1 Apr
2015

It’s time for the EPO to embrace transparency and let the light shine in

An ongoing dispute between the senior management of the European Patent Office and a union representing examiners shows why transparency is vital at an agency whose role will only become more important

When the senior management of the European Patent Office (EPO) decided to issue a public statement denying that the agency had breached the human rights of staff, it was the clearest indication yet that there has been a complete breakdown in the relationship between those running the EPO and at least some of its employees.

The missive, dated March 18, ran under the headline “No, the EPO is not violating fundamental human rights”, and began by summarising what has become an explosive situation: “A strange rumour has recently spread across Europe in some media, political circles and even with national judges: that the EPO has not been respecting fundamental human rights. What an accusation!”

Signed by, among others, EPO president Benoît Battistelli, four vice presidents, the director of finance, the chief information officer and the head of human resources, the statement continued: “On behalf of a large majority of staff who are proud to work at the EPO and on our own behalf as senior managers with a recognised democratic background at national and international levels, we, the members of EPO’s management committee, are profoundly shocked by such an accusation.”

Having dealt with specific allegations one by one, the statement ended: “We are well aware that the EPO has a long tradition of conflict in social relations, even on the very first day the EPO opened in 1978 some of the staff were striking. But we are convinced that it is only through discussions with the staff and their representatives that we can build a positive future for the staff and the Office. We call for a meaningful and respectful dialogue between partners.”

Never-ending story

As the statement acknowledges, the EPO is no stranger to industrial strife – it has been a semi-permanent state of affairs for many years. The roots of the current conflict lie in ongoing attempts by senior management, under the current and previous presidents, to change the working conditions and remuneration structure of examiners, who – compared to their equivalents at other issuing authorities – have traditionally enjoyed very generous packages in terms of hours, holidays, salaries and pensions.

Management has argued that long-term financial pressures, as well as growing application numbers and the need to keep filing fees as low as possible, mean that changes must be made; and that relatively low-level support for the strikes that are regularly called to protest against the reformed packages demonstrate that most employees do not have a serious problem with them.

For its part, the examiners’ union SUEPO counters that management imposition of plans that effectively ask its members to do more for less will have a negative impact on patent quality; while in any case, the real motivation behind the changes is to collect more money that can then be redistributed to European Patent Organisation member states, many of whose IP agencies rely on EPO cash to survive. They allege that a cosy cartel is running the EPO, comprising senior managers and administrative council members from national patent offices who have a vested interest in raising as much revenue as possible. It is a charge that is vehemently denied.

In recent months SUEPO has alleged that, in addition to forcing examiners into accepting new working conditions, senior EPO management has made it much harder to organise support against the changes. There are claims that union officials have been harassed, meeting space has been denied, email communication has been restricted and demonstrations have been forbidden. This, they say, runs contrary to European human rights laws. In support of this claim they cite a recent Dutch court decision that found the EPO has a case to answer (a decision that remains unimplemented because, as an international body, the EPO is immune to the findings of national courts on such matters).

On the other hand, EPO management can reasonably point out that SUEPO has been issuing the same dire warnings about falls in patent quality for close to a decade now and there is no evidence that they have come to pass. Likewise, there has been no exodus of examiners from the EPO to pastures new. Instead, retention rates are remarkably high. Given the expert scientific and engineering backgrounds that EPO examiners have, as well as their strong linguistic skills, it is not unreasonable to assume that all kinds of job opportunities would be available should they choose to seek them out. That they have not is telling.

Questions of independence

Far more worrying than the knockabout of a management/ union disagreement over working conditions and the right to strike was the suspension of a member of the Enlarged Board of Appeal days after he had been escorted out of EPO headquarters in Munich on the personal orders of Battistelli. The affair is now subject to an investigation, with findings expected by the end of April; but many – including a number of senior European patent judges – have questioned the move, saying that it threatens the judicial independence of the board, whose role is to clarify and interpret law relating to the European Patent Convention and ensure its uniform application.

For Battistelli’s critics, such as those in SUEPO, his actions confirmed his willingness to ride roughshod over established principles to get his way. It is something that the president strongly denies, insisting that he has acted properly at all times and had no other option but to follow the course of action he did. Speaking to IAM last December, he stated: “I can understand the surprise expressed by people at what has happened, but I think many of them might have reacted too quickly; they have commented without knowing what the full situation is.”

Veil of secrecy

And that may well be the case. But the fundamental problem at the EPO is that because of a lack of transparency, there is no means to ascertain what happens there to the satisfaction of all observers. This is because there is no disinterested source of information to go to: there are no publicly available, minuted records of all meetings that take place or votes that are held. The statistics that are shared with the public are those that the EPO chooses to publish. And the consequence of that is what has played out on blogs and in newspapers during the last year or so: information provided by one source or another with no means to contextualise it or work out whether it provides the full picture. And that is just not good enough.

From the election of the president to the inner workings of the administrative council, there is a veil of secrecy at the EPO where there should be complete openness. It is ridiculous that the full circumstances surrounding the selection of the head of a public institution as important as the EPO are not known (the results of the series of votes that led to Battistelli’s election by member states of the European Patent Organisation in 2010 have never been made public), or that we do not have a full picture of who says what at important meetings where important decisions are taken.

But transparency does not just mean opening up the selection of high-ranking officials to public gaze or providing the full transcripts of meetings that are currently held behind closed doors. Neither is it only about having senior managers and council members appear on a regular basis to answer questions about the EPO and the policies it pursues. What we also need to see are how different examining units within the EPO perform, their attrition rates, accurate figures relating to workload, the number of sick days that staff take and so on. Data on all these things is generated; it should be shared.

In the eye of the WIPO storm

In April 2014 James Pooley, then deputy director for innovation and technology at the World Intellectual Property Organisation (WIPO), submitted a report of misconduct to WIPO’s General Assemblies and Coordination Committee, in which he made a series of explosive allegations against Francis Gurry, the director general.

Pooley detailed what he claimed were violations of the fundamental human rights of senior WIPO staff by Gurry in relation to DNA samples taken from them without their consent. He also focused on a procurement process that ended favourably for an Australian company headed by someone who, he stated, was an acquaintance of Gurry’s.

It has since emerged that, following the interjection of some WIPO member states – including the United States and South Korea – two independent parties looked at the matters raised by Pooley and concluded that they merited formal investigation. Although it is thought that this process did get underway, its current status is not clear. Speaking to IAM, Pooley said he believed that it may have stalled. “It seems as if the investigation has been interrupted and that the US and several other countries are seeking to get it restarted, as well as to ensure that it is conducted properly and fully independently,” he stated.

Although both he and Gurry are well-known figures in the global IP community, Pooley said he did not feel that there were any conflicts of loyalty among their many mutual acquaintances: “People are properly focused on the facts and the need to verify what happened so that the [WIPO] member states can decide what, if anything, to do. This is about governance and transparency of process; it’s not about personalities.”

It is imperative, he continued, that the investigation be allowed to run its course. “It’s not terribly complicated: experienced, independent professionals have to be given the tools to look into this and to reach their conclusions. That means giving them full access to all relevant documents and enabling them to talk to witnesses who are fully protected from possible retaliatory action and so able to talk freely and frankly.”

If the investigation is not completed or a full explanation for its termination is not provided, Pooley said, the repercussions for WIPO and the United Nations in general would be serious: “As a point of principle we should expect a public institution to be responsive to situations like this and to be ready to cooperate fully with any attempts to look at what are very serious allegations. Were this not to be the case, then staff inside the institution would conclude that it was not serious about uncovering cases of potential wrongdoing, while those on the outside would lose trust in it.” Trust and goodwill, he claimed, are vital to any public institution’s efficacy – once lost, they are extremely difficult to restore.

Time for transparency

Like WIPO, which is also under the spotlight for all the wrong reasons (see box below), the EPO is not structured to deal with the realities of a modern world that demands public accountability. Both agencies are funded by their users, many of which are public companies subject to strong national and international reporting regimes. It is not unreasonable for such entities to expect that the organisations to which they often pay significant amounts of money each year face similar requirements.

It is impossible to know whether the accusations levelled at Battistelli and other members of senior management are fair; but what is clear is that in the age of the Internet and the 24-hour news cycle, once charges have been made, they do not just go away – they either get answered or they fester. As a result, in the 21st century, institutional and personal transparency is the only real option. And if this is not forthcoming voluntarily, in the end solutions will be imposed.

Michelle Lee has recently been sworn in as the new director of the US Patent and Trademark Office, but before that could happen she had to appear twice before members of the Senate Judiciary Committee. She can now be called to Congress at any time to answer whatever questions the elected representatives of the American people may have of her. The US patent system is far from perfect, but here, surely, it can teach Europe a lesson.

The EPO is not (and cannot ever be) an EU institution answerable to the European Parliament, but it is hard to believe that there not ways to make it more directly and regularly accountable – and for a public light to be shone permanently on its decision-making processes. It would be preferable for EPO management team and administrative council to come up with the necessary solutions; but if they cannot or will not, someone else should take on the challenge.

As the EU unitary patent regime and Unified Patent Court regime approach – and with them a much more important role for Europe in the patent world – it is time for the governance of the European patent system to embrace the modern age.