Background

The story about Patrick Corcoran has been covered several times on this blog, e.g. here, here and here and other blogs, e.g. here and here. There is even a Wikipedia site about it. In a nutshell, the story is about a (previous) EPO Board of Appeal member who was suspended and banned from access to the EPO premises by the President in 2014 due to the suspicion that he had distributed defamatory material about the EPO upper management. His temporary suspension was extended by the Administrative Council until the end of his 5 year-appointment, which in my view was a blatant violation of Art. 23(1) EPC. Mr. Corcoran was not re-appointed and his requests for review were rejected. In December 2017, however, the ILOAT held that the proceedings initiated against Mr. Corcoran were unlawful, set aside the two impugned decisions by the AC, ordered that Mr. Corcoran shall be immediately reinstated in his former post, that the EPO shall immediately allow him access to the EPO premises and resources, return to him any EPO property it requested him to hand over pursuant to decision CA/D 12/14, and to immediately unblock his User ID. Moreover, the EPO was ordered to pay the complainant 10,000 euros in compensation for moral injury and costs in the amount of 5,000 euros.

The EPO did not initially comply with this order, which caused an outcry. Finally, he was at least allowed access to the BoA premises in Haar, but then his tenure as BoA member ended and he was demoted to an examiner’s position. According to fosspatents, the following happened then:

In a letter addressed to the heads of delegations of the administrative council, the EPO’s Central Staff Committee said that the office had informed Corcoran he would be “permanently transferred in February 2018 to a post of senior expert in classification expressly created for him in The Hague”.
The committee argued that “transferring [Corcoran] to a country in which he had never lived is a further burden for him and his family”.
The committee also argued that the office “did not fulfil its duty of care by assessing medically whether the employee was fit for a transfer. For medical or personal reasons, the employee may have to refuse to be transferred and in such case the President may decide to terminate his service”.

I have repeatedly complained about this unlawful and harassing proceeding against a Board of Appeal member, who should be treated like an independent judge and should enjoy the protection by Art 23 EPC:

(1) The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and 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.

However, there never was such a proposal from the Enlarged Board of Appeal. On the contrary, the Enlarged Board of Appeal refused to make such a proposal no less than three times, see Decision Art 23 1-15 and here in Decision Art 23 1-16, which is also available in a German translation here. Note that in the second case, the AC withdrew the request in the oral proceedings, so there is no decision, but the Art 23 1-16 decision refers to the failed second attempt. In the first of these decisions, the EBA held, inter alia, this:

“(…) the fact that a board member can exceptionally be removed from office only on a proposal from the Enlarged Board is intended to make sure that unsubstantiated or groundless, made-up allegations cannot be used as a pretext for getting rid of an irksome judge.

The Enlarged Board must satisfy itself, in adversarial proceedings conducted in proper judicial form, that the allegations made are indeed true, and so serious as to require that judge’s removal from office. Only on the basis of proceedings meeting that general yardstick for justice can the Council take a decision that is so far reaching, both personally and institutionally. These proceedings thus embody the legislative intent codified in Article 23(1) EPC.”

In the second decision, the EBA noted

that the amendment to Article 95(3) ServRegs was decided upon by the AC in its December 2015 meeting, during the course of this series of proceedings. With this amendment it cannot be excluded that the suspension of the Respondent will continue to the end of his present five year term. The Enlarged Board further notes that this is possible because the period of suspension has been raised from 4 to 24 months specifically for board members, and it can now be extended by the AC in “exceptional cases”. A limit to this extension is not given, an no guidance as to what may constitute exceptional circumstances is provided.

This amendment of Article 95(3) ServRegs therefore gives the possibility, de facto, to the AC to remove a member of the Boards of Appeal from office without following the procedure in Article 23(1) EPC.

Despite these cautionary words, Mr. Corcoran was kept away and thus “removed” from his office during his term by the Administrative Council and the EPO President. Sophistic jurists may want to allege that a “temporary suspension” for two and a half years is not a “removal”, but it is – and alleging anything else is, in my humble opinion, just evil legal sophistry. The whole purpose of Art. 23 EPC is to protect the independence of the BoA members and their ability to make decisions. It is this very function which has been severely affected by the Administrative Council’s measures.

Intermediate Result

The proceedings initiated against Mr. Corcoran were unlawful (ILOAT) and the Administrative Council’s decision to extend his temporary suspension up to the end of his tenure constituted a violation of Art. 23 EPC (EBA). Mr. Corcoran must therefore be reinstated as a Board of Appeal member for at least the time he was prevented from exercising this function.

Breaking News

All of the above decisions of the ILO and the EBA went in favour of Mr. Corcoran for procedural reasons only. This made me curious whether there is anything to the accusations raised against Mr. Corcoran on the merits, or whether – using the EBA’s words – “unsubstantiated or groundless, made-up allegations were used as a pretext for getting rid of an irksome judge”. It took me several months and a request to the Regional Court of Munich (Landgericht München) to get closer to the bottom of this issue. Finally I received an anonymized copy of a decision 24 Qs 18/17 in criminal proceedings between the EPO President (private plaintiff 1) and his VP4 (EPO Vice-President), Mr. Željko Topić (private plaintiff 2) against Mr. Corcoran (defendant). An English translation is provided here.

To put it succinctly, Mr. Corcoran was acquitted of all charges both by the Local Court (Amtsgericht München) and on appeal by the Regional Court of Munich (Landgericht München). The decision is final and I encourage readers to read it thoroughly. Not only has the procedure instigated against Mr. Corcoran been unlawful, Mr. Corcoran is also innocent on the merits!

Comment

Reading the Landgericht’s decision, my first impression was that the President’s and VP4’s criminal action failed absolutely spectacularly, both for formal reasons and on the merits. It is particularly worth noting that the three judges of the Landgericht, who could have taken the same easy way out as the Amtsgericht and the ILOAT decisions by just deciding the appeal based on formalities, did not stop there but actually considered the merits of the case as well.

In doing so, the Landgericht thoroughly destroyed the complaint, designating plaintiffs‘ evidence as „assumptions“ or „suspicions“ far away from the high probability or near certainty necessary for entering a judgment against the defendant, and held that there is no basis for the accusations (a) that Mr. Corcoran wrote a certain allegedly defamatory email about Mr. Topić, (b) that he sent this email out, (c) that it was received by any of the alleged addressees, and (d) that the email was even defamatory to the Plaintiffs. I would call this decision a first class acquittal.

Patrick Corcoran is therefore innocent and, in my view, has a right to be treated as such by the Administrative Council. In my personal opinion, the AC therefore owes him a BIG apology, full restoration of his reputation and full restoration of his position as a Board of Appeal member.

I will say no more than this today, but I would emphasize that this is the absolute minimum that I would expect from an Administrative Council that must have an elementary interest in taking care that justice be done and seen to be done to a Board of Appeal member. If the AC does not turn around now and does not reverse its decisions against Mr. Corcoran, this would be a sign that judicial independence of the Boards of Appeal is in serious jeopardy or even non-existent. It would then become plainly evident that the European Patent Organisation does not comply with the EU Charter of Fundamental Rights and the constitutions of its member states.

Dear Mr. Chairman and Members of the Administrative Council, you have a high responsibility for what is going on at the EPO. Rest assured that both the public and the Federal Constitutional Court in Karlsruhe will be closely watching you.

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25 comments

  1. Do you honestly think that Mr. Ernst, who is about to be appointed vice-president of the Office, will do anything to restore Mr Corcoran’s situation or reputation? You must be kidding. The Administrative Council was behind Mr. Battistelli, and they were fully aware of what was going on. This is why it has become almost impossible to clean the Augean stables of the Office. The Organisation as a whole has gone berserk.

    1. Call me naive or stupid, and you may be perfectly right, but I still believe in the good in mankind. All of us make mistakes and misjudgments, sometimes serious ones. But we have also been endowed with a mind and a conscience, which enable us to recognize and correct our mistakes. Now it’s the time to do exactly that.

      1. Dear Mr. Bausch,

        Like you I believe in the good in mankind and like anybody else enjoy a story of conversion. However, I came to truly believe that people at this level lack basic humanity. For them it´s all about power and/or money. They live in a world of their own where they´re always right and anybody else is wrong and have come to believe themselves “masters of the universe”. Pangs of conscience like in the (recommended) movie below (so similar to the situation at the EPO, at least in the first half) from somebody as toxic as Elodie Bergot (let alone from BB) are to me simply unimaginable. It´s enough to see how BB´s career proceeds to realise how this world works. I´m afraid you in particular (and the four companies that signed the letter) are a remarkable exception but maybe other uninvolved observers will make a step and take position at least now, at the end of BB´s mandate.

        https://www.imdb.com/title/tt5460548/

        1. The movie you cited is a French movie and describes corporate practices which ended in the press in the case of France Télécoms. Battistelli is French. One may wonder whether that particular country has a corporate problem.
          Interestingly, in the movie, they harass staff so that they resign without severance pay. The corporate motivation is, therefore, to not keep their end of the work contract and to dodge French employment laws. Corporations can fire staff in France, but there is a procedure to follow and it costs a bit.
          At the EPO, we have de facto no employment law. Whatever regulations there are can be changed. For example, the EPO could put everybody on 5 years contracts with a 2 years contingency period, remember? Even if the regulations are not changed, nothing happens if the EPO does not follow them.
          As Battistelli said at the beginning of his term: “I have never had so much freedom in my life!” Maybe we should invite Nicolas Silhol to make a follow-up movie at the EPO?

  2. Thinking about it, here two questions :

    1 – how much did the private court cases of Mr Battistelli and Topic cost in total?

    2 – who paid for these private court cases : Battistelli and Topic themselves (don’t die laughing) or… the EPO (Applicants’ money) ?

  3. Dear Mr Bausch
    Many thanks for this extraordinary piece of information.
    The FCC is indeed watching, and the Corcoran saga alone is ample evidence that there is no judicial independence anymore in the European Patent system.
    I don´t expect the AC to offer any apology. They are well aware of their huge reponsibility in Mr Corcoran´s situation and they seem to – wrongly – believe that the only way for them to avoid being held accountable is to destroy him entirely, mentally and physically.

  4. Yes. But apart from that??

    That this decision came on 6.11.2017 and yet the EPO still continued to pursue the BoA member after that (and the Administrative Council met in December) is unforgivable. Vindictive and malign.

  5. Dear Thorsten,

    Thanks for putting pen to paper and giving a further insight in this matter.

    Having made up its mind on the basis of what it was told by the future ex President of the EPO, the AC will not do anything which could offend the Leader Maximo, who managed by its actions to allow the national patent offices to cash in annual fees much earlier than in the past.

    The action of this person and of one of its minions to go to a national court shows the high level of hypocrisy put to light. When a judgement could be negative, I will claim impunity as I should be immune in my position of head of an international organisation, but when I think it fit, I will have recourse to a national court! It just makes you want to puke.

    When reading the decision of the appeal court, one wonders about the quality of the representative of both plaintiffs as the formal aspects, time limits and necessity of a conciliation attempt have been blatantly ignored!

    The whole discussion turns about the famous USB stick which has also been thrown at the EBA. We all know what the EBA thought of this.

    It is interesting to note that even the disciplinary committee had reservations about the USB stick, cf. second half of page 10 of the English translation.

    What is interesting is the fact that plaintiff 2), VP4, offered a witness, to support its allegations as when he became aware of the defamation. The court simply said that it was highly unlikely that he was not aware of what was going on, so that hearing of the witness would not have helped. But even the offer of a witness was not done correctly.

    The fact that a witness was offered was not known before! One wonders who was the witness. If it had a link of subordination vis-à-vis VP4 or the tenant of the 10th floor, one could have had strong doubts about its independence and the validity of its testimony.

    The decision has been taken by the Administrative Council was to confirm the sanction expressed by the then tenant of the 10th floor, by which the separation of powers has been trodden on. It shows, if necessary, that indeed the tail was wagging the dog!

    But even if the authorship of the content of the USB stick would have been attributable to the defendant, it would not have represented a defamation!

    No more need to be said.

    It also shows that one of the first actions of Mr Ernst as new Chairman of the AC, i.e. to express the hope that calm should be now come into the matter, was at best totally misplaced!

    The area of the Napoleon of the 10th floor will come to an end pretty soon. But the damages he caused to the EPO will last for a while. If the President to come is not determined to clean up the Augeas stable left by its predecessor, the damage will last for ever. And this is very sad. I do not have great hopes, but we should at least give him a chance!

    As long as the budget of the Boards of Appel Unit is not properly separate of the general budget of the EPO, and thus under the control of the President of the EPO, the Boards will not be independent in spite of all efforts put to light by the Leader Maximo to increase the perception of independence of the Boards.

    This is an important aspect to be considered by the German Constitutional Court in the four cases relating to the Boards it has to decide upon. It does not seem that a date has yet been fixed for a hearing in the matter. The complaint against the UPC is even further down on the list of cases to be dealt with by the 2d Chamber! So for all those claiming that the UPC will enter into force in 2019, this is not good news.

    Techrights: FINGERS OFF! I do not want to see this contribution misused in your usual fashion

    Btw the button linking to the decision 24Qs 18/17 does not seem to work

  6. @ attentive Observer writes:”in spite of all efforts put to light by the Leader Maximo to increase the perception of independence of the Boards.”:

    Well the transfer of DG3 to Haar cost a fat 2 digits amount of million EUR of good old applicants’ money (the price of mismanagement since Battistelli did it as a smoke-screen to cover the tracks of his erratic actions (which de facto put the question of possible lack of independence under clear light).

    For what result?

    None since your point is valid: DG3’s budget remains dependent from the president and the damages done to DG3’s reputation (with the active support of the Council) will probably not be reversed by later whilst re-instating Mr Corcoran soon (I hope to be wrong on this one).

    All this is very sad but indeed the next president soon to arrive will perhaps do better.

    One of the main issue for Mr Campinos is that all top managers responsible for the current EPO debacle (not only in DG3 but overall) have been placed at key positions all across DG4, DG5, DG1, presidential office, investigative unit etc.

    They will still be in place after Battistelli’s departure.

    So cleaning the Augean stables of the Office will only be possible, IF and only IF, Mr Campinos gets rid of them (or they will of course continue to act in collusion first to protect themselves then to protect Battistelli’s legacy since he made them and they owe him). They are not many but will Mr Campinos have the guts to take the only decision which is to be taken: hold them responsible for their abusive and illegal actions and draw the logical consequences?

    One only has one chance to make a good first impression. Mr Campinos will have to act – and be seen to act – to restore the severe damages or else, it will only be more of the same.

    Let’s hope Mr Campinos remembers this for the sake of preserving the EPO.

  7. Thank you. Now you all know which kind of people ruled the epo during the last 8 years.

  8. Bravo, Thorsten! It is important that these facts are brought into the light.

    The facts themselves are pretty explosive in the context of how the Corcoran matter was handled within the EPO. However, they also raise numerous, new questions. For example, there are questions relating to why and how the private litigation was pursued:

    Firstly, it is inconceivable that the legal advisors of the private plaintiffs were unaware of the procedural requirements for pursuing the case. Does this mean that the decision to pursue the case filed in 2016 was made purely on the grounds that it served as a means of “harassing” Mr Corcoran?

    Secondly, even if one assumes that the 2016 litigation was not frivolous (eg on the grounds that the plaintiffs were VERY poorly advised), is it utterly impossible to reach the same conclusion for the second case, filed in 2017. Further, the situation is even worse for the appeal. Having lost twice on the same (procedural) grounds, the plaintiffs would have known the high burden on them to overcome the procedural defects … but yet they chose either not to address the issues, or to attempt to adduce evidence that was not directly relevant. What else can one call this but abusive (or “frivolous”) litigation?

    Thirdly, how is it that information from the USB stick was admitted into evidence? As I recall, that stick was taken from Mr Corcoran without his permission. This would ordinarily be called theft, making any material on that stick inadmissible (as being fruit of the poisoned tree). Did the court address this point? And what about the means by which the plaintiffs became aware of the defendant’s possible involvement in the alleged “defamation”? Was the court unconcerned by the possible commission of (data protection) offences by or on behalf of the plaintiffs?

    There are also “internal” questions for the EPO. Many of these stem from the fact that, as concluded by the Landgericht München, the “evidence” against Mr Corcoran was, at best, circumstantial.

    Unless the EPO intends to ignore the ECHR completely, then it is incumbent upon them to presume defendants innocent until proven guilty. Unfortunately, and as we all know, that is most definitely not what happened in the case of Mr Corcoran. Indeed, it is beyond doubt that persons within the EPO management deliberately launched, via the German press, an ad hominem attack on Mr Corcoran (remember the “weapons” and “Nazi memorabilia”?). We now know for certain that the (defamatory?) allegations in that press article bear no relation whatsoever to the misdeeds of which Mr Corcoran was accused. This leads to the inevitable conclusion that the statements made to the press formed part of a smear campaign against Mr Corcoran.

    At the very least, this merits an independent investigation, focussing upon establishing the facts (and NOT the order of events according to Monsieur le President) and making recommendations for appropriate adjustments to the governance of the EPO. The remit of such an investigation should also encompass the “external” actions of the President and his allies in connection with the Corcoran case, in particular the leaks to the press and the conduct (and funding) of the private litigation.

    The trouble is that it is not clear who would be capable of conducting such an “independent” investigation. The AC has already demonstrated itself to be complicit – by (deliberately?) not asking more probing questions of the President, and by retroactively condoning the President’s breaches of the EPC (including taking no action over the attempt to interfere with the independence of the Boards of Appeal).

    Perhaps this is a project for the new President? Whilst this might not be a pleasant task, it is clearly essential in order to restore public (AND judicial) confidence in the integrity of the EPO.

  9. Thank you very much for digging out and translating the court decision.

    But now I wonder what the whole story was about. The President went to enormous efforts and took considerable risks to dismiss Mr. Corcoran. We know that for a fact.
    But it is now clear that Mr. Corcoran wrongdoings, if any, cannot have been really serious offenses. Does that mean that the whole dismissal was a set-up?

    We know that other people were dismissed: suepo officials. In their cases, it seems that the whole process was a set-up. We have the ILO decisions showing that the accusation of harassment was constructed over a single e-mail, for example. Of course, it makes sense to dismiss suepo officials if one is a dictator and want to set up an atmosphere of fear.

    Does this mean that this whole story was also set up to frighten the whole of DG3? We will probably never know what was the real reason, but that is a possibility.

    1. I am afraid that the whole case against Patrick Corcoran had as its main objective to intimidate the Boards of Appeal into complete submission. Think about future outrageous “production” requests, which will inevitably undermine the quality of the decisons taken, thus discrediting the Boards of Appeal. As a consequence the EPO appeal procedure would become far less attractive. This would be in the interest of EPO management and the AC, as it is not a “profit centre” like the search and examination work, just like the opposition procedure. In that sense, Patrick Corcoran just had bad luck to have been picked as the victim. Punish one, educate a thousand, as Chairman Mao famously stated.

  10. On the subject of bringing the EPO back to respect for the Rule of Law, Attentive writes:

    “Perhaps this is a project for the new President? Whilst this might not be a pleasant task, it is clearly essential in order to restore public (AND judicial) confidence in the integrity of the EPO.”

    The operative word here is “perhaps”. Given that, according to “Cynic” above, this higher national court condemnation of EPO management issued not this year but last: “this decision came on 6.11.2017”, and how the AC has conducted itself since then, I am somewhat pessimistic that the incoming President is going to find from the ongoing Administrative Council any appetite at all to bring the Office management in line with the Rule of Law.

    The rotting fish stinks from the head. In the case of supra-national bodies like the UN or FIFA, western European Member States can shrug their shoulders, lament the all-pervasive corruption, plead that they are out-numbered by Member States outside Europe, and conclude that there is nothing they can do. But the EPO isn’t like that, is it?

    In the case of the EPO, the head on the body is the AC. Does the body smell? Even just a bit? What do you say, Admin Council Member States? What are you going to do about it?

    On an optimistic note, if BB can wrap a spineless AC round his little finger, so can Mr Campinos do that too, if he is minded to. Can he not make a new Pact with the AC, to make a fresh start. I advocate starting with a purge of all those higher management types who are unreformed fans of BB’s methods.

    1. Not “according to “ me – the decision states the court pronounced its decision on 06.11.2017

  11. Yes, Concerned Examiner, not only was this which hunt set up to frighten the whole of DG3 but, obviously, it worked out perfectly!
    Or did you ever notice any public expression of support from Board members for their colleague, or the slightest public reprobation against the way his professional and personal life was being thoroughly ruined, week after week, before their own eyes?
    Don´t they dare? Don´t they care? Are they still judges?

    1. Actually, the Enlarged Board of Appeal did do the right thing, under great pressure obviously to simply let Battistelli get his way. And the Disciplinary Committee (non-BoA admittedly) clearly arrived at the legally or logically correct decision, before having their advice ignored as Battistelli is allowed to do.

      I’m not sure to what extent the members of the BoA are able to do more; beyond AMBA campaigning behind the scenes. Strikes do seem to be beneath them…

    1. It worked yesterday, don‘t know what happened to the link last night and whether I will be able to fix it today. If you are interested in a pdf of the decision, please email me at tbausch (at) Hoffmanneitle.com

      1. For your info: the problem is probably with the file names. The decision can be accessed on some (but not all) browsers.

  12. One does not have to look as far as China, and Chairman Mao, for examples how to smooth your autocratic path forwards. Autocrats attract around them a cadre of willing helpers. Two examples from English history will help.

    First the English King Henry II and his lament “Who would rid me of this turbulent priest?”. No problem. There followed, very soon afterwards, the assassination of the Head of the Church, the Archbishop of Canterbury. Whether the perpetrators got knighted for their efforts, I know not. One can only wonder whether, like in Shakespeare’s Macbeth, the regicides were themselves quickly terminated, lest they blab who put them up to it.

    https://en.wikipedia.org/wiki/Will_no_one_rid_me_of_this_turbulent_priest%3F

    But Candide said it best. Much closer to home for the departing EPO President. Is that where BB got the idea from, to persecute Mr Corcoran? “It is good to kill an admiral from time to time, in order to encourage the others” Is that what one learns, even today, in Business School in France?

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

    Let us be optimistic. Life is full of surprises. The current head of AUDI languishes today in preventative detention, for his part in the diesel engine scandal. Who would have guessed that? Often in life, what you give out sooner or later comes back to bite you.

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