WHAT goes on at the EPO is far from normal and it's assisted by various people outside the EPO. They too have something to gain.
The German lawyer whose court action has put the new European patent regime on hold has described as ‘astonishing’ the UK’s apparent position that it can be a member of the system after Brexit.
Düsseldorf intellectual property attorney Dr Ingve Stjerna says the government’s stated plan to ratify the Unified Patent Court agreement appears ‘hardly reconcilable’ with its commitment to leave the jurisdiction of the Court of Justice of the European Union.
‘At the very least, an explanation is needed why in case of the UPC the creation of new obligations from union law and respective powers for the CJEU as well as a respective liability of the UK for union law violations are deemed acceptable, despite the envisaged objectives for leaving the EU,’ Stjerna said on his website.
[...]
Stjerna’s challenge questions the constitutionality of the German legislation enabling ratification. It also alleges a violation of a requirement under German law which stipulates that a majority of two-thirds of the members of the German parliament and Federal Council must rule on any transfer of sovereign powers to European institutions.
I have no desire to offend Merpel's delicate sensibilities or to libel anybody. I would just like to make a few observations and hope that they will pass the scrutiny of the blog moderator(s).
It would appear that moves are underfoot at the EPO to lift the current 5% limit on the number of staff employed on fixed term contracts. Irrespective of the merits or otherwise of such a proposal it is likely to generate controversy. That is in the nature of these things.
However, an item of EPO "gossip" has just appeared on TechRights according to which the delegation of an EPO member state recently made a statement to the effect that the current EPO President had been asked by the President-elect to make sure that this measure was passed before he (the President-elect) took up office in July next year.
Whether or not this snippet of gossip has any substance it seems to throw up some interesting questions because it suggests that either: (a) The President-elect is already intervening in EPO matters despite not having yet taken up office or (b) A national delegation is lying about the President-elect before he has even taken up office.
Whatever one is inclined to make of all this one thing is certain. The governance of the EPO is characterised by a worrying lack of transparency.
What is also quite surprising is that IPKat no longer seems to be concerned about this serious governance deficit at the EPO.
Since IPKat is (one supposes) widely read by "users" of the EPO system, it is rather odd that it has now adopted a policy which seems to be aimed at discouraging debate about these matters.
As I said at the beginning, I am not trying to offend or libel anybody. Nor am I interested in spewing hate. I just wanted to air a few points and raise a few questions which in my mind seem perfectly legitimate and in the public interest.
Dear friends and commenters, can I perhaps bring the discussion back to what this article is about, i.e. the – well substantiated, whether you agree with it or not – opinion of Prof. Broß that the member states of the EPC have allowed extra-territorial and extra-constitutional structures to be established that are no longer under democratic and rule of law control. I think that this opinion raises at least two questions: (1) Is this so? (2) And if yes, should we accept it?
Prof. Broß’ accusations are dead-serious and may lead to either a dramatic change of the European Patent Organisation’s structure or to Germany having to leave the EPO. Remember that the very same arguments have been made and will likely continue to be made in the four constitutional complaints against the EPO currently pending before the Federal Constitutional Court.
It is true that Prof. Broß is not completely impartial here, as he has written a legal opinion in support of (and I assume at the request of) one of the plaintiffs in the four pending constitutional complaints. But this does not disqualify his views at all, in my view. I have no reason to believe that the opinions that he holds are anything but genuinely his own and, what is more, I am afraid that they hit the nail on the head.
I think that even the most benevolent observer of the developments at the EPO over the last 4 or 5 years cannot but come to the view that very, very strange and discomforting things have happened at the European Patent Office. Or are you aware of any other jurisdiction where the President is able to issue a house ban with immediate effect against a judge or, more precisely, a person who is supposed to have a judicial function (such as a Board of Appeal member)? And in which jurisdiction is it possible that the President then ignores the procedure literally prescribed in the law (Art. 23 EPC), according to which a Board of Appeal member may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. There has never been such a proposal from the Enlarged Board of Appeal, to the best of my knowledge. And absent such a proposal, why did the Administrative Council back the President in this – in my opinion – simply illegal activity, thus again refusing the accused Board member the right of due process?
Obviously, I am no EPO insider and have no first hand knowledge of what happened, but the public facts suggest to me that there has been an unprecedented executive overreach here, which violates the essential principles of the Rule of Law and the accused member’s constitutional right to due process. I would very much like this to be publicly investigated and discussed. If the investigation results in that there was indeed a violation of principles of the Rule of Law and due process, then, at least in my humble opinion, a President who is responsible for such activities, should be immediately dismissed from the Office and does not deserve a pension. Which raises again the question about whether the President is adequately supervised by the Administrative Council. Prof. Broß has very strong views on this also.
In my personal opinion, the EPO structure should indeed be substantially changed in order to bring us back on the ground of elemental principles of democracy and rule of law. What the EPO needs is a true separation of powers:
Firstly, it needs an Administrative Council who takes its supervisory role seriously and engages in a critical and constructive dialogue with all EPO stakeholders, i.e. applicants, EPO representatives, EPO staff (including trade unions) and national judges – not just with the EPO management. The AC should independently inform itself of what is going on. It should also have an own website not controlled by the EPO President and should express its unfiltered opinions to the public there. Members of the Administrative Council should be fully paid for their activities by the member states and should not be allowed to accept any disbursement or other favors from the EPO management in order to avoid conflicts of interest.
Secondly, the EPO needs a President who understands his role within a democratic system of checks and balances and behaves accordingly.
Thirdly, the EPO needs an independent and effective judiciary to review EPO decisions with regard to European patents and patent applications and, importantly, on points of employment law. The ILO does not seem to be fit for this purpose. Decisions of this court must be binding on the President.
I am fully aware that this requires a diplomatic conference agreeing on changes for the betterment of the European Patent Convention, but I think this is unavoidable and should rather be seen as a chance. I would very much like to see a public debate on such proposals. The public has a duty to help the Administrative Council and the national politicians by coming forth with sensible proposals how the EPO’s future can be secured in the long run. But we should not put our heads in the sand and carry on as usual.
Fully agree. Two points about your points… The EPC explicitly states (Art. 4a) there should be a ministerial conference at least every 5 years. Since EPC 2000 there hasn’t been one and I haven’t even seen a discussion about it by the AC, although something about that there was a “it isn’t needed” response from someone at AC or Presidential level when someone enquired seems possible. While the board member may or may not have done what was alleged (libel?} and I thought a German court case was running in parallel(?), I agree that there is a clear case of overreach by the executive which appears to be beyond reproach. They may have grounds for frustration (I don’t know or judge the validity of any accusations) but, as you say, that does not excuse any abuse of procedure from those who should and need to have legal and managerial competence. In many ways, the actions of the executive may be as wrong as the allegations made.