Why would a patent office be afraid of bloggers? Only if it has something to hide. Like the EPO.

Over the years I've learned not to take things personally, but there are situations when it's hard. I did take it personally when I faced a shitstorm in 2012 after a totally erroneous decision by a judge who still doesn't correctly state the law on the copyrightability of declaring API code. And this morning I saw something that is just absurd. I'm talking about the last bullet point in the following quote from the EPO's official allegations against Elizabeth Hardon, a staff union leader they're now trying to fire:

"(1) actively cooperated with the campaign conducted by C [suspended in-house judge] against the EPO, members of the Administrative Council, and individual EPO staff members.

Specifically, the evidence demonstrates that she:

• discussed with C the strategy for his campaign and provided instructions to him;

• provided C, on at least one occasion, with non-public contact details for all delegates of the Administrative Council, which C used to send anonymous defamatory email messages;

• was in personal contact with at least one blogger habitually attacking the EPO, Mr. FM of FOSS Patents, which resulted in the publication on FOSS Patents of attacks regarding alleged corruption of delegates of the Administrative Council;"

First, I don't disclose sources unless they wish to be disclosed. Also, I sometimes get messages from anonymous sources. Therefore, I can neither confirm nor deny any allegations of someone having been in contact with me, regardless of how truthful or untruthful an allegation is. As for "personal contact", I can generally say that no SUEPO (staff union) person has ever met me or even talked to me over the phone--I listened to some of their speeches at demonstrations in Munich, without approaching them. I only talked to two persons at an EPO demo. I asked one guy to let me take a picture of a banner, and I said hello to an EPO in-house judge I happen to know for a reason that has nothing to do with the labor dispute.

Second, I comment on the EPO situation from time to time (not even very frequently), but "habitually attacking the EPO" is really not the way I view it. On one major issue I even agreed with the president of the EPO (though an expert on suicides tends to agree with SUEPO).

Third, regardless of who my sources are, none of my sources even tried to persuade me to allege "corruption of delegates of the Administrative Council [of the European Patent Organization]." The closest thing to corruption--and "closest" is an overstatement--that I wrote about was that the EPO allegedly pays for the visits of its supervisors (especially those from relatively poor countries) to Munich doctors. I wrote about this because I heard it at a SUEPO demo. I remember that Mrs. Hardon was among the speakers, but I also remember with certainty that the thing about medical care was mentioned by a male speaker at a demonstration about a year ago. Apart from that, I merely mentioned that Administrative Council delegates often hope to become EPO president or vice president, and that this ambition appears to prevent at least some of them from doing their supervisory job right.

Actually, it's only after the above reference to "corruption" in an official EPO document that I start to wonder whether the EPO leadership's hypersensitivity may have a factual reason that I don't know about yet.

Getting back to the first point: even if one wanted to assume arguendo that Mrs. Hardon had communicated with me, there wouldn't be anything wrong about it. Managing Intellectual Property magazine put me on their list of the 50 most influential people in IP in five of the last ten years, and Canadian IP lawyers and blogger Barry Sookman once listed FOSS Patents among the top three patent law blogs in the world. SUEPO must have the right to communicate with someone like me, just like BMW or Allianz couldn't prevent their staff representatives from talking to the general press.

The EPO leadership is just paranoid about bloggers who criticize what's wrong with the way that organization is run. But those EPO folks don't appear to understand that they're only making things worse by the day. They threatened legal action on at least four occasions against TechRights author Dr. Roy Schestowitz, who is still the most prolific writer on the EPO labor dispute. Now they blame a staff representative for my commentary without a factual basis.

What do they have to fear? They must have something to hide.

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Shame on the European Patent Office for its legal threats against TechRights author Dr. Roy Schestowitz

The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.

The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.

A Munich newspaper reported last week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legal threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the link was broken, but at the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior art searches) to TechRights. I strongly criticized that move, and found it futfile. But the EPO leadership stops at nothing, and is now trying to silence its fiercest and most frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but he had not revealed any specifics before the WIPR article. You can find his commentary on the WIPR story--and information that purports to indicate a publisher has also been threatened--here.

TechRights has always been an opinionated, rather combative blog. Still, with almost 20,000 blog posts, Dr. Schestowitz had not received a legal letter before an EPO lawyer sent him one.

Many thousands of TechRights posts took aim at Microsoft, and typically not in diplomatic terms. But Microsoft, which has a huge and sophisticated legal department, never thought it prudent to send a cease-and-desist letter. Nor did any other company that was criticized, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leadership must be very afraid of TechRights. It should be. Dr. Schestowitz is doing a first-rate job at keeping track of developments at and around the EPO. He doesn't miss a beat. I don't mean to say that I would always use the same terminology, but the EPO should respect the freedom of speech. If the EPO leadership wants more positive press coverage (and not just from its "media partners" like Les Échos), then it should tackle the underlying issues.

If the EPO ever sued Dr. Schestowitz, I would contribute money and lend an endorsement to a crowdfunding effort to finance his defense.

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EPO labor dispute getting completely out of hand: three union leaders suspended, others pressured

The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn't part of the civilized world around it.

On Monday, the Staff Union of the European Patent Office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO Flyer by Florian Mueller

Let me copy the three key allegations here--they just refer to two of the staff representatives by their first names, with "Jesus" being a typical Spanish first name (with an accent over the "u") and "Laurent" being a common French first name:

• Jesus was picked up from his office by President's emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

• The other members of the Staff Committee who witnessed the event were also deeply perturbed.

The last time I read stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.

Last night I got a message--from a reliable source I won't disclose but it's nowhere near Munich--that three leaders of SUEPO's Munich chapter have been "suspended," among them Elizabeth Hardon, who recently wrote a letter complaining about the way she was treated. Also, the EPO had threatened legal action against her.

According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

It appears that Mrs. Hardon has decided to rather be proud and "suspended" than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog's announcement of forthcoming reports on staff suspensions and other EPO issues for this week.

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European Patent Office intentionally treats patent applicants and staff unfairly: leaked documents

While I'm currently taking a break from patent (not copyright) blogging, there's a few EPO-related issues I quickly wanted to draw attention to (and would comment on in more detail if I had time).

Dr. Roy Schestowitz, who has been authoring the TechRights blog for nine years, obtained (after I encouraged him to do so) a copy of an internal document of the European Patent Office that stands as incontrovertible evidence of the EPO's institutionalized unfairness. Companies filing large numbers of patent applications receive preferential treatment including highly questionable package deals along the lines of "drop these 500 patent applications and in exchange we'll grant 1,000 other weak applications of yours in short order".

Article 7 of the Universal Declaration of Human Rights states the following: "All are equal before the law and are entitled without any discrimination to equal protection of the law." But the EPO doesn't believe in human rights and is, as Dr. Schestowitz accurately notes, run like a private, profit-maximizing enterprise as opposed to an honorable institution properly applying the law. I've previously likened the EPO to FIFA, but with the latest evidence I almost feel like I have to ask FIFA for an apology for this comparison, given that different standards must be applied to a sports body vs. a government institution in charge of a key area of commercial law. FIFA doesn't rig soccer matches, at least not the extent the EPO's leadership compromises the patent granting process.

The general press should take much more of an interest in the EPO's corruption. Yesterday I was pleased to see that Heise online, Germany's leading IT news site, has written about this after reading the TechRights story.

I also wanted to point to some new developments in connection with the EPO leadership's repressive actions against staff union leaders. The following letter by SUEPO's (Staff Union of the European Patent Office) Munich chair, Elizabeth Hardon, to the chairman of the Administrative Council (the politburo) of the European Patent Organization speaks for itself:

15-10-08 Letter Re. EPO Elizabeth Hardon by Florian Mueller

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Leadership of European Patent Office pressures staff union to remove links to FOSS Patents blog

What's so outrageous about my two most recent posts on the EPO labor conflict (1, 2) that the Staff Union of the European Patent Office (SUEPO) had to remove its links to (and quotes from) those posts?

On SUEPO's homepage there are now at least two entries that used to point to this blog and now say the following:

Document temporarily removed due to threats of reprisals from EPO management. SUEPO is taking appropriate action to counter the threats.

Here's a screenshot (click on the image to enlarge):

It's not even the first act of censorship against an independent blog. In July it became known that the EPO blocked examiners' access to TechRights, another blog that calls the EPO leadership out on its wrongdoings.

This blog here is critical of what's going on at the EPO but far from SUEPO-aligned.

In the earlier one of the two posts, I actually concurred with EPO president Battistelli on the complicated issue of how SUEPO should deal with a suicide rate that appears to be more than twice as high as that of the average Dutch or German populations but still, in my opinion, is not necessarily attributable to the lamentable situation at the EPO (given that such small statistical samples are not reliable).

In the more recent one, published earlier today, I explained why I didn't agreed with SUEPO's choice to march to a local authority today, given that the EPO enjoys diplomatic immunity and local authorities can only enter the EPO's premises with the EPO president's consent.

What may have riled the EPO leadership is that I published documents from internal proceedings targeting the chairwoman of SUEPO's Munich chapter. The EPO's internal "ServRegs" contain some strict prohibition of such disclosures, which is acceptable in connection with what really needs to be kept confidential but unfortunately also used in areas where the EPO needs more transparency.

Article 20, Unauthorized disclosure: "A permanent employee shall exercise the greatest discretion with regard to all facts and information coming to his knowledge in the course of or in connection with his duties; he shall not in any manner whatsoever use or disclose to any unauthorized person any document or information not alreayd made public. A permanent employee shall not, whether alone or together with others, publish or cause to be published, without the permission of the president of the Office, any matter dealing with the work of the Organization."

Article 22, Disclosure in legal proceedings: "A permanent employee shall not without permission from the president of the Office disclose, on any grounds whatever, in any legal proceedings, information not alreadyy made public of which he has knowledge by reason of his duties. Permission may be refused only where the interests of the Organization or of a Contracting State so require. It may not, however, be refused if, in the opinion of the court, this would be likely to lead to a miscarriage of justice."

"Miscarriage of justice" is definitely a major concern with respect to legal proceedings relating to the EPO labor conflict.

Finally, some recommended reading for whomever at the EPO believes that it's a good idea to prohibit links to this blog: the Streisand effect.

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European Patent Office threatens legal action against staff union leader: escalating conflict

Last week, the TechRights blog published a letter by the head of the EPO's investigative unit to Elizabeth Hardon, the chairwoman of the Munich chapter of the Staff Union of the European Patent Office (SUEPO), summoning her to a hearing last Thursday. I also blogged about this development because it shows that the promise of "union recognition" is just a carrot the EPO leadership has been dangling to staff without any genuine desire to improve the internal climate.

Mrs. Hardon has probably never been at a greater risk of being fired, and the EPO is now not only talking about that scenario but additionally threatening "to take any other legal measures against [her]" over the alleged disclosure of the letter that was published last week. Here's the latest letter, signed by Elodie Bergot, Principal Director Human Resources of the EPO (this post continues below the document):

15-09-10 EPO Letter to SUEPO Munich Chair by Florian Mueller

Since I didn't receive a copy of either letter from Mrs. Hardon (whom I listened to at a couple of EPO demonstrations in Munich), I have no idea whether she is the source of the leak. Even if a letter is marked as "confidential," the EPO is so large an organization that the source could be anywhere, especially in light of the fact that presumably more than 99% of the staff is against the current leadership style.

As an employer, I also care a lot about confidentiality. However, confidentiality obligations can only apply to what is reasonably designated as confidential. I find it hard to see how the EPO could realistically demand silence over repressive action against one of the leaders of its staff union. Of course, if this involved third-party secrets (such as patent applications that haven't been published yet), then everyone would have to maintain strict confidentiality.

If, for example, Allianz or BMW (two other large Munich-based employers) threatened to fire one the labor union leaders among its employees, that story would draw press coverage within less than 24 hours.

More than anything else, this appears to be an attempt by the EPO to prevent SUEPO from communicating with the outside world on a level playing field. Obviously, the EPO's own website states the positions of its leadership, and that is something SUEPO has to live with. But SUEPO must at least be allowed to create transparency in such a critical context as this one.

SUEPO is holding another demonstration today as I read on its website. While previous demonstrations involved marches from EPO buildings to diplomatic representations of key EPOrg member states, staff will "march to the local Labour Inspectorate, Gewerbeaufsichtsamt" today. That one is an institution of the Bavarian government (part of the administration of the district of Upper Bavaria, to be precise). In a letter addressed to that institution, SUEPO argues that the German government has a particular duty of care for the many EPO employees based on its territory (and notes that approximately 25% of the EPO staff are German citizens).

I understand SUEPO's desire to draw attention to certain issues, but as the law stands, German authorities are not allowed to supervise the EPO in any way other than the influence the German government has by virtue of its status of being a contracting state and, therefore, being represented on the Administrative Council of the EPOrg.

Just like in my previous post on the EPO labor conflict, my message to EPO staff is that you can't have your cake and eat it. In a perfect world for you, you would have all the benefits (including tax benefits) of being employed by a famous international organization and would be under the protection of local authorities. That won't work. You either have to bite the bullet, stay at the EPO, enjoy certain privileges but also live with the fact that you won't have all the rights that your colleagues right across the street at the German Patent and Trademark Office don't have (though German patent examiners are not allowed to go on strike, by the way). Or you have to determine that the overall "package" you get at the EPO is still better than your best alternative on the job market. If you elect to take that package, you must accept certain structural shortcomings.

Far be it from me to justify human rights violations, cronyism, or crookery. Certain aspects of what the EPO leadership (including the Administrative Council) does are truly problematic and unacceptable. But instead of demonstrating in front of a Bavarian government agency that has no legal basis for helping you, you should think hard about whether you want to stay or leave. While Art. 20 of the Protocol on Privileges and Immunities of the European Patent Organization says the EPO should cooperate with national authorities in certain areas, Article 1 (2) of the PPI comes with the following practical restriction:

"The authorities of the States in which the Organisation has its premises shall not enter those premises, except with the consent of the President of the European Patent Office. Such consent shall be assumed in case of fire or other disaster requiring prompt protective action."

As a reaction to my previous post, someone told me that only a privileged few could simply choose their job. Obviously, with thousands of EPO employees affected, there are thousands of individual situations. But in general engineers and other scientists with multilingual skills are definitely in demand. As I wrote last week, most EPO employees would simply have to accept an initial pay cut (especially from an after-tax point of view) if they decided to work in the private sector. Some might reach their previous income level again over time; others might never reach it again. But if you left, then the Gewerbeaufsichtsamt of Upper Bavaria would indeed be responsible for your labor conditions.

I also don't consider it a valid argument that many EPO employees may have bought a house in the Munich area and would have to stay here due to long-term mortgage arrangements. First, there are many tech jobs in the Munich area itself. Second, if you had to move to another city or country, German banks would have to accept that you rescind your mortgage contract. Third, house prices have gone up a lot in Munich in recent years, so you wouldn't have to sell at a loss.

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In the face of repression, EPO employees should quit their jobs to promote innovation in industry

Political initiatives to improve the terrible situation at the EPO appear to be "too little, too late." Now that the summer vacation season has ended, it's apparent that things keep getting (even) worse.

Skeptics of the EPO leadership's intentions with respect to "union recognition" have already been proven 100% right. Contrary to resolving conflicts with the staff union, president Battistelli (aka Blatterstelli) and his minions have only one objective with respect to SUEPO: total suppression. As you can read in this TechRights post, the EPO's Investigative Unit (which would be more appropriately named Stasi) scheduled an "interview" of the staff union's Munich chairwoman for today. Her name is actually no secret: Elizabeth Hardon. She's one of the signatories you find here (this post continues below the document):

15-09-07 SUEPO Flyer on Suicide by Florian Mueller

I have heard from EPO staff that Mrs. Hardon was demoted last year by personal decision of Mr. Battistelli, on a basis that my sources consider unfair. She may now even be fired.

The above PDF document, which actually contains a SUEPO flyer as well as correspondence between SUEPO and Mr. Battistelli, relates to a very sad incident: the fifth suicide of an EPO employee in 39 months. But in this regard I neither support Mr. Battistelli nor SUEPO. I agree with either one to a limited extent and mostly disagree with both.

Mr. Battistelli -- and this is the first time for me to agree with him and it may also be the last -- is absolutely right that it was not enough for SUEPO to wait for a limited period of time before it tried to gain political mileage out of the latest suicide. Should Mr. Battistelli's representation (which I don't doubt in this particular case) be correct that the widow didn't want anyone to talk about the personal circumstances of this tragic incident, then SUEPO should have respected that forever, not just for two weeks.

The part of Mr. Battistelli's letter that I find ridiculous is where he asks for a climate of trust for his reforms, some of which violate long-standing principles of European labor law.

Another problem that SUEPO has here is that even five suicides in 39 months (almost one tenth of a percent of the EPO's workforce) are too small a number to be statistically reliable. There are definitely serious issues at the EPO, but small statistical samples have too much variance. Five suicides can happen among thousands of EPO employees even for circumstances that have nothing to do with the social and human rights conflict at that organization. SUEPO has far stronger -- and ethically less debatable -- arguments to demand a change for the better.

Should those suicides have had anything to do with the social conflict at the EPO, those people would have died for the wrong reason. I'd like to quote the following from TechRights:

"Staff at the EPO needn't be suicidal or depression-leaning. Many employees — and examiners in particular — are highly qualified, often with Ph.D.-level degrees and many years of technical experience."

I'll take this one step further: EPO employees who are unhappy about the situation should try to find a better way to vote with their feet than taking to the streets of Munich (and other cities) to no avail. They should quit their jobs at the EPO and take jobs in the private economy. Engineering jobs, especially.

Dear EPO Employees: if you truly wish to promote innovation, the EPO is the wrong place to be. If you believe that this system -- broken beyond repair -- is good for innovation, you just believe and propagate the same lies that the EPO leadership you hate so much has been telling for a long time.

If you want to help Europe to be more innovative (let's face it: Europe has a major innovation problem), bring your education, your skills, your talents and your energy to the table where you can contribute to the creation of actual products. Wouldn't it be so much more rewarding for you to learn about customers using products you helped create than to grant patents, most of which won't be upheld in court (at least not in the form in which you grant them) when seriously challenged (see 1 and 2)? Apart from that, most of the patent applications you process aren't filed by European companies anyway.

I know that your net salaries at the EPO may not be immediately matched by private sector employers (though it may happen if you get promoted over time). You would have to accept an initial pay cut. But money should never be the only reason to go to work. For you, the risk-reward ratio is actually much better than for patent attorneys. Patent attorneys -- who make far more money on the patent applications you process than you do, as you know -- have to invest a lot more time and money in their education, and when they start to make serious money, the likelihood is next to zero that they could reach the same income level in an engineering capacity (they'd have to get very senior management positions at large corporations). Your situation is different.

For the overall economy, a bloated patent system with too many examiners and too many patent attorneys is a waste. It's a waste because Europe needs scientists and engineers to create true innovation.

Let me tell you about my own perspective, too. I've been fortunate to do some really interesting patent-related work for some time without ever having received formal training. Last year I founded an app development company and closed down my consulting firm. I've also reduced my patent-related blogging a lot, as you can see in the right column here. It's so much more enjoyable to create "real stuff" that people will use (I'll launch both games early next year) than to deal with discussions of what the state of the art was in 1997 or how a certain claim term should be interpreted. I don't want to be a hypocrite: I'm convinced I'll make far more money with my apps than I ever would have with consulting (and my consulting business was actually quite successful in all respects). But even if I knew that I was going to make only half as much money in app development, I would still prefer it by a wide margin.

It's self-delusionary for you to think that the EPO is the best place for you to work, or the best place for you to promote innovation. Start a new life. European industry needs you to build, for example, electric and self-driving cars before that market will be dominated by Silicon Valley companies. Your scientific knowledge, your overview of the state of the art, your experience in analyzing technologies, your ability to express yourselves in the three official languages of the EPO -- those assets are underutilized where you presently are.

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17 Members of the European Parliament raise questions about human rights situation at the EPO

As I reported last week, the human rights conflict at the European Patent Office continues and certain national governments acknowledge that there is an issue (or, more precisely, a host of issues). Political pressure on the EPO leadership, including the Administrative Council (which has so far done a better job at being part of the problem than at being part of the solution), is coming from more and more sides.

For example, 82 members of the Parliamentary Assembly of the Council of Europe (PACE) have signed a written declaration expressing concern over a "rollback of fundamental rights at the European Patent Office." Its signatories include leaders of parliamentary groups and members from all five major political groups in the PACE.

The Council of Europe is not an EU institution. It's a separate diplomatic organization whose members also include major non-EU member states such as Russia. Its focus is on human rights issues. That fact makes a declaration by many of its members relevant. Also, all those signatories are also members of their national parliaments.

But unlike the PACE, the European Parliament--which is an EU institution--has real decision-making power as a European-level co-legislator. While the EPO is formally not an EU institution, the EU has decided to put it in charge of granting the future European "Unitary Patent" and it has furthermore allowed essentially the same group of national government officials who run the EPO to control the future Unified Patent Court. The EU can't turn a blind eye to what's going on at the EPO. If the EU truly were as principled a watchdog of human rights and the rule of law as it claims when dealing with countries like Russia and China, it would rule out working with the EPO and would instead set up an EU patent office. However, despite the great work it does in certain areas, there are contexts in which the EU uses double standards.

17 Members of the European Parliament (MEPs)--2 from the libertarian Alliance of Liberals and Democrats for Europe and 15 from the Confederal Group of the European United Left - Nordic Green Left (a far-left but still democratic group)--have recently submitted official questions to the European Commission concerning the human rights situation at the EPO. The Commission has an obligation to respond, though its answers are typically evasive on any delicate issue. Here, the Commission could respond by denying responsibility for the EPO situation, since it only has observer status and no voting rights on the Administrative Council, but the truth is that the EPO will soon be by far and away the biggest service provider to the EU.

I just wanted to publish those two parliamentary questions here (also to make it easier to find them on Google) without further comment.

Question for written answer E-009256/2015
to the Commission
Rule 130

Fernando Maura Barandiarán (ALDE) and Javier Nart (ALDE)

Subject: Situation concerning the fundamental rights of EPO employees

The administrative council of the European Patent Office (EPO) introduced a new quality and efficiency strategy in 2010, aimed at improving quality and lowering costs. Most of the measures put in place under this new strategy do not appear to respect the fundamental rights of employees under the European Union Charter. The case was taken to the Dutch courts, which ruled that the EPO was violating the right of collective bargaining, the right to strike and the right to freedom of expression and information. Staff at the EPO have also spoken out on a number of occasions against the repressive, authoritarian system of management that has been introduced there, which is being used as a way to drastically restrict their rights.

Is the Commission aware of the situation concerning the rights of those employed by this international organisation, which has its headquarters within EU territory?

Has it undertaken, or is it considering undertaking, any kind of investigation into whether the EPO has violated Articles 11, 12 and 28 of the EU Charter of Fundamental Rights?

Question for written answer E-008382/2015
to the Commission
Rule 130

Kostadinka Kuneva (GUE/NGL), Lynn Boylan (GUE/NGL), Martina Anderson (GUE/NGL), Pablo Iglesias (GUE/NGL), Lola Sánchez Caldentey (GUE/NGL), Stelios Kouloglou (GUE/NGL), Paloma López Bermejo (GUE/NGL), Barbara Spinelli (GUE/NGL), Fabio De Masi (GUE/NGL), Tania González Peñas (GUE/NGL), Helmut Scholz (GUE/NGL), Neoklis Sylikiotis (GUE/NGL), Kostas Chrysogonos (GUE/NGL), Matt Carthy (GUE/NGL) and Miloslav Ransdorf (GUE/NGL)

Subject: Violation of labour and trade union rights in the European Patent Organisation (EPO)

The Dutch appeal court recently ruled (case number 200.141.812 / 01 / 17-2-2015) that the European Patent Organisation (EPO) violated workers' labour rights deriving from the EU Treaties and the EU Charter of Fundamental Rights. Consequently the Dutch court, exceptionally, has not accepted the immunity EPO enjoys as an international organisation, since this immunity cannot allow for human rights violations. Nevertheless EPO declared it would ignore the ruling pleading execution immunity.

• Does the Commission agree with this ruling, according to which, as regards guaranteeing fundamental rights, the EU Treaties and the EU Charter of Fundamental Rights prevail over bilateral and multilateral agreements, including those providing immunity to organisations such as the EPO?

• If so, what does it intend to do to prevent the abuse of immunity rights and defend the EU citizens' and employees' rights and the community acquis in organisations such as EPO which while exercising judicial functions is at the same time breaching the European legal order rules?

• How does the Commission scrutinise that the positions EU Member States' representatives take in the administration of EPO are compatible with the rights enshrined in the EU Treaties and the EU Charter of Fundamental Rights – taking into account that the EU Member States constitute the majority in the organisation?

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EPO president reportedly threatened to resign; Dutch diplomat concedes concern over bad press

Today's EPO staff demonstration in Munich (see my previous post) turned out a lot more interesting than expected.

An estimated 700 protesters marched from one of the EPO's Munich buildings (the closest one to the Oktoberfest venue, for those who may have visited Munich on that occasion) to the Dutch consulate-general:

There was one sign that I particularly liked:

It's unfortunately true that the EPO, claiming immunity, behaves like an enclave that doesn't have to respect European/EU human rights and labor law standards. I don't think the EU institutions can turn a blind eye to this situation. Before the EPO starts granting EU-wide unitary patents, it must at least meet a certain European minimum standard in terms of checks and balances as well as access to justice.

After a 15-minute walk, the protesters arrived at the Dutch consulate-general. They were greeted by the consul-general himself, Mr. Peter Vermeij, who was an EPO vice president (in charge of patent administration and other areas of operational support) from 2007 to 2012. I took this picture of Mr. Vermeij adressing the SUEPO crowd (with the microphone):

Mr. Vermeij acknowledged that the ongoing labor conflict at the EPO and the bad press it has already resulted in have (among others) the member states of the European Patent Organisation concerned. He said that the EPO should usually just go about its work and there should be no noise about it. This official concession of concern over negative publicity was interesting.

Mr. Vermeij invited a few staff representatives to his office to discuss the Dutch government's position (also on the human rights issues on which a Dutch court had sided with SUEPO) in private.

Toward the end of the demonstration, a staff representative said, citing a reliable but unnamed source, that a majority of the EPOrg's member states (at a Council meeting last month) was in favor of appointing an independent mediator to help resolve the sitation but EPO president Benoît Battistelli was adamantly opposed to this idea and threatened with his resignation for the event that mediation would have been imposed on him. The crowd ironically cheered.

As I've said several times before, the EPO has structural governance issues that must be addressed, though Mr. Battistelli's leadership style is certainly unpopular with staff. While I don't think Mr. Battistelli's resignation would in and of itself represent a solution, I also don't feel he's unreplaceable. The Administrative Council should have decided to take the mediation route anyway and should simply have accepted his resignation.

The EPO is clearly in crisis.

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Promise of union recognition insufficient to solve conflict at European Patent Office: new protests

By promising (after approximately four decades) formal recognition of EPO staff unions, the Administrative Council of the European Patent Organisation extended an olive branch, presumably due to a combination of political (with some key member states increasingly hesitant to support EPO president Battistelli) and legal (Dutch court decision) dynamics. Last week the kick-off of the "renewed social dialog" took place. According to SUEPO (Staff Union of the European Patent Office, which published a report on the meeting (PDF), "[t]he atmosphere was such that some frank exchanges about the situation in the Office could take place." But staff representatives still appear to be skeptical of whether any meaningful change will result from all of this.

It's clear that formal union recognition won't solve any problem. It can be seen as a gesture of goodwill, and indirectly it could have positive effects if the talks helped build a consensus, but for now there are no signs of the situation actually improving. In the most critical respects it seems to be "business as usual", with certain reforms being implemented at any rate.

It could be that the Administrative Council hoped staff representatives (particularly, but not only, SUEPO) would soften their stance on the actual issues because of the potential benefits to their organizations from formal recognition. Should that have been the plan, it doesn't appear to have worked out: SUEPO organized a march today from one of the EPO's Munich buildings to the Dutch consulate (PDF flyer).

Again, I don't know whether the Administrative Council overestimated the impact of the promise of formal recognition and the invitation to talks, but in any event the representatives of the EPOrg's member states should consider that they are not dealing with "your average trade union" such as in a traditional manufacturing industry, where there may sometimes be a disconnect between union leaders (and their personal interests) and most of the people they speak for. EPO examiners are very educated people who can tell the difference between window dressing and real change.

The day before yesterday SUEPO published another flyer, which explains some key underlying issues (this post continues below the document):

15-04-28 SUEPO Flyer Brave New EPO by Florian Mueller

There are three key things that this flyer explains:

• The stated reasons for certain reform measures are based on the nonsensical notion that the EPO "competes" with the USPTO, JPO, SIPO and other non-European patent offices. If it competes with anyone, it's with national patent offices, but national patent systems control the EPO through the Administrative Council and milk it (through high renewal fees that have an almost 100% gross margin for national patent systems).

• Increased productivity pressures on staff require and inevitable result in a lowering of patentability standards, particularly with a view to the inventive step. Ultimately, this is a very problematic development that can have negative economic effects (except for the EPO and, especially, the national patent systems controlling it).

• While the EPO is highly profitable, with a budget surplus of €364 million in 2014 and a likely higher one in 2015, it still doesn't lower its fees. Instead, the EPO leadership argues that more (not better) patents must be granted. The question of how many patents Europe needs (or, as SUEPO asks now, how many it can tolerate) came up before. SUEPO now also pointso ut that it would be a fallacy to assume that more EPO patents mean more European innovation or growth:

  "Two-thirds of the applications filed at the EPO are not of European origin and thus are more likely to hinder European industry than benefit it. A flood of badly examined patents could affect in particular the small and medium-sized enterprises that cannot afford expensive litigation."

I agree with SUEPO on all of that. There's only one thing that SUEPO has said in connection with today's protest (in a PDF flyer published on SUEPO's website) that I disagree with:

"Last week Mr Battistelli informed us that the Dutch government will join the EPO in its attempt to overturn the judgment in the next instance ('cassation'). If so then the Dutch government makes itself complicit in violating fundamental rights."

(emphasis in original)

In my opinion, the Dutch government is in its right to express its position on the legal question of EPO immunity, and if it agrees with the EPO on this one, then that's legit, even if staff representatives don't like it. I view the Dutch government's role as, practically, an amicus curiae as not objectionable at all, but it should accept the final outcome even if the previous judgment is affirmed, meaning that a final judgment in SUEPO's favor should also be enforced.

Also, the Dutch government should play a more constructive role on the Administrative Council to ensure that EPO staff have certain human rights. In one of the related contexts the IPKat blog pointed out an interesting fact:

"People who work for the World Intellectual Property Organization (WIPO), the Office for Harmonisation in the Internal Market (OHIM) and the Community Plant Variety Office (CPVO), the Benelux Office for Intellectual Property (BOIP) and the good folk whose job it is in the European Commission to make life difficult for us by thinking up new IP policies, must all have the occasional health issue too, and presumably WIPO, OHIM, the CPVO, BOIP and the Commission must have schemes that govern the health and welfare of their own employees -- none of whom, so far as Merpel is aware, have publicly complained about the health provisions that apply to them."

The EPO situation indeed appears to be unique.

I'd also like to point to this IPKat post on a subsequently-withdrawn European Commission statement (a pretty bad propaganda piece) on the proposed fees for the single European patent. I'll talk about this issue on some other occasion. I know there's a lot of unhappiness about this one in industry and in the legal community.

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Administrative Council offers 'formal recognition of the trade unions within the EPO's legal framework'

My hopes for some progress resulting from this week's meeting of the Administrative Council (AC) of the European Patent Organisation (EPOrg), the multinational body that runs the European Patent Office (EPO), haven't been exceeded by much, but I'm not disappointed either. Late on Thursday, a joint statement by the Chairman of the AC (Jesper Kongstad) and the EPO president (Benoît Battistelli) was published.

They promise to "launch new initiatives to restore social peace" and call for a "renewed social dialogue." The statement gets slightly more specific in that the first step could be "the formal recognition of the trade unions within the EPO's legal framework", and they "invite the trade unions of the EPO to a dedicated kick off meeting on 22 April 2015."

I believe SUEPO as a trade union speaks for the EPO staff at large. There's also an Association of the Members of the Boards of Appeal (AMBA) with a new website. It appears to me that AMBA's focus is on specifically judicial issues.

It could be that the EPO's leadership is pursuing a "divide and conquer" strategy so it doesn't have to face a united front of all EPO staff. If that is indeed the strategy, then it remains to be seen whether it will work out.

The announcement suggests that the EPO must now take some action based on the legal framework it has in place or that some amendment to the EPO's rules could be needed. Either way, yesterday's announcement is a diplomatic gesture and everything depends now on how this will be fleshed out. In the most negative scenario, the stakeholders would fail to agree on the terms of "formal recognition" of the trade unions. In the most optimistic one, there would be a new tone and a sense of partnership, which could lead to significant improvement.

Originally, president Battistelli declared himself unwilling to comply with a Dutch court order after the Dutch government ensured the ruling would not be enforced. The appeals court in The Hague had told the EPO to comply with certain rules that are fundamental human rights of employees of any organization in the civilized world. Enforceable or not, that decision has apparently shown to some of the governments of EPOrg member states that something needed to be done. The announcement of a plan to work toward formal recognition of trade unions suggests that the EPO(rg) at least doesn't want to overtly violate workers' rights and hide behind diplomatic immunity, which is always a last resort. So they say they're going to do something that happened in major EPOrg member states like the UK and Germany almost 150 years ago: to formally recognize trade unions. (Granted, EPO employees have always had the right to strike, so the current rules aren't medieval in all respects, but with recent changes that would require a strike to be approved by the president, the right to strike had also been effectively vitiated.)

That said, progress is progress. Better late than never.

There are still some important questions that need an answer. Judicial independence. Checks and balances. Conflicts of interest of AC members. Patent quality. But Rome wasn't built in a day, and staff input can (we'll see whether it actually will) help to arrive at better decisions in all those areas.

[Update] SUEPO has meanwhile reacted with an announcement of another demonstration (details will be communicated next month) and has expressed what I interpret as skepticism regarding the sincerity of the "social dialog" initative:

15 03 27 SUEPO Comments by Florian Mueller

[/Update]

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EPO human rights issues and EU patent (litigation) reform: questions and concerns

Before the European patent system can grow in terms of having an EU unitary patent and a European Unified Patent Court (UPC), it may have to improve in some fundamental respects. Of course, improvements could also happen simultaneously with expansion, as part of the same package of measures. But if improvements were postponed indefinitely, prior expansion could have unintended negative consequences.

There are two key areas of concern:

• the impact of the future UPC's rules of procedure on the tech industry, particularly companies that have to defend themselves against patents that wouldn't survive an invalidity challenge, and

• the human rights conflict at the European Patent Office (EPO), which has recently escalated because EPO staff won a ruling form a Dutch appeals court but the Dutch government won't allow it to be enforced against the EPO for immunity reasons.

While industry concerns over UPC rules and a labor conflict at the EPO are undoubtedly separate issues, they involve essentially the same policy makers at the national governments that run the EPO and will run the UPC. This is a rather critical perspective but one might even say that both issues share the same root cause: due to the highly specialized nature of patent law, top-level policy makers defer too much to the experts who presumably are knowledgeable about the law (I don't have any reason to doubt that part) but, unfortunately, have an agenda of their own. It's the agenda of a system that has gotten out of control and of people whose careers benefit from expansion, rather than improvement, of the system. The net effect is that top-level decision-makers, such as national government ministers, put the fox in charge of the hen house, which appears to be a convenient choíce but inevitably results in institutionalized excess. I've said it before: this is a structural problem; any mistakes made by the people in charge are, at best, secondary.

The victims of this structural problem are the EPO staff on the one hand (I don't have a position on their compensation or anything like that, but I do believe that they should be protected in accordance with contemporary human rights standards) and, if things go wrong with the UPC, industry on the other hand.

Here's the latest with respect to industry and staff concerns:

• A broadbased tech industry coalition that includes companies that are or used to be embroiled in litigation with each other (such as Microsoft and, through Motorola and now also Kyocera, Google) has previously raised concerns over the proposed UPC rules of procedure. I reported on a mid-November hearing and, previously, open letters published in September 2013 and February 2014.

  A few days ago I discovered the UPC Industry Coalition's new, official website. It contains some video recordings of industry players voicing their concern and a pretty good infographic, which explains how the "injunction gap" (an issue I highlighted in my analysis of 222 smartphone patent assertions last October) allows holders of patents that should never have been granted in the first place to get leverage over defendants. The infographic states that "[a] majority -- about 67-75% -- of patents are wholly or partially invalid" (which various studies have shown, and in connection with smartphone patents it's even worse) but doesn't mention something that I'd like to add here: if a settlement occurs before the invalidity of the patent-in-suit has been established in court, it's not just bad for "Company A" but will also hurt the rest of the industry, which will face the same dilemma.

  The website lists 16 signatories, some of which are industry associations that actually represents many companies. Compared to the groups that signed the aforementioned open letters, Apple is notably absent but I presume it still supports most if not all of the coalition's positions. It appears to me that a key objective was to have a stronger European component (European companies, European industry associations) than before, so maybe some U.S.-based supporters were purposely left out. For example, the videos all feature CEOs of European small and medium-sized enterprises (SMEs), which is a smart choice for political reasons. Just speculating, as I sometimes do (and sometimes refuse to do, depending on issue/context).

  I recently pointed to an article by Germany-based patent litigator Dr. Björn-Ingve Stjerna on the legal proceedings surrounding the Unitary Patent and the UPC. That document has meanwhile been updated.

• The EPO staff union (SUEPO) added a news item yesterday on questions posed by a Dutch member of the European Parliament (Dennis de Jong, a socialist) to the European Commission. His parliamentary group, GUE/NGL, is far more interested in workers' rights than in strengthening intellectual property proection, but that inclination does not diminish (not in the slightest) the legitimacy of his well-stated questions, which I'd like to show you:

  Question for written answer E-002507/2015
  to the Commission
  Rule 130
  Dennis de Jong (GUE/NGL)

  Subject: Rights of staff and ethical standards at the European Patent Office

  Reports are emerging of an unpleasant working environment and staff intimidation at the European Patent Office (EPO). Further information can be found on the EPO Staff Union website. Because of the importance of the EPO for EU patents legislation, the Commission cannot afford to ignore the problem.

  1. Does the Commission still intend to work together with the EPO on the single European patent?

  2. If so, what guarantees have been or will be given to the Commission regarding respect for the trade union and other rights of EPO staff?

  In addition to the rights of staff members, a number of ethical issues are also arising within the EPO, including the recruitment and dismissal of senior officials. For example EPO President, Benoît Battistelli, has succeeded in dissolving the Audit Committee and replacing a number of executives with a team of his own choice that is suspected of corruption [related footnote: "See for example the ZAMP affair and controversies surrounding other questionable practices." with a link to a TechRights article]

  3. What guarantees has the Commission obtained to satisfy it regarding the integrity of the EPO?

  There's also a document from another European (but not EU) parliament, the Parliamentary Assembly of the Council of Europe (a diplomatic non-EU body whose members include many non-EU member states and which places particular emphasis on human rights matters) from 2013. The paper argued that international organizations such as the UN, the World Bank and the EU should protect the human rights of employees of international bodies enjoying immunity under national law. I understand from SUEPO's website that this report was adopted by the parliamentary assembly.

  This morning, the IPKat blog published its latest story (I also recommend the previous ones) on the EPO labor dispute.

These issues were not created by the EU. However, the EU institutions should take a closer look at the current situation before the EPO starts to grant the EU unitary patent (which could become such a large part of the EPO's "business" that the EPO would effectively be an EU subcontractor -- by far the largest one, of course -- more than anything else) and before the procedural rules are set for the UPC on a basis that could have very negative effects on European SMEs.

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European Patent Office staff asks a good question: How many patents does Europe need?

Since December, I've been following the labor and human rights conflict at the European Patent Office and the debate over judicial independence. I'm less concerned about particular people holding certain positions (TechRights' Dr. Roy Schestowitz covers those issues in detail) than fundamental, structural deficiencies that have allowed judicial independence at the EPO to wither. And when patent examiners warn that patent quality is in jeopardy, I tend to listen carefully.

The Staff Union of the European Patent Office (SUEPO) has announced another demonstration. It will take place in Munich next Wednesday. EPO staff will march to the British consulate (on January 24 they went to the Danish consulate) and hope to meet the British Consul-General in Munich. It makes sense that SUEPO talks to the national governments that are ultimately responsible for what's going on at the EPO. The British government has also just received a letter from the UK's Chartered Institute of Patent Attorneys (CIPA) that IPKat reported on. That's definitely an awareness-raiser.

Here's SUEPO's flyer announcing the next demonstration (this post continues below the document):

SUEPO Demo 15-02-25 by Florian Mueller

The parts of the flyer that particularly caught my interest are at the beginning and at the end. The question of how many patents Europe needs is a good starting point for the EPO reform discussion. In some contexts, less is more. SUEPO's concern is that EPO president Benoît Battistelli's emphasis on "efficiency" reflects a lack of focus on patent quality:

"According to staff, efficiency is not an aim by itself: it is subordinated to the Office's duty, as a public service, to examine patent applications thoroughly and to refuse any 'bad' patents that would otherwise be a nuisance, in particular for the many European small and medium-sized enterprises that cannot afford expensive litigation. Mr Battistelli's single-minded focus on 'efficiency' and cost cutting is not in the interest of Europe!"

What I don't know is whether there are areas (and in large organizations there often are some) in which costs could be reduced without any negative impact on examiners' ability to decline to grant "bad" patents. However, SUEPO's concern is understandable in light of an official document (minutes of May 2009 board meeting), cited at the end of the flyer shown above, which says that Mr. Battistelli as well as EPOrg Administrative Council chairman Jesper Kongstad shared the following philosophy:

"Priority on increased output should be the leading consideration."

To be fair, not everyone who calls for increased output is necessarily against quality. However, the leadership of a patent office should, as a matter of principle, always view patent quality as the number one priority, with efficiency being a close second if there are objective indications of inefficiencies and a distant second if benchmarking and other types of analysis suggest that any further efficiency gains would be limited or, if overreaching, come at the expense of patent quality.

I have the impression that the EPO staff is genuinely concerned about patent quality. It appears to me that these people really want to be able to do a good job (that they can be proud of), and their perspective on their job is that they have to serve the public interest by rejecting bad patent applications. I'm not saying that this is the only reason they oppose Mr. Battistelli's reform agenda, but at the very least it's a significant and credible part of the consideration, not just a pretext.

One of the structural problems (which in turn is the root cause of other structural deficiencies) is that the EPO basically mints money for national patent offices by putting out many patents, and only by granting (not by rejecting) applications -- otherwise there's no money to be made for national patent offices. In business terms, the EPO generates, by granting patents, income for national patent offices through local registration and renewal fees that are almost entirely a gross contribution to the bottom line. It's all too tempting for national government representatives to go for short-term income rather than the long-term policy interest in patent quality. Like all analogies, this one isn't perfect, but imagine a situation in which a body deciding on fishing quotas would be controlled by the industry that supplies ships and specialized devices to the fishing industry. The ones in charge would then want more, not less, fishing because it serves their interests. It's in the public interest, however, to avoid overfishing -- and in the long run, that's also in the interest of the suppliers controlling the agency.

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Dear EPO Leadership: a judge subjected to an 'office ban' IS a suspended, temporarily-removed judge

It's time for a follow-up on what's going on at the European Patent Office. The day before yesterday, the EPO staff union, SUEPO, took to the streets of Munich again--this time around, approximately 1,000 EPO employees went to the Danish consulate (this post continues below the document):

15 01 22 SUEPO Flyer by Florian Mueller

The Danish consulate was chosen because a Danish public servant, Jesper Kongstad, is the chairman of the Administrative Council of the European Patent Organisation. I have heard from multiple sources that he's always aligned with controversial EPO president Benoît Battistelli.

The SUEPO flyer I published above contains some links, including one to this blog, and I recommend all of them. I wish to particularly highlight this article (PDF) by patent litigator Dr. Ingve Björn Stjerna that connects certain dots between the proceedings before the Court of Justice of the EU concerning the future Unified Patent Court and the questions that have been raised about judicial independence at the EPO. The related part (entitled "The most recent developments at the EPO") begins on page 3 of the document.

One of the links points to a TechRights article, and there are a couple of other recent TechRights article I find interesting (which does not mean a wholesale endorsement): this one on the rumor that the EPO's recently-hired Director of Internal Communications has "resigned" and this one on (so far unproven) allegations against a vice president of the EPO. The de facto suspension of a member of a board of appeal (i.e., an EPO-internal judge) that has drawn much criticism from judges and lawyers was, according to French financial daily Les Echos, due to whatever the suspended judge said about that vice president, Mr. Željko Topić.

You can find many interesting comments below this IPKat post on an EPO-internal memo with which a vice president, through one of his assistants, told the heads of examination units what he thought about a letter by retired UK judge and professor Sir Robin Jacob to the Administrative Council.

Here's my thinking: On the one hand, I can understand that the EPO leadership is increasingly nervous. I can also appreciate that they would prefer to handle matters like these internally and confidentially. But opacity has its limits, and the EPO is simply too important for people like Sir Robin (and so many others) to ignore what is going on there.

EPO vice president Minnoye is right that Sir Robin (and others, including me, except that I'm not aware of any EPO-internal communication about me) was "not aware of all facts" when he wrote his letter. But he had apparently received information from reliable sources according to which the suspended judge had not done anything that would explain why he had to be removed, why his computer had to be searched, and why he had to be denied access to the building. I'm sure Sir Robin would never have written the letter if there had been the slightest indication of, for example, the allegations having involved physical violence that others in the building had to be immediately protected from. Everything that the outside world has heard so far is about information and/or opinions the suspended judge shared.

That is enough for Sir Robin and others to conclude there was no basis for executive action. Whatever the issue may have been, it should have been properly investigated, and no matter how serious or not, this should have been adjudicated by a judicial body--not the president, not the Administrative Council--before taking such action.

The second point made by EPO VP Minnoye is that Sir Robin allegedly referred to a different type of executive action. Mr. Minnoye stresses this was an "office ban."

This is old news. It had already appeared in December that the EPO leadership distinguishes between

• (temporary) office ban,

• (temporary) suspension, and

• (permanent) removal.

This sophistry is not going to get them anywhere. The critics of the decision presumably (and in my case, I know it's definitely the case) just refuse to make that distinction because it's meaningless to them.

Let's think about it. A judge who is not allowed to enter the building can't hold hearings, can't (easily) meet with his peers on the same board of appeals to discuss the case, can't access certain document databases, can't use office equipment there, can't get help from assistants. He's simply unable to do his job for all intents and purposes.

How is that not a suspension? How does an executive's ability to make this decision not compromise judicial independence?

I've been saying for some time that it would be a mistake to focus just on Mr. Battistelli. The problems here are structural. Mr. Minnoye may very well be right that in formal terms, Mr. Battistelli can impose an "office ban" on a judge, and that this is allowed by a section of the EPO's rules that is different from the one on a suspension, and that a suspension is not a removal because it's temporary (another distinction that amounts to hairsplitting). So maybe Mr. Battistelli acted in accordance with the rules, some of which he made or changed himself (and the Administrative Concil rubberstamped). It's not really important whether Mr. Battistelli will leave the EPO in a few months or in a few years. All that matters is that the structural deficiencies that allowed the current situation to arise be addressed for once and for all. The national governments of the EPO contracting states are responsible for this.

The root causes are key. Mr. Battistelli is not a root cause. There are reasons to believe that under this leadership the situation exacerbated, but he does not share political responsibility. Dozens of European countries that believe they have to "remind" China and Russia of human rights and democracy issues time and time again have allowed the situation to get out of hand because they failed to put proper checks and balances in place.

Mr. Minnoye and Sir Robin can be right at the same time. I tend to think they both are right at the same time. In Sir Robin's case I'm sure, in Mr. Minnoye's case I can see that the EPO's rules probably support his logic.

The bottom line is that reform is needed. The Administrative Council has been part of the problem, not part of the solution. Sir Robin and others were too polite to address someone other than the Administrative Council. They should have contacted politicial decision-makers and members of different parliaments. The Administrative Council appears to be the fox in charge of the henhouse, though it would be great if it could prove its critics wrong in the months and years ahead and bring about meaningful change, rather than endorse and rely on meaningless sophistry.

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