The EPO's marketing/PR people just put bad news on hold, won't comment on it

Summary: The management of the European Private [sic] Office (EPO) continues to congratulate itself every other day, almost as though nothing has gone amiss and the EPO is an heroic leader of green energy, humanitarian unity, and compliance

Yesterday (late at night in particular), due to a quickly-growing backlog we published about half a dozen articles about the EPO. Watch Battistelli milking ISO 9001 (warning: epo.org link), taking advantage of something which we covered in this old article and of ISO, another rubber-stamping organisation. After greenwashing and additional UPC glamourisation it's apparently time to spread the false perception of EPO being in compliance (e.g. with the law). Clever spin.

It's no secret that the Office is now lobbying (and wants a monopoly on this kind of lobbying, as we showed last night) for the UPC. Words like "Community", "Unitary", "European" and so on are supposed to make occupation of Europe by large (and usually foreign) corporations sound not just benign but also desirable. Watch Éanna Kelly from Science|Business acting as some kind of megaphone or courier for Battistelli in this new article that's looking more like a press release. Is this part of the expensive PR campaign? As one person put it earlier today in IP Kat comments, "880k euros well spent?" (alluding to this leak of the FTI Consulting contract)

Here is the article in which this comment can be found. Among the comments we also see mentioned "AIPPI and Epi finally woke up from their long sleep. Better, because more courageous and complete, is the letter of AIPPI. Now BB [Battistelli] will get slaps from all directions on all issues: wrong on DG3, unrespectful of rules of law, disregard for due process, harassment of employees etc. He will have to get out of here with his team, and quick. At last...!"

The article is relatively short and in it Merpel wrote about letters which we already covered (before IP Kat) and added: "It’s anyone’s guess where this will go next. Merpel’s guess, based on another rumour she has heard, is that the AC will take the reform of the Boards entirely out of the hands of Mr Battistelli, and will develop its own proposals, perhaps through a sub-committee or within Board 28 (its internal management committee)."

In IP Kat comments, more so than in any other site, we suspect that the EPO (or some kind of PR proxy or EPO apologists) use distraction as an art form. In Merpel's article there happens to be a link to this AMBA letter. Here is the full text of the letter:

Re: Orientation Paper on the Structural Reform of the BoA

AMBA has seen the Presidium’s letter to the AC in response to CA/98/15 (see Annex 1) and fully endorses it. We would like, however, to make some further comments.

1. The short timeframe foreseen in CA/16/15 was used to justify provisional measures, notably a freeze on recruitment. After nine months, CA/98/15 represents a rather small change with respect to CA/16/15. In this time, however, the staffing situation in the Boards has become critical, approaching 20% of posts are vacant, despite considerable user protests about backlogs and timeliness. Boards in some technical areas have insufficient members to handle cases.

2. AMBA has put forward concrete written proposals to the Task Force. We, however, have never seen a single document or proposal before the publication of CA/98/15. Moreover, the document manifestly takes no account of our submissions, despite assurances that they would be reflected in any proposal. The paper also takes no account of the comments of the AC members in the Council meeting of March 2015, or of the user survey results; rather, it misrepresents them (see Annex 2).

3. The paper states that the Office has asked an independent expert about the legality of the delegation of presidential powers and functions [11]. We understand that this advice was first sought after the problems of CA/16/15 were highlighted. If there is no answer after nine months of study, it must be doubtful whether the delegation can possibly have the desired effect of clearly separating the judicial function from the executive. But, if delegation turns out not to be legal or not clearly to increase independence, the whole proposal is without foundation. It is premature to consider further measures, especially ones that the Council, board members, and users have identified as entirely secondary or misconceived, before resolving this crucial issue.

4. In our view, all the changes introduced in CA/98/15 are detrimental to both actual and perceived independence and do not solve the problem highlighted in decision R 19/12. The proposal now places considerably more power in the hands of the President of the Office: proposing the President of the BoA [9] and the Rules of Procedure [17], and involvement in setting up the BoAC [18]. The BoAC now has more influence from the AC and still no voting representative of the BoA [19] despite the fact that AMBA, the Presidium, some delegations, and virtually all the responses to the user consultation have raised doubts as to whether a body of the AC should be involved in the running of the BoA. Contrary to what is stated [13], the BoAC is in no way limited to general advisory and consultative roles. There is no explanation of, and no mechanism for, assuring the Boards’ autonomy under the BoAC or the new President of the BoA. The removal of control from the Boards of the Rules of Procedure and conditions for re-appointment must reduce autonomy. Association of the Members of the Boards of Appeal / European Patent Office

5. AMBA and the Presidium jointly presented an alternative proposal (see Annex 3), involving a Senate for the Boards of Appeal, based on the existing Presidium, but in an extended composition that balances the independence of the BoA with the understandable wish of the AC to be more informed, and more involved about the functioning of the BoA (accountability). It is a proposal that requires minimal changes to the existing structure and which does not rely on delegation of presidential powers, but which is compatible with a BoAC as a sub-committee of the Council.

6. The setting of Rules of Procedure in national jurisdictions is a complicated matter that must be understood in their proper contexts. CA/98/15 glosses over this [15] and does not present the Council with sufficient information to make an informed judgement. It may be noted, however, that the CJEU and the ECHR decide their own Rules of Procedure. Amendments to the Rules of Procedure for the UPC are proposed by its Presidium (Art. 15(3)(a)).

7. The proposal puts the Boards back in the Office’s “technical” career path (as defined in Art. 47 ServRegs) [24]. The Council recognised this as inappropriate for the Boards, which is why a transitional system was adopted. Not mentioned is the Boards’ paper regarding a career system. The main points were that the principles of judicial independence and security of tenure require that re-appointment should not be based on performance and that all board members (or chairmen) do the same job so that proficiency levels and promotion within a job level make no sense and would give a strange impression to the parties. The paper also proposed various scenarios to address these problems, by having grade advancement at re-appointment.

8. No delegate or user group has indicated any conflict of interest if an ex Board member works as a patent agent. If there were such a conflict, it would, a fortiori, not be possible for practising patent attorneys to sit as judges in the UPC.

9. Since a move outside Munich appears to be against the EPC, it provides an additional argument for those challenging the legality of the whole system. Moreover, again no delegate or user group sees a need to move out of Munich and most see no need to move at all. The alternatives presented in the paper are all associated with major disruptions and/or increased costs. We think that the alternative of remaining in the Isar building should be seriously considered.

The Boards of Appeal will be an essential part of the European Patent system for many years to come. AMBA therefore appeals to the Council to stop the ad-hoc interim measures that impede their functioning, and to critically analyse alternatives before taking any decisions that might damage their standing and their reputation and might be difficult/costly to reverse (relocation, reduction of posts, legislation etc.). We also support the idea of meeting with members of the AC and independent external experts to help find a common solution to this issue.

Yours sincerely,

The AMBA Committee.

Not all is well at Eponia (understatement of the decade), but outsiders who just follow the EPO based on its "news" section and/or Twitter account won't know a thing!

There's a lot of malicious stuff going on inside the EPO right now (irrespective of the imminent Christmas break, which is exploited by patent bigwigs to the detriment of examiners), so we will definitely release many documents later today. It's my birthday today, but defending law-abiding staff representatives at this crucial time is a lot more important. Some believe that the EPO plans to just sack (if possible) the suspended staff representatives before Christmas. We strongly doubt it, as it has been over a year since a judge was suspended and it's still an ongoing issue of heated dispute. ⬆