Criticism of the internal justice system of the EPO is not new. Märpel found a document dated 18/12/2013 and titled "report - epo internal justice system". It is available on the suepo web site at: https://suepo.org/documents/37867/46475.pdf You may need to a password to access it, however.
The following is directly taken from that document, comments from Märpel are at the end.
The document starts with this "executive summary": Access to justice for staff of the EPO exhibits a number of serious deficiencies:
1. There are problems with the functioning of the internal appeal processes, and the ILOAT. A clear lack of independence exists within the internal appeal process (1). This is exacerbated by an increasing trend of the President to reject the opinion of the IAC (2). Problems exist with regard to disclosure and evidence taking. The ILOAT does not correct these errors since it does not carry out fully independent evidence gathering; rather it relies on the pleadings of the parties and the opinion of internal bodies.
2. There exist weaknesses with regard to the protection of fundamental employment rights and standards. No such rights are recognised as binding on the EPO. This creates a vacuum in which the EPO has wide discretion to introduce legislation, or to interpret/apply existing legislation which is not consistent with such fundamental rights. Recent examples are the regulations on strikes, and the so called "well-being" regulations which deal with sick leave control. The ILOAT does not provide protection of these rights since it primarily limits itself to the application of the internal regulations of the EPO (3). The Tribunal claims to protect "general legal principles including human rights" but does not define what these are. When a staff member claims protection of a fundamental right, the Tribunal systematically rejects this claim stating that such rights apply to the member states and not the organisation.
The body of the document continues with a description of the internal appeal system:
The legal protection system of the European Patent Organisation consists of two parts: internal bodies such as the Internal Appeals Committee (IAC) which advise the President, and the Administrative Tribunal of the ILO (ILOAT).
When considering the independence and impartiality of the internal mechanisms, it should be noted that all internal bodies have an advisory character; it is the President alone who decides. This means that when taking a decision regarding an appeal, the President must review a previous act or decision taken either by himself, or under his authority. Put another way, he is both the Executive head of the EPO (Office) and final Judge in case of an appeal. To be truly impartial under these circumstances would require extraordinary qualities.
For this reason although the internal bodies can help resolve many problems, it must be recognised that formally they are all management review mechanisms and should not be confused with proper judicial review. Nevertheless, staff are required to exhaust these internal means prior to making an appeal to the ILOAT.
Despite their lack of independence, internal mechanisms can help with fact finding, however, this is not without limitation. The President (or the Office) can withhold information or even make false representations to such bodies without any serious consequences. No means exist to hold the Office or individuals to account for such actions. Neither are there any means to provide urgent protection where needed, for example injunctive measures.
There are some measures which aim at securing the impartiality of the IAC inter alia:
the members are prohibited to seek or take instructions and that the Committee has a quasi-paritary structure in which both the President and the Staff Committee nominate members. However, a number of factors can undermine the quality and impartiality of the process:
- the President is a party to the appeal process however, he alone decides on the outcome;
- the committee is not truly paritary: the President nominates 2 members and the Chairman, whereas the Staff Committee nominates only 2 members;
- the President is the supervisory authority for all members; and as such indirect pressure may exist (4)
- the President controls all resources available to the appeal process;
- there are no obligations upon the Office to disclose facts or means to prevent false representations by the Office.
The recommendation of the IAC, even where this is unanimous, is not formally binding; the President may amend the recommendation or simply replace it with his own. The ILOAT has ruled that the President must take the opinion into account and provide reasons for deviating from it, however, the case law is divergent with regard to the justification of such action (5)
The Staff Committee has received feedback from appellants that in an increasing number of cases during 2013 the President has not followed unanimous and majority opinions from the IAC. For 2013 there were 12 majority or unanimous opinions to allow the appeal, and a further 16 to be allowed in part. According to information received the President has not followed the majority of these opinions.
***
Comments from Märpel:
(1): This was written in 2013. In 2018, that lack of independence is plainly obvious as the IAC simply always decides in favour of President Battistelli
(2): Ditto. Nowadays, President Battistelli has no need to reject an opinion which is invariably in his favour.
(3) and (5): Märpel shall come back to this, taking recent judgments of AT-ILO as examples.
(4): or retribution. Remember the many managers made redundant in 2017? All the former members of the IAC who did not follow the recommendations in early years were made redundant.
Sunday 29 April 2018
Saturday 28 April 2018
The situation today.
This was about the past, how President Battistelli managed to raise its power and to render each and every controlling instance moot. Märpel shall come back to that.
But what is the present situation?
The present situation is a state of shock. Maybe President Battistelli is trying to put into practice the Shock Doctrine? Formalities have been reorganised, examiners put in a state of permanent urgency.
Märpel deplores that everyone forgets formality officers. In truth they are an essential part of the office. The procedures are complex and many, with EP, PCT and national searches. Every error has legal consequences. This is an area of specialists. Or actually, it was an area of specialists till the last reorganisation. Now, everyone is supposed to do every possible procedure, without any training. The training budget was exactly zero.
The training budget for examiners is also exactly zero. As our COOs say, "ambitious objectives" were set for production, objectives that would put Aleksei Stakhanov right into the lazy bin. To reach these self-imposed objectives, every possible cut was made. Märpel even heard that women examiners were asked not to require pregnancy leave in 2018 or that special leave for funeral of family members are systematically refused. High grant objectives were set. Märpel was able to saw the procedure: every examiner gets an increased figure. The examiner can directly agree or ask for review. The review is always negative. Yet, apparently, the EPO as a whole is under target and President Battistelli is "not amused" and measures are to be announced in the coming days.
If Märpel could "amuse" President Battistelli, she would. That might actually distract him from retaliation on Patrick Corcoran, the most famous appeal board member, who still is in limbo. Sending him to The Hague was an obvious act of harassment. Märpel would also like to comfort the 100 or so managers whose only crime was to criticise President Battistelli policies in the past years and who found themselves redundant at the end of 2017.
Speaking of which: President Battistelli wanted to put redundant people out and everybody on 5 years contracts in February, but somebody must have reminded him that the EPO already has had great difficulties recruiting in 2017 (only half the planned post were filled). So President Battistelli accused the Council of having had that idea and pretended he was the staff saviour. The Council did not even objected, reaching new lows that Märpel would not even have thought possible. Maybe the new dentures made biting difficult.
And AT-ILO? Apparently, that tribunal sees its mission in defending the independence (or -dare we say- immunity?) of President Battistelli, issuing amazing judgments which Mârpel shall analyse in the next articles.
But what is the present situation?
The present situation is a state of shock. Maybe President Battistelli is trying to put into practice the Shock Doctrine? Formalities have been reorganised, examiners put in a state of permanent urgency.
Märpel deplores that everyone forgets formality officers. In truth they are an essential part of the office. The procedures are complex and many, with EP, PCT and national searches. Every error has legal consequences. This is an area of specialists. Or actually, it was an area of specialists till the last reorganisation. Now, everyone is supposed to do every possible procedure, without any training. The training budget was exactly zero.
The training budget for examiners is also exactly zero. As our COOs say, "ambitious objectives" were set for production, objectives that would put Aleksei Stakhanov right into the lazy bin. To reach these self-imposed objectives, every possible cut was made. Märpel even heard that women examiners were asked not to require pregnancy leave in 2018 or that special leave for funeral of family members are systematically refused. High grant objectives were set. Märpel was able to saw the procedure: every examiner gets an increased figure. The examiner can directly agree or ask for review. The review is always negative. Yet, apparently, the EPO as a whole is under target and President Battistelli is "not amused" and measures are to be announced in the coming days.
If Märpel could "amuse" President Battistelli, she would. That might actually distract him from retaliation on Patrick Corcoran, the most famous appeal board member, who still is in limbo. Sending him to The Hague was an obvious act of harassment. Märpel would also like to comfort the 100 or so managers whose only crime was to criticise President Battistelli policies in the past years and who found themselves redundant at the end of 2017.
Speaking of which: President Battistelli wanted to put redundant people out and everybody on 5 years contracts in February, but somebody must have reminded him that the EPO already has had great difficulties recruiting in 2017 (only half the planned post were filled). So President Battistelli accused the Council of having had that idea and pretended he was the staff saviour. The Council did not even objected, reaching new lows that Märpel would not even have thought possible. Maybe the new dentures made biting difficult.
And AT-ILO? Apparently, that tribunal sees its mission in defending the independence (or -dare we say- immunity?) of President Battistelli, issuing amazing judgments which Mârpel shall analyse in the next articles.
Friday 27 April 2018
The Battistelli years
Märpel has a taste for history. She believes that the explanation to present events lies in the past, because in Eponia who controls the past controls the future. Keep this page in your bookmarks, as Märpel shall come back to it in the future.
President Battistelli took his functions in mid 2010. What are the main events of the past years? The suepo.org site has a nice archive, Märpel looked at the year 2011-2017.
2011:
Year 2011 was mainly about reforms of the Pension system, but one event would prove later to have major significance: the Audit Committee was abolished by document CA55/11. The Audit Committee was the main organ to oversee the finances of the EPO.
2012:
Year 2012 saw the majority of examiners change technical domains under a reorganisation project called "areas of competences". In hindsight, it can be seen as the first indication that technical competence was of no importance to the EPO any more, as examiners were massively assigned to domains they new little about.
Year 2012 also saw the reform of the internal appeals system with circular 342 on investigation guidelines published in December.
2013
With the new appeal system and investigation guidelines in force, things would start to accelerate:
-new strike regulations (circular 347) effectively rendering strikes toothless
-ban on email for staff representatives
-several staff representatives harassed by the new investigation unit
-the GCC (the main committee were staff representatives can discuss with the management) is transformed into a rubber-stamping organ
-first petition from AMBA about independence of the Boards of Appeal.
In 2013 President Battistelli also reinterpreted recruitment procedures to allow him to put French persons in key posts. One of these persons is Laurent Germond (recruited on 9/2013), who would be responsible for relations with the administrative tribunal of ILO. Märpel shall come back to him.
In 2013, contacts took place between Eponia and AT-ILO about the high backlog of EPO cases, which lead to AT-ILO adding a 3rd session per year from 2014 onwards. End of 2013, the registrar of AT-ILO also changed: Mrs Catherine Comtet-Simson was replaced by Mr Drazen Petrovic.
2014
That year saw Merpel publish her first article under the tag "Eponia". It also saw articles in several newspapers and by politicians. The reason was, probably, that 2014 was a difficult year to be staff representative:
-the first of a long series of disciplinary actions was taken against 6 of them
-the new elections rules were rewritten by President Battistelli to use a "single non-transferable vote"
-2 strikes were prohibited by President Battistelli in violation of his own new strike regulations
-a poll run by the independent company "bigpulse" for the staff representation was abruptly terminated in quite surprising fashion, proving that the hand of President Battistelli could reach far beyond the borders of Eponia
-GCC members were prohibited to write dissenting opinions, which effectively made that consultation body a pure rubber-stamping exercise, which lead to the
-suspension of Aurelien Petiaud for actually writing about what happened in that consultative body (Märpel shall come back to that part, as the end judgment -3971- was published in 2018).
That year also saw the first person unceremoniously thrown out of the Isar building by security (Oswald Schröder, then head of public relations) and ended with the most famous member of the EPO boards of appeal (Patrick Corcoran) suffering the same disgrace in december.
As to examiners and formalities, they were told to prioritise searches for early certainty and that they would enjoy 2 days less leave and a new career system in 2015.
President Battistelli mandate was extended in 2014.
Outside of Eponia, in Geneva, AT-ILO new extra session and new registrar started to deal with the backlog by summarily dismissing an extraordinary number of cases. Märpel can only compare the statistics on the number of cases won and lost before 2014 and afterwards.
2015
That year started under the new career system. It also saw a new sickness policy enter in force (President Battistelli refusal to sanction a replacement staff member has engineered a built-in majority for the management (10 - 9) when voting through the health care reforms), but most of the attention of the press and blogs was turned towards the house ban of the board member. Harassment of staff representatives continued with an external firm "control risk" hired to that object (it turned out that they left after only a few weeks, Märpel can only wonder what was required from them for the firm to back off), but the house investigators could still manage to suggest disciplinary measures for 3 of them, which would be effective early...
2016
...when 2 staff representatives were fired and one downgraded: Ion Brumme, Elisabeth Hardon and Malika Weaver.
That year saw also President Battistelli propose a "memorandum of understanding", signed by a minority union and rightlymdescribed as a "blank check" by Suepo (the text is online). Understanding did not last long, however, as a further member of the staff committee, Laurent Prunier, was suspended end of June.
The eyes of the press and blogs were turned to the house ban of the board member, with the administrative council adopting a scaling resolution in March and the enlarged board of appeal noting that President Battistelli violated judicial independence on 15.6. The result of all that at the end of the year was that the boards were transferred to Haar and post-service restrictions imposed to them.
Outside of Eponia, in Geneva, AT-ILO continues issuing more than 90% negative decisions for EPO staff, far more than for any other organisations. It also issued decision 3694, judging the appeal committee inproperly constituted, which basically sent all those cases back to square one. Justice delayed.
And of course, 2016 was also the year the Brexit disorganised the carefully crafted UPC plans.
2017
That year saw President Battistelli having his way in the Netherlands, with the immunity of the EPO confirmed. It also saw:
-an extraordinary number of directors being stripped of managerial functions,
-a new selection procedure for new staff dispensing with input from staff representatives
-the already improperly constituted appeal committee constituted by drawing lots between unwilling staff representatives (one of them was suspended in 2014 for being in that committee, remember?)
-discussion on 5 years contracts for all staff
-Jesper Kongstad, head of the administrative council, resigned
-most of staff moved office, formalities were reorganised, the EPO premises turn to a fortress with X-ray machines at the entrance
-and, to thank staff for having granted an extraordinary number of patents, President Battistelli decided to cut another two days of leave for 2018.
It also saw AT-ILO dismiss the vast majority of EPO cases. But one was won (or was it?): Patrick Corcoran was brought back in post for two weeks, just before his contract reaches its end (judgements 3958 and 3960). The administrative council congratulated itself on a matter successfully closed. Why didn't they renew his contract as a board member? Märpel can only guess.
President Battistelli took his functions in mid 2010. What are the main events of the past years? The suepo.org site has a nice archive, Märpel looked at the year 2011-2017.
2011:
Year 2011 was mainly about reforms of the Pension system, but one event would prove later to have major significance: the Audit Committee was abolished by document CA55/11. The Audit Committee was the main organ to oversee the finances of the EPO.
2012:
Year 2012 saw the majority of examiners change technical domains under a reorganisation project called "areas of competences". In hindsight, it can be seen as the first indication that technical competence was of no importance to the EPO any more, as examiners were massively assigned to domains they new little about.
Year 2012 also saw the reform of the internal appeals system with circular 342 on investigation guidelines published in December.
2013
With the new appeal system and investigation guidelines in force, things would start to accelerate:
-new strike regulations (circular 347) effectively rendering strikes toothless
-ban on email for staff representatives
-several staff representatives harassed by the new investigation unit
-the GCC (the main committee were staff representatives can discuss with the management) is transformed into a rubber-stamping organ
-first petition from AMBA about independence of the Boards of Appeal.
In 2013 President Battistelli also reinterpreted recruitment procedures to allow him to put French persons in key posts. One of these persons is Laurent Germond (recruited on 9/2013), who would be responsible for relations with the administrative tribunal of ILO. Märpel shall come back to him.
In 2013, contacts took place between Eponia and AT-ILO about the high backlog of EPO cases, which lead to AT-ILO adding a 3rd session per year from 2014 onwards. End of 2013, the registrar of AT-ILO also changed: Mrs Catherine Comtet-Simson was replaced by Mr Drazen Petrovic.
2014
That year saw Merpel publish her first article under the tag "Eponia". It also saw articles in several newspapers and by politicians. The reason was, probably, that 2014 was a difficult year to be staff representative:
-the first of a long series of disciplinary actions was taken against 6 of them
-the new elections rules were rewritten by President Battistelli to use a "single non-transferable vote"
-2 strikes were prohibited by President Battistelli in violation of his own new strike regulations
-a poll run by the independent company "bigpulse" for the staff representation was abruptly terminated in quite surprising fashion, proving that the hand of President Battistelli could reach far beyond the borders of Eponia
-GCC members were prohibited to write dissenting opinions, which effectively made that consultation body a pure rubber-stamping exercise, which lead to the
-suspension of Aurelien Petiaud for actually writing about what happened in that consultative body (Märpel shall come back to that part, as the end judgment -3971- was published in 2018).
That year also saw the first person unceremoniously thrown out of the Isar building by security (Oswald Schröder, then head of public relations) and ended with the most famous member of the EPO boards of appeal (Patrick Corcoran) suffering the same disgrace in december.
As to examiners and formalities, they were told to prioritise searches for early certainty and that they would enjoy 2 days less leave and a new career system in 2015.
President Battistelli mandate was extended in 2014.
Outside of Eponia, in Geneva, AT-ILO new extra session and new registrar started to deal with the backlog by summarily dismissing an extraordinary number of cases. Märpel can only compare the statistics on the number of cases won and lost before 2014 and afterwards.
2015
That year started under the new career system. It also saw a new sickness policy enter in force (President Battistelli refusal to sanction a replacement staff member has engineered a built-in majority for the management (10 - 9) when voting through the health care reforms), but most of the attention of the press and blogs was turned towards the house ban of the board member. Harassment of staff representatives continued with an external firm "control risk" hired to that object (it turned out that they left after only a few weeks, Märpel can only wonder what was required from them for the firm to back off), but the house investigators could still manage to suggest disciplinary measures for 3 of them, which would be effective early...
2016
...when 2 staff representatives were fired and one downgraded: Ion Brumme, Elisabeth Hardon and Malika Weaver.
That year saw also President Battistelli propose a "memorandum of understanding", signed by a minority union and rightlymdescribed as a "blank check" by Suepo (the text is online). Understanding did not last long, however, as a further member of the staff committee, Laurent Prunier, was suspended end of June.
The eyes of the press and blogs were turned to the house ban of the board member, with the administrative council adopting a scaling resolution in March and the enlarged board of appeal noting that President Battistelli violated judicial independence on 15.6. The result of all that at the end of the year was that the boards were transferred to Haar and post-service restrictions imposed to them.
Outside of Eponia, in Geneva, AT-ILO continues issuing more than 90% negative decisions for EPO staff, far more than for any other organisations. It also issued decision 3694, judging the appeal committee inproperly constituted, which basically sent all those cases back to square one. Justice delayed.
And of course, 2016 was also the year the Brexit disorganised the carefully crafted UPC plans.
2017
That year saw President Battistelli having his way in the Netherlands, with the immunity of the EPO confirmed. It also saw:
-an extraordinary number of directors being stripped of managerial functions,
-a new selection procedure for new staff dispensing with input from staff representatives
-the already improperly constituted appeal committee constituted by drawing lots between unwilling staff representatives (one of them was suspended in 2014 for being in that committee, remember?)
-discussion on 5 years contracts for all staff
-Jesper Kongstad, head of the administrative council, resigned
-most of staff moved office, formalities were reorganised, the EPO premises turn to a fortress with X-ray machines at the entrance
-and, to thank staff for having granted an extraordinary number of patents, President Battistelli decided to cut another two days of leave for 2018.
It also saw AT-ILO dismiss the vast majority of EPO cases. But one was won (or was it?): Patrick Corcoran was brought back in post for two weeks, just before his contract reaches its end (judgements 3958 and 3960). The administrative council congratulated itself on a matter successfully closed. Why didn't they renew his contract as a board member? Märpel can only guess.
Thursday 26 April 2018
Merpel older posts
Before Merpel can revisit the EPO, a small refresher may be useful for our readers. The articles from Merpel documenting the EPO governance crisis are labelled "Eponia". Here a selection of the most important ones, in chronological order:
Sunday, 27 July 2014
Eponia: a State of mind?
http://ipkitten.blogspot.de/2014/07/eponia-state-of-mind.html
Tuesday, 16 June 2015
Given up on following the EPO posts? Here's a recap of the year to date
http://ipkitten.blogspot.de/2015/06/given-up-on-following-epo-posts-heres.html
Thursday, 23 June 2016
Enlarged Board publishes decision: EPO President violated judicial independence
http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html
Monday, 7 November 2016
Firings will continue until morale improves - Merpel revisits the EPO
http://ipkitten.blogspot.de/2016/11/firings-will-continue-until-morale.html
Thursday, 17 November 2016
Remember the House Ban? How two years flies past
http://ipkitten.blogspot.de/2016/11/remember-house-ban-how-two-years-flies.html
Then, on Friday, 10 March 2017, Merpel announced her blog would stop covering "one of, if not the, biggest ongoing issues in IP in Europe":
Curtain - Merpel's final EPO post http://ipkitten.blogspot.de/2017/03/curtain-merpels-final-epo-post.html
Even though, Merpel still publishes episodically on ipkat, one of her latest articles wonders about what happen to the reinstated board of appeal member:
Wednesday, 13 December 2017
The ILO rules reinstatement of Board of Appeal member, but EPO resists
http://ipkitten.blogspot.de/2017/12/the-ilo-rules-reinstatement-of-board-of.html
This blog is in deference to the old Merpel. However, to avoid the confusion between the new and the old Merpel, this cat shall write her name the Munich way: Märpel.
Sunday, 27 July 2014
Eponia: a State of mind?
http://ipkitten.blogspot.de/2014/07/eponia-state-of-mind.html
Tuesday, 16 June 2015
Given up on following the EPO posts? Here's a recap of the year to date
http://ipkitten.blogspot.de/2015/06/given-up-on-following-epo-posts-heres.html
Thursday, 23 June 2016
Enlarged Board publishes decision: EPO President violated judicial independence
http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html
Monday, 7 November 2016
Firings will continue until morale improves - Merpel revisits the EPO
http://ipkitten.blogspot.de/2016/11/firings-will-continue-until-morale.html
Thursday, 17 November 2016
Remember the House Ban? How two years flies past
http://ipkitten.blogspot.de/2016/11/remember-house-ban-how-two-years-flies.html
Then, on Friday, 10 March 2017, Merpel announced her blog would stop covering "one of, if not the, biggest ongoing issues in IP in Europe":
Curtain - Merpel's final EPO post http://ipkitten.blogspot.de/2017/03/curtain-merpels-final-epo-post.html
Even though, Merpel still publishes episodically on ipkat, one of her latest articles wonders about what happen to the reinstated board of appeal member:
Wednesday, 13 December 2017
The ILO rules reinstatement of Board of Appeal member, but EPO resists
http://ipkitten.blogspot.de/2017/12/the-ilo-rules-reinstatement-of-board-of.html
This blog is in deference to the old Merpel. However, to avoid the confusion between the new and the old Merpel, this cat shall write her name the Munich way: Märpel.
Wednesday 11 April 2018
Cats have 9 lives
For a few years, a cat called Merpel wrote news about Eponia... but then on 10.3.2017 it was curtains for Merpel. Can we restart that space of discussions and exchanges? I don't have the talent or the humour of Merpel but maybe I can try.
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