of Appeal, which is completely independent of the President, DG1 and DG5, in order to deal with disputes between management and the Examining and Opposition Divisions or some of their individual members concerning perceived unlawful interferences by the Office’s management with the responsibilities of the Divisions.


This document has been issued in electronic form only.


CA/xx/23 e


I. STRATEGIC/OPERATIONAL

1. Operational

II. RECOMMENDATION

2. It is recommended that a judicial body, which is completely independent of the President, DG1 and DG5, possibly composed of three members of the Boards of Appeal, is set up with jurisdiction to hear disputes between management and the members of Examining and Opposition Divisions against perceived unlawful interferences by the Office’s management in the Divisions’ responsibilities.

III. MAJORITY NEEDED

3. Simple majority.

IV. CONTEXT

4. In its 136th session the Administrative Tribunal of the ILO “ILOAT” made a legally conclusive finding in Judgement 4730 that decisions by hierarchical superiors to issue an order to one or several members of a responsible Examining Division on the procedure and its outcome for a particular patent application are not appealable by internal appeal under Article 108 of the Service Regulation - and consequently cannot be prosecuted further before the ILOAT – because such orders do not adversely affect an Examiner’s relationship with the EPO and their terms of appointment.

5. In the case underlying Judgment 4730, and the related Judgments 4417 and 4392, an Examining Division had decided to refuse a patent application and had signed the decision. Instead of notifying the decision to the patent applicant, the entrusted Examiner’s line manager ordered the entrusted Examiner under threat of disciplinary consequences to issue a further communication under Article 94(3) EPC. Despite even drawing up the ordered communication, the entrusted Examiner nevertheless was issued a reprimand for alleged obstructive behaviour.

6. The Administrative Tribunal did not examine whether the order of the director was lawful since it declined jurisdiction for decisions with respect to patent procedures. The Boards of Appeal are, on the other hand, not competent to examine cases of interferences with the Examining and Opposition Divisions’ responsibilities since an appeal can only be lodged by a patent applicant or, in case of opposition, by a patent proprietor or an opponent, but not by Examiners.

7. This means in effect that Examiners have no means of legal redress against potentially unlawful orders to one or all members of an Examining or Opposition Division concerning patent procedures.

V. ARGUMENTS

CA/xx/23 e 3/4


8. The Contracting States to the EPC defined a clear split between the functions and powers of the President of the EPO (Article 10 EPC) and the responsibilities of the Examining and Opposition Divisions (Article 15, 18 and 19 EPC).

9. The Examining Divisions, consisting of three technically qualified Examiners, are responsible for the examination of the European patent applications and for deciding on whether a European patent can be granted or whether the application is to be refused (Article 15(c), 18 and 97(1) and (2) EPC). Likewise are the Opposition Divisions responsible for the examination of oppositions against any European patent and for deciding on whether at least one ground for opposition prejudices the maintenance of the European patent (Article 15(d), 19 and 101(1) to (3) EPC).

10. For carrying out these tasks the Examining and Opposition Divisions have been given discretionary power under the EPC, inter alia, the discretionary power to invite a patent applicant as often as necessary to file observations and amendments (Article 94(3) EPC), to summon to oral proceedings (Article 116(1) EPC) or to give consent to further amendments (Rule 137(3) EPC). The EPC moreover vests in the Divisions the competence to finally decide on the patent application or the opposed patent (Article 97 and 101 EPC).

11. Several legal analyses by DG5 confirm, that the final decision to grant or refuse remains the sole competence of the Examining Division, that neither a director nor anybody else can replace a member of the Division when taking a decision under the EPC and that only members of the Division are entitled to vote and sign the relevant decision.

12. The case underlying Judgments 4730, 4417 and 4392 however shows that interferences with this competence take place and that Examiners have no independent judicial body for reviewing whether interferences in an Examining Divisions’ responsibilities are unlawful.

13. In order to close this legal vacuum and to protect the Organisation’s far- reaching immunity from national law, Staff Representation proposes to set up an independent judicial body, possibly composed by members of the Boards of Appeal. This also deems necessary in order not to jeopardise the legal validity of the patents granted by the EPO.

VI. ALTERNATIVES

14. None.

VII. FINANCIAL IMPLICATIONS

15. It is assumed, that approximately ten cases per year would end up before the judicial body and thus it is financially negligible.

VIII. LEGAL BASIS

16. Article 33(1)(c) EPC.

IX. DOCUMENTS CITED

17. Not applicable.

X. RECOMMENDATION FOR PUBLICATION

18. Yes.

CA/xx/23 e

Here is the corresponding letter to Campinos and people who were supposed to be in charge of him (but aren't; they're complicit).

European Patent Office
80298 Munich
Germany

Central Staff Committee
Comité central du personnel
Zentraler Personalausschuss

centralSTCOM@epo.org

Tel. +49 -89- 2399 - 2120

Reference: sc23131cl

Date: 03.11.2023

European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos
President of the EPO

by email

Submission of a document to the Patent Law Committee (PL/59)

Dear Mr President,

The Central Staff Committee herewith requests in accordance with Article 9, paragraph 2.2(b) of the Rules of Procedure of the Administrative Council that you submit the annexed document to have it put on the provisional agenda pursuant to Article 9, paragraph 2.3(b) of the Rules of Procedure of the Administrative Council of the following meeting:

59th meeting of the Committee on Patent Law (PL/59) on 22.02.2024

In view of the importance of the matter, you may deem it appropriate to request the Chairperson of the Administrative Council to put the annexed document on the provisional agenda of the 58th meeting of the Committee on Patent Law (PL/58) on 16.11.2023 pursuant to Article 9, paragraph 2.3(a) of the Rules of Procedure of the Administrative Council.

Yours sincerely,
Derek Kelly
Chairman of the Central Staff Committee

cc.: Council secretariat
Chairperson of the AC, Mr. Josef Kratoschvìl
Chairperson of the PLC, Mr. Antti Riivari

Annex (separate document): CA document to be submitted

Here is the second and more recent letter (dated earlier this month):

European Patent Office
80298 Munich
Germany

Central Staff Committee
Comité central du personnel
Zentraler Personalausschuss

centralSTCOM@epo.org

Tel. +49 -89- 2399 - 2120

Reference: sc24004cl

Date: 02.02.2024

European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos
President of the EPO

by email

URGENT

Your email of 30 January 2024 rejecting our request to put a document on the agenda of the Committee on Patent Law

Dear Mr President,

In a letter dated 3 November 2023 (sc23131cl) the Central Staff Committee (CSC) has requested that you submit the document attached to the letter to the Committee on Patent Law for its 59th meeting on 22 February 2024.

In the document the CSC proposes that an independent judicial body is set up in order to deal with disputes between management and the Examining and Opposition Divisions, or some of their individual members, concerning perceived or actual unlawful interferences by the Office’s management with the responsibilities and competence of the Division as enshrined in the EPC.

The creation of such an independent judicial body appears necessary after the Administrative Tribunal of the ILO (ILOAT) has declined jurisdiction for such cases1. Otherwise, the Division’s members would be left without any means of legal redress for challenging unlawful orders regarding patent applications or patents and this could negatively affect the Organisations immunity from national jurisdiction. In the case that was brought to the ILOAT, an order was given to an entrusted examiner not to send the decision to refuse the patent application that had already been signed by all members of the competent Examining Division but to issue a further communication instead2. This order, prima facie, appears to be a violation of Article 97(2) EPC.

While the final judgement of this case is not ours to make, it becomes clear from it that an independent review body needs to be established for such cases in order to achieve the highest level of legal certainty for the patents granted by the EPO.

_____________

1 Judgment no. 4730 and related Judgments nos. 4417 and 4392.

2 see particularly Judgment 4392, facts p.1 second par. and Judgment 4730 cons.5 and 9.


In your email of 30 January 2024, you confirm our findings that decisions and working instructions from line management related to law and/or procedures applicable to patent applications are not challengeable before the Appeals Committee nor the Tribunal3 ; however, you refuse the submission of the document to the Committee on Patent Law for informing officially the representatives of the Contracting States on said lacuna and about possible solutions.

In view of the potential consequences for the Organisation, the CSC respectfully requests that you reconsider your decision and send the document to the Committee on Patent Law eventually.

Yours sincerely,
Derek Kelly
Chairman of the Central Staff Committee

cc.: Council secretariat
Chairperson of the AC, Mr. Josef Kratochvìl
Chairperson of the PLC, Mr. Antti Riivari

_____________

3 second to the last par. in the email.

There has been a lot going on at the EPO lately, especially compared to recent months and last year. One can hope there's another strike (work stoppage) planned. That would send a strong message to politicians and national delegates.

Other Recent Techrights' Posts

Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
 
On DebConf and Debian 'Bedroom Nepotism' (Connected to Canonical, Red Hat, and Google)
Why the public must know suppressed facts (which women themselves are voicing concerns about; some men muzzle them to save face)
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work
Microsoft's Windows Down to 8% in Afghanistan According to statCounter Data
in Vietnam Windows is at 8%, in Iraq 4.9%, Syria 3.7%, and Yemen 2.2%
[Meme] Only Criminals Would Want to Use Printers?
The EPO's war on paper
EPO: We and Microsoft Will Spy on Everything (No Physical Copies)
The letter is dated last Thursday
Links 22/04/2024: Windows Getting Worse, Oligarch-Owned Media Attacking Assange Again
Links for the day
Links 21/04/2024: LINUX Unplugged and 'Screen Time' as the New Tobacco
Links for the day
Gemini Links 22/04/2024: Health Issues and Online Documentation
Links for the day
What Fake News or Botspew From Microsoft Looks Like... (Also: Techrights to Invest 500 Billion in Datacentres by 2050!)
Sededin Dedovic (if that's a real name) does Microsoft stenography
Stefano Maffulli's (and Microsoft's) Openwashing Slant Initiative (OSI) Report Was Finalised a Few Months Ago, Revealing Only 3% of the Money Comes From Members/People
Microsoft's role remains prominent (for OSI to help the attack on the GPL and constantly engage in promotion of proprietary GitHub)
[Meme] Master Engineer, But Only They Can Say It
One can conclude that "inclusive language" is a community-hostile trolling campaign
[Meme] It Takes Three to Grant a Monopoly, Or... Injunction Against Staff Representatives
Quality control
[Video] EPO's "Heart of Staff Rep" Has a Heartless New Rant
The wordplay is just for fun
An Unfortunate Miscalculation Of Capital
Reprinted with permission from Andy Farnell
[Video] Online Brigade Demands That the Person Who Started GNU/Linux is Denied Public Speaking (and Why FSF Cannot Mention His Speeches)
So basically the attack on RMS did not stop; even when he's ill with cancer the cancel culture will try to cancel him, preventing him from talking (or be heard) about what he started in 1983
Online Brigade Demands That the Person Who Made Nix Leaves Nix for Not Censoring People 'Enough'
Trying to 'nix' the founder over alleged "safety" of so-called 'minorities'
[Video] Inauthentic Sites and Our Upcoming Publications
In the future, at least in the short term, we'll continue to highlight Debian issues
List of Debian Suicides & Accidents
Reprinted with permission from disguised.work
Jens Schmalzing & Debian: rooftop fall, inaccurately described as accident
Reprinted with permission from disguised.work
[Teaser] EPO Leaks About EPO Leaks
Yo dawg!
On Wednesday IBM Announces 'Results' (Partial; Bad Parts Offloaded Later) and Red Hat Has Layoffs Anniversary
There's still expectation that Red Hat will make more staff cuts
IBM: We Are No Longer Pro-Nazi (Not Anymore)
Historically, IBM has had a nazi problem
Bad faith: attacking a volunteer at a time of grief, disrespect for the sanctity of human life
Reprinted with permission from Daniel Pocock
Bad faith: how many Debian Developers really committed suicide?
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 21, 2024
IRC logs for Sunday, April 21, 2024
A History of Frivolous Filings and Heavy Drug Use
So the militant was psychotic due to copious amounts of marijuana
Bad faith: suicide, stigma and tarnishing
Reprinted with permission from Daniel Pocock
UDRP Legitimate interests: EU whistleblower directive, workplace health & safety concerns
Reprinted with permission from Daniel Pocock
Links 21/04/2024: Earth Day Coming, Day of Rest, Excess Deaths Hidden by Manipulation
Links for the day
Bad faith: no communication before opening WIPO UDRP case
Reprinted with permission from Daniel Pocock
Bad faith: real origins of harassment and evidence
Reprinted with permission from Daniel Pocock
Links 21/04/2024: Censorship Abundant, More Decisions to Quit Social Control Media
Links for the day
Bad faith: Debian Community domain used for harassment after WIPO seizure
Reprinted with permission from Daniel Pocock
If Red Hat/IBM Was a Restaurant...
Two hours ago in thelayoff.com
Why We Republish Articles From Debian Disguised.Work (Formerly Debian.Community)
articles at disguised.work aren't easy to find
Google: We Run and Fund Diversity Programs, Please Ignore How Our Own Staff Behaves
censorship is done by the recipients of the grants
Paul Tagliamonte & Debian Outreachy OPW dating
Reprinted with permission from disguised.work
Disguised.Work unmasked, Debian-private fresh leaks
Reprinted with permission from disguised.work
[Meme] Fake European Patents Helped Fund the War on Ukraine
The European Patent Office (EPO) does not serve the interests of Europe
European Patent Office (EPO) Has Serious Safety Issues, This New Report Highlights Some of Them
9-page document that was released to staff a couple of days ago
IRC Proceedings: Saturday, April 20, 2024
IRC logs for Saturday, April 20, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Microsoft-Run FUD Machine Wants Nobody to Pay Attention to Microsoft Getting Cracked All the Time
Fear, Uncertainty, Doubt (FUD) is the business model of "modern" media
Torvalds Fed Up With "AI" Passing Fad, Calls It "Autocorrect on Steroids."
and Microsoft pretends that it is speaking for Linux
Gemini Links 21/04/2024: Minecraft Ruined
Links for the day