EPO Supervisory Body To Face Fears Over Patent Quality, Judicial Independence

As staff strikes continue and the European Patent Office’s Administrative Council prepares for what could be a contentious 11 December meeting, opinions are split over the effect of the turmoil on the office’s role in Europe’s unitary patent. [Update: the Administrative Council upheld the suspension by EPO President Battistelli of an AC member, did not discipline Battistelli. The 12 December AC statement is here.]

While some European Patent Office (EPO) employees strike on 10 December, many are waiting to see what the Administrative Council (AC), the office’s supervisory body, will do about the growing tension between EPO President Benoît Battistelli and his staff.

The AC, composed of representatives from EPO member states, has been confronted with claims that patent examiners will no longer be able to ensure patent quality standards if Battistelli’s proposed “New Career System” (NCS) is approved.

In a 5 December letter, EPO-FLIER, which identifies itself as a “group of concerned staff of the EPO who wish to remain anonymous due to the prevailing harsh social climate and absence of rule of law” at the office, noted that the European Commission seeks a high-quality patent system, an aim that “matches the motivation and ethics of EPO examiners since 40 years.”

EPO career systems so far have secured a predictable compensation package and career progression based on a mix of merit and seniority, EPO-FLIER said. That lets examiners focus on delivering high-quality search and examination “in a team effort rather than on competing for the sake of income differentiation,” it said. But the NCS is “a strong push for more production” when “absolute production already counts more than reliable grants.”

EPO-FLIER urged the AC not to approve “an entirely performance-based career proposal.” Should the council do so, it said, EPO examiners “will no longer be able to give their main attention, during prior art search and the examination of the presence of novelty and inventive step, to legal certainty of patents, without directly eroding their individual remuneration and pension prospects.”

Quality is a key element of the NCS as it forms one of the pillars of the EPO’s “quality and efficiency” strategy, an EPO spokesman told Intellectual Property Watch. “The EPO is aware of the concerns voiced, but is confident that with all measures implemented in key areas, including [information technology (IT)], the quality of European patents can be maintained and even improved with the new career system,” he said.

“Most Dramatic Crisis Meeting in EPO History”

The AC meeting “is set to be the most dramatic crisis meeting in the history” of the EPO, for another reason, said Florian Müller, who identifies himself as a former intellectual property activist and advisor to clients on the patent wars surrounding mobile devices. Not only has Battistelli lost the faith of large parts of his staff, but his apparent action in suspending a member of the EPO’s Board of Appeal “would be completely irreconcilable with the EPO’s own rules and the judicial-independence standards of the civilized world,” he wrote on his FOSS Patents blog.

As reported by the respected IPKat blog on 8 December, Battistelli suspended the Board of Appeal member under the guise of a “house ban,” prompting the board to appeal to the AC. The board’s letter argues that the suspension wasn’t validly imposed, because neither the EPO president nor his investigation unit has the required authority to do so.

“The actions of the investigation unit on the orders of the president also appear to be a clear challenge to the judicial independence of the Boards of Appeal,” it wrote. It urged the AC to set a “clear limitation on the executive power” to avoid any impression of undue influence on the board’s judicial work.

The suspension, and Battistelli’s plan for performance-based remuneration, prompted a letter from Bardehle Pagenberg (Munich) attorney Tilman Müller-Stoy to Christoph Ernst, ministerial director in Germany’s Federal Ministry of Justice and the country’s representative to the AC (linked to in an IPKat 9 December posting). In it, Müller-Stoy voiced deep concern “about the judicial independence at the EPO and about the EPO’s worldwide reputation.”

The suspension exceeded EPO management authority and “is unacceptable under the principles of the rule of law,” Müller-Stoy wrote. “The exertion of the disciplinary power by the ‘executive’ over the ‘judiciary’ of the EPO abolishes the separation of powers and jeopardizes the judicial character of the Boards of Appeal which is substantially determined by the independence of its Members.”

The World Trademark Review also has written on the issues at the EPO.

“We Are All in Suspense”

As to what action the AC might take against Battistelli, “epo-insider,” a member of the anonymous EPO-FLIER team, told Intellectual Property Watch that “we are all in suspense.” Nobody knows what the council might do because “they are politicians” who can’t admit mistakes, the source said.

Battistelli was only reappointed in June, so it’s “rather unlikely” the AC will “kick him out,” epo-insider said. But if the NCS doesn’t win approval, the president might have to leave in a few months, which is what the staff hopes for, the source said.

What could make a difference is the fact that German attorneys have contacted the German AC delegation, complaining about abuse of power and a lack of the rule of law, said epo-insider. “That might force Germany to move,” the source added.

“I think anything can happen on Thursday,” Florian Müller said.

Implications for the European Unitary Patent?

The EPO situation could affect implementation of the unitary patent in two ways, said Müller. If the turmoil isn’t resolved satisfactorily soon, the EU institutions “may start to worry about whether the EPO is the right partner” for the unitary patent, considering that the EU has the ability to set up its own EU Patent Office any time, for example, under the umbrella of the Office for Harmonization in the Internal Market, he said.

Unless it guarantees fundamental rights to its staff, the EPO is “structurally the wrong strategic partner for the EU,” especially one that increasingly positions itself as an advocate of democracy and human rights in the rest of the world, said Müller. If critical questions reach the EU institutions, implementation of the unitary patent could be delayed, he said.

Another possible problem is the criticism by major industry players of some aspects of the rules of procedure for the Unified Patent Court (UPC), Müller told Intellectual Property Watch. The national government officials running the show at the UPC and making the policy recommendations that politicians tend to rubber-stamp are the same ones, or at least from the same departments, as those who sit on the EPO AC, he said. If they accept that a judge can be suspended without due process, what would happen at the UPC?

This is a governance issue with widespread implications, said Müller. National government officials running the patent system had free rein for a long time because the field is complex and everyone trusted them, he said. They must justify that trust now by taking steps to reform the EPO in a fair and transparent way, or they’ll face more scrutiny and oversight at home, which would also affect their or their colleagues’ involvement with the UPC, he said.

The EPO, however, dismissed those claims.

“Preparations for the introduction of the unitary patent are ongoing, with the Select Committee of the EPO meeting in Munich” on 10 December, the office spokesman said.

Many of the reforms undertaken in key areas such as IT and human resources with the members states aim to strengthen the EPO’s capacity to be able to handle the new challenges, including implementing the unitary patent, he said.

Battistelli met recently with EU Competition Commissioner Margrethe Vestager and Internal Market and Industry Commissioner Elżbieta Bieńkowska and “both sides agreed to work in ever closer ties,” said the EPO spokesman.

“The impact of some social unrest should not be overestimated,” he said. Figures posted by the office showed that on 9 December, 6 percent of the workforce was on strike, down from a high of nearly 37 percent on 20 November [updated].

Image Credits: EPO, EPO