Jurisprudence

While Märpel rejoices for Ion Brumme and Malika Weaver, the new decisions do not solve the underlying problems of justice at the EPO. They only add a further layer of unpredictability to a situation that is severely dysfunctional.

AT-ILO is unpredictable. They do not follow their own jurisprudence, for example. The recent cases of Elisabeth Hardon and Patrick Corcoran, for example, are decided on the similar grounds of procedural economy: the court only argued that the disciplinary process was invalid and remitted the case. In the two cases, the court did not seek to determine whether the staff member was innocent or guilty, they simply argued that the decision was flawed. But one person was reinstated and the other one was not.

AT-ILO is also unpredictable because they sometimes decide on the matter (as an appeal court would do) and sometimes they only decide formally on the conditions of the procedure (as a court of review or "revisionsgericht" would do). In the case of Ion Brumme, for example, the court discusses at length whether the agreement that Ion Brumme signed, as chair of Suepo Munich, constituted misconduct and the tribunal notes that "a staff union must be free to conduct its own affairs". While Märpel can only rejoice that AT-ILO takes the role of a court of appeal (there is no other one), she also deplores the resulting unpredictability when this role is only taken in a fraction of the cases.

There is another gem in the latest decisions. Case 4052 was discussed in another blog and considers the situation of an ex employee of the EPO (dismissed in 2009, despite a national court rendering an opposite decision). The EPO initiated disciplinary proceedings against him in 2015, 6 years after he stopped working for the EPO for publishing his opinions on a personal blog. Indeed the EPO service regulations Articles 19 and 20 lay some limits as to what ex-employees may do and what they may publish, but common sense would interpret these articles quite differently. The normal way to oppose a blog for the EPO would be to go to a civil court. That would ensure equality of chances between an ex-employee and someone who never was an employee if they both start a blog. Or does the EPO wish to treat differently patent attorneys who are also ex-examiners and patent attorneys who never worked at the EPO, for example?

Demonstration today

Suepo Munich organised a demonstration today to celebrate the latest decisions of AT-ILO. Ion Brumme, Malika Weaver and Elisabeth Hardon were present.

In Suepo's words:

"The ILOAT ordered the reinstatement of Ion Brumme 'to the position he held immediately before his dismissal' and the restoration of Malika Weaver 'with retroactive effect to the grade and step she would have held but for the imposition of the disciplinary sanction', as well as payment of interest on the resulting remuneration arrear, payment of moral damages and payment of costs. Elizabeth Hardon's case has been remitted by the ILOAT to the EPO 'to enable a Disciplinary Committee, differently constituted, to consider the matter under Article 102 of the Service Regulations and for the President to make a fresh decision. She is entitled to moral damages and payment of costs.

The decisions of the ILOAT are a slap in the face of Mr. Battistelli and clearly demonstrate his incompetence to manage an international organization."

Märpel certainly rejoices for Ion Brumme and Malika Weaver. The case of Elisabeth Hardon, however, appears to be a Pyrrhic victory. Why wasn't she reinstated if the EPO was not able to do their part of the job? Why did AT-ILO consider that the cases of Ion Brumme and Malika Weaver were union bashing but the procedure over the third Suepo representative was not? Did they believe Mr Minnoye when he said publicly that all this was pure "Zufall" (randomness)?

Just a few hours before the decision was issued, someone posted a comment under the name of "Mentalist" on this site:
http://rip-kat.blogspot.com/2018/06/epo-flyer-number-38.html

"Mentalist" argued that "a remittal is the best option for EPO's management. It allows them to play cat and mouse for another couple of years, effectively keeping SUEPO busy. It passes the bucket to the next president, with a blank check to do nothing for a few years. It deprives the affected persons of any recourse, because the legal process would still be running."

AT-ILO results

Märpel is delighted to hear that Mr Ion Brumme, former SUEPO Munich chairperson, has been fully reinstated by ILOAT: http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4043&p_language_code=EN and Ms. Malika Weaver, former SUEPO Munich treasurer, too http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4042&p_language_code=EN

The case of Mrs, Elisabeth Hardon is remitted: http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4047&p_language_code=EN

EPO-Flyer number 38

Märpel is not the only team to be upset about AT-ILO. Another team publishes "flyers" regularly under the name "Flyer team". The latest flyer is about AT-ILO: "The ILO Tribunal: Is it still worthy of our trust?"

The flyers are published on the following web site: http://www.epostaff4rights.org
That web site deserves as many "unique readers" as this little blog.

Flyer 38 lists all the deficiencies of AT-ILO.

Thank you!

As most of you probably noted, this blog is hosted by google. Google automatically compiles a collection of statistics as to the number of page views and visitors. Cats being naturally curious, Märpel had regular checks on these statistics.

We passed a milestone this week and can celebrate our 500th "unique viewer". Each page is viewed over thousand times. The little robots running the site told Märpel that the difference is due to cookies, but Märpel prefers to eat mice.

Thank you for being so many! You made this little blog valuable.

Google little robots also compile statistics as to where the "unique viewers" are. As expected most of them are in Germany and the Netherlands, but Märpel was delighted to find out that we have viewers in other countries too! One country stands out: we have viewers in France! Is that the reason why the little robots call these viewers "unique"?

Wirtschaftswoche

There is an article in today's edition of Wirtschaftswoche about the EPO, discussing the scandalous investment guidelines and that President Battistelli celebrated the inventor of the year in Saint Germain, in a theatre he manages privately.
Our Munich and Berlin readers may want to get their own copy.

Innocent!

Extraordinary news were published on the Kluwer patent blog yesterday:

"Landgericht München: Patrick Corcoran is Innocent and Acquitted of all Charges":

http://patentblog.kluweriplaw.com/2018/06/20/landgericht-munchen-patrick-corcoran-innocent-acquitted-charges

In summary, President Battistelli and Vice-President Topić sued Mr. Corcoran for libel in front of a German court. Mr. Bausch managed to have access to the original decision (which is linked in original and in English translation) and the decision says:

"The Landgericht thoroughly destroyed the complaint, designating plaintiffs' evidence as „assumptions" or „suspicions" far away from the high probability or near certainty necessary for entering a judgment against the defendant, and held that there is no basis for the accusations (a) that Mr. Corcoran wrote a certain allegedly defamatory email about Mr. Topić, (b) that he sent this email out, (c) that it was received by any of the alleged addressees, and (d) that the email was even defamatory to the Plaintiffs. I would call this decision a first class acquittal."

Märpel notes a little fact that was apparently forgotten in Mr. Bausch report. There was a good reason for the civil action: because a civil action was running, the Administrative Council could not reinstate Mr. Corcoran. As comments on the Kluwer patent blog point out: "The rotting fish stinks from the head."

Märpel also notes that AT-ILO made no mention of the facts listed by the Landgericht in their own decision. They didn't even mention that the EPO investigation unit themselves found that they could not assign the libel email found on the USB stick to Mr. Corcoran. Certainly, AT-ILO were informed of that report by the EPO investigation unit, yet they chose to do nothing. Mr. Petrović, your actions speak louder than words. AT-ILO prejudice is now clear.

But the court in Karlruhe is likely to notice Mr. Petrović actions. Are they going to be satisfied with a court which ignores the basic principles of justice, ignores the facts concerning Mr.Corcoran or is satisfied that President Battistelli can harass and dismiss staff representatives? The next public reading in Geneva is next week and will be just as scandalous. Quo usque tandem?