EPO president Benoit Battistelli has strengthened the overall position of the European Patent Organisation, but the social problems cloud these achievements. Christoph Ernst, chairman of the EPO Administrative Council (AC), has said this in an interview with the German legal website JUVE.

According to Ernst, who has been AC member for years and succeeded Jesper Kongstad as Chairman in October, the ‘working processes now run better, productivity is higher and the Boards of Appeal have been reformed. In addition, Battistelli has initiated a number of social reforms (…)’. However, he has criticism as well: ‘The verdict on the success of reforms he achieved will certainly be clouded by the fact that President Battistelli has overseen a very rigid regime with a heavy-handed approach. I would have occasionally liked to see more compromise and more understanding for differing interests.’

Ernst, who has not seen any ‘verifiable numbers’ regarding complaints that patent quality has dropped due to Battistelli’s efficiency drive (see also this blogpost), told JUVE that ‘improving the social culture is quite clearly a relevant area to address’ and that ‘all 38 Member States are looking for action on this’ from Antonio Campinos, currently Executive Director of the EU Intellectual Property Office (EUIPO), who was chosen last month to succeed Battistelli in July 2018. ‘There is clearly a sizeable number of employees who are not happy.’

As chairman of the AC, Ernst expects willingness from the EPO’s union SUEPO, ‘to sit down with the new president and discuss objectives and how to achieve them’. Asked about the possibility to halt, as a gesture of goodwill, the disciplinary proceedings against an EPO judge, which has been dragging on for years (Wikipedia) and in which Battistelli intervened controversially, Ernst responded: ‘legal obstacles remain before the case can be brought to a conclusion. We need to see whether we can overcome these hurdles in the time that remains.’

Sometimes, the JUVE interview (start at page 37) creates the impression that Benoit Battistelli’s term in office is already over. In the meantime however, new controversial social reforms have been proposed by the EPO president, most notably a plan to recruit all new staff on renewable contracts of five years only, instead of permanent employment contracts. Last week, the European Public Service Union (EPSU) sent a letter to Christoph Ernst to protest against the plan: ‘This is again a proposal that is not discussed and negotiated with the unions. It increases precariousness, insecurity and has negative consequences for the well-being of workers.’

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  1. Well, for years Christoph Ernst was head of the German delegation to the Administrative Council of the EPO. Did he there oppose any of the controversial measures pushed through by Battistelli, including various attacks against union members, or any of the series of AC decisions which stroke a – probably – fatal blow to the independence of the Boards of Appeal?

  2. It is a bit easy to complain about the present president a few months before he leaves.

    For a start I doubt very much that the present tenant of the 10th floor has strengthened the position of the EPO. I even have strong doubts. Future will tell if the patents granted in last five years will have the same resiliency as those before he started his crusade against staff. That things could and even should change at the EPO is not part of the debate. What is however tragic and should not have happened is the way things have been made to change. It boils down to consider that EPO staff was a lazy bunch which only deserved a kick somewhere. This is the idea with which the present president came to the EPO. In this endeavour he got all the support from the AC, and Mr Ernst is not a member of the AC since last year.

    Mr Ernst did not oppose a lot of the amendments introduced in the staff regulations. he positively voted much of them, even when other big countries were much more reserved on the issue. He did oppose a few, and as far as is known, the changes in status of the Boards of Appeal. But not much more.

    Mr Ernst would be more credible now, had he requested systematically a vote with a qualified majority. This would have avoided that when voting over some very important changes, that the votes of some small countries to have a much higher weight than they actually deserve. I have nothing against small countries, but the tenant of the 10th floor knows how to make small countries vote his way. And this not with his own money, but that of the users of the system.

    When one sees for instance, that the changes for the Boards, especially sending them to Haar in order to improve the perception of their independence (sic), were voted mainly by countries having hardly an application going at the EPO, one wonders whether he was as concerned at the time as he makes out now. In spite of what Mr Ernst claims, the Boards of Appeal have not gained in independence. In order to receive a further 5 year contract, a member must have produced enough. In which judiciary system is the continuation of the work as judge subjected to quantitative constraints? In the past the Praesidium of the Boards could propose its rules of procedure. Nowadays, it is heard, but the rules of procedure are decided by the Boards of Appeal Committee. I could go on.

    When looking at what happened in the AC, it was at least for the last 5 years the tail wagging the dog. The president was controlling the AC and not the AC controlling the president. Let’s see if Mr Ernst has the real will and power to revert to the former situation. In older times it even happened that the AC refused to accept the budget of the president…..

    The first exercise when Mr Ernst can show whether he wants the Council to control the Office and not the other way round, is whether the present tenant of the 10th floor will manage to get the most stupid reform he thought off through: 5 years contracts for examiners as off 01.01.2018.

    If Mr Ernst, and other members of the Administrative Council of the EPO wants an organisation which is not just a bunch of mercenaries for a short length of time, but rather wants a perennial organisation, the AC will have to oppose strongly such a move. If this move is approved 6 months before the arrival of a new president, then it is not only to despair from the AC and its members, but it will also be a blow in the face of the incoming president.

    If people stay for 5 or 10 years, then there is clearly no chance that they get involved in union matters or the like. But is then the EPO still in a position to deliver the quality of work which has made its reputation?

    When the Principal Directors began to get 5 years contracts, the effect was clearly to be seen. From 3 ½ years onwards, the thought was only: what can I do to get my renewal? This is the best way to stifle critics, but the damages brought about through the attitude “Yes prime minister”, leads in general to a cultural collapse. Is this the future the member states wish to the EPO? Then they will be killing the cash cow.

    Let’s hope Mr Ernst realises well the immense responsibility he has taken over, and that he will bring back to the institution the urgently needed peace and quiet.

  3. So, Herr Ernst sees a need for improvement in the “social culture” prevailing under President Battistelli at the EPO. I suppose the AC’s lengthy complicity in the culture of Battistelli leaves Herr Ernst unable to call it how it really is, in the area of employee relations at the EPO. Ever the optimist, I will suppose that Herr Ernst well knows already, and here is alluding to, Team Battistelli’s utter contempt for what we in Europe are most proud of, namely, due process, a fair trial and The Rule of Law. That, gentle readers, is a disgrace, an embarrassment for Western European civilisation and social values. The sooner M. Battistelli (and his flunkeys and hangers-on, one floor down from the President’s penthouse) are out on the street, the better. I await for the AC (and the incoming President) to set a good example to the rest of the world. It is not as if the EPO can’t afford to treat its employees fairly, is it?

  4. Sirs,
    I understand that the document concerning contract staff has recently been removed from the AC December meeting, after the meeting of the Board 28 which organises the agenda. The Budget and Finance Committee had recently not decided on the document. At the moment contracts unde this scheme cannot begin on 01.01.2018.

  5. @ Head Down

    Believing in fairy tales is a dangerous thing given the current brutal regime and in particular the pronounced taste of PD HR to pick on those who work hard to pay her salary.

    The situation is a little more subtle than what you present here:

    a) the point is still is still on the agenda of the December AC for information
    b) the “cunning plan” of Mrs Bergot (after her debacle during last AC meeting with a pathetic presentation of it lacking any substantive work) is to review her deficient document and have it back for the March 2018 Council for decision

    So much for “off the table”

  6. That the document about the 5 years contracts for examiners has been removed from the agenda of the AC is a good thing. It is to be hoped that this document has disappeared for good!

    But if the AC would have done his job, such a document would never have been submitted. It is only since the AC gave the present tenant of the 10th floor the freedom to fool around that such an action was even thought of.

    It shows clearly and abundantly that some people claiming to be “managers” in the higher ranks of the EPO have not the faintest idea what the work of examiners consists of. If they had inquired, they would have realised how stupid this proposal is. That the top management of DG1, or its new form (Super PDs), did not even try to dissuade HR to present such a document is certainly not to be put to its credit. But they want their contract to be renewed….

    As far as Mr Ernst is concerned, did he oppose the way the president blatantly disregarded separation of powers between the Boards of Appeal and the management of the EPO? Did he also forward the decision of the Disciplinary Committee of the AC to the Enlarged Board so that the latter was merely invited to rubber stamp this decision, what it refused to do? If this is the case, his words are shallow.

    As a lawyer working in the Ministry of Justice of the largest contracting state of the EPO one can suppose that Mr Ernst should know what separation of powers means, and what respect this notion deserves. He should also know that a mere quantitative assessment of the work done by a judge is not a way on deciding on the career of a judge.

  7. Sirs,
    My comment was purely intended to be factual. No spin intended.
    However, I now understand that a replacement/amended ‘ orientation’ document has been tabled for December for ‘opinion’ rather than decision or information. The document has limited some aspects e.g. a maximum percentage of contract staff and a maximum number of renewals. It is explained as being as a result of comments previously made.

  8. @ head down / Will the tail continue to be wagging the dog?

    dear you two again : the document is NOT OFF THE TABLE at all.

    DG 4 submits it for information in December with changes : from 100% contracts to (only) 40 % (which will put the entire structure under even more production pressure than it is now) and, cherry on the cake, now they introduce the option to transform the contract into a permanent one after FIFTEEN YEARS (…or not).

    This document will be submitted for decision in March 2018.

    so please stop doing as if it was off the table since this new proposal is equally bad as the previous one, totally non adapted to a stable international organisation like the EPO, the aim of which being to serve the PUBLIC on the long run and certainly not to produce cash surplus for its Member States (surplus which nowadays fall in their (deficit) national budgets) this at the expenses of the health of staff hundreds of employees who go burned-out, in-treatments, in depressions, or even commit suicide when they cannot cope any more (6 non-investigated suicides over the past 5 years, a 7th miraculously avoided for 3 months).

  9. Sorry to irk you Sad EPO staff. Although I agree with you totally, my intention is to simply give facts rather than my opinios/analysis, which I appreciate is not uninterested. Thus I don’t include my assumptions and/or concerns. I am not defending or supporting the moves, just trying to make clear what is happening in a neutral format.

    My apology for wasting anyones time.

  10. I want to make one thing clear: the documents on 5 years contracts for EPO staff should end up in the bin. I have never had a different opinion on it.

    The new proposal is even more ludicrous. Even if after 15 years there is a possibility to get a permanent job, which person sound in its mind would leave its national security and social protections systems to hire at the EPO? Such a stupid idea can only germ in the minds of people who are playing manager, but do not really know what it means to manage in the interest of the body they rule. It makes me sad to see that a reputable office like the EPO is run by such people.

    The net result will be more younger people at the EPO, as I do not know anybody having a stable job for a few years leaving this in order to hire at the EPO. There will be also more Germans in Munich and more Dutch in The Hague, trends which are already existing today.

    Here Mr Ernst has to resist the fools running the office by not putting such a proposal on the agenda of the AC.

    If a measure with such a long term effect is decided three months before a new president comes, then it shows the esteem shown to his successor by the present holder of the function. As another commenter said it makes you want to puke.

  11. Another reason why the overall position of the EPO has anything but strengthened by the tenant of the 10th floor is the recent proposal of VP Operations at the EPI Council in Warsaw to introduce deferred examination!

    If deferred examination is now seen as a solution alleged problems at the EPO, it means that the present president will go from early certainty to long term uncertainty. What a move for the better!!

    The predecessor of Mr Minnoye had taken measures to reduce the backlog of old files. And it worked fine, but efforts were needed. When taking over, his successor, Mr Minnoye, VP1 until June 2017, has ignored those measures, and merely pushed for quick searches and quick grants, with the result that every recent file was de facto dealt with under PACE. I refer to Mr Bausch’s earlier comments about this topic on this blog.

    Deferred examination was foreseen in Art 95EPC 1973, and has been deleted in EPC 2000. It was thus clearly the will of the legislator not to allow deferred examination. There is thus no legal basis for such a move.

    There again, trying to introduce such a measure shortly before a successor takes office, show the contempt of the present incumbent towards its successor.

    It remains to be seen if the new Chairman of the AC will be in a position to resist a move from the EPO to introduce such an odd measure.

  12. The ILO Administrative Tribunal has now announced the exceptional public delivery on December 6 of a series of judgements including no less than FIVE cases against the EPO, which it considers have to be delivered rapidly (i.e. perhaps just in time for the December session of the AC?)
    Obviously a few more dark clouds over Battistelli’s achievements under the benevolent supervision of the AC.

  13. Even it might be legal, it is simply unbelievable to go from the much heralded “early certainty” into “long term uncertainty”.

    If it should be necessary it shows how badly the EPO is managed!

    The document linked to by head down is a paper introduced in 2009 by 3 member states two of which,DE and NL had deferred examination. It was an attempt to resolve the backlog problem, may be a first instance level, but does not work at the BA level.

    If files are under deferred examination, they will not any longer appear in the statistics. This a clear attempt to cheat, as the secret hope is that lot of these applications will be withdrawn at one moment or the other.

    It is not sure that the member state will be willing to wait to have their share of the renewal fees.

    Wait and see if the new chairman of the AC will accept to put the proposal of the agenda of the AC. Bad management should be sanctioned, certainly not encouraged!

  14. Two judgements of the International Labour Organisation have just been delivered, which put some very critical light on the Administrative Council’s servile attitude before the President.
    The unlawful suspension of an accused judge of the Boards of Appeal is lifted with immediate effect.

  15. “as it might reasonably be thought that the President was directly, specifically and individually offended by the misconduct for which the complainant was charged, he could not take part in any individual proceedings regarding the allegedly identified author of the alleged misconduct. The President’s participation in these proceedings has given rise to the unlawfulness of the individual decisions impugned with the Tribunal. These decisions must be set aside and the President must abstain from participating in any of the proceedings regarding this issue in which he has a conflict of interest”.

  16. In other words, in view of the ILO judgements, not only with respect to the member of the BA, but also for the staff dismissed, while he manifestly had psychiatric problems, it is high time for Mr Ernst to start mucking out Augia’s stable.

    Enough damage has been done to the reputation of the office, and you helped in damaging it.

    It is now your turn to make good for what you did not do, but should have done.

    For a start, not one Euro should be put in the Inventor of Year ceremony scheduled to take place in St Germain en Laye. This would merely add insult to injury.

    How is it compatible that the President of the EPO is at the same time member of the city council of his home town in France? This has also been accepted by the AC, and is not even the top of the iceberg of all “unhealthy” things having occurred under the present tenant of the 10th floor.

    Louis XIV was borne in St Germain en Laye, BB in Corsica, but the behaviour is the same. One said “L’état c’est moi” (I am the State), the other “L’OEB c’est moi (I am the EPO). Nothing to be proud of.

  17. Sorry for the pun Mr Ernst, but now things are becoming serious at the EPO.

    If the AC cannot insure that judgements 3958 and 3960 are executed, the AC does not deserve to exist, and should simply make a declaration according to which it gives up any control upon the EPO and gives full power to the President, to take any decision he thinks fit. Whether any decision is against legal procedures, whether inside or outside the EPO is totally irrelevant, as the tenant of the 10th floor enjoys full immunity.

    There are at least no reasons to organise a big shindig in June in St Germain en Laye. Disrespect of the law should be sanctioned, not glorified.

  18. The tenant of the 10th floor will, I gather, soon be reincarnated as Head of CEIPI in Strasburg, an Organisation one associates with training future European patent attorneys.

    One contributor thought there a “conflict of interest”, simply in the switch from EPO to CEIPI President. Something about changing “sides” between those who seek patents and those who refuse patent applications? I cannot follow that argument. That’s no “conflict of interest”. Administrators are not judges. Moving from administration to administration makes them better, more experienced administrators.

    And anyway, judges who retire often go into academia. Nothing wrong with that either.

    Where there is a “conflict of interest” is if CEIPI were to be headed by an individual who has proven by his actions at the EPO that he has nothing but contempt for the Rule of Law. What legal Institution, which temple to the Rule of Law, which teacher of future lawyers, would sanction appointing such an individual as its Head and its Standard Bearer, its Face to the World? Given thse IPO Rulings, is the current EPO President the example, the man on the high pedestal, the figurehead, CEIPI students are supposed to look up to, and to follow? I think not!

  19. This even the more so since the only candidate to the post of chairman of the board of CEIPI. It needed two rounds of votes, and even in the second lots of voting bulletins were still blank.

    Draw your own conclusions……

    1. Ha! That’s interesting. If I recall, some Hollywood type (perhaps Woody Allen) is reputed to have averred that “80% of life is simply turning up.” In any democracy, that’s very important, seminal advice, I think.

      Looks like BB is one of those relatively few who follows that advice, and simply rocked up once more, this time in Strasburg!

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