While real news about one of the most popular topics of this blog, i.e. the UPC, is rare and no one following our blogs regularly (see e.g. 2016, 2017, 2018 and 2019) should be greatly surprised about the UK’s decision to back out of the Unitary Patent System, the EPO continues to be a source of funny, sad, sometimes outrageous and sometimes boringly dull news of all sorts. Today is yet another example of such days.

Let’s begin with some sad news for which the EPO is not to be made the main culprit though, at least in my view. The EQE 2020 has been cancelled in view of Covid-19 concerns. My deepest sympathy is with the thousands of trainees most of whom have worked so hard over the past weeks and months to pass this difficult hurdle. It must be frustrating when you are being told so shortly before the exam (less than two weeks) that it will not happen this March and may (but without any guarantees) be postponed to later this year. I guess that the majority of them will still sort of understand the EPO’s decision, but perhaps I should take this opportunity to remind the EPO (and our EPI representatives) that it would be so much better and easier for trainees and their employers if this exam were to regularly take place at least two times a year. Perhaps the sad events of this year offer a good opportunity to generally reconsider the set up of the EQE. In the end no one is helped by holding back capable and well-educated scientists and engineers from practicing in their desired profession.

Moving on to political news, a “small inquiry” to the German government by the FDP fraction in the German Bundestag deserves to be mentioned. The full text is here (in German). The representatives of the FDP provide a fairly detailed summary of a lot of publications about the EPO in the press (with links) and then ask the Federal Government, inter alia, this:

1. Was the Government aware of the accusations published in the press of a loss of quality in the examination of patent applications and the granting of patents vis-à-vis the EPO under its previous management, and what is its view thereon?

2. Was the Government aware of the allegations published in the press of the EPO’s “shadow budget” and risky financial management under its previous management and what is its assessment of these allegations?

3. In the opinion of the Government, are there any deficits in questions of financial management and the treatment of staff at the EPO?
a. If so, how does the federal government intend to take action in this regard?
b. If not, does the Federal Government believe that the existing rules at the EPO on questions of financial management and staff treatment are sufficient?

4. Was the Government aware of the accusations published in the press that staff rights were being violated by surveillance and by labour law restrictions under the EPO’s previous management and what is its view thereon?

5. To the knowledge of the Government, have complaints been made to the police against the EPO?

6. Was the Government aware of the accusation published in the press of employee surveillance by an internal investigation unit under the EPO’s previous management, and what is its assessment thereon?

7. Was the Government aware of the accusation published in the press that the EPO was moving the Boards of Appeal (Petra Sorge, Wo kein Richter…, Cicero of 3 May 2018) in a way that would have a negative impact on legal protection, and what is its assessment of this?

8. In the view of the Government, does the “judicial” control of the EPO set up by the EPO itself (Petra Sorge, Wo kein Richter…, Cicero of 3 May 2018) constitute a control system that guarantees effective legal protection?

9. In the view of the Government, does the current structure of the Boards of Appeal at the EPO adequately fulfil their task as independent bodies not bound by instructions from the Office?

10. Is there, in the view of the Government, a need to change the “judicial” control system at the EPO?
a. If so, how does the Government believe it should be restructured?
b. If not, does the Government believe that the judicial control of the EPO is sufficient?

11. What is the Government’s view of the effects of the EPO’s legal independence on national and European law in order to resolve the criticism levelled at the EPO?

12. Is the Federal Government in a dialogue with the EPO regarding one or more of these accusations, and if so, to what extent?
a. If so, which results have been achieved so far?
b. If so, which goals does the government pursue with such a dialogue?

13. In the view of the Government, has the situation improved under the new management of the EPO with regard to one or more of these accusations?

14. Does the Government plan to draw political and legal consequences in the event that the allegations against the EPO continue under the new management, and if so, which ones?

A lot of very good questions, I would think. I guess, the Federal Constitutional Court might also want to know the answer to some of them. Whether the representatives will get good (i.e. meaningful) answers back by the German Ministry of Justice, though, will remain to be seen. I would not hold my breath. But stay tuned, I will try to follow up on this. Transparency is important.

Finally, something more on the light side about diversity and inclusion in the EPO – finally some progress, as it seems. This made me laugh out loud. Though it perhaps should not. Maybe some readers can enlighten me about what facts were behind this delicious flier.

Good night.


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11 comments

  1. The flier plays with buzzwords the president uses in his internal communiqués.
    All the while while he drains EUIPO’s management, by hiring Alicante management staff.
    It’s a referral to an internal trade union publication, listing newly created gigh level management posts, and the person filling the post.

    With the amount of competence the EPO president has hired (if I were to believe his communiqués), EPO’s management is so competent, that external consultants were needed to tell them what to do as managers…

    I wonder where the fault lies? With the external consultants who proposed the hiring of these highly competent people, or the hired managers who are unable to do what they’ve been hired for and consult consultants who have no idea about inner workings of international organisations and the rules they are bound to?

    Either way, the office has more money than it knows what to do with it, but the consultants have ideas… Which would require expensive follow-up contracts of course…

    PS: ask around in Alicante what the “brain drain” causes there, as EU-rules make it difficult for EUIPO to hire replacements (as the team of managers has the right to return for a few years).

  2. Thorsten, perhaps you might wish to consider the potential effects of the Memorandum of Understanding that has been concluded between the EPO and its Administrative Council?
    https://www.epo.org/about-us/governance/communiques.html

    It now seems that the Office will hire employees to staff the AC’s “Secretariat”, which Secretariat will be supported by AND located in the EPO’s directorate general in charge of legal and international affairs.

    As a nod towards the importance of maintaining the independence of the Boards of Appeal, the Secretariat will only be subject to instructions by the Chair of the AC (or the Chair of its subsidiary body, the BoAC) for matters concerning, for example, the (re-)appointment or disciplining of Members of the Boards of Appeal.

    However, this rather begs the question of why it is that the Secretariat can be subject to instructions from other individuals (which will presumably include the President of the EPO) for matters that do not relate to the Boards of Appeal. In other words, it seems that, on most matters, the Secretariat (which will at least be responsible for providing legal advice to the AC) can be subject to instructions from the very body that the AC is supposed to be supervising.

    I may be missing something, but this arrangement hardly serves to improve the perception of independence of the AC. Further, with regard to the independence of the Boards of Appeal, what is the point of having “safeguards” regarding instructions to the Secretariat if it is perceived that the AC itself is not adequately independent?

    Is Karlsruhe watching?

  3. Thorsten, unfortunately you degraded a good post with an unnecessary line about a serious subject like diversity and inclusion.

    If there is nepotism going on at the EPO then specifically call it out, including your evidence.

    Do not conflate or tarnish the subject of diversity and inclusion with nepotism. There is no ‘light side’ of this serious subject, rather real people suffer in society in different ways, including emotionally, because of it.

    As you should know, this serious subject is a CSR initiative to ensure recruiters consider hiring suitably-qualified individuals from all backgrounds and when hired integrate them and make them feel they are part of the organisation.

    It’s okay if you or your firm doesn’t care about diversity and inclusion or perhaps it’s not important in Germany. Perhaps reflect on that.

    Also don’t forget to read the familial history of your firm.

    1. Dear Reader,

      It is difficult to see why Thorsten “degraded a good post with an unnecessary line about a serious subject like diversity and inclusion”. I fail to see in Thorsten’s blog anything of this kind.

      There is nepotism going at the EPO and everybody having contact with staff members know it. A simple look at some calls for candidates make it abundantly clear that that the job description is tailored for a very specific person.

      And it starts for instance with the present VP4 or VP1. Knowledge of patent was not a prerequisite to be at the helm of DG1. It was enough to have some knowledge in IP at large. No surprise as the present VP1 was in charge of trademarks, designs and the like at the British IPO! Hence he had good contacts with some former head of EUIPO. This applies even more to the present VP4. The same applies also to all the IT top guns coming from the Iberian Peninsula.

      The day EPO recruiters “consider hiring suitably-qualified individuals from all backgrounds and when hired integrate them and make them feel they are part of the organisation” is in the long distant future, even if it was until recent years EPO’s practice. But since 2010 things have changed and not for the better.

      In the past, recruiting panels were joint bodies, like all statutory bodies at the EPO. In order to be able to recruit without being disturbed by staff representatives, the latter were simply thrown out from all recruiting panels. So staff representatives cannot say that the recruiting process has been biased.

      The comments about Thorsten’s firm are misplaced to say the least. Too much and too little has been said at the same time. If there is something fishy about the firm, start to apply this rule to yourself and “then specifically call it out, including your evidence.”

      I just hope it is not some form of personal vendetta being uttered here.

    2. Reader, pause for a moment, and reflect on the silliness of equating the hundred year history of three generations of the patent attorney, patent firm proprietor family Hoffmann with the recent shameful shenanigans in the upper levels of management at the EPO. Upper Management at the EPO might be under the delusion that they own the EPO: they do not.

      Readers (in General) I am curious. I have to wonder from where the poster that calls him(or her)self “Reader” is writing, whether they write during time paid for by their employer, and who that employer might be.

      Is it on behalf of that “upper management” at the EPO, perhaps? Personally, and to my great disappointment, I do not exclude that possibility.

      But then again, what sort of “upper management” would write a penultimate paragraph so cheap and snarky as that in the posting above?

  4. Thanks to Thorsten for digging out the enquiry from the FDP.

    They must have been very well informed on what is going on inside the EPO as the questions raised are very pointed. It would be interesting to see whether the German delegation to the Administrative Council will ask similar questions at the next session. Probably VP 5 will try to dissuade them.

    As far as the situation at the EPO is concerned, it has not changed an iota since the new president took office. I would say that in view of the hopes put into him the situation has even degraded.

    Nepotism and clientelism have increased dramatically. When a new Director or Principal Director is appointed, the first question is: Alicante or Portugal? It is even worse than under the old president. It is a joke, but a very bitter one. We have come to a situation in which there are as many Directors outside DG1 as in the rest of the Office, and yet DG1 represents two thirds of staff. But this is probably modern management.

    A reminder: in the Interim Committee, set up between 1973 and 1978, there was a proposed ratio of one director to 12 examiners. That this figure is not practicable goes without saying, but now a director in DG1 can easily be in charge of 80 to over a hundred of examiners. Director jobs have been pushed down to team leaders, examiners themselves, taking away a chance for promotion. This is highly motivating!

    The problem is not the UPC, whether or not it shall come, but the EPO. The quality of the patents granted is going down the drain at high speed. One just has to look at the number of patents revoked after opposition on the basis of documents which were not found, but should have been found during the original search. The number of patents revoked after public prior use is negligible. That says it all. But the quality is increasing, the slump in quality has been overcome and it will get better and better. Blessed is he who believes!

    The new MoU between the AC and the Office is just another big laugh. Since the beginning of the EPO, the Office provided staff for the AC Secretariat. Did we need 40+ years to have to sign a MoU? The question of loyalty has always been a problem. Have EPO staff members of the Secretariat be loyal to the AC or to the EPO and its president. To me this MoU is no more than formalising the fact that the tail is wagging the dog.

    When one reads that the Council Secretariat “will benefit from greater access to Office services, and especially to DG5’s legal expertise”, do you think one moment that people in DG5 will do anything which could displease the president and harm their carrier? It is nice to specify the “In sensitive cases, the MoU underlines that the Council can request specialised external legal support too.” How else would it be possible to get unbiased advice?

    The EPO has become the playground of would be managers who have no clue about the work done at the coal face and hence take decisions which make the situation worse rather than better. One example: open space office for examiners. This saves office space so that some buildings can be rented out or even sold. It makes you want to puke.

    If the present managers, and those in place between 2010 and 2018, would have been in charge of the EPO when it opened, it would never have developed as it did. That is one sure thing.

    There is only one point on which I cannot agree with Thorsten: it is holding the EQE twice a year. Knowing the logistics involved it would be a recipe for disaster. Knowing that the EPO has pushed more and more work over the members of the profession and at the same time reduced the number of examiners involved, it would just mean extra work for the profession. I doubt the colleagues of yours involved in preparing the EQE would applaud with two hands. Just a question: is the German exam held twice a year?

    Techrights and zoobab: FINGERS OFF!!!!

    1. Just on the facts: The German exam is held thrice a year, and it works. It is clear to me that the logistics are a big challenge, but we should all try hard to overcome these challenges. This includes the EPO (which should IMO devote more resources to the EQE) and the profession.

    2. So it seems that the MoU merely brings to light a situation that has long existed. But is there not also something new in that MoU? That is, Article 3 indicates that the Office will pay for external advice sought by the AC … but only advice from an expert chosen by the AC’s Chair (AND Secretariat) AFTER consulting the President.

      Why should there be a requirement to consult the President? What possible (innocent) purpose could that serve? Bearing in mind that the President holds the purse strings, does that not represent a fundamental breach of the independence of the AC?

      It is important to remember that Article 3 only applies to cases of a “sensitive” nature. Presumably, this will apply to all matters concerning the Boards of Appeal. However, the MoU contains no definition of “sensitive”. It therefore seems that the Office will able to turn down requests from the AC to commission expert advice … on the basis of the Office’s own interpretation of the matters that qualify as being “sensitive”. This therefore represents another way in which the Office could, if it wished, exert undue influence over the legal advice provided to the AC by its Secretariat.

      At the very least, this all has a bad look. That is, instead of enhancing the perception of independence of the AC, it actively undermines that perception. I have no direct personal insight into whether the AC is independent in practice … though there do appear to be a number of indicators on this point that, collectively, suggest a worrying lack of independence (including, as I recall, a report from the NL delegation that called into question why it was that so many delegations to the AC were consistently supportive of the agenda of the EPO President).

      Given the importance of the decisions of the EPO’s Boards of Appeal, is the patent profession in Europe happy to let this one slide? If so, at what point will the profession sit up and take action? Will it be when the Office starts twisting the arm of the Boards to decide certain matters in a certain way? This has arguably happened already in G3/19 (with the complicity of the AC, and particularly those delegations that have submitted amicus briefs). Or will it be when the Office starts interfering in the (re-)appointment of members of the Boards and/or threatening retribution against “disloyal” Board members? Again, both of these things have arguably happened already (in the Corcoran case). How bad does it have to get?

      Perhaps the profession is waiting for the FCC to decide whether the Boards are adequately independent. I hope not. The result can only really be an unpleasant (and potentially disruptive) surprise, or instead another serving of fudge that is intended to maintain the status quo. Either way, it is unlikely to end well.

  5. @ Frequent flier, grounded

    with regards to the alleged “brain drain” that EUIPO would suffer have no such worries: according to Alicante sources, they are laughing out loud there about the so-called “IT top guns” who transferred to EPO since the arrival of Mr Campinos.

    And soon, drumrolls, the world shall see the miracle of AI being deployed at EPO, wharf wharf wahrf

  6. Thanks for an interesting information. In view of the structure of the German qualifying exam, I am not surprised that it can work.

    I just remember that German candidates to the EQE used to say that by having been successful at the German exam, the EQE was dead easy. They just got a bloody nose, but now for quite a while I did not hear this again.

    I have nevertheless some doubts when it comes to the EQE. It is not just a question of logistics. It is also to prepare more papers and to be sure that within a year, the papers are of equal difficulty level.

    I do no think that the UK exam is held more than once a year. As the UK and the EQE are to a certain extent quite similar it is no surprise.

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