When senior managers of the European Patent Office (EPO) decided to issue a public statement denying that it had breached the human rights of staff, it was the clearest indication yet that there has been a complete breakdown in the relationship between them and at least some of their employees.
Dated 18th March and running under the headline “No, the EPO is not violating fundamental human rights”, the statement began by summarising 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, the office’s 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.”
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 on-going 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 argues that long-term financial pressures on the office, as well as growing application numbers and the need to keep filing fees as low as possible, mean there have to be changes; 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 are in effect asking its members to do more for less will have a negative impact on patent quality; while, in any case, the real motivation for reform 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. There is, they allege, a cosy cartel running the office comprising senior managers and Administrative Council members from national patent offices that have a vested interest in raising as much revenue as possible. It is a charge that is vehemently denied.
Over recent months SUEPO has alleged that as well as forcing examiners into accepting new working conditions, senior EPO management has also 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 forbidden. This, they say, runs contrary to European human rights laws and they cite in support of this claim a recent decision in a Dutch court that found the office 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 that there is no evidence that they have come to pass. Likewise, there does not seem to have been any large scale 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 there would be all kinds of job opportunities available should they choose to seek them. That they don’t is telling.
But 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 EPO’s Enlarged Board of Appeal days after he had been escorted out of the office’s HQ 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 (EPC), and ensure its uniform application.
For his critics, such as those in SUEPO, Battistelli’s actions confirmed his willingness to ride roughshod over established principles to get his way. It is something that the president strongly denies, saying 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, the president 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.”
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 independent means to fully ascertain what happens there. That is because there is no disinterested source of information to go to: there are no publicly-available, minuted records of all the meetings that take place or of the votes that are held. The performance statistics that are shared with the public are those that office chooses to publish. And the consequences of that are what has played out on blogs and in newspapers during the last year or so: information provided by one source or another with skin in the game, 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 through the inner workings of the administrative council to the performance of EPO examination units and absentee rates there is a veil of secrecy at the EPO where there should be complete openness. Is it really acceptable that the full circumstances surrounding the choosing of the head of a public institution as important as the EPO are not known; or that we do not have a full picture of who says what at meetings in which important decisions are taken; or that there is no way to get a full picture of examiner workloads, hours worked and sick days taken?
Because of the lack of transparency, it is not possible to know whether the accusations levelled at Battistelli and other members of senior management are fair; but what is clear is that they are not just going to go away. In the 21st century, institutional and personal transparency are the only real options. And if they are not forthcoming voluntarily, in the end solutions will be imposed.
Michelle Lee was recently 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. From now on, she can 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 are not ways to make it more directly and regularly accountable – and for a public light to be shone permanently on its decision-making processes and performance. It would be preferable for the EPO management team and Administrative Council to come up with the necessary solutions, but if they cannot or will not someone else should take the challenge on.
Late last week Battistelli and the chairman of the Administrative Council issued a joint declaration in which they offered several olive branches to EPO employees, including the formal recognition of trade unions within the office’s legal framework. Those on both sides of the argument might see this as the beginning of the end of what has undoubtedly been a destructive dispute. But if they also believe that it means things can go back to normal, hopefully they are very wrong. What observers and users of the EPO have learned over the last few months is how little they know about the ways in which it works and what lies behind the decisions that it takes. And that is just not acceptable.
As the EU unitary patent regime and Unified Patent Court regime fast 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.