Are The EPO President’s Days Numbered?

With rumours swirling that European Patent Office President Benoît Battistelli is seeking another term in office, disgruntled staff members called another demonstration today to try to push the office’s governing body, which is meeting on 15-16 March, to find a successor.

EPO President Benoît Battistelli

[Update: AC delegations “exchanged views on the election process for the future President of the Office and mandated the Chairman to come back with a proposal in June, so that the process could start one year before the end of the mandate, as it is the usual practice,” a 16 March communication from Battistelli’s office said.]

In a 7 March letter, the Staff Union of the EPO (SUEPO) cited “persistent rumours” about another extension of the president’s term and noted that the issue of procedure for the appointment of the next EPO president is on the agenda of the 15-16 March meeting of the office’s governing body, the Administrative Council (AC). Battistelli’s term ends in June 2018, so the AC must reach agreement by March 2018, SUEPO said.

For employees looking forward to a change from the longstanding tensions between staff and EPO management, “the first bit of good news is that the timing seems to indicate the intention of the Council to move forward” and choose another president, the letter said. It’s also good news that a simple majority of AC members is sufficient to decide to publish a vacancy notice for the president’s slot, it said. That means the few national delegations to the AC who support Battistelli won’t be in a position to block or delay the job announcement, it said.

Nevertheless, there are “some reasons for concern,” SUEPO said. The chair of both the AC and the Board 28 (a sub-group of the AC) said he intends to make a proposal to all delegations concerning the election process for Battistelli’s successor, but it’s unclear what that means, it said. In addition, a matter that should be fully transparent is being handled in an opaque and cavalier manner, the union said. It worried that the president would “try to bamboozle the Council with ‘alternative facts’” or convince them that they can’t agree without first coming up with a specific “process.”

The president is reportedly hoping to stall the process of appointing a successor by claiming that the AC needs a ¾ majority to decide on publication of the vacancy notice, SUEPO said in a 10 March call for the demonstration. That’s nonsense, it said: Such a majority is needed to appoint a president, but because Battistelli’s contract ends on 1 July 2018, only a simple majority of more than 50% is needed to approve publication.

[Update:] Under applicable law, the European Patent Convention, the EPO president is appointed by the member states in the AC, an Office spokesman told Intellectual Property Watch. The voting, set out by the EPC, requires the appointment to be made by a “qualified majority of three quarters of the votes cast,” he said.

In general, the procedure for appointment of the next president isn’t formalised, and the EPO member countries haven’t set down any specific rules, said the spokesman. As a growing number of members has joined the EPO over the years, the appointment process has gotten “more extensive,” because it takes longer to achieve the necessary quorum, he said. To ensure a smooth transition, the member states are starting their discussion on the election process this week, the spokesman added.

Governments Taking Closer Look

Pressure from EPO member countries on Battistelli is increasing, the EPO-FLIER Team said in a 13 March letter to the heads of AC delegation. The team 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 the rule of law” at the EPO. After debates in the Dutch, French and Bavarian parliaments, the social conflict at the Office has “become the subject of discussions at government level,” the letter said.

French and Dutch ministers have publicly criticised Battistelli for his intimidating and destructive management style, the latter saying in a 23 February letter to the chairman of the Netherlands House of Representatives that, “If there is no clear improvement in the industrial relations within the EPO in the short term, I see no other option but the discussion of the situation at a high political level with the member states of the European Patent Organisation.” And the situation has become even more toxic as proposed new rules will, if they enter into force, entitle security staff to seize and search bags, phones and laptops and will bar dissemination of posters and flyers, the EPO-FLIER team wrote.

The social reforms and management by intimidation, along with unrealistic and arbitrary production targets, has introduced de facto changes to the European Patent Convention through the back door, the team said. Moreover, a recent independent survey conducted by German legal magazine JUVE found that patent quality has eroded, creating legal uncertainty for patent applicants and their competitor, hampering investment and leading to more litigation, it said.

“Seen in this light, the president’s announcement on 7 March 2017 of a 40% increase in patent grants in 2016 is alarming,” it said. “It is difficult to believe that such a surge in productivity could be achievable without a drop in quality.”

AC members should “accept your responsibility for safeguarding” a patent system that delivers the quality needed by Europeans, the team said. “Make sure to select the right new person for the job.”