It's time for a follow-up on what's going on at the European Patent Office. The day before yesterday, the EPO staff union, SUEPO, took to the streets of Munich again--this time around, approximately 1,000 EPO employees went to the Danish consulate (this post continues below the document):
15 01 22 SUEPO Flyer by Florian Mueller
The Danish consulate was chosen because a Danish public servant, Jesper Kongstad, is the chairman of the Administrative Council of the European Patent Organisation. I have heard from multiple sources that he's always aligned with controversial EPO president Benoît Battistelli.
The SUEPO flyer I published above contains some links, including one to this blog, and I recommend all of them. I wish to particularly highlight this article (PDF) by patent litigator Dr. Ingve Björn Stjerna that connects certain dots between the proceedings before the Court of Justice of the EU concerning the future Unified Patent Court and the questions that have been raised about judicial independence at the EPO. The related part (entitled "The most recent developments at the EPO") begins on page 3 of the document.
One of the links points to a TechRights article, and there are a couple of other recent TechRights article I find interesting (which does not mean a wholesale endorsement): this one on the rumor that the EPO's recently-hired Director of Internal Communications has "resigned" and this one on (so far unproven) allegations against a vice president of the EPO. The de facto suspension of a member of a board of appeal (i.e., an EPO-internal judge) that has drawn much criticism from judges and lawyers was, according to French financial daily Les Echos, due to whatever the suspended judge said about that vice president, Mr. Željko Topić.
You can find many interesting comments below this IPKat post on an EPO-internal memo with which a vice president, through one of his assistants, told the heads of examination units what he thought about a letter by retired UK judge and professor Sir Robin Jacob to the Administrative Council.
Here's my thinking: On the one hand, I can understand that the EPO leadership is increasingly nervous. I can also appreciate that they would prefer to handle matters like these internally and confidentially. But opacity has its limits, and the EPO is simply too important for people like Sir Robin (and so many others) to ignore what is going on there.
EPO vice president Minnoye is right that Sir Robin (and others, including me, except that I'm not aware of any EPO-internal communication about me) was "not aware of all facts" when he wrote his letter. But he had apparently received information from reliable sources according to which the suspended judge had not done anything that would explain why he had to be removed, why his computer had to be searched, and why he had to be denied access to the building. I'm sure Sir Robin would never have written the letter if there had been the slightest indication of, for example, the allegations having involved physical violence that others in the building had to be immediately protected from. Everything that the outside world has heard so far is about information and/or opinions the suspended judge shared.
That is enough for Sir Robin and others to conclude there was no basis for executive action. Whatever the issue may have been, it should have been properly investigated, and no matter how serious or not, this should have been adjudicated by a judicial body--not the president, not the Administrative Council--before taking such action.
The second point made by EPO VP Minnoye is that Sir Robin allegedly referred to a different type of executive action. Mr. Minnoye stresses this was an "office ban."
This is old news. It had already appeared in December that the EPO leadership distinguishes between
(temporary) office ban,
(temporary) suspension, and
(permanent) removal.
This sophistry is not going to get them anywhere. The critics of the decision presumably (and in my case, I know it's definitely the case) just refuse to make that distinction because it's meaningless to them.
Let's think about it. A judge who is not allowed to enter the building can't hold hearings, can't (easily) meet with his peers on the same board of appeals to discuss the case, can't access certain document databases, can't use office equipment there, can't get help from assistants. He's simply unable to do his job for all intents and purposes.
How is that not a suspension? How does an executive's ability to make this decision not compromise judicial independence?
I've been saying for some time that it would be a mistake to focus just on Mr. Battistelli. The problems here are structural. Mr. Minnoye may very well be right that in formal terms, Mr. Battistelli can impose an "office ban" on a judge, and that this is allowed by a section of the EPO's rules that is different from the one on a suspension, and that a suspension is not a removal because it's temporary (another distinction that amounts to hairsplitting). So maybe Mr. Battistelli acted in accordance with the rules, some of which he made or changed himself (and the Administrative Concil rubberstamped). It's not really important whether Mr. Battistelli will leave the EPO in a few months or in a few years. All that matters is that the structural deficiencies that allowed the current situation to arise be addressed for once and for all. The national governments of the EPO contracting states are responsible for this.
The root causes are key. Mr. Battistelli is not a root cause. There are reasons to believe that under this leadership the situation exacerbated, but he does not share political responsibility. Dozens of European countries that believe they have to "remind" China and Russia of human rights and democracy issues time and time again have allowed the situation to get out of hand because they failed to put proper checks and balances in place.
Mr. Minnoye and Sir Robin can be right at the same time. I tend to think they both are right at the same time. In Sir Robin's case I'm sure, in Mr. Minnoye's case I can see that the EPO's rules probably support his logic.
The bottom line is that reform is needed. The Administrative Council has been part of the problem, not part of the solution. Sir Robin and others were too polite to address someone other than the Administrative Council. They should have contacted politicial decision-makers and members of different parliaments. The Administrative Council appears to be the fox in charge of the henhouse, though it would be great if it could prove its critics wrong in the months and years ahead and bring about meaningful change, rather than endorse and rely on meaningless sophistry.
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