Tails wagging dogs and Battistelli 'bosses' as lapdogs

Summary: With the untenable situation at the EPO, where the Administrative Council (AC) seems to be administered by the Office it's supposed to administer and an international tribunal being disregarded by both, the crisis deepens and staff speaks out anonymously

A READER recently told us about this new publication from "The EPO-FLIER," a team which says it "wants to provide staff with uncensored, independent information at times of social conflict."

This is the first time in nearly half a year that this team/group says anything. Here's some of the latest:

Lessons to be learned

Clear messages from the Tribunal

Through judgements 3958 and 3960 announced during its 125^th session¹, the ILO Administrative Tribunal sent some clear messages to the EPO’s president and Administrative Council (AC):

● The president abused his position in order to pursue a personal vendetta. ● The president thereby hindered due process. ● The AC supported the president in these actions. ● The AC thereby failed in its duty to control the president. ● Since the target of the vendetta was a member of the Boards of Appeal, the president and the AC violated the separation of powers enshrined by Art. 23 EPC. ● The dimension of these unlawful actions is such that the Tribunal cannot tolerate it. ● There is more to come since many further complaints are pending at the Tribunal. ● Both, president and AC, damaged the reputation of the European Patent Organisation.

Change of attitude and behaviour needed

Both Mr Battistelli and PD-HR Ms Bergot have consistently and repeatedly shown that they are either unwilling to, or fundamentally incapable of, learning from their own mistakes and adapting their course of action to reality. Their listening skills are non-existent^2,3 – they are both hopeless cases.

_____________ ¹ 125th Session of the ILO-AT; http://www.ilo.org/dyn/triblex/triblexmain.showList?p_lang=en&p_session_id=125 ² See for example the letter from the Central Staff Committee The significance of the GCC (10.11.2017; sc17179cl) : “You as the President of the Office committed to chairing the GCC, yet you have not been seen there for years and are habitually delegating chairmanship to VP4. It is thus not obvious how you can or do take due account of the opinions expressed in the meeting before taking your final decision on the changes presented for and during consultation, which is the main purpose of GCC meetings” ³ See for example the last paragraph of the Flash report on the GCC meeting of 22 November 2017 (sc17193cp) about the “Modernisation of the employment framework of the EPO” (CA/103/17): “After closure of the meeting, PD43 voiced her regret, and irritation, that the meeting cost money and was also a waste of manager’s time. We agree that social dialogue indeed is broken, and that staff representatives attend meetings so as to not leave chairs empty, but with little hope of conducting meaningful dialogue in the prevailing circumstances. Your Central Staff Committee”

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If members of the Boards of Appeal are not safe from vexatious attacks by the president, there is obviously even less protection for the other employees. Where not even the Boards of Appeal can exert their judicial function independently, the DG1 examining and opposition divisions enjoy even less independence. This lack of independence of DG1 examiners is the major reason for the decline in patent quality observed⁴ in recent years.

The AC and its chairman must learn to assume their responsibilities, and to control the president. If he refuses to follow their instructions, he either needs to go or must be suspended. If the president is not fit to do his job properly, another senior official must be entrusted with the operational business. Which, is more or less what the Tribunal wrote, concerning the cases discussed above ⁵.

The future president must be ready for genuine social dialogue. It would already help if he would consider seriously arguments brought forward by the staff representatives, whose warnings and constructive proposals⁶ have been ignored for years. The same applies to critical input coming from users of the patent system⁷.

Staff members must (re-)learn to tell their line manager what objectives they can meet, rather than accepting unrealistic and arbitrary production targets and committing themselves to fulfil them. In the present intimidating atmosphere it is extremely difficult to stand up to your line manager, but this is the only way to return to realistic targets and an acceptable level of quality of delivered products and services.

The way forward

A crisis can become a turning point which leads away from continued deterioration and towards a sustainable improvement. But the lessons need to be learned.

“It is possible if all hands work together: EPO users, EPO and BoA staff, and – in particular – the EPO management, properly supervised by the EPO’s Administrative Council.”

Thorsten Bausch⁷

________ ⁴ Patent survey 2016 of the German legal magazine JUVE; https://suepo.org/public/ex17003cpe.pdf ⁵ See for example judgement 3958, consideration 13 ⁶ See for example: Draft Proposal for a “Framework Agreement” between SUEPO and the EPO (su14020cl, 05.02.2014), or Governance of the EPO (CA/xxx/14; 12.02.2014; submitted by the staff representatives) ⁷ For example: ^{EPO – All Problems Solved?}; http://patentblog.kluweriplaw.com/2017/10/16/epo-all-problems-solved/

www.epostaff4rights.org

Unless the Tribunal at ILO manages to compel the EPO to behave, it too is part of the problem.

Unless the AC at the EPO manages to compel the Office to behave, it too is part of the problem.

What we have here is a serious judicial crisis (as we explained 2 days ago). "Meanwhile," someone wrote yesterday, "Poland is being sanctioned for introducing measures alleged to threaten the independece [sic] of the judiciary. Double standards, perhaps?"

There's also a response to claims of "confidentiality" as an excuse for the AC's latest actions/inactions. We wrote about confidentiality as excuse before. It doesn't pass muster. In fact, as someone put it:

I'm amazed that you think so. There is really nothing "confidential" in the information that a disciplinary case has been closed (without any action being taken), especially if the existence of a pending case was widely known ... for example from a published ILO judgement and/or a published decision of the Enlarged Board!

Are there any other pathetic excuses that you would like to proffer on behalf of the AC, or is that as much as you have for now?

Yes, "confidentiality" is a very poor excuse because Team Battistelli violated any illusion of "confidentiality" when it defamed Judge Corcoran with help from Dutch and Germany 'journalists' back in 2015.

Here's another new comment to that effect:

Confidential??

So have all disciplinary proceedings against Mr Corcoran have been terminated or not? Whilst the report of the AC's decision would suggest that this is so, not everything is necessarily consistent with this conclusion. If indeed there are no disciplinary proceedings still pending, then what basis would there be for Carl Josefsson's assertion that "confidentiality obligations" prevented him from revealing the outcome of the case? Or was Mr Josefsson merely referring to the AC's decision on whether or not to reappoint Mr Corcoran as a member of the Boards of Appeal (and using this as a convenient excuse to avoid discussing the AC's decision on the disciplinary proceedings)?

If the outcome is indeed termination of the proceedings but no reappointment, then this is yet another example of the myopia and total ineffectiveness of the AC. If anyone on the AC thinks that Mr Corcoran will be left in peace by the President (even if only for 6 months), then they really have not been paying sufficient attention to how long the President can hold a grudge against those that commit the crime of lèse-majesté.

The above is part of a thread which turned into the very-much-expected and usual EU bashing at The Register. The EPO has nothing to do with the EU, unlike UPC. Here's another comment to that effect:

Well, the Contracting States (which overlap with the EU states) appear to have been failing dismally to influence the EPO, never mind anyone else. If the European Commission had any influence, it presumably would have used it to resolve this ongoing impediment to "European harmonisation" before now.

It would seem that the aim of the EPO to reach beyond the mere confines of the EU is actually the source of the problem. Had it just been an agency of the EU, none of this could have arisen.

I presume you'd prefer a model in which every country has a separate Patent Office and businesses have to file their patents in every single one?

What's worrying is that EPO scandals cause problems for the EU itself, not just to UPC. It makes Europe look bad and discourages participation from the outside, too.

As someone there put it, "I think the fact that the commission did nothing about corrupt Benoit is already a sign of deeper corruption. Reinstating the bloke to report to corrupt Benoit, are they nuts or taking the piss ?"

As noted before, the comments are full of EU bashing and not much understanding of the EPO. I can relate to that as I did not know the EPO entirely well until writing about it almost every day for 3.5 years. I had written about the EPO for over a decade, but not so frequently. ⬆