European Patent Office: examiners fear they won't "be able to ensure appropriate quality standards"

This morning, the EPO-FLIER team, an anonymous group of European Patent Office employees who send independent information to private email addresses of colleagues and are not affiliated with the official staff union (SUEPO), distributed two PDF documents that I thought warranted publication with a view to the meeting of the Administrative Council of the European Patent Organisation on Thursday (December 11).

I've previously reported on the fight of EPO staff for certain rights (at least some of which are considered fundamental and inalienable human rights that require no discussion, let alone strikes or protests, anywhere in democratic Europe except in this context) and a demonstration in Munich last Tuesday. I won't be able to cover this labor conflict in all respects and from all angles, and you can find some interesting information on other sites, such as the World IP Review and the IPKat blog (which also reported on the alleged suspension, without what would be considered due process in European countries, of a judge, which I haven't been able to verify but which would be disconcerting if confirmed). But I've been saying for a long time that patent quality is key, so I'm concerned when I read an open letter from EPO employees warning that "EPO examiners will no longer be able to ensure appropriate quality standards" if a so-called New Career System (NCS) was put in place. Those staff members oppose an "entirely performance-based career proposal" and say it runs counter to core European Union policy positions. For example, the European Commission's Industrial Property Rights Strategy for Europe of 2008 document noted that "[h}igh quality rights are an essential requirement for all aspects of the system – support for business including SMEs, facilitation of knowledge transfer and effective enforcement of rights to combat counterfeiting and piracy."

Here's the open letter to national delegations to the Administrative Council of the EPOrg (this post continues below the document):

EPO Examiners Can No Longer Ensure Appropriate Quality Standards by Florian Mueller

I don't have an opinion on examiners' pay and will never express one, except that these are obviously highly-qualified people (advanced technical education, training in patent law, and at the EPO they must be fluent in three working languages in addition to their native tongue). But regardless of how much these examiners earn, it's one of the most crucial questions of patent policy (in my opinion, at a level with or arguably even more fundamental than such questions as access to injunctive relief, damages theories, bifurcation etc.) whether quality or quantity is incentivized at the examination stage. Therefore, the above open letter warrants consideration.

On a completely nonjudgmental basis (except for opinions I've previously expressed) I'd also like to show you the latest "EPO-FLIER" (again, it's completely unofficial), which is entitled "The spirit of the regulations" and focuses on human rights and rule-of-law/governance questions:

EPO-FLIER 13 - The Spirit of the Regulations by Florian Mueller

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European Patent Office pays for health insurance of members of its oversight body, staff union says

As a follow-up to yesterday's post on a continuing strike by European Patent Office examiners, I went to watch today's Munich demonstration. I figured I'd see a few hundred (of the EPO's 3,800 Munich-based) employees demonstrate, but the organizers announced a crowd of 1,100 at the beginning of their protest march from an EPO building to the Palace of Justice, and of 1,300 toward the end after other protesters, including members of technical boards of appeal (i.e., in-house judges), had joined. According to the organizers from SUEPO, the EPO staff union, this made today's Munich demonstration "the largest event in the history of the EPO."

While I know that organizers like to overstate such figures, both numbers appeared very credible to me. The protest march was impressively long (even more so when considering temperatures just slightly above freezing and the light rain)--so long that it was impossible to have the whole crowd on a single picture, even at the destination where a few short speeches were given.

This picture shows a limited part of the initial gathering:

From there, the crowd marched to today's destination, the Palace of Justice. First the protesters had to cross Hackerbruecke, a bridge that is similarly crowded only during Oktoberfest (it's the closest local train station to Theresienwiese, the Oktoberfest venue):

I took the next picture a little later:

You can find a couple of other photos, and measured commentary expressing a certain degree of concern, on the IPKat blog. A Bavarian broadcasting company (probably radio, maybe TV) was also present, and even before today's protest, Frankfurter Allgemeine Zeitung reported (the article, along with English and French translations, is available here) about "strange things going on" in Munich.

The FAZ article notes that the European Patent Organization (EPOrg) is run as a state within the state, an issue I mentioned yesterday. It's an autocracy that is above the law. The SUEPO activist leading the march said today that whenever EPO employees try to raise human rights issues in judicial proceedings, the EPO's lawyers routinely argue the EPOrg is an international organization that is not a signatory of the European Convention on Human Rights, thus its employees (though they are all nationals and residents of member states of the Council of Europe, another non-EU body) don't enjoy the protection that goes with the European human rights charta. SUEPO proposes accession of the EPOrg to the Council of Europe as a solution to several (though not all) fundamental problems affecting EPO staff.

Wherever there is a lack or near-absence of checks and balances, two things inevitably happen:

1. Whatever little may exist in the form of checks and balances will be further marginalized or eliminated. Case in point, the EPOrg abolished an independent audit committee in 2011. EPO president Battistelli said in a 2012 interview (in French) that in his entire political career he'd never enjoyed so much freedom, not having to worry about parliaments or governments. "It's us who sets the rules, discusses them, and negotiates them." (It's unclear whether "us" refers to him and the Administrative Council, or just to himself in the form of a pluralis maiestatis).

2. Such a deficient structure furthermore makes it all too tempting to create conflicts of interest for those who are meant to oversee the agency's dealings: the national public servants representing the governments of the EPO contracting states on the EPOrg's Administrative Council. One of the speakers at today's demonstration in front of the Palace of Justice said that the EPO recently started to pay for the health insurance of the national delegates to the Administrative Council.

   That should actually be a big-time political scandal in Europe. I heard that Administrative Council meetings are a boon for some Munich-based doctors, particularly dentists, as national delegates (presumably from, relatively speaking, poorer European countries) go to see them while they are here. I also heard from a multiplicity of reliable sources that the president of the EPO can easily silence critics on the Administrative Council by either offering lucrative cooperation projects to their national patent offices if they support him or by threatening to withdraw funding for such projects if they don't.

This labor dispute is, as I already explained yesterday, not about money but about fundamental rights. One protester held a sign that said "No intellectual property rights without civil rights" and that makes sense. Others warned against a lawless space on European (or, specifically, Bavarian) soil.

The only issue that was mentioned by the speakers in connection with compensation was that SUEPO opposes the idea of a performance bonus for examiners that could create a conflict of interest as examiners should be honest brokers between an inventor and the general public--an attitude that I like very much. As an alternative, SUEPO appears to prefer accelerated career paths based on the quality of someone's work.

Toward the end, the deeply-rooted lack of faith of many EPO employees in the current president was expressed loud and clear as significant parts of the crowd chanted, in French, "Battistelli démission." There are some indications that EPO governance has never been more problematic than under the current president, but as long as the underlying structural issues are not addressed, there's no guarantee that a different president wouldn't be worse. Overly close ties between members of the Administrative Council and the EPO president (whoever that president may be at any given point in time) are a particularly important part of the problem.

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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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