The European Patent Office has been established by an international agreement, the European Patent Convention. All functioning patent systems that I am aware of are based on a structural principle that is basically simple: There is a patent office that receives and examines patent applications and grants patents for those that satisfy the requirements of the applicable patent law, e.g. the EPC. And there is a court or a court-like instance that checks whether the patent office has done its job right. This is classic separation of powers and ensures that everybody lives under the rule of law, rather than under the rule of a king, a dictator, or an authoritarian President who understands his powers as absolute and detests control by whomsoever. Unfortunately, our world is quite full of the latter sort.

Control by others, e.g. courts, media, or the public, is not always easy to accept for those in power. But it is inevitable if we want to live a civilized life. Control by a court or a court-like instance, such as the Administrative Tribunal of the International Labour Organisation (ILO), may sometimes be particularly difficult to accept, particularly if and when you believe that you are right and no one else is. I have some sympathy with this feeling, but not too much. As a European Patent Attorney, I am also occasionally confronted with decisions that I find utterly wrong and sometimes even unfair to the party I have been representing. But such is life as a representative before the (European) Patent Office or before court. Even being a successful attorney implies that you must learn to lose. Justice and civilization cannot properly function if you always win. Of course, I want to win each of my cases, but in the long run we all have to learn to live with being defeated, whether we like it or not.

The President of the European Patent Office is a powerful person, no doubt. But he is not above the law, and he should not be. It must be possible that courts or tribunals set limits to his powers and at times even vacate decisions that he has made. The same is true for the Administrative Council. Both the President and the AC are bound by the European Patent Convention, which has to be interpreted, as the case may be, by an independent court or tribunal.

Let us now turn to a practical example. Art. 13 EPC stipulates the following:

(1) Employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organization in the case of disputes with the European Patent Organisation, in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees.

What does this mean? Does this mean that employees have the right to apply to the Administrative Tribunal, but once the Administrative Tribunal has issued a judgment in their favour, the EPO does not need to care about it?

In my humble opinion, this cannot be right and is certainly not what the contracting states had in mind. If a case is brought before the ILO, the ILO’s judgment has to be observed, full stop. Otherwise, we need no ILO and Art. 13 would be toothless, empty and nonsensical.

However, if a most recent report by Kieren McCarthy on theregister.co.uk is correct (which has meanwhile been confirmed by the Staff Union of the EPO (SUEPO), the Irish Times and others), the President of the EPO has refused to allow the Board of Appeal member whom he had “banned” from the office, access to the EPO premises and, presumably, all the other remedies ordered by the Administrative Tribunal of the ILO, despite the decision by the Administrative Tribunal of the ILO to reinstate him immediately, on which I reported last week.

I respectfully submit that this is nothing less than a scandal.

To be clear, I have no view about what Mr. Corcoran (identified by McCarthy and the Irish Times as the Board Member in question) actually did and whether he would have deserved such a penalty. Maybe his house ban might even have been justified, maybe not. This does not matter. What matters is that proceedings have been instituted and the matter has been brought before a neutral tribunal, exactly as provided in Art. 13 EPC. This tribunal annulled the decisions by the Administrative Council and the President against Mr. Corcoran and ordered the EPO to immediately reinstate him in his previous position.

The tribunal’s decisions must now be observed and executed!

My recent Nicholas blog about the most recent ILO decisions included a caveat which I thought was perhaps a bit naughty. I wrote that “the EPO will now have to reinstate the Board Member in its previous position and pay him moral damages totalling at 25,000 EUR. Provided that it observes the ILO’s verdict.”

When I wrote this, I felt that one could not rule out that the EPO would NOT observe the two judgments from the ILO, but had you asked me, I would have told you that, nevertheless, I did not seriously believe that an EPO President could go as far (and as low) as this.

    In my personal view, this amounts to an open breach of the European Patent Convention by the President of the EPO, for which the President should be held accountable.

The EPO’s Administrative Council has also not covered itself in glory by ordering the “suspension” of Mr. Corcoran in 2014 and confirming it in 2015 up to the end of “disciplinary proceedings”. At least in my humble opinion, a suspension for a time period of several years is tantamount to and indistinguishable from a “removal from office”, particularly if one takes into account that EPO Board of Appeal members are only appointed for an (extendable) term of five years. For a removal, Art. 23 EPC requires a decision by the Administrative Council “on a proposal from the Enlarged Board of Appeal”. However, the Enlarged Board of Appeal has never made such a proposal.

Be that as it may, at least for now, i.e. after the ILO Administrative Tribunal’s decision, there is no legal basis for sustaining the Administrative Council’s decision for the suspension of Mr. Corcoran one more minute; on the contrary, it should be immediately lifted. In fact, the AC should never have made such a decision without a proposal by the Enlarged Board of Appeal.

If a recent report by JuVe is correct – and they are normally well informed – then Mr. Corcoran has not only won his cases before the ILO, but also before the Regional Court of Munich and the Office of the State Prosecutor in Munich. This is at least what Mr. Corcoran’s attorney told JuVe: “Denn durch die beiden ILOAT-Urteile und diverse Entscheidungen des Landgerichts München und der Staatsanwaltschaft München wurde nun von dritter Seite zweifelsfrei bestätigt, dass die Vorwürfe von Herrn Battistelli gegen meinen Mandanten unbegründet sind” (in English: “The two ILOAT judgments and several decisions of the Regional Court of Munich and the State Prosecutor of Munich have confirmed without any doubt that Mr. Battistelli’s accusations against my client are unfounded.”) – If the EPO has different facts to report, then let us hear them. Otherwise I hope that the decisions by the Munich court will become public some day. They could be interesting.

In any case, the plot seems to thicken. Maybe Mr. Battistelli is really a case for „Krampus“. If he does not change course now and if he continues refusing to do what the ILO ordered the EPO to do, he should be sacked. Otherwise, the Administrative Council risks a serious loss in reputation of the European Patent Office, and I cannot imagine that the German Federal Constitutional Court would firmly close its eyes to such a breach of the constitution and the EPC. Let it not be forgotten that the rule of law is the fundament of the EPO member states’ constitutions and the European patent system as a whole.

And, ceterum censeo, dear Administrative Council, please finally fill the gaps in the technical members of the Boards of Appeal! There are still more than 20 unoccupied positions shown in the business distribution scheme and the duration of appeal proceedings has become truly unbearable.


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20 comments

  1. In a post on the internal page of the Boards of Appeal, dated today, the following can be read:

    11.12.2017
    Execution of ILOAT judgements

    The President of the Boards of Appeal has reistated a member of the Boards of Appeal as of Monday, 11 December 2017, in execution of the judgements No. 3958 and 3960 of the Administrative Tribunal of the International Labour Organisation of 6 December 2017.

    Carl Josefsson
    President of the Boards of Appeal

  2. The recent ILO decisions in re Judge Corcoran probably mark the beginning of Mr Battistelli´s end.
    A number of cases of harassement and violations of fundamental rights by him and his minions against various victims are still pending before the Tribunal of the ILO, which expressly justified the extraordinary public announcement last Wednesday by the fact that it would apply the very same considerations in several decisions to come.
    The decisions also illustrate how Mr Battistelli made a fool of the AC, bringing both the EPO and the UPC to a point of rupture, with disastrous consequences to be expected from the pending constitutional complaints before the GCC.
    Any new proposal from Mr Battistelli in his last months of service is therefore likely to be dumped immediately by the AC.
    And once he will have lost power, influence and intimidation capacity, expect dozens of new stories and scandals to emerge. Has he for example really got the Chair of the CEIPI Board tby virtue of his outstanding legal knowledge and brilliant achievements in intellectual property matters rather than perhaps by massively threatening the CEIPI to put a brutal end to EPO´s cooperation and substantial financial support, if he was not elected?

    1. It seems that this affair is a prime example of the way determined dictators in various countries have in the past increased their power, with the rather despicable complicity between control organs (the IC) acting either indifferently or even with incompetence and the leaving President.
      We may now indeed expect more scandals to become public as it recently happened (in a different context though) with the growing “Me Too Campaign”. Let us hope this will bring satisfaction to those who have suffered from injustice.

  3. Thank you for this hint.
    Then let us just hope that this reinstatement will also be accepted by the President of the EPO, not just the President of the Boards of Appeal. If so, it would be good news for the rule of law.

  4. Bravo for an outstanding paper Mr. Bausch

    Mr Corcoran was today in Haar (DG3) but it is still unclear whether he can enter other EPO premises (eg Isar, Pschorr Höffe)

    I just heard from usually well informed sources that the plan is to now let Mr Corcoran in DG3 until 31.12.2017 and from 01.01.2018 to have in back in DG1 under Battistelli !

    Suspended 3 years, charges with nothing, a professional life and a reputation totally destroyed by a system incapable to acknowledge its own mistakes plus, cherry on the cake, the brilliant demonstration of the “independence” of the DG3 : Merry Xmas Mr Battistelli !

  5. The whole affair should not have happened if the tenant of the 10th floor would have followed a very simple rule: separation of powers. Without separation of powers there is no independent justice, just the triumph of the arbitrary.

    When Mr Corcoran was led out of the building he was a member of the boards of appeal, and hence the “upper manager” of the office had no power to expel him. That the pay of Mr Corcoran was given by the EPO did not authorise its head to act as he did. The position as judge has not been respected. There nothing more to say about this violation of fundamental aspects in a democratic society.

    The AC is to blame as well, as it has to guarantee the separation of power. Instead, it sheepishly followed the instructions given by the little Napoleon of the upper floors of the EPO. Instead of telling the dictator of the 10th floor that he should respect separation of powers, it made itself an accomplice of the denial of separation of powers committed by the latter. The whole exercise of exiling the Boards to Haar was a retaliation towards the Boards, especially towards the Enlarged Board, which refused to give afterwards a justification to an action decided without having been consulted.

    When one looks at the new statute of the Boards, there are strong doubts about their independence, whereas the perception of this independence has allegedly be increased. A lot of of user’s money has been wasted in the exercise, as the AC accepted to foot the bill. The tail was simply wagging the dog…..

    The sums (as a minimum the damages + interest on the salaries withheld) the office has to pay to Mr Corcoran should be paid by the tenant of the 10th floor on his private money, and not by the users through their fees. It would also be fair that all the “Yes men”, including a famous woman, gravitating around the king of the EPO should as well contribute.

    The summit of hypocrisy and cynicism is reached by the 10th floor tenant as well as by VP4. On the one hand, when a judgement of a national court is against the office, they are prompt to claim their immunity in order to disregard it. When it comes to take revenge against said member of the Boards for libel and defamation, they do not hesitate to apply to a national court. If the national court would have accepted the claim and sentenced the Mr Corcoran, we would not have heard the end of it.

    According to JUVE, they filed several “private lawsuits” against him in Munich and Croatia. As they were “private lawsuits”, it is to be hoped that they paid their lawyers and any court fees privately. I have some doubts about this, but the AC should check.

    As far as the chairmanship of CEIPI is at stake, I do not think that it was what “Tarred and feathered” thinks. It was simply to bring in the institution a high ranking person in the patent world. Former presidents of the EPO have been chairmen of the CEIPI’s AC, but when they took over, they were retired.

    The new chair of CEIPI’s AC is still heading the EPO. As it is forbidden that a EPO member of staff to accept duties outside his job at the EPO, the question arises whether authorisation for accepting the chairmanship of CEIPI’s AC was requested before the AC. It could also be interpreted that while still being active at the EPO, he could attempt to grossly advantage CEIPI, rather any other similar organisation in an other member state, thus the contrary of what was expressed above.I do not know whether Mr Campinos had the authorisation of Brussels, or Mr Gurry that of the UNO when they accepted the chairmanship of CEIPI’s AC. Worth a check.

    To be city councillor and at the same leading a large organisation abroad, seems as well to be odd, to say the least. Has the AC given its authorisation, or have the French authorities turned a blind eye, is not known. But it did certainly not increase the perception of involvement at one or the other place. I take bets that the little Napoleon of the 10th was travelling to his home time claiming to be on duty. it would have the advantage that not only the air fare, but as well the daily allowance for being away from its place of employment, were paid by the users of the EPO.

    As my good friend Max Drei would say all this filth makes you want to puke. but c’est la vie.

    Techrights fingers off!!!

  6. Excellent and thoughtful post from Thorsten. Good to hear that at least the President of the Boards of Appeal takes proper account of ILO decisions. A great pity Battistelli has been able to manipulate the Administrative Council so effectively over the years. Let’s hope the Admin Council takes note of the criticisms in the judgments of the ILO.

  7. AC putting its house in order, and growing a set of morals and a backbone? No chance, Simon.

    I see the supine and amoral AC as ruined beyond repair. The little countries have found out how much voting power they can exert, against the complacent Big Country Bullies. From now on, it is they that will continue to extract from their beloved Cash Cow, its Golden Goose, what they want, namely fat dividends. It’s called “Shareholder Value” and it destroys even the best companies, particularly the best companies.

    1. In DG1, i.e. under the direct authority of Battistelli.

      The bets are open: how long before Battistelli will find an excuse – any excuse, to fire him?

      I don’t give him more than 6 months.

      Poor guy.

  8. A comment on IPKat that was posted yesterday (but only became visible today) suggests that the AC has “independently” suspended Mr Corcoran AGAIN.

    http://ipkitten.blogspot.co.uk/2017/12/the-ilo-rules-reinstatement-of-board-of.html

    If this is correct, then I take no pleasure in saying “I told you so” (in my prediction from 8 December):
    http://patentblog.kluweriplaw.com/2017/12/07/the-ilo-is-alive/

    So, as predicted, we must now ask a more fundamental question: is the AC performing its function?

    To begin to answer this, we need to first consider several important facts.

    Firstly, the “evidence” against Mr Corcoran has not been proven (by any body untainted by the partiality of Mr Battistelli) to amount to an offence that would justify his suspension.

    Secondly, as I understand it (https://www.theregister.co.uk/2017/12/14/epo_mess_latest/) Mr Corcoran was not invited to the relevant session of the AC meeting, and so was unable to provide a defence to the charges against him … which charges, we must remember, stem from a process that has been condemned by the ILO as “partial”.

    Thirdly, if the Register is correct to report that the EPO’s management was responsible for last-minute changes to the agenda for the meeting (including the crucial part discussing Mr Corcoran), then it would appear that Mr Battistelli’s fingerprints are all over the AC’s decision.

    So, to sum up, the AC has responded to an ILO decision condemning partiality in the handling of Mr Corcoran’s case by sanctioning him again on the basis of “tainted” evidence and a “tainted” manipulation of the meeting agenda, and without even giving him a chance to respond to the accusations against him.

    If even only a part of this is true, then we have an answer to the question of whether the AC is performing its function: it’s a clear “no”. What a disgrace!

  9. I have always thought that somebody cannot be sanctioned twice for the same offence. Even if the pretext is different, for instance a relation of confidence has been broken, it boils down to the same, as the basic considerations stemming from the early attack, still apply. The whole thing is a clear denial of justice.

    I find it not correct that the fate of a member of the BA is dealt with in a confidential session of the AC in which the person subject to the discussion cannot bring in his point of view. But the president was allowed to bring in his opinion. That the texts do not foresee it is not an excuse. The texts have not foreseen either such a mess, and it is the primary fault of the office and of the AC that we are now in such a situation. It will end up with a further round before the ILO-AT, but what will it bring in substance?

    It will again take years until a decision comes, and even if for the EPO heavy fines would result from the procedure, the users of the system will have to pay them, not the “managers” and “lawyers” responsible for the whole mess. It should be those people who shoot foot the bill, already now.

    The upper management of the Office and the AC, starting with its new chairman are a disgrace. I have as well doubts about the capacity of the new chairman of the boards to resist the tenant of the 10th floor.

    The German Constitutional Court cannot overlook such a lack of independence. I hope it will react one way or the other. There is not only the complaint about the UPC pending before it, but as well other claims linked directly with the functionning of the Boards. Those claims have not been dismissed for formal reasons, but admitted.

  10. This message was circulating today:

    Dear amba members.

    As a consequence of the ilo decisions the committee wrote an email to Carl Josefson on 8 December 2017 in which it set out its hope that he would be able to influence the Administrative Council at its meeting last week to take a positive view on Patrick Corcoran’s reappointment. We met with Carl last Thursday and he informed us that a decision had been taken in the disciplinary case and that, as regards reappointment, due to confidentiality obligations he was unable to provide further information. At present we have no details on what the administrative council decided I. The disciplinary case. The amba committee regrets that the administrative council did not take a decision to reappoint Patrick Corcoran, as the consequence of this is that the case will continue to be a burden to everyone involved.

    The amba committee.

  11. https://www.epo.org/about-us/governance/communiques.html#a36

    “In a closed session, the Council took a final decision in a disciplinary case against an employee appointed by the Council – a case which had attracted significant public attention. This decision was taken with due regard to all relevant elements. The Council expressed its satisfaction at having closed the case. In particular, it underlined its expectation that now – after a long period of intense debate – legal peace would be restored.”

  12. Opposition against the ILO decision comes from fearful members of the AC and Mr. Battistelli who only have a practical interest says:

    I don’t know you, but I so much would like Prof. Tillmann, Wouter Pors and others to comment on what is going on at the EPO … – unless they are too busy trying to shore up the UPC to notice that Mr. Battistelli is undermining their castle from below.

  13. FOR YOUR INFORMATION TODAY :

    According to reliable sources at EPO, Patrick Corcoran, the during close to 3 years, unduly suspended DG3 judge, has today 20th Dec. 2018 (12 days after the ILO-AT judgment in his favour) still no computer or access to his e-mail account. His phone number has not been restored. His salary transfer for December was still based on the reduced salary.

    So it appears that “someone” is impeding the implementation of the ILOAT decisions.

  14. as feared, Mr Corcoran received notification of his transfer to DG1 on 22 December 2017, the last working day of the year.

    The Boards are thus truly independent, Thema abgeschlossen.

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