The EPO has launched a public consultation on the first draft of its ‘Towards a new normal’ orientation document, discussing the post-covid organisation of the EPO.
The document “is designed to complement the EPO’s Strategic Plan 2023, which was adopted in 2019, before the current pandemic. The orientation document represents the EPO’s current assessment of how the Office could develop, based on lessons learnt up to this moment in time.” The consultation will run until 16 April. Together with input from EPO staff, contributions will be used for the final version of the document, which the EPO intends to present to the Administrative Council in June 2021.
The orientation document makes clear that at the EPO, even when the covid restrictions are over, teleworking is there to stay. According to the document’s conclusions, “key areas that can potentially ensure that the EPO excels in a new normal” are:
- A new teleworking framework – to give EPO staff flexibility in where and when they choose to work, while also ensuring a clear legal framework for individual staff members and the Office.
- An enhanced digital workspace – to ensure the EPO has reliable, effective and secure tools and workflows that can be accessed from anywhere at any time and incorporating digital workflows that support the key elements of quality, including timeliness. New skills for staff and managers must also be developed to help them exploit the opportunities of the new normal and to face the unique set of challenges it brings. Digital communications will also help to connect and engage the EPO’s staff and other stakeholders.
- A new building investment programme – to answer the fundamental need for a physical workspace where EPO staff want to spend time to work, collaborate, socialise and network. The programme starts with an initial set of measures based on maintenance and sustainability, upgrades to social spaces, a new building in Vienna and an approach that brings more light into the interior of EPO buildings.
Staff surveys were held in March and September 2020 on staff well-being and concerns as well as aspirations for the future. “Four ‘work preference personae’ in the Office emerged, showing a roughly four-way split in the extent to which EPO staff want to telework in the future. Specifically, 22% of staff want to telework on a full-time basis; 30% of staff wish to telework 3 to 4 days per week; 23% of wish to telework 1 to 2 days per week; while 23% wish to be mainly or fully Office based (2% made no choice).”
According to the EPO document: “A new teleworking scheme needs to be flexible, but it must also be built on a solid legal framework that offers clarity to both individual staff members and the Office. It must also be legally sound, consistent and aligned with the Office’s employment framework. In particular, it should provide a robust legal framework to allow teleworking from locations other than the place of employment, and specifically from other EPC countries. Given the EPO’s status as an international organisation, other specific factors also need to be considered. They include the impact upon staff benefits of working from another EPC state, the notion of a place of residence, the Seat Agreement and the Protocol of Privileges and Immunity. Some of these aspects need to be carefully assessed in close co-operation with the EPO’s host countries and other EPC member states.
To provide clarity, the Office aims to put in place a single teleworking scheme. Flexibility will be given to staff to adapt this scheme to their professional and personal circumstances.”
Interesting are also the plans of the EPO to “ensure that the organisation can undergo a digital transformation that is suited to a new normal”. Earlier this year, it became clear that the IT systems of the EPO were at the brink of collapse (in spite of claims by departing EPO president Battistelli in 2018 that “between 2011 and 2018, the EPO undertook an intensive programme of IT transformation with the implementation of 114 projects, supported by the budget of the IT roadmap of 140 million Euro”. EPO report Modernising the EPO for excellence and sustainability, page 48). As VP1 and VP4 wrote in an internal communiqué:
“When we joined this organisation back in January 2019, we knew that we were taking on a tremendous responsibility (…). Being VPs, we share directly responsibility for almost 6000 staff (…). It is quite the challenge. But nothing had prepared us for the complexity of our IT systems with its “spaghetti” structure – one of us would be directly responsible for it, and the other its biggest stakeholder. (…) The shock came when we started to look inside the machinery. It is scary when the technology you have in front of you is from a time when you were still in school, and the people who can help you have long since retired. (…)
Putting our heads in the sand, hoping that the current machinery would survive our mandate and leaving the problems to subsequent generations was not an option. We saw that painfully a year later when the PHOENIX ImageArchive mainframe died (…). The outdated and unreliable data centre in The Hague was another headache. Thankfully, in only six months, 50% of our applications have already been transferred and are now run from the state-of-the-art Luxembourg data centre.
(…) When the mainframe started to break down, BIT had to go headhunting and ask former colleagues and suppliers to come out of retirement to help us find the errors and keep the machines alive for one more month or week – and in some cases days – until the replacement was ready.”
According to the draft document ‘Towards a new normal’, it “is anticipated that by the end of 2021, there will no longer be a mainframe in any EPO data centre and the migration of the primary data centre to Luxembourg will be complete.”
“Overall, by improving its digital foundations, the EPO will achieve greater reliability, availability and security of its IT systems. In turn, both staff and external users will have greater access to more secure tools, accessible from any place and at any time to support their teleworking choices.”
“While this was always a goal of the Strategic Plan 2023, the pandemic has accelerated digitalisation efforts.”
The use of videoconferencing, although not uncontroversial, “will play a key role” in the new normal, according to the EPO. “Over 2 600 oral proceedings were held by ViCo in 2020, compared to less than 900 in 2019. The experience gained not only served as a basis for further improvements, but is also helping the Office to prepare for the projected rise in oral proceedings by ViCo in examination. This year already – as of 8 March – 614 oral proceedings by ViCo for examination have already been held.
In May 2020, a pilot for ViCo proceedings for opposition was also launched. However, by the end of 2020 a slow uptake of the scheme led to a backlog of around 2 000 more opposition cases than in 2019. Following an extensive assessment published in November 2020, the Office decided to extend the pilot until 15 September 2021. It was also decided that opposition by ViCo would take place as the default from 11 January 2021. As of 8 March, 684 oral proceedings by ViCo for opposition have already taken place.”
The EPO document also outlines plans for digital training, data protection, online events and communication and other elements of the ‘new normal’: “existing EPO staff are being given new skills to help them face the unique range of challenges posed by teleworking. Similarly, managers are being trained specifically to lead remote and hybrid teams.”
The covid pandemic is also influencing the EPO’s building policy: “In developing a new building investment programme the Office faces two challenges; firstly, the way buildings will be used by staff in a post-pandemic situation cannot be predicted with any certainty, and the occupancy rate can only be estimated at around 50% on any given day; secondly, the roll out of a more extensive teleworking policy could also have a profound impact on the use of EPO buildings. The details of the teleworking scheme are still in development and its full impact on building use is also currently unknown.”
In the annex on the final pages of the document, findings are summarized of the surveys carried out by Willis Towers Watson (WTW) among staff.
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At this point, does it even need to be pointed out that the legal basis in the EPC for all this “new normal” is entirely lacking?
Article 6(2) EPC provides that “The European Patent Office shall be located in Munich. It shall have a branch at The Hague.” Article 7 EPC provides that sub-offices may be created “subject to the approval of the Contracting State or organisation concerned”. These articles simply do not confer to the President of the EPO and/or the AC a free-floating power to scatter EPO employees across Europe according to their whims. It may be that such a thing is desirable, but then one should amend the EPC, rather than pretend that everything is all fine and legal.
Of course, a Conference of ministers as foreseen in Article 4a EPC would be a fine setting to discuss the changes to the EPC necessary to enact such a plan, but this legal provision has been conveniently forgotten for almost fifteen years straight now… So much for the rule of (international) law.
At the very least, the German and Dutch governments should remember that the EPC includes a Protocol on Staff Complement, which refers to “the proportion of European Patent Office posts assigned to the duty station at The Hague”, and provides that any significant change (more than 10%) in this proportion shall be subject to a decision by the AC on a proposal from the President of the EPO, after consultation with the German and Dutch governments. If assigning the bulk of EPO employees to work from their home countries does not change the “proportion of European Patent Office posts assigned to the duty station at The Hague”, I don’t know what does.
It is somehow ironical that the EPO finds it necessary to consult its users about what it calls the “New normal” for the future of the EPO, whereas it did not find the necessity to do so when it decided to impose by default oral proceedings in form of videoconferences.
One wonders about the purpose of the action. It is to be feared that if the EPO gathers enough positive replies its head will be able to go to the Administrative Council and tell it: you can approve those proposals as the users agree with them.
The whole consultation actually boils down to taking the users as puppets to impress the AC and to simply give the appearance of consultation whilst the corresponding decisions are already taken. That the tail is wagging the dog would find a new confirmation.
The aim of the “New Normal” is multiple: mainly saving on staff costs and on buildings.
Saving of staff costs is possible when staff is going back in its country of origin as no expatriation allowance or children education allowances will be due. The question of the salary level is also to be raised as inflation or costs of living is still different in various contracting states. A solution would be to align the salary to the purchase power in the contracting state where it is the lowest. Another source of savings.
Saving in buildings is possible as it is envisaged that no more than 50% of staff will be present on the premises of the EPO. The EPO has already tried to sell part of its last building in Munich (next to the rail tracks in direct vicinity of the Hackerbrücke). The city of Munich has refused as it has some hold on the ground on which BT 8 has been erected. That the EPO wants to sell one of its own buildings whilst investing millions of € in rented space for the boards is adding insult to injury.
It should however not be forgotten that by pushing teleworking the present management of the EPO is actually dematerialising the EPO. One important question is to be raised: is this in accordance with the EPC?
One can look at Art 18-21 under different angles, and even taking into account Art 31 and 32 of the VCLT, such an extensive interpretation of the EPC leading to a quasi-dematerialisation of the deciding bodies of the EPO does appear to lack any legal basis and is certainly not within the competence given to the president under Art 10(2,a).
By this quasi-dematerialisation Art 10(2,b) is put ad absurdum as acts to be performed at the European Patent Office in Munich or at its branch at The Hague would be scattered around Europe. Combined divisions of first instance with staff from Munich or The Hague are clearly envisaged. The appointment of staff to a specific location of the EPO would lose any meaning. Trying to sell this measure as improving quality is see-through.
It is also worth keeping in mind what the EBA said in G 2/19: “Users of the European Patent Organisation’s services can legitimately expect that the European Patent Office’s departments will not perform acts at whatever other place they choose.”
Should the problem of a quasi-dematerialisation of the deciding bodies end up before the Enlarged Board, I fear that the users will be confronted with a further “dynamic interpretation” of the EBA’s case law.
It is not sure that the Dutch government would appreciate the branch in The Hague to be emptied so as to create a situation in contradiction with the seat agreement requesting a certain proportion of EPO staff to be located in The Netherlands.
I am also not sure if the German government would appreciate that the EPO withdraws to a large extent from Munich and renders the Berlin part of the EPO redundant. The reasons for locating part of the EPO in Berlin are no longer existing, but with such a move to teleworking it would become more or less redundant.
The reasons for wanting a new building in Vienna are not compulsory beside the point of the present one having reached the end of its life.
When the form of the offices is discussed in the paper one should not forget that the head of the EPO made it clear that all examiners should eventually be located in open spaces, which is also a way to save office space. All the nice wording used is simply to throw sand in the eyes of the reader. Open space working places are maximised in the new building in The Hague.
It is also worth noting that if staff have shown an increased interest in teleworking the “New Normal” is disapproved by a large number of staff, in spite of what the president claims. It is not teleworking as such which the problem is, it is the degradation of the working conditions and salaries.
Introducing teleworking to such a large scale boils down to a deep modification of the mechanisms of the EPC and of the working of the EPO. If such a modification is wished, it should eventually be subject-matter of a Diplomatic Conference of the Contracting States. Such a Diplomatic Conference would best be preceded by a conference of ministers of the Contracting States responsible for patent matters as foreseen in Art 4a.
What has been said here about divisions of first instance applies mutatis mutandis to the location and staffing of the boards of appeal. It might be useful to quote
To sum it up, there is nothing normal in the so-called “New Normal”.
I hope the epi will also have something to say publicly about this farcical exercise.
Users have two possibilities: either answer the consultation and give an honest opinion or boycott it.
It is for you to decide.
There is a third option: organisations representing the users, such as epi, should lobby governments – at the very least the German and Dutch government, but I am quite sure France and Italy would also have something to say – so that this mess is stopped. It has been going on for too long; it is time for the national governments, if they understand and care about a properly functioning European patent system, to intervene and stop the systematic dismantling of that system.
And how would you convince the members of any national government that a properly functining European parent system will help them to stay in power?
When you hear that Art15a RPBA 2020 has been adopted by the AC with 30 to 0, it does not seem that the dismantling is going to stop!
This in reply to Attentive’s remark of yesterday, that the AC members agreed unanimously to Art 15a RPBA 2020.
Well, of course they did. Why should they dissent? What over-riding principle is involved, important enough to require a futile “dying in a ditch” gesture. Compare Article 1.1 of the Civil Procedure Rules (CPR) for the courts of England and Wales (see below) on the “over-riding objective” of the court procedures, to decide cases justly, expeditiously and economically. Using ViCo “wherever appropriate” is consistent with such an objective, is it not?
The problem is the age-old one, of who controls the controllers. Did we trust the EPO, up to now, always to “decide cases justly” expeditiously and at proportionate cost? If we ever did, how long will the present level of trust endure, I wonder.
Now, here is E&W CPR 1.1
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule.
In a development that will surprise absolutely no one, we now know for certain that there will be no stays of first instance proceedings pending the outcome of G 1/21:
The President’s reasons for not imposing any stays of proceedings is apparently that “avoiding a further delay in access to justice is a priority”. However, this will only be true if the EBA rules that “without consent” VICOs are lawful. If the decision goes the other way, then the President’s decision will actually WORSEN delays in access to justice (by requiring certain proceedings to be re-run in a lawful manner).
Given that G1/21 will likely be decided VERY quickly, the President’s decision can only be interpreted as yet another sign that the decision in that case is a foregone conclusion. This is because the length of the delays caused by imposing a stay of proceedings now would likely pale into insignificance compared to the delays that could (in theory) be caused by having to re-run all of the proceedings that, between now and the date of the EBA’s opinion, will conducted using “without consent” VICOs.
In other words, either the EPO President already knows the outcome of G1/21 or he is being outrageously reckless with applicant’s time and money. There is simply no plausible alternative explanation. This makes me want to puke!
Since the President expressly refers to first instance proceedings, I see nothing wrong in the announcement. Any issue created can be solved in an appeal. If the BoAs were to announce that oral proceedings by ViCo would continue even when objected to, then there would be an issue but that is not the case here.
The tragic of the situation is that the BA support the destructive action of the president.
When the chair of the BA has no shame in putting himself and four members of the BA in the EBA deciding on the referral, the rule of law at the EPO has gone for good.
Anybody believing that a decision setting aside the provision in Art 15aRPBA2020, allowing parties the right to refuse consent to OP in form of ViCos is lliving on a different planet.
I wonder why learned people go as low as they presently go? Either they are stupid or naive, which is hard to believe, or they are wanting to exert power! It is not since yesterday that it is known that power is corrupting those exercising it! The present EPO is a perfect example of this.
It is tragic but the EPO is becoming a banana republic in which the executive and the judicative collude to decide what they think fit, and certainly to harvest a lot of money.
The EPO is an organisation set up to help it’s users, but it has degraded to an organisation in which pseudo managers are wanting to exert their power fantasies!
It makes me sad!
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