Joff Wild

The lack of transparency surrounding the selection of Benoît Battistelli as the next president of the EPO was never a good idea. Where senior appointments are made in the murk and without full explanation or disclosure there is always room for rumours to emerge. And that is exactly what is now happening. This comes from the latest issue of SUEPO Informs, published by the union that represents a number (but by no means all) of the office's staff:

The selection procedure that led to Mr. Battistelli’s nomination was in many ways inelegant:

- Mr. Battistelli participated in drafting his own job advertisement and job description, which not surprisingly only attracted candidates from the Council,

- in June 2009 Mr. Battistelli needed to be reminded that he could not be candidate for the Presidency of the Office and Chairman of the Council,

- in October 2009 Mr. Battistelli and Mr. Kongstad proposed a deal wherein Mr. Battistelli would be President of the Office and Mr. Kongstad Chairman of the Council,

- upon rejection by the Council, Mr. Kongstad withdrew his candidacy only to reclaim his position as acting Chairman of the Council,

- in his function of acting Chairman of the Council Mr. Kongstad was responsible for chairing the procedure that led to the election of his previous partner, Mr. Battistelli, and for the contract to be signed.

This contract has now apparently been signed, but its contents remain obscure because Mr. Kongstad has refused to show it to the Council, despite repeated requests by the delegations. Evil tongues say that this is because it has “Saint Germain en Laye” (the town of which he is deputy major) as our new President’s place of employment, and an annex granting him full pension at the end of his 5-year contract. We obviously do not know whether this is true. But it seems clear that if Mr. Kongstad feels he has to hide the contract that there is something to hide.

During the next Council meeting a new Council Chairman must be elected.

Mr. Kongstad is expected to be a candidate. The interesting question will be whether now that his level of transparency has become clear, he will nevertheless get the support of a Council.

Now, it is important to remember that SUEPO has had a tense relationship with both EPO senior management and the Administrative Council for several years now, so it is not a surprise to see the union taking this line ahead of Battistelli's assumption of his new role. It is also the case that the fourth point it makes is factually incorrect - Kongstad did not withdraw from the election when his joint ticket with Batistelli was rejected, he did so in December, some two months later and after another round of voting. However, it is the case that points one and three are correct, as is point five. I have no idea about point two.

The allegations made in the paragraph following the five points are just that. However, they do go to the very heart of the transparency debate and they raise many important issues - not the least of which is just how committed Battistelli will be to his very important job. If it is true that Kongstad or anyone else is refusing to confirm the terms of Batistelli's contract as EPO president, that is plain wrong. As president, Battistelli will hold a very important, high-profile job at a time of major importance in the development of Europe's patent system. As such, all Europeans have a right to know under what terms he has been appointed - surely that should come with the territory of public office.

On top of this, not to make the terms public is entirely self-defeating. As the SUEPO newsletter states: "... it seems clear that if Mr. Kongstad feels he has to hide the contract that there is something to hide". The simple fact is that if you are not transparent in your selection process, you leave room for doubt. We don't know why Benoît Battistelli was chosen to be the next president of the EPO and we do not know under what terms he will hold the post. Most people inside the European patent bubble will probably think this is not a desirable state of affairs, but in the end they will just shrug their shoulders and get on with it. However, most Europeans are not inside that bubble and a good number of them are suspicious of or dubious about patents and those who administer the patent system. This seemingly total absence of transparency will not help to change their minds.