EPO AC says no to Battistelli & yes to the rule of law

The Administrative Council of the European Patent Office (EPO) has rejected the proposal from the President, Benoit Battistelli, (reported here) which would have seen them bypass the Enlarged Board and proceed directly to dismissal of a Board of Appeal member, contrary to Article 23 EPC. Instead, the matter has been formally referred to the Enlarged Board with a request that it make a proposal for dismissal. The decision appears at the end of their Communiqué, posted in full below.

While this was the only credible course of action, the AC delegates are nevertheless to be commended for resisting the pressure from the President to bypass the niceties of due process.

Munich, 15 October 2015

145th meeting of the Administrative Council of the European Patent Organisation (Munich, 14-15 October 2015)

The Administrative Council held its 145th meeting in Munich on 14 and 15 October 2015 with Jesper Kongstad, Director General of the Danish Patent Office, in the chair.

After the Chairman's report on the most recent meetings of the Board of the Administrative Council, the President of the European Patent Office, Benoît Battistelli, presented his activities report (to be published shortly on this website). The Council congratulated the President, his management team and the Office staff for excellent results achieved in the period under review.

Later, the Council heard a status report on the Unitary patent and related developments, given by the Luxembourg delegation, representing the country holding the EU presidency for the second half of 2015.

The Council further heard the reports of the Chairman of the Select Committee on its 16th meeting, held just ahead of the Council meeting, and of the Chairman of the Committee on Patent Law on the Committee's 45th meeting.

Concerning "Legal and International Affairs" the Council adopted a set of amendments to the Implementing Regulations to the EPC regarding handwritten amendments in opposition - Rule 82(EPC), on the one hand, and constitution, maintenance and preservation of files - Rule 147, on the other hand (the corresponding decisions CA/D 9/15 and CA/D 10/15 will be published shortly on this website).

The Council was informed of the results of a user consultation on the orientations for a structural reform of the EPO Boards of Appeal which had been presented to and endorsed by the Council at its 143rd meeting in March 2015.

The Council decided to initiate a review of the social situation at the European Patent Office after five years of reform setting and implementation.

Several measures could contribute to a possible progress in this context: 

• continuing the exercise aiming at staff union recognition, despite the difficulties met
• aiming at the elaboration of a negotiation strategy preserving all the results already obtained
• launching a social study, in close co-operation with the President

The Council also dealt with the facts established by its Disciplinary Committee in a recent case involving a high-ranking EPO staff member having judicial functions. As to this case:

• The Council took note of the assessment by the President of the Office of the seriousness of the misconduct at issue.
• The Council observed that the Disciplinary Committee expressed the view that the relevant rules and general principles of law were correctly applied throughout the investigative and disciplinary procedure and assessed the facts brought forward during the investigation.
• The Disciplinary Committee focussed on acts of unauthorised disclosure of non-public information and critical opinions relating to Board of Appeal activities outside the EPO, while using pseudonyms as well on activities of spreading accusations and attacks or threats against the EPO and its members, either directly or indirectly using anonymous statements and pseudonyms, both inside and outside the EPO. The Disciplinary Committee concluded that the appropriate sanction is dismissal pursuant to Article 93(2)(f) of the EPO Service Regulations.
• The Council endorsed the opinion of the Disciplinary Committee that the appropriate disciplinary measure is dismissal. Pursuant to Article 23(1) EPC, the removal from office of a member of the Boards of Appeal is possible on a proposal from the Enlarged Board of Appeal. Such procedure can be initiated by the Administrative Council in accordance with Article 12a of the Rules of Procedure of the Enlarged Board of Appeal.
• As a consequence, the Council requested the Enlarged Board of Appeal to make a proposal for the removal from office of said staff member.

Merpel initially thought she detected, in the section dealing with the "social situation" a recognition by the AC that the unrest and low morale in the Office need to be dealt with, in spite of repeated denials from Mr Battistelli.

However, launching a social study "in close co-operation with the President" deprives that study of any credibility. A report which is vetted, contributed to, and possibly edited by the President will be a whitewash. If the people carrying out the study are not able to express themselves freely, i.e. if they work in the office or are engaged and briefed by the management of the office, then it will be a whitewash. It sounds like the AC wants to be project an air of concern, but is in no way interested in properly understanding the issues. If the AC was at all serious about understanding the social situation and dealing decisively with the rot, they would engage an independent, credible firm to investigate the "social situation" and would politely instruct the President to co-operate with the study. That's not what this sounds like.