Monday, December 8, 2014

Top-notch patent litigator sees judicial independence at the European Patent Office compromised

This week's meeting of the Administrative Council of the European Patent Organisation (the multinational entity running the European Patent Office), scheduled for Thursday, is set to be the most dramatic crisis meeting in the history of the EPOrg/EPO. Not only has the current, allegedly autocratic president lost the faith of very large parts his staff (there's an ongoing strike and at a demonstration last week, a significant number of participants chanted "Battistelli -- démission!") but through his actions he has created a situation in which the community of patent practitioners ever more publicly sides with the staff. I can't help but see certain analogies between the pace of current developments at the EPO and the events that led to the Fall of the Wall 25 years ago.

Normally, patent attorneys and litigators stay above the fray of labor conflicts at the EPO. They discuss their patent applications and draft claims with examiners, they plead their cases to the boards of appeal, but they don't take positions on internal matters of the Office. That is, unless things get completely out of hand and the actions of a few people at the top become a threat to the functioning and the reputation of the IP sector at large. And that points appears to have been reached now.

Earlier today I said I had not yet been able to verify reports (particularly by the IPKat blog) of a suspension of a member of a board of appeal (i.e., an EPO-internal judge) by the president, which would be completely irreconcilable with the EPO's own rules and the judicial-independence standard of the civilized world. I have for approximately ten years repeatedly taken the position in political debates that EPO-internal judges should be appointed for life instead of being dependent on reappointment by the leadership. But even if they are only appointed for five-year terms, a certain process must be followed if they are "suspended" before the end of the term. And that process has, as more and more sources say, not been followed in a recent case.

From what I hear, one can see a printout of this webpage, on which the patent firm of Zimmermann & Partner (known for work on behalf of blue-chip clients in multiple fields of technology) expresses its support for the EPO staff, on many doors at the EPO's different locations (Munich, The Hague, Vienna, Berlin). And I venture to guess that an English translation of an email sent by one of Germany's leading patent litigators, Bardehle Pagenberg's Dr. Tilman Mueller-Stoy ("Müller-Stoy" in German), whose work on behalf of Microsoft I've mentioned various times (and whose other clients include, inter alia, Amazon and a major automotive company) to German Federal Ministry of Justice official and EPO Advisory Council member Christoph Ernst will also rise to tremendous popularity in the corridors of the EPO (this post continues below the document):

Email to Mr Ernst - Concerns About Judicial Independence at EPO by Florian Mueller

In this letter to the German representative on the Administrative Council (basically the board of directors) of the EPO, Dr. Mueller-Stoy urges the national governments controlling the EPO "to take measures which are appropriate for safeguarding the independence of the Boards (i.e., the EPO-internal courts)" in light of measures of President Battistelli that "ultimately discredit[]" the patent system as a whole. The email expresses concern to say the least (one might even say outrage) over the fact that "the President obviously acted autonomously by using disciplinary power" to effectively depose a judge, though there should be, according to the rules, a clear separation of powers that ensures the judicial independence of the members of the boards of appeal.

The letter draws attention to a second, less publicly-known way in which "the President also transgresses his powers." It apparently used to be a matter of routine that the chairman and the members of the boards of appeal were reappointed at the end of their five-year terms. Now, however, reappointments are frozen. I recently received, from an anonymous source, an official document that according to which at least two boards of appeal are (or will shortly be) without chairmen. As a result, "Members of the Board whose appointment period is due to expire shortly consider themselves put under pressure by the President until their reappointment has been made." This, quite obviously, compromises their independence.

The penultimate sentence of the email describes the current situation at the EPO in drastic terms:

"In addition to these described developments at the Boards of Appeal, there seems to currently prevail an 'atmosphere of fear and terror' which results in numerous disciplinary procedures against unwelcome staff members of the EPO."

I keep my fingers crossed that a tipping point has been reached now or will be reached over the next few days, and that even wider parts of the European IP community will stand up in support of fundamental rights, due process, patent quality, and judicial independence. But this is not just about a few individuals at the top of that organization. There are serious structural deficiencies that have led to the current situation, and they must be addressed as soon as possible.

[Update] IPKat has published and commented on "a letter which is unprecedented in the 40 year history of the European Patent Organisation": a reqest by the members of the Enlarged Board of Appeal (the highest in-house judiciary body) of the EPO that the Administrative Council act against President Battistelli's "clear challenge to the judicial independence of the Boards of Appeal." The letter also mentions that the suspended judge's "computer was confiscated by the [President's] investigation unit, which has given them access to possibly confidential information regarding the preparation and deliberation of cases by the member's board, without proper, legally sound guarantees." I'm speechless. There's a banana republic-style enclave in the heart of Munich (notably with a vice president facing multiple corruption charges in his own country but having stayed in power nevertheless), and so far this banana republic has been condoned and supported by governments that constantly preach human rights and democracy to countries like China and Russia. But it's not a banana republic at all levels (as the Enlarged Board's letter shows, there's plenty of principled people at work). Only at the very top. [/Update]

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