THE LEVEL of unrest at the EPO has increased following the dismissal of staff representatives. The comments in IP Kat are quite telling. Anonymous commenters flock there to express anger.
Interesting theory I heard from an HR services company.
They often encounter CEOs that push for contract prolongation, and directly afterwards start doing more and more questionable things, and make themselves totally unwanted by staff, until the board of contractors fire him. The golden handshake simply is larger that way...
They often see it with CEOs well beyond retirement age. Those do not make themselves unemployable by others, as they actually want to retire, but also want a big golden handshake.
A real problem exists for those who (silently) supported the CEO, as those get burned by his tactic and become unemloyable for other companies, but won't get such a nice golden handshake.
But the EPO is a political body, this tactic seems to be more difficult to achieve, if that even is the case.
۬Further, the service regulations can be changed at will, as the EPO personal recently found out: career cuts, suppression of invalidity insurance, etc... When you enter the EPO, you sign a contract which you have to respect under penalty of being fired and have your pension cuts... and the EPO can change its end of the deal whenever they want. This kind of contract have a legal name, but nobody realized what they were really offered when they entered the EPO. Now they realize but they can't get out.۬.
When this is true the advertisement asking for new examiners and other staff of the EPO should mention this. Also the SUEPO has an information task. Everything possible should be used to change these rules. Such contracts are against all existing national rules and laws.This is something for the European Court of Human Rights (ECtHR; French: Cour européenne des droits de l’homme) is a supranational or international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. The contracting states, in particular The Netherlands and Germany are tolerating the terrible situation in the EPO.
Dear Mr Kilroy, the European Patent Office does not adhere to the European Convention on Human Rights. Your request is therefore irreceivable.
Sorry to be blunt, but you are not the first person to suggest to go to this or that court, etc... Much have been tried, and the EPO always won in the last instance on the simple ground of immunity. How long will it take before people start to realize that there is no legal recourse whatsoever against the EPO?
The problem is with the system. There is NO legal recourse.
This is valid for all parties: staff, European patent attorneys and applicants. It is just that it has only be used against staff at present.
The President does indeed seem to believe that the EPO is totally immune from national law, but this is not what the EPC says. Art 8 EPC: [the EPOrg and EPO employees] "shall enjoy...the privileges and immunities necessary for the performance of their duties". Those "duties" surely mean the granting of patents and nothing more.
Similarly Article 3(1) of the protocol on privileges and immunities states: "Within the scope of its official activities the Organisation shall have immunity from jurisdiction and execution", and Article 3(4) "The official activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical operation, as set out in the Convention."
So: only official activities are immune, official activities being things strictly necessary for performing the EPC. This is not a blanket immunity, despite what the president might say!
What would happen, for example, if a crime such as assault or theft was committed in the EPO premises in Munich? Clearly this is not immune according to the above definitions, and the Munich police would be involved.
However presumably the EPO management/lawyers, if challenged, would argue that breaching human rights is "strictly necessary" for the operation of the EPO - say because various staff activities were somehow impeding the grant of patents.
But note the double-standard here when the president alleged that the suspended board member possessed in the EPO building an item that could be classed as a weapon "under German law". So clearly national law can be applied when it meets management's needs.
(German weapons law, by the way, includes in its definition of a weapon portable objects which, due to their properties, method of operation or how they work, are able to remove or reduce humans` ability to attack or defend, *even if not intended for that purpose*. So with the "defendant" gagged and unable to respond, an innocent piece of exercise equipment becomes a "weapon" - when the EPO decides for once that German law is relevant, after all...)
Kilroy (18:00) raises an interesting point, and one that has been bugging me ever since these allegations started leaking out of the EPO.
If we are to believe Team Battistelli, the suspended DG3 member and assorted staff members have been engaged in all manner of "deplorable" activities: slander, defamation, intimidation, threats of violence, hacking, hoarding of fascist propaganda, stockpiling of weapons, and so on and so forth to ever more fanciful extremes.
Perhaps some or all of these are offences under, say, German or Dutch law. But the EPO repeatedly asserts total immunity from any jurisdiction. So according to what law do these activities - even if they *have* taken place, which is far from being proven to any degree, let alone beyond reasonable doubt - constitute an offence within the walls of the EPO? German law does not apply in Munich HQ, nor Dutch law in the Hague branch, or so we are asked to believe. That being the case, how have the accused employees committed any offence?
Presumably the ServRegs are the source of "law". Now, I can believe that these might foresee the need to deal with everyday workplace disciplinary matters such as bullying and harassment. But did the authors really have the foresight to include, say, storage of propaganda, or weapons? I find this hard to believe.
Can any insiders shed any light here?
The immunity from the ECHR applies to the EPO, and all cases I have heard of have attempted to bring the EPO to court. However, the member states are not immune from the ECHR, and they could be brought to court for signing an agreement (the EPC) which is incompatible with the European Convention on Human Rights.
The member states, in particular the Netherlands and Germany, are not immune from the ECHR. They could be brought to court for signing an agreement (the EPC) which is incompatible with the European Convention on Human Rights. There are a lot of such incompatibilities as follows inter alia from the Judgment of the Dutch Court of Appeal
(26/02/2015) The Office has progressively and severely eroded a number of fundamental union and human rights. The countries are aware of these incompatibilities and wrongnesses and tolerates them and accept the catastrophic situation within the EPO.
A reason more for very soon a diplomatic conference to change this for Europe, the small industries/applicants and the examiners wrong and dangerous EPC. The absence of applicable law and the absence of a competent tribunal should be changed soon.The european states are "constitutional states" in which the exercise of governmental power is constrained by the law. It is the opposite of a state based on the arbitrary use of power.
It becomes clearer, why the AC members sit on their hands. The more they protest, the more vindictive BB gets, venting his ever-growing pleen against those employees that incur his displeasure.
If you sat on the AC, with one vote in 38, what would you do?
If you sat on the AC, with one vote in 38, what would you do?
The Rule of Law, respect of Human Rights are not a matter of "votes" ("... and the results are ... 18 for and 20 against - the proposal to abide to the Rule of Law and Human Rights at the European Patent Office is therefore rejected by this Administrative Council. Thank you ladies and gentlemen. We will now pass to the next important topic on the agenda ... oh yes, the colour of the moquette in new building at the Hague ...").
It's not a matter of "what would you do?".
It's a matter of "what you should do".
The member states are more immune from the ECHR than you think. Violations in international organizations are not that uncommon. Just staying in patent world: what happened to the staff representative fired at WIPO last year?
I should also insist that the legal vacuum does not only concern examiners. To take a known example: after the criticism raised during the Inventor of the Year event, Battistelli decided to lower the priority for French searches in retribution against the speech of Ms. Lemaire (the EPO searches for the French patent office since the times of the IIB). The examiners had no choice, because they will get bad marks if they don't process the files in the order the computer presents them, a change introduced last year.
Basically, French searches were delayed about 2 months in comparison to PCT searches for US applicants. One can easily figure out that this may put French applicants at a disadvantage, given that these early searches are used to take a decision to pursue or not the file during the priority year.
Do you think French applicants have a way to complain about that revengeful decision? No, they don't. There is simply no applicable law and no competent tribunal.
Of course there are some revolutionary souls amongst us who wonder why the EPO is search French national applications (or for that matter Belgian and Italian applications) and PCT applications filed at the USPTO when it has such an enormous backlog of European applications awaiting search and examination.
...and before someone objects that human examination is needed: Battistelli is French and France had a registration system for patents. France tradition is that examination is not necessary.
Well, of course substantive examination is not actually necessary. The French and Swiss manage very well without it, thank you very much. It's the applicant's responsibility to make sure that his claimed invention is new and inventive. Nothing wrong with that, as long as everyone understands what's expected of them. And you need a decent patent attorney, of course.
If you're going to have examination, though, you had better make sure that it's damn good. The worst situation of all is where you have a search and examination process which is held up as being top quality, and is therefore trusted by applicants, opponents, national courts, the UPC..., but is actually pretty shoddy. This leads to all kinds of trouble and expense, but sadly this kind of trouble and expense occurs far beyond the reach of the EPO's quality monitoring.
I'll say it again: poor examination favours large corporations at the expense of the little guy. Better not to examine at all if you can't examine with really excellent quality.
It is all in the service regulations actually. These specify that the staff should be "loyal" to the organization. There is some reason in that: somebody criticizing patents in the open would not be acceptable as a patent examiner, for example.
The slight change here is that the EPO changed "loyal to the organization" to "loyal to the president and his friends".
EPO Vice-President Loses Defamation Lawsuit — AGAIN!
Sinking deeper and deeper in the mud the EPO is.
Disgraceful all this is.
All a bit surreal but must raise some questions somewhere. Surely...
The BoA member was accused of spreading defamatory stories about VP4. I can't remember the full details but the issue seemed to include the allegations about cars which have been at the heart of the case in Croatia which has been settled. And not in VP4's favour it seems. Maybe there's another level of appeal to come?
But, in any case, the courts seem to consider that the Croatian lady's statements were not defamatory. So presumably the BoA member could not be making defamatory statements either?? And the sacked Union chairwoman (even if she did give him help - denied by her I think) could not be assisting in any defamatory act?
A tangled mess. The EBoA may have been right in their analysis and maybe the AC was misled about the certainties? However it plays, nobody comes out of it well but, unfortunately, the only ones who suffer were actually ones who seem to be innocent.
It does raise, again, the question of what laws do apply within the EPO. The vague accusations of defamatory statement making do not specify under what set of laws. Clearly, Croatian law does not consider them defamatory. Does the EPO pick and choose these extra-territorial definitions or does the president make it up as he goes along?
new cunning action in sight by EPO top management : introduce 5 years' contract for examiners by the June administrative council...
(Ref: 5 years contracts.)
That would be consistent with the EPO management pushing automation of search and examination at present. The EPO will need a lot less examiners in 5 years.
...and before someone objects that human examination is needed: Battistelli is French and France had a registration system for patents. France tradition is that examination is not necessary.