German Court To Hear Unified Patent Court Challenge, As EPO Staff Questions Persist

The German Federal Constitutional Court has agreed to take up a challenge that could potentially derail the Unified Patent Court (UPC). The special – and opaque – procedure under the national constitution allows a single individual to claim constitutional breaches, said Hogan Lovells (Dusseldorf) patent litigator Clemens Plassmann. The lawsuit leaves the UPC in disarray at least until next year, he said.

Meanwhile, in the never-ending feud between European Patent Office (EPO) management and staff, President Benoȋt Battistelli was forced to back off from a planned rule change that would allow him to fire staff members “if the exigencies of the service require abolition of their post or a reduction in staff.”

The complaint to the German court was signed by a lawyer but it is unclear who is paying for or steering it, Plassmann said in an interview. The challenge is apparently an attempt to cast doubt on the country’s procedure for ratifying the UPC agreement, he said. Ordinarily such  an action requires a majority, but the challenger claims that a two-thirds vote is required for formal passage, he said.

Even if the vote was flawed, another question is whether an individual can bring such a case to the constitutional court, said Plassmann. Generally, cases brought before the court must be based on allegations of breaches of one’s fundamental rights under the constitution, he said. In this case there is no such apparent breach but that doesn’t mean the case should not be taken seriously, he said.

The challenge links to two other cases pending before the court, Plassmann said. One relates to the internal structure of the European Patent Office and the independence of its Technical Board of Appeals, the other to ratification of the Canada-EU Trade Agreement, he said. There are overlapping issues among the three cases arising from the interface of German constitutional law with international law, he said. Plassmann predicted the court will not decide them independently of one another.

The claimant in the UPC constitutional case is seeking referral to the European Court of Justice, Plassmann said. But since that court has already rendered judgment in a Spanish action contesting the UPC agreement, and the new system has been tweaked to take that ruling into account, there does not seem to be merit in a putting the new challenge to the EU high court, he said.

EPO Staff Issues Remain

Separately, at the EPO, the proposal to allow employees to be fired “without the usual compensation and without a social security system to fall back on” infuriated the EPO FLIER team, which says it aims “to provide staff with uncensored, independent information at times of social conflict.”  The provision (Article 53) would have been the “final straw for patent quality 2.0,” it said, because it, along with a plan for five-year employment contracts, would scare off even more of the best job candidates, it said in a 16 February statement.

The EPO-FLIER team identifies itself as a “group of concerned staff who wish to remain anonymous due to the prevailing harsh social climate and absence of the rule of law” at the EPO.

During a December Administrative Council debate on modernising the employment framework, an EPO member state “supported by others” suggested including a new provision, identical to the one now in World Intellectual Property Organization staff regulations, that would allow employees to be separated when their jobs are removed or staffing levels decreased, an office spokesman told us on 26 February. This provision took the form of new article 53(1) in the draft proposal that has been under discussion between the EPO and the AC over the past few weeks, he said.

However, although this sort of provision exists in other legislation, “it generated some particular concerns at the Office,” leading Battistelli, who did not propose it, to persuade supporters to delete it from the text submitted for AC approval at its 21-22 March meeting, he said.

The main elements of the new employment framework, said the office, are now to increase the maximum ceiling of fixed-term appointments from 5 percent to 20 percent of the total budget posts (a figure normally 30-40 percent in most international organisations); limit the maximum duration of fixed-term hires to 10 years, as is done in EU member states and institutions, and which could be converted into permanent positions at any time; and “improve the rights of the staff under fixed-term appointments.”

Despite the withdrawal of Art. 53, however, there are still “serious problems” with Battistelli’s proposed reforms, EPO FLIER said on 20 February. These include changing current recruitment processes and removing the maximum retirement age, it said.

 

Image Credits: muenchen.de