European states lack awareness of their obligations under the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights and have established associations such as the EPO and the UPC, without anyone accounting for guarantees with regard to democracy, the rule of law and human rights. Professor Siegfried Broß said this in an interview with Kluwer IP Law about the constitutional complaint that has been filed against German ratification of the Unified Patent Court Agreement. Broß is a former judge of the Xth Civil Panel of the Federal Court of Justice (1986-1998), responsible among others for patent cases, and of the German Federal Constitutional Court (FCC, 1998-2010).

One of the complaints against the UPCA concerns ‘democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC’. Observers think this refers, among others, to alleged deficiencies of the EPO structure and the European Patent Convention, on which the EPO is based.
If the Federal Constitutional Court were to rule that the EPC framework – that has functioned for 44 years – does not sufficiently respect the separation of powers and does not sufficiently observe democratic rules and responsibilities, what would the consequences be? Would it mean that all the EPO’s decisions turn out not to be valid?

(Answers translated to English by Kluwer IP Law. The original answers in German of Professor Broß can be found at the bottom of this article.)

1) ‘The questions raised by the constitutional complaint on democratic and legal deficits of the European Patent Convention and the European Patent Organisation which is based on it, as well as the subsequent Unified Patent Court, can only be understood and answered in an appropriate manner, if one looks more closely at the structure of the European Patent Organisation and its executive body, the European Patent Office, in an unbiased and distant way.

When the Member States of the EPC entered into an association, they completely disregarded the obligations imposed on them for many years by national constitutional law, by the European Convention on Human Rights (ECHR) – for all member states – as well as, for all EU member states, by the EU Charter of Fundamental Rights.

In the past, associations of states have often been established – for instance EuroControl, but also ILO – according to a superficial design: the underlying political will was implemented, without anyone accounting for the structures that have to be guaranteed with regard to democracy, the rule of law and human rights in the new association.

As to human rights, there are two levels: it concerns the individual rights of those who are affected in the outside world, and it concerns, internally, the individual rights of the staff of the new association of states. To this day, the necessary problem awareness is missing both in the national constitutional bodies of the EPO member states and in the European Court of Human Rights.

In the past I have pointed out that the current situation at the EPO shows the Administrative Council fails in its task and that with its current attitude towards the EPO staff a “Guantánamo” would be possible on the soil of the Federal Republic of Germany. This has been clearly illustrated by the presentation of the current Chairman of the Administrative Council on 13 October 2017 in Munich.

He said more or less that the troubles of the last years within the EPO, with very depressing human tragedies, will (probably) not be seen anymore under the new presidency. There is no more revealing way of describing the failure of democratic structures and the rule of law, which are accompanied by an uncontrolled opening to the contempt of human rights of the staff of the institution – and the failure of the supervisory body.

It is therefore not correct to assess the EPC’s rules and the organizational structure of the EPO as satisfactory and perhaps even exemplary for 44 years. The EPO staff had no effective protection of its fundamental rights due to the referral to the jurisdiction of the ILO, and the deciding bodies of the EPO could seriously never have been designated as independent courts. From the outset, it was opposed by the organizational structure chosen by the contracting states, which structure was tantamount to an escape from basic principles of democracy and rule of law.

However – one must not overlook this – all concerned and involved parties, and particularly the constitutional organs of the Member States, have lacked the necessary awareness of this problem. In the past and to the present, they have not lived up to their obligations under the ECHR, the EU Charter of Fundamental Rights and their national constitutional obligations.

Should the Federal Constitutional Court – which I expect after the Court’s decision of 27 April 2010 [note by the editor: in this decision 2 BvR 1848/07 it was held that decisions by the EPO are supranational legal acts against which a constitutional complaint can be filed in principle; however, the constitutional complaint at stake was rejected because it did then not satisfy the FCC’s high requirements as to the substantiation of such complaints] – decide that the pending constitutional complaints [ed. see this blogpost] and the new constitutional complaint [of Ingve Björn Stjerna, ed.] are justified, owing to their careful substantiations, this would not mean that earlier decisions of the Boards of Appeal and the Enlarged Board of Appeal of the EPO were invalid. As in other states, under German law a re-opening of a proceeding that has been finally concluded is only possible in the case of a criminal conviction.’

If (some of the) the complaints are justified, according to the FCC, would it give directions how to repair the deficiencies?

2) ‘If the Federal Constitutional Court rules a complaint is justified, it must of course indicate how the contested legal foundations, including the EPC, should be amended. This is commanded by legal certainty, so as to establish justice and security at the European and international level as soon as possible.

The UPCA does not create any difficulties because it has not yet been ratified, so that the status quo is maintained for the time being. Because of the considerable deficits of the EPC regarding the rule of law and democratic and human rights, the Federal Republic of Germany, as an EPC Contracting State, is to be obliged to act towards an amendment of the EPC, such that the Boards of Appeal [ed.: literally ‘the deciding bodies’, but we assume that Prof. Broß did not mean to include the opposition divisions] should be taken out of the organization of the EPO and become institutionally independent. For the expert such a new structure is not even difficult to create.’

Do you think the constitutional complaint against the UPCA is a blessing, in the sense that it has prevented the UP system from starting as long as fundamental constitutional issues have not been ruled upon by independent judges?

3) ‘The constitutional complaints have brought to light, not only for the public, but also for governments and constitutional courts of member states, a problem that has always existed latently. Actually it was already out in the open from the beginning, as the German delegation admonished during the negotiations of the agreement [ed.: the EPC] against the backdrop of the creation of the Federal Patent Court. For reasons of convenience and due to the creation of a parallel word – as we have had to observe with great concern in international law for decades – it never came to a head. Because of the depressing internal events at the EPO, without effective legal protection for the staff and without protection of their private sphere, it is no longer possible to evade this problem. A clarifying decision within the framework of national constitutional law, the ECHR and the Charter of Fundamental Rights is indispensable.’

Have you ever been in contact with Mr. Ingve Björn Stjerna about his complaint?

4) ‘No.’

If the FCC rules that there are fundamental deficiencies in the UP system indeed, this would be a gigantic blow to efforts to build a new European patent system. From your experience as a former FCC judge, can you tell whether judges are aware of the political and financial consequences of their decisions?

5) ‘It is necessary to distinguish here. No concessions are possible to the principles of the rule of law or democracy or human rights because of financial considerations. I was a rapporteur, for instance, in the dispute over the distribution of DM 100 billion of the UMTS auction, but also in the dispute about the Atomkonsens [ed.: the agreement between the government and the electric power companies of 2000 where the first red-green government initiated the exit from the use of atomic energy in Germany; the dispute was about the costs] case. If there are any existential disadvantageous consequences for the state, the Federal Constitutional Court has to mitigate these by setting deadlines or expiry dates. Such problems do not occur in the EPO case. Serious violations of fundamental and human rights must be immediately stopped and past violations must – as much as possible – be compensated for appropriately.’

The Unified Patent Court is unique in that it is very specialized. Some say: too specialized, because specialized courts will always tend to broaden their field of competence and the UPC will tend to make patents too important; to the detriment of for instance, the need for broad accessibility of medicines. What is your opinion?

6) ‘Specialization can – as the EPO undoubtedly proves – put at risk human rights and fundamental democratic principles. The problem is that parallel worlds are created and thus, through associations between states, first the principle of democracy starts eroding and subsequently human rights and the rule of law.

In my long-standing practice as a judge of the patent panel of the Federal Court of Justice and before that in the Bavarian Administrative Court’s panel for the planning of all Bavarian road and water projects, the system of seeking assistance from experts that are outstandingly qualified in their field has proven to be unsurpassed from the point of view of the rule of law.

In this system, the judicial training and experience is put to use in an objective and distanced manner by the judge examining the plausibility and conclusiveness as well as the clarity of an expert opinion in his/her own responsibility. In this process, the questions, suggestions and opposite positions of the parties in the proceedings are helpful. Conversely, expert judges are not a priori free from inner biases and it is questionable whether they are still up to date with the developments in their field of expertise.’

Is there anything else you’d like to mention?

7) ‘The constitutional complaint that you addressed and the entire problem behind it have only been able to develop because EPC Member States have largely failed to act in the Administrative Council and since – with the approval of the “mainstream” – a parallel world has developed in international law; despite all the criticism in the past, numerous publications and, since several years, serious clashes between the EPO’s presidency and staff members.

The rule of law, democracy and human rights have been put at risk. I would like to stress the point that the problem can be compared with the fact that globally operating companies do not feel responsible for the respect of human rights in countries where they have their production. Against this background, the basis for the UPCA is lacking, because the EPC collapses in both areas – towards its staff and regarding its organization of judicial review.’

For regular updates on the Unitary Patent and the Unified Patent Court, subscribe to this blog and the free Kluwer IP Law Newsletter.

Original answers in German from Professor Broß:

1) Die durch die Verfassungsbeschwerde aufgeworfenen Fragen von demokratischen und rechtsstaatlichen Defiziten des EPÜ und der auf ihm beruhenden EPO sowie des sich hieran anschließenden EPC kann man nur verstehen und dann auch sachgerecht beantworten, wenn man sich unvoreingenommen und distanziert die Struktur der EPO und ihres Exekutivorgans, des EPA genauer ansieht.

Die Vertragsstaaten des EPÜ sind eine Staatenverbindung eingegangen und haben dabei völlig außer Acht gelassen, welchen Bindungen sie bei einem solchen Vorhaben nach innerstaatlichem Verfassungsrecht und – für alle Vertragsstaaten nach der EMRK – und für die Vertragsstaaten der Europäischen Union seit vielen Jahren der Grundrechtecharta unterliegen.

Staatenverbindungen wurden in der Vergangenheit regelmäßig – z.B. EuroControl, aber auch ILO – nach einem oberflächlichen Gestaltungsmuster eingegangen: Der zu Grunde liegende politische Willen wurde umgesetzt, ohne sich Rechenschaft darüber ab zu legen, welche Strukturen in der neuen Staatenverbindung hinsichtlich Demokratie, Rechtsstaatsprinzip und Menschenrechte gewährleistet sein müssen.

Was die Menschenrechte anbetrifft, bestehen zwei Ebenen: Einmal handelt es sich um die Individualrechtsposition der nach außen Betroffenen und im inneren der Bediensteten der neuen Staatenverbindung. Bis heute fehlt es hier bei den nationalen Verfassungsorganen der Mitgliedstaaten der EPO wie auch beim EGMR an dem gebotenen Problembewusstsein.

Ich habe in der Vergangenheit darauf hingewiesen, dass die aktuellen Vorgänge beim EPA ein Versagen des Verwaltungsrats erkennen lassen und dass bei der eingenommenen Haltung gegenüber den Bediensteten des EPA auf dem Boden der Bundesrepublik Deutschland “Guantanamo” möglich wäre. Das hat eindrücklich der Vortrag des nunmehrigen Vorsitzenden des Verwaltungsrats  am 13. Oktober 2017 in München verdeutlicht.

Er hat sinngemäß ausgeführt, dass  die Verwerfungen der letzten Jahre innerhalb des EPA mit äußerst bedrückenden menschlichen Schicksalen mit der neuen Präsidentschaft (vermutlich) nicht mehr auftreten werden. Entlarvender kann man die Verfehlung rechtsstaatlich-demokratischer Strukturen mit einer unkontrollierten Öffnung für die Missachtung von Menschenrechten der Bediensteten der Institution und das Versagen des Aufsichtsorgans nicht umschreiben.

Es ist deshalb auch nicht richtig, dass Regelwerk des EPÜ und die Organisationsstruktur der EPO als zufrieden stellend und vielleicht gar vorbildlich während 44 Jahren zu beurteilen. Die Bediensteten des EPA hatten keinen effektiven Grundrechtsschutz wegen des Verweises auf die Gerichtsbarkeit der ILO und die Spruchkörper konnten noch nie ernsthaft als unabhängige Gerichte bezeichnet werden. Dem stand von vornherein die von den Vertragsstaaten gewählte Organisationsstruktur mit der Flucht aus grundlegenden rechtsstaatlich-demokratischen Bindungen entgegen.

Allerdings – das darf man nicht übersehen – hat bei allen Betroffenen und Beteiligten und vor allem den Verfassungsorganen der Mitgliedstaaten das gebotene Problembewusstsein gefehlt. Sie sind in der Vergangenheit und bis in die Gegenwart ihren Verpflichtungen aus EMRK, Grundrechtecharta der EU und ihren nationalen Verfassungsbindungen nicht gerecht geworden.

Sollte das Bundesverfassungsgericht – was ich nach dem Kammerbeschluss vom 27. April 2010 erwarte – aufgrund der sorgfältigen Begründungen schon anhängiger Verfassungsbeschwerden und der nunmehrigen Verfassungsbeschwerde entsprechend urteilen, hätte dies nicht zur Folge, dass alle in der Vergangenheit getroffenen Entscheidungen der Beschwerdekammern und der Großen Beschwerdekammer des EPA hinfällig wären. Auch das deutsche Recht kennt die Wiederaufnahme rechtskräftig abgeschlossener Verfahren nur bei strafrechtlichen Verurteilungen.

2) Selbstverständlich muss das Bundesverfassungsgericht im Falle der Stattgabe Hinweise dafür geben, wie die beanstandeten gesetzlichen Grundlagen einschließlich des EPÜ zu fassen sind. Das gebietet die Rechtssicherheit, damit ehestmöglich auch Rechtsfrieden und Sicherheit auf europäischer und Völkerrechtsebene hergestellt wird.

Das EPGÜ bereitet keine Schwierigkeiten, weil es dann zunächst beim bisherigen Vertragsstand verbleibt. Wegen der erheblichen rechtsstaatlich-demokratischen und menschenrechtlichen Defizite des EPÜ ist die Bundesrepublik Deutschland als Vertragsstaat zu verpflichten, auf eine entsprechende Änderung des EPÜ hinzuwirken, dergestalt, dass die Spruchkörper aus der Organisation des EPA herausgenommen und institutionell verselbstständigt werden. Dem Fachmann bereitet eine solche neue Regelung nicht einmal geringe Schwierigkeiten.

3) Die durch die Verfassungsbeschwerde in das Licht nicht nur der Öffentlichkeit – dort ist es letztlich schon seit Anbeginn wie die deutsche Delegation seinerzeit bei den Vertragsverhandlungen vor dem Hintergrund der Gründung des Bundespatentgerichts eindringlich angemahnt hatte –, sondern auch der Regierungen und Verfassungsgerichte der Mitgliedstaaten gerückte Problematik war immer latent. Aus Bequemlichkeit und Schaffung einer Parallelwelt – wie wir es seit Jahrzehnten im Völkerrechtsbereich mit großer Sorge beobachten müssen – kam es nie zum “Schwur”. Wegen der bedrückenden internen Vorgänge beim EPA ohne effektiven Rechtsschutz für die Bediensteten und Schutz von deren auch im internen Dienstbetrieb geltenden privaten Sphäre ist ein weiteres Ausweichen ausgeschlossen und eine klarstellende Entscheidung im Rahmen des nationalen Verfassungsrechts, der EMRK und der Grundrechtecharta unumgänglich.

4) Nein.

5) Man muss hier unterscheiden: Rechtsstaats- und Demokratieprinzip dulden ebenso wenig wie die Menschenrechte Abstriche unter finanziellen Erwägungen. Ich war Berichterstatter etwa wegen des Streits um die Verteilung der Versteigerungserlöse von etwa 100 Milliarden DM der UMTS, aber auch wegen des Atomkonsenses. Etwaige für das Staatswesen existenzielle nachteilige Folgen sind über die Festsetzung von Stichtagen oder Auslauffristen schonend vom Bundesverfassungsgericht zu gestalten. Solche Probleme treten hier nicht auf und schwerwiegende Grundrechtseingriffe wie auch substantielle Menschenrechtsverletzungen müssen sofort unterbunden und für die Vergangenheit durch entsprechende Wiedergutmachung – sofern möglich – ausgeglichen werden.

6) Spezialistentum kann – wie gerade die EPO zweifelsfrei nachweist – Menschenrechte und rechtsstaatlich-demokratischen Grundlagen infrage stellen. Es ist das Problem, dass hierdurch Parallel- welten geschaffen und so über Staatenverbindungen das Demokratieprinzip zuerst und danach die Menschenrechte und der Rechtsstaat ausgehöhlt und unterlaufen werden.

In meiner langjährigen Praxis als Richter im Patentsenat des Bundesgerichtshofs und vorhergehend am Bayerischen Verwaltungsgerichtshof in dem für ganz Bayern zuständigen Planungssenat für alle Straßen- und Wasservorhaben hat sich das System der Beiziehung von in ihrem Fachgebiet herausragend qualifizierten Sachverständigen unter rechtsstaatlichen Gesichtspunkten als unübertroffen bewährt.

Die richterliche Ausbildung und Erfahrung kommt hier objektiv und distanziert dergestalt zum Tragen, dass die Plausibilität und Schlüssigkeit wie auch Klarheit eines Gutachtens vom Richter verantwortlich geprüft wird. Hierbei sind die Fragen, Anregungen und Gegenvorstellungen der Prozessparteien hilfreich. Demgegenüber sind fachlich vorgebildete Richter nicht von vornherein von innerer Befangenheit frei und es ist fraglich, ob sie in ihrem Fachgebiet noch den vollen Überblick über den aktuellen Stand haben.

7) Die von Ihnen angesprochene Verfassungsbeschwerde und die gesamte Hintergrundproblematik konnte sich nur entwickeln, weil trotz in der Vergangenheit liegender zahlreicher Kritiken, Veröffentlichungen und seit einigen Jahren schwerer Auseinandersetzungen zwischen Amtsleitung und Bediensteten des EPA, die Mitgliedstaaten des EPÜ über den Verwaltungsrat großenteils versagt haben und – gebilligt vom “mainstream” – sich eine Parallelwelt im Völkerrecht entwickelt hat.

Rechtsstaat, Demokratie und Menschenrechte werden hierdurch in der Substanz gefährdet. Ich weise nachdrücklich darauf hin, dass die Problematik der vergleichbar ist, dass sich  weltweit agierende Unternehmen in Staaten, in denen sie produzieren lassen, nicht für die Beachtung der Menschenrechte verantwortlich fühlen. Vor diesem Hintergrund fehlt dem EPGÜ das Substrat, weil das EPÜ in beiden Bereichen – Stellung der Bediensteten und Organisation der Spruchtätigkeit – in sich zusammenfällt.

 

image_pdfimage_print

19 comments

  1. What I would like to mention is that we should not forget that everyone at the EPO makes a ton of money without paying taxes. As a German citizen I do not feel responsible for their rights as staff. We are also not talking about the weakest of society here. So we should not blow the staff issues out of proportion.

    1. Mr. Parkers post is so full of disrespect that it hurts. I don’t believe that these ‘arguments’ are consistently put forward. Usually they are put forward by clueless people sitting in the comfortable position of a well established ‘Rechtsstaat’. Next argument will be that everyone in the EPO is free to leave.

      Two time no to this.

      1) Staff at the EPO is well paid: this applies for Examiners that have legacy contracts, most probably to management, but certainly not for formalities officers and no longer for anyone starting of having started their employment by 2016; new now with 5 years contracts that are ever renewable by another period of time (‘Kettenvertrag’ illegal in DE). In case you didn’t know, the EPO pays internal taxes for staff, i.e. the tax you paid just does not appear on the payslip.
      2) If one has been part of the EPO since 10+ years, leaving is not just done like that and it involves loss of pension, peak of insurance costs etc.,irrespective of the problems of finding a new employment when you’re 50+.
      3) Considering the lack of the rule of law and the lack of legal remedies for staff, even those with established contracts are never sure whether management decides to just change the rules, cut the pension or do whatever they like. They live in an environment with no legal certainty and for a very long time it never felt like a problem because the previous “dictatorships” were mostly benevolent.

      I suggest to Mr. Peter Parker that he slips into the shoes of a staff representative at the EPO, or into a regular Examiner that fails to meet his yearly target due to whatever reasons.

      As a German citizen, I feel obliged to at least criticize systems that have not enshrined the rules of law and ultimate respect for human rights. Mr. Parker, where would you go if somebody just came and changes a contract you have with him to your detriment? Every legal step you now imagine is not available to EPO staff.

  2. Peter Parker the Practioner chips in again, complaining that we should not concern ourselves with the human rights of the employees of the European (repeat, European) Patent Office. Blowing it all out of proportion, he cautions us all. They can take care of themselves, he advises. They each make “a ton of money” he asserts, and then pay no tax on their gargantuan bank balances.

    He styles himself a citizen of Germany. Curious. You would think by now he would have some passing acquaintance with the (admirable) human rights provisions of its Basic Law. You know, the ones not limited to those who carry a German Passport.

    Or perhaps he disapproves also of his country’s Basic Law. Too many alien asylum-seekers in your country are there, Peter? Is it relative to them that you assert of EPO employees that they are not “the weakest of society”

    Interesting choice for a pseudonym, BTW. Peter Parker is the children’s hero, Die Spinne (!). Or was he thinking of the former US Ambassador to China, or the former Boss of British Rail? I think another cartoon character would suit him better, namely “The Joker”.

    Sad. One would have thought that a patent practioner would have more respect for that precious thing Europe created, namely The Rule of Law.

  3. I’m disappointed that Peter Parker thinks that human rights are dependent on income. Perhaps he can clarify whether those rights apply after being sacked from a well-paid job and at which point they would become applicable. Also, which laws are not applicable to the public at large if they earn above what level? I understand his lack of interest but not his lack of appreciation for the idea that we are all equal before the law.

    To Anon for a purpose, in fact pay slips at the EPO do show a gross salary and an internal tax (about 25% if I remember correctly) which the EPO retains. Quite why this happens I don’t know since the gross amount is otherwise irrelevant to staff.

  4. It is quite amusing to note how an experienced and versed commentator like MaxDrei, who – just in his recent discussion with “Thorsten” – stated “Who are you, Peter Parker, and what do you know?” continues to jump over each provocative stick held out to him by that same individual. As a consequence, the discussion is dominated by said provocative comment and the related outcries instead of the substance of Prof. Bross’ statements. This is a good example on how the judgment of some can be hampered easily by just pushing the right ego buttons.

  5. This to Bene-Volent:

    Your quote comes from the recent thread “All problems solved” which Kluwer attributes to the pen of its own anchor man Thorsten Bausch. Why shouldn’t I call him “Thorsten”.

    You lament that the thread is dominated by an outcry “instead” of addressing the Bross opinion. That’s a false dichotomy. But if you feel so strongly, that there is nothing in the thread relevant to Prof Bross, why don’t you write something of substance for the thread yourself “instead” of logging on just to tell us “amusing” you find the subject of this thread.

  6. Thank you, Max. As indicated, amusing I find the hubris displayed in some of your recent comments. The somehow immature notion of “who do you think you are” shown there simply doesn’t do justice to the profoundness and expertise you are otherwise capable of displaying. I like reading your (mostly) knowledgeable input which is why I regret seeing you wasting your skills on trying to school people like “Peter Parker”. And as you see, I am again logging on just to tell you this.

  7. Just to set the record straight, Bene, I am not trying to “school” Parker. That would be a complete waste of time and energy. I think he’s a shill and my comments (like: who do you think you are) are in fact aimed at other readers, inviting them to reach the same conclusion.

    Hubris is a great word, I agree. Here is a link to the Wikipedia entry. I will simply leave it to readers to judge how much hubris there is in my contributions.

    https://en.wikipedia.org/wiki/Hubris

    Thanks for your posts, allowing me in reply to flesh out my position and entertain you and also (I hope) other readers too.

  8. Dear Mr Parker,

    You are a lucky man, and I can see two reasons for this, but I do not envy you.

    On the one hand, you manifestly belong to the ever growing club of people having missed an opportunity to keep quite. I think the tone of the comments following your original one on this blog, speaks for itself. I humbly suggest you to think why an employer should pay interesting salaries in order to get people to leave their country of origin, lose all bounds with the social security system of this country, in order to make a long carrier abroad, with all the disadvantages for the family and the children. You will not get good people with peanuts. Would you have left your country of origin, for instance for the Netherlands, just for peanuts? And also for examiners mastering the official languages of the EPO at a level allowing them to master their task is a prerequisite. Are you also fluent in French?

    And to make it clear, it is not tons. Certainly it allows a good standard of living. Moreover your hero from the 10th floor has taken care that he gets tons, but not those below him, or not affiliated to him. The salaries and pension perspectives for new recruits have been drastically cut down. Furthermore, in a flash of genius your hero from the 10th floor has had the glorious idea, to transform a stable job in a carousel as, in the future, examiners will not have more than 5 years contracts. The contracts might be renewable, but guess who will decide if one can stay on the carousel or if centrifugal forces will help a quick turnover of staff….. Some people at ENA call this modern management. In other words, it boils down to institutionalise what is happening at the USPTO will all the deleterious consequences…..

    As far as the tax is concerned, why should a tax on the salary paid by an intergovernmental institution only go to the country in which the staff member works, or to its country of origin? Then for the same job two member of staff working in the same room would not get the same pay. It becomes worse, when one thinks that staff can be distributed over a plurality of countries as is the case of EPO, and as well do the same job. So it seems reasonable to decide that a tax should be internal. But the fiscal authorities in the countries of residence of EPO staff members make sure that the salary earned at the EPO is duly taken into account when other revenues come into play. This is not a complaint, it is facts.

    On the other hand, dear Mr Parker, you had a vision. I heard a long time ago that people with visions, should better start by consulting a doctor. According to your practice/vision, things are getting better at the EPO thanks to your hero from the 10th floor. This was not in this blog, but in a preceding one on this site in which you defined yourself as a practitioner. In any case claiming that “the EPO has slightly relaxed its approach with respect to original disclosure” seems to lie more in the domain of fantasy than in real life. There might have been some decisions of examining or oppositions requiring “literal/verbatim disclosure”, but there are clear decisions of the Boards to look at the disclosure in a more intelligent way. See for instance T 667/08 or T 2619/11. The Guidelines have even been adapted in November 2014, but this did not impress the Boards, so that in T 1363/12, things were put back in the right perspective.

    If nowadays you can get away with “carefully made deviations from the verbatim disclosure”, this might be for another reason, clearly imputable to your hero from the 10th floor. At the rate the examiners are required to churn out files, “more lenience with respect to original disclosure is very widespread at the EPO”. No, not at the EPO as whole, but in DG1, and we all know why. Why bother looking at such awkward things as clarity and/or added subject-matter? The “original disclosure requirement” has always been a big issue for your clients from “the US who might not have “EP style applications””. And rightly so.

    The clear rule is that if an independent claim is new and inventive, and this for more than flimsy reasons, the dependent claims are also to be held new and inventive, but it stops there. Clarity and added subject-matter have also to be examined. Even before deciding on novelty or inventive step. Nowhere in the EPC is it then said that “a detailed assessment of some dependent claims” is unnecessary, especially in matters of clarity and added subject-matter. Your clients might be happy with a quick grant for those barely examined applications, but what about the value of such patents? At least for your clients from the US, they will feel at home.

    The “backlog at the BoA” is a creation of your hero from the 10th floor, but this is a different story. A good reason for drying out the BoA is to avoid them reminding DG1 and all its high producers that some legal rules have to be respected. It can only be disturbing and contra-productive.

    Probably I already got on your nerves and those of your hero from the 10th floor. But I needed to air my thoughts. There comes a moment when staying quite leads you to become accomplice of all what is happening at the EPO. I do not want that.

    Yours sincerely

    Attentive observer

  9. Dear friends and commenters, can I perhaps bring the discussion back to what this article is about, i.e. the – well substantiated, whether you agree with it or not – opinion of Prof. Broß that the member states of the EPC have allowed extra-territorial and extra-constitutional structures to be established that are no longer under democratic and rule of law control. I think that this opinion raises at least two questions: (1) Is this so? (2) And if yes, should we accept it?

    Prof. Broß’ accusations are dead-serious and may lead to either a dramatic change of the European Patent Organisation’s structure or to Germany having to leave the EPO. Remember that the very same arguments have been made and will likely continue to be made in the four constitutional complaints against the EPO currently pending before the Federal Constitutional Court.

    It is true that Prof. Broß is not completely impartial here, as he has written a legal opinion in support of (and I assume at the request of) one of the plaintiffs in the four pending constitutional complaints. But this does not disqualify his views at all, in my view. I have no reason to believe that the opinions that he holds are anything but genuinely his own and, what is more, I am afraid that they hit the nail on the head.

    I think that even the most benevolent observer of the developments at the EPO over the last 4 or 5 years cannot but come to the view that very, very strange and discomforting things have happened at the European Patent Office. Or are you aware of any other jurisdiction where the President is able to issue a house ban with immediate effect against a judge or, more precisely, a person who is supposed to have a judicial function (such as a Board of Appeal member)? And in which jurisdiction is it possible that the President then ignores the procedure literally prescribed in the law (Art. 23 EPC), according to which a Board of Appeal member may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. There has never been such a proposal from the Enlarged Board of Appeal, to the best of my knowledge. And absent such a proposal, why did the Administrative Council back the President in this – in my opinion – simply illegal activity, thus again refusing the accused Board member the right of due process?

    Obviously, I am no EPO insider and have no first hand knowledge of what happened, but the public facts suggest to me that there has been an unprecedented executive overreach here, which violates the essential principles of the Rule of Law and the accused member’s constitutional right to due process. I would very much like this to be publicly investigated and discussed. If the investigation results in that there was indeed a violation of principles of the Rule of Law and due process, then, at least in my humble opinion, a President who is responsible for such activities, should be immediately dismissed from the Office and does not deserve a pension. Which raises again the question about whether the President is adequately supervised by the Administrative Council. Prof. Broß has very strong views on this also.

    In my personal opinion, the EPO structure should indeed be substantially changed in order to bring us back on the ground of elemental principles of democracy and rule of law. What the EPO needs is a true separation of powers:

    Firstly, it needs an Administrative Council who takes its supervisory role seriously and engages in a critical and constructive dialogue with all EPO stakeholders, i.e. applicants, EPO representatives, EPO staff (including trade unions) and national judges – not just with the EPO management. The AC should independently inform itself of what is going on. It should also have an own website not controlled by the EPO President and should express its unfiltered opinions to the public there. Members of the Administrative Council should be fully paid for their activities by the member states and should not be allowed to accept any disbursement or other favors from the EPO management in order to avoid conflicts of interest.

    Secondly, the EPO needs a President who understands his role within a democratic system of checks and balances and behaves accordingly.

    Thirdly, the EPO needs an independent and effective judiciary to review EPO decisions with regard to European patents and patent applications and, importantly, on points of employment law. The ILO does not seem to be fit for this purpose. Decisions of this court must be binding on the President.

    I am fully aware that this requires a diplomatic conference agreeing on changes for the betterment of the European Patent Convention, but I think this is unavoidable and should rather be seen as a chance. I would very much like to see a public debate on such proposals. The public has a duty to help the Administrative Council and the national politicians by coming forth with sensible proposals how the EPO’s future can be secured in the long run. But we should not put our heads in the sand and carry on as usual.

  10. Mr Bausch,

    Fully agree. Two points about your points…
    The EPC explicitly states (Art. 4a) there should be a ministerial conference at least every 5 years. Since EPC 2000 there hasn’t been one and I haven’t even seen a discussion about it by the AC, although something about that there was a “it isn’t needed” response from someone at AC or Presidential level when someone enquired seems possible.
    While the board member may or may not have done what was alleged (libel?} and I thought a German court case was running in parallel(?), I agree that there is a clear case of overreach by the executive which appears to be beyond reproach. They may have grounds for frustration (I don’t know or judge the validity of any accusations) but, as you say, that does not excuse any abuse of procedure from those who should and need to have legal and managerial competence. In many ways, the actions of the executive may be as wrong as the allegations made.

  11. Have a look at the structure proposed for reorganisation of DG1 and DG2:
    https://www.epo.org/modules/epoweb/acdocument/epoweb2/261/en/CA-65-17_en.pdf

    I understand that this new structure is being implemented. The trouble is that it tramples all over the EPC, which clearly requires the individual “in control of” DG1 to be independent (at least from a hiring, firing and disciplinary perspective) from the President of the EPO. Under the new structure, the “independent” VP1 will be left with only symbolic powers, with new COOs reporting directly to the President (and being hired / fired / disciplined by him) and taking over almost all of the substantive powers previously afforded to VP1.

    So, in short, this is yet another example of the EPO’s executive (presumably with the full knowledge / complicity of the AC) effectively ignoring the provisions of the EPC. Regardless of what one thinks about the constitutional complaints, these kind of developments could take those complaints to a completely new level. That is, if the AC has proven itself to be incapable of ensuring that the EPO operates in accordance with the EPC, then it becomes an established fact that there is a “democratic deficit” that requires urgent action.

  12. I owe an apology to Mr Bausch. Before reacting to Mr Parker atrocious comment, I should have reacted to the substance of his contribution.

    I therefore understand very well that he wants to discuss the substance, rather some other aspects.

    I might comment later.

  13. What Mr Broß is saying has very far reaching consequences. I can only support his views and something should happen, the earlier the better.

    I take bets that even Mr Broß has not thought that the problem is as far reaching as he thought originally. Just a few examples when it comes to the democratic deficit which has established itself at the EPO.

    It is interesting to note that what happens since 2010 at the EPO is a constant erosion of the checks and balances which seem to have worked in an adequate way up to then. The various presidents the EPO along the time have more or less acted in good faith with respect to the system of the EPO. The present occupant of the 10th floor has put all this carefully acquired balance willingly into disarray, and to its exclusive advantage.

    It started slowly. The first dent he brought into the system was to modify the composition of the General Advisory Committee (GAC).

    The GAC is a joint advisory body between management and staff which has to be consulted in all matters involving the all staff. Eventually the President is free to follow the advice given to him by the GAC or to merely to ignore it. Whilst previous presidents were not always too keen to follow the advice given, it happened that they did, especially when the management representatives, in a flash of independence, considered the proposal not to be really fair. Even if staff was not happy it could accept, grudgingly, what came out of the GAC.

    The present tenant of the 10th floor decided to appoint to the GAC all the members of the Managerial Advisory Committee (MAC). The MAC is not a body foreseen in the Convention but has been installed by Mr Braendli. Originally, the member representing the management in the GAC were recruited at principal directorate level. The MAC is thus presently composed by all VPs and some selected Principal Directors. How on earth do you expect a balanced view on staff matters when the President sends there his VPs? Any measure decided in the MAC is thus definitive, as the same members will not say white in one body and black in the other.

    That is how all measures wished by the 10th floor have been pushed through. I think here of the new salary system etc… The GAC has been consulted, so what are you complaining about.

    The same is what happened with the settlement of disputes between the staff and the Office.

    In the past any unfavourable decision for an individual could be appealed to an Internal Appeals Committee (IAC). Taking pretext of an overload of work of the IAC, a first barrier was introduced before having access to the IAC. Now, a first step has been added: any staff affected by a decision has first to request an individual management review. No time limit other than for the staff member to file a request for management review is given in the procedure, and to reply within any time limit decided by the management is given. That means that the management can take any time it wants or thinks fit, in order to put pressure on the requester. If part of your salary is taken away, or some medical treatment is refused to you, how long will you resist?

    If the management review is negative, the staff member can then address the IAC. There again, no time limit other than for the staff member to file an Internal Appeal is given. It can thus also take ages. On top of this, the President is free not to follow the decision of the IAC. There is no guess in devising what the present tenant of the 10th floor is doing. The number of decisions of the IAC favourable to staff has never been very high, but presently, any favourable decision of the IAC is systematically turned down.

    The staff member has as last resort the possibility to address the Administrative Tribunal of the International Labour Organisation (ILOAT). This tribunal does not deserve the name. It mainly checks whether the legal procedures have been respected, but nothing more. He will never decide that a measure is unfair, as would be the case of a “normal” tribunal.

    The only recent he took recently which was in favour of staff was to cancel a number of decisions of the IAC since its composition was not according to the rules applicable when the decisions were taken. But swiftly the big boss has proposed to the AC to bend the rules in its favour. From then on, the rules being respected, no positive judgement from the ILOAT has to be expected.

    What was even more vicious was the introduction of the Investigation Unit and the Investigation Guidelines. Whilst it is true that the EPO had no mechanism allowing it to find out and combat fraud and corruption, something might have had to be done. It turned however so that the Investigation has not only be used to combat fraud and corruption, but has been used against staff, especially staff representatives. What is appalling in this procedure, is that the staff member under investigation is not allowed to call a lawyer to help him in his defence, and is also not allowed to say that he is under investigation. How fair can such a procedure be?

    It was an investigation conducted against a member of the Boards of Appeal which led to his de facto removal from the position of member of the Boards. He was, before the Enlarged Board of Appeal and the AC could be consulted, expelled from the building and subsequently received a house ban. Here the tenant of the 10th has simply ignored the principle of the separation of powers. No wonder that the Enlarged Board refused afterwards to rectify the situation and refused to take the decision wished by the top management and the AC.

    The net result of this is that the perception of independence has been increased in that the Boards have been exiled to Haar. In my opinion their independence has indeed been restricted as they do not even have the possibility any longer to decide upon their own rules of procedure. The whole change of structure of the Board is a regression, and certainly not an improvement. The renewal of a Board member being linked to a given production/productivity is also not to be seen in a positive light, or at least as increasing the independence of the Boards. The contrary is true.

    All those points show the profound contempt of the person heading presently the office for the rule of law. I decide what is good, and if you do not agree, I crush you. And I interpret the staff regulations so that you will never win.

    There is however one thing which should not remain without comment. The tenant of the 10th floor would never have been able to take all those adverse decisions for staff, if he would not have had the support of the AC. Here it is the tail wagging the dog. It is the management which controls the AC and not the contrary.

    I take all the member of the AC accomplices of the bad deeds of the present president. Without the support of the AC, none of those deleterious measures could have been decided. It was only due to the abdication of the AC of its role that made it possible that the situation has degenerated as far as it has gone now.

    Even if one or the other member of the profession has rang the alarm bell, thanks Mr Bausch, the profession as a whole, starting with epi, has been very quiet all along. Why? What was there to lose? The sympathy of a despot? Nothing to be keen on. To react now, even when it is manifest that the quality has been deteriorating for a long time, may be too late. In letting such pseudo manager impact a deadly shock to a well working organisation, it might be too late.

    I hope that the Federal Constitutional Part will accept to hear the truth of what is going on at the EPO, and simply not cringe when it comes to take a badly needed decision, that is to push for a true in depth reform of the EPO.

    Only if the EPO works correctly it will be possible to envisage, should it be an absolute necessity, a Unitary Patent system which would be to the benefit of the European industry and especially its SMEs. Certainly not before!

    This contribution is not to be used by Techrights, be it directly or indirectly.

  14. This to “Look at Things”:

    You ask why the EPI makes no protest when the AC connives with BB to trash the Rule of Law. It seems obvious to me: The Officers and Members of the EPI are frightened of losing their corporate clients.

    The corporations have an interest in driving down the level of human rights that protect their employees. What could suit their purposes better, than 38 Sovereign States acquiescing in demolition of those human rights. After that, those governments cannot criticise a corporate employer for doing no worse than the government itself, as employer.

    So, the corporations will not look kindly on any firm of patent attorneys that leaps to the defence of employees at the EPO. To the contrary; such firms will find that they start to get less work from their corporate clients.

    Remember, a multi-national corporation is an entity without any morals. It is itinerant (a citizen of nowhere) driven only to reward its owners, the shareholders. To them must be delivered their quarterly return, their dividend, regardless what it costs. Human rights don’t show up on the balance sheet.

  15. @MaxDrei

    I think that the reasons for inaction of the professional associations (including the epi) are many, varied and complex. However, I would be very surprised if, for many of them, a key reason is an inclination to maintain influence by not rocking the boat too vigorously. This is likely to be a key factor for the “rebel” AC delegations too.

    It is therefore beyond tragic that the current President appears to have discovered how to ruthlessly exploit this inclination of the AC and the professional representatives. Whilst it is impossible at this stage to be certain precisely how he does this, certain strategies stand out as obvious candidates.

    The first theoretical possibility is bending / breaking the rules and then only later asking for the AC to sanction the actions taken.

    The second theoretical possibility is securing (by fair means or foul) the undying loyalty of a sufficient number of AC delegates, and then ensuring that the stance taken by those delegates makes it “too difficult” for the “rebel” AC delegates to ever win the day on any meaningful issue.

    The third theoretical possibility is deliberately presenting an outrageously bad proposal that contains some “straw men” upon which the “rebel” AC delegates can expend their energy and influence fighting. The second part of this strategy is to then, with great theatrics intended to give the impression of extreme reluctance, agree to changing points that do not matter to you… but only on the condition that other points (which were the ones you really wanted in the first place) remain without amendment.

    I think that we can all agree that the first of these three strategies has been deployed on at least one occasion. I leave it for those intimately familiar with the workings of the AC to comment upon whether the other two have also been deployed.

    With so many ways for the President of the EPO to exploit a key weakness of the AC, it is perhaps no coincidence that there is so much evidence of the tail appearing to wag the dog. The question is, which line does the President have to cross before the AC decides to tackle the problem head-on?

    Events that have so far not provoked the AC into action include: a Board of Appeal ruling that the President had attempted to undermine their independence; a national court ruling that the EPO has not respected certain human rights; refusal of the President to obey a direct order from the AC in connection with disciplinary proceedings relating to staff representatives; and trashing of the EPO’s reputation (in particular with regard to quality, as well as failure to uphold the rule of law).

    I would have expected any one of those developments to provoke a furious response from the AC. The fact that there has been no response after so many developments suggests that we can be fairly confident that the seeds of the EPO’s destruction will have been sown and nurtured, and will be starting to bear fruit before the AC realises how serious the situation has already become.

  16. I had requested Techrights not to use my post directly or indirectly.

    The replies of Max Drei and of Concerned Observer, where clear replies to my post.

    By publishing, at least part of the replies to my post, in http://techrights.org/2017/10/31/blatterstelli-trashing-the-rule-of-law/, Techrights has indirectly not respected my wish.

    Before accusing others to trash the law, I expect Techrights to abide by it. In other words, people in glasshouses should not throw stones.

  17. Thank you for your responses to my comments. I respect your opinions and that you have responded with reasoned statements. I have made my point and I do not want do derail the conversation, so I will not further comment with respect to my inital statement which I do not consider as trolling or the like but see as a short statement of my opinion.
    I would like to add a few thoughts though with respect to the apparent inactivity of the AC in light of some actions of the president.
    I think the main issue is that the general population in the EPC member states do not care about the EPC or the EPO at all. It does not concern their lifes in any meaningful way, they do not see that there is an outright injustice with respect to human rights (compared with news articles about the crimes of the IS or in Syria that they are exposed to) and they have no idea what a patent is. Try to imagine a TV fundraiser for EPO staff before christmas – I can’t, but it gives an idea of the threshold that must be overcome to have a general public outcry/large demonstrations against violations of human rights.
    In addition, for the applicants, the system appears to work quite well and it does not matter in the large scheme of things that much to a CEO or owner of an international cooperation whether a BoA member was banned from the entering a building or not – in their view, the EPO generally works. If the fees are reduced (see President’s blog), even more so.
    The same also applies for a lot of politicians, many of whom have a legal background and might have some skepticism with respect to the world of patents (in their view, patent attorneys might have nothing to do with lawyers but they are practicioners who do not understand the finer points of law anyway (nor that it would matter in these mundane technical things), the BoA might be no real court and the members no “real” judges either)).

    In light of this, I am not surprised that not much is happening in the member states with respect to the EPC.

  18. Dear Mr Parker,

    This is a much more decent comment, which anybody sensible cannot but approve.
    Why then have started the discussion with such a provocative one?

    Sometimes wanting to be short ends up in a caricature of one thoughts.
    This is the lesson I might want to retain to future.

    It remains that the situation at the EPO is tragic; not only for those working there, but for all users of the system.

    A well working institution is being driven in the wall for the sake of some people which have shown a profound disdain for human relationship and moreover think, they know better what is good for the user of the system they should actually just manage in the interest of the user.

    I have, not yet, given up the hope that the situation at the EPO will eventually improve, but I am quite pessimistic. In any case 8 months is still a long time.

    Regards

    Attentive observer

    As for Look at things, this contribution is not to be used by Techrights, be it directly or indirectly. I expressly request the respect of this statement.

Leave a Reply

Your email address will not be published. Required fields are marked *