Labouring the point? EPO dispute culture festers; the contagion spreads

The words "international", "labour" and "organization" are increasingly found in close proximity to one another in this moggy's mail box.  The reason for this has not been hard to identify: it relates to another set of three words found in close proximity to one another: "European", "patent" and "office" (yes, it's the Munich headquartered European Patent Office, which shares the initials EPO with the European Patent Organisation, with which it is sometimes confused). 

The successful functioning of the Administrative Tribunal (AT) of the Geneva-based International Labour Organization (ILO), like many dispute resolution bodies with finite resources, is inversely proportionate to the extent to which it is used. Thus with only a small trickle of cases at any given time, the AT can at least give them its best attentions and, even though the organisation is not known for its speed, it can be expected to deal with them within the lifetime of its complainants.  However, when faced with an unprecedented volume of complaints, it can do nothing.  

The AT can at present draw on the services of seven judges, whose remit covers some 60 international organisations which between them employ around 46,000 officials and former officials. It is in the context of a document published on 15 October, "Workload and Effectiveness of the Tribunal", that Merpel learns of the AT's woes:

"It is the number of complaints filed against a single organization, the EPO, rather than the rise in the overall number of organizations having accepted its jurisdiction, that represents the main challenge for its effective functioning. The Tribunal further considers that all its efforts are being compromised by the continuing increasing trend of EPO-generated cases and also indicates that the complexity of the problem may require the attention of the Governing Body."

This moggy is not the first blogger to pass comment on the problem. Many readers have already spotted "The International Labour Organisation Highlights Problems of Broader Dimensions at EPO", posted on Roy Schestowitz's Techrights blog, which summarises matters succinctly:

"The International Labour Organisation (ILO) is raising serious concerns about the situation at the EPO, where labour or workers’ rights are being gradually abolished and the number of complaints has gone through the roof".

The problem looks like this:

"Put briefly and in very simple terms, the International Labour Organisation recognises that there is something uniquely rogue in the EPO that causes a massive number of complaints to come from workers. There are so many complaints in fact that the International Labour Organisation finds itself drowning in them".

And here is the suggested solution according to the ILO's report:

"33. The Governing Body requests the Director-General: (a) to initiate without delay discussions with the European Patent Organization (EPO), in consultation with the Tribunal as required, in order to identify a solution to the difficulties caused by the number of complaints generated within the EPO and which threaten the ability of the Tribunal to serve all other member organizations, and to report to the Governing Body at its next session"; 

(b) to consider with the Tribunal, and in consultation with member organizations and their staff representatives, concrete proposals for possible improvements and to keep the Governing Body informed of any progress achieved in this regard; ..."

Paragraphs 10 and 11 are worthy of note:

3. The European Patent Organization (EPO) – A case apart 

10. The largest member organization, employing approximately 8,800 staff, accepted the Tribunal’s jurisdiction in 1978. The EPO’s membership has always been marked by significant level of litigation [true, and the EPO's current management cannot be held responsible for disputes that arose before the current arrangements came into operation -- but the earlier "significant level" did not threaten to flood the Tribunal's operational capacity]. EPO-related complaints have generated, on average, 21 judgments per year, the lowest number being ten judgments in 1998 and the highest being 69 judgments in 2015. In its 37 years of Tribunal membership, the EPO has been concerned by 761 judgments out of a total of 3,560 judgments delivered by the Tribunal since its creation. By way of comparison, the Tribunal’s second oldest member organization – the World Health Organization – with similar staff numbers has been concerned by 447 judgments in 66 years of membership, that is an average of seven judgments per year ... In the last five years, whereas the EPO’s staff represents less than 16 per cent of all officials covered by the Tribunal’s jurisdiction, the number of cases filed annually against the EPO represented on average more than 30 per cent of all the cases received by the Tribunal, with peaks above 40 per cent of the overall annual Tribunal workload [Merpel wonders if the members of the Administrative Council of the EPO, collectively or individually, have any comment on this remarkable statistic, or whether it is something that can safely be ignored on the basis that the real problem is the ILO's inability to process more complaints as efficiently as the EPO processes more patent applications]. This persisting pattern stretches the Tribunal’s resources and inevitably impacts on the processing time of complaints, including those filed against all other international organizations that have recognized its jurisdiction. 

Even worse: the distance from Munich
to Geneva is 287.58 miles

11. Despite the written exchanges between the ILO Director-General and the President of the EPO on this matter, and the measures taken internally by the EPO in recent years with a view to improve its internal remedies and reduce litigation [it would be good to receive a summary of these measures and their impact, adds Merpel: if, despite the success of these measures, the EPO's overflow of disputes is still so great as to drive the ILO's system to the brink of stasis, the real total of disputes and complaints must be considerably higher], no progress has been registered so far to contain the number of labour disputes which give rise to cases referred to the Tribunal. In this regard, it should be noted that out of the 193 cases filed with the Tribunal from 1 January to 18 September 2015, 112 (or 56 per cent) originated from EPO officials, while the remaining 81 complaints were filed by officials of 23 different international organizations. In addition, following important reforms introduced in the EPO in the past two years, the number of internal individual grievances has grown exponentially, a situation that may reasonably be expected to give rise to an even larger number of EPO-related complaints with the Tribunal in the very near future.  

What do others think?  It would be good to take careful note of what the EPO's sister organisations, which share the ILO with it, have to say:

Sad that all's not well
now, but still hoping for a brighter future

18. Member organizations expressed serious concern about the volume of complaints against the EPO, and most importantly about the fact that problems around the “litigation culture” and social dialogue in that organization are not conjunctural but are most likely to persist unabated for many years. The general sense is that, based on available information, the current situation is not sustainable and that measures such as the increase of the number of judges or the number of sessions will not have a lasting effect on, much less resolve, the current flow of complaints filed by EPO officials. While noting the explanations of EPO administration officials about their genuine efforts to improve the situation, member organizations agreed that this was a governance problem of broader dimensions which called for urgent action in the interest of preserving the Tribunal’s operation.

Indeed.  

Merpel is saddened by the sight of the European Patent Office, once regarded as a jewel in the crown of European and indeed global intellectual property excellence, careering towards the precipice of disaster, its leadership obstinately failing to heed every warning sign and its Administrative Council apparently incapable of exercising decisive control. It would be wonderful to say "this cannot last". The tragedy is that it can.

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