Monday, December 1, 2014

European Patent Office: examiners continue strike and take to the streets over human rights issues

While the average labor conflict is just about money, and occasionally about narrowly-defined working conditions, something remarkable is going on at the European Patent Office (EPO). An ongoing strike and related demonstrations are meant to "underline staff's claims to respect of the Rule of Law, Freedom of Association and to good faith negotiation of ongoing reforms."

There are reasonably credible complaints about the current EPO president ruling with an iron fist and denying affected staff representatives, after being fired for defending the rights of others, access to justice for the next ten years. I heard a horrible story of a French EPO examiner who (based on what I heard) committed no wrongdoing other than being active in the Staff Union of the European Patent Office (SUEPO) and was "suspended" for that reason. Payments to him (a father of three if my sources are right) were frozen with immediate effect--at least significant parts of his salary. This would be unthinkable in Europe, where workers' rights are reasonably strong, including in Germany, where this incident occurred, if the EPO didn't enjoy "immunity" by virtue of being an international organization. It's an autocracy that operates its own internal jurisprudence, and it appears that EPO employees currently don't have (at least not in practical terms) access to a reasonably swift adjudication of labor disputes. The only recourse they have against the EPO's president is the International Labor Organization's Administrative Tribunal, which is so clogged it takes about ten years to reach a decision (counting from the filing of a complaint).

Facing the risk of being left without some of their pay overnight and not having a realistic chance of reclaiming any of it in a decade, and having seen how someone else was escorted out of the building by security personnel before an announcement that he left "by mutual agreement," EPO staff is intimidated and allegedly subject to repression. Under these circumstances, the momentum behind the ongoing strike and the related protests is even more significant than it would normally be. Even the EPO itself acknowledges that, about two weeks ago, "2,538 staff representing 36.7% of the workforce" participated in the strike.

Recently 700 EPO employees took to the streets of Munich. That number was given by SUEPO, and a local newspaper, Süddeutsche Zeitung, also estimated a crowd of in the hundreds (German online article, German print article with English translation further below). Tomorrow (Tuesday), demonstrations will take place in front of the French and Danish embassies in The Hague in support of two EPO employees "facing disciplinary procedures for their work as staff representatives." One of those employees is French (at a recent protest, there were signs that said "Hands off Aurélien"), and the other Danish. The demonstrations additionally take place in front of those countries' embassies because the European Patent Organisation (which runs the EPO) is led by a Frenchman, its apparently-controversial president Benoît Battistelli , and a Dane, Administrative Council chairman Jesper Kongstad. More protest will be expressed today in the form of a march from one of the EPO buildings in Munich, the city in which more than half of its nearly 7,000 employees work, to the local Palace of Justice.

At the heart of the issue is the leadership style of the EPO's recently-reelected president. To quote Wikipedia, Mr. Battistelli "is perceived by staff as being unduly autocratic and unsuited to a European intergovernmental body such as the EPO," and his management style has also been criticized in the Dutch newspaper De Telegraaf, and by Philip Cordery, member of the French National Assembly). I've also found this statement by a French senator (in French) on another (English-language) blog I hadn't been aware of before today.

Here in the Munich area, one can hear all sorts of stories about Mr. Battistelli, involving tax-saving strategies and favors the EPO is allegedly doing the members of the Administrative Council (public servants of the EPO's contracting states; they reelected Mr. Battistelli unanimously). Those are hard to verify. But what's apparent is that the EPO's governance structures have traditionally suffered from a severe lack or the near-total absence of checks and balances. The worst story of this kind doesn't even involve Mr. Battistelli but one of his predecessors from a long time ago. According to an email (published on the Internet back then) from an EPO employee to non-governmental organization FFII, a SUEPO leader was kicked in the stomach by the then-president of the EPO. The female victim was hospitalized. The Munich police was not authorized to enter the EPO building because it's on diplomatic territory, so the culprit, protected by diplomatic immunity, couldn't be prosecuted for causing this bodily harm. Again, this was long before Mr. Battistelli's presidency, but it shows a structural problem.

To be clear, the EPO is not an agency of the European Union. Its contracting states include non-EU members such as Switzerland, and it's an international organization that was set up separately from what was then called the European Economic Community (about 40 years ago). However, the European Commission has observer status on the EPO's Administrative Council and has entrusted the EPO with examining and granting the future EU-wide Unitary Patent. As far as examiners' qualifications are concerned, the EU made the right choice. However, if the ongoing labor conflict over human rights issues such as freedom of association and the rule of law escalates further, it can become an institutional issue for Brussels, too, given its ever closer ties with the EPO. For example, critical questions might be raised by members of the European Parliament at some point.

Another unusual aspect of the ongoing strike is that a German patent law firm, Zimmermann  & Partner, expresses its support for EPO examiners "in their legitimate request for fundamental rights" on the firm's landing page and, in greater detail, on a dedicated page. The firm states clearly, among other things, that it finds "management decisions against European human rights inacceptable." On this blog, Zimmermann has been mentioned a few times because of its representation of Samsung in its German Apple lawsuits (Apple was unable to defend a single patent claim here). I've also been able to research work of that firm on behalf of various suppliers to the automotive industry, Medtronic (the world leader in medical devices), and Kimberly-Clark. It's probably unprecedented for a firm to take sides in an internal dispute of a patent office. (It's also the first time for me to write about this kind of subject.)

The EPO appears to attribute all of the staff's activism to resistance against necessary reforms. There may indeed be a need for reform, but the number one item on the reform agenda should probably be governance and the rule of law.

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