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Europe's 'one patent court to rule them all' vision may be destroyed by EPO shenanigans

King Battistelli finally facing consequences for his actions

By Kieren McCarthy, 20 Jul 2017

The freeze on long-held plans to approve a single patent court for Europe is a result of the actions of the president of the European Patent Office, according to German media reports.

The Unitary Patent Court (UPC) has been in progress since 2012, but last month Germany's constitutional court unexpectedly ordered a halt to legislation ratifying it. The German government's approval is essential for the court to move forward.

Beyond the fact that an unnamed individual had filed a complaint with the court arguing that the UPC broke German law, little was known about the argument itself and why the court had taken it so seriously.

Now details have emerged and the reason for the freeze appears to be controversial changes pushed through EPO president Benoit Battistelli, largely in order to enhance his own office's power.

The complaint argues that changes made to the EPO's Boards of Appeal have effectively undermined its independence, meaning that there are now insufficient checks and balances within the system to adhere to German law.

Those changes were forced through by Battistelli after the Boards of Appeal stood up to him by refusing to remove a judge he had fired over allegations of leaking embarrassing documents and posting anonymous criticism of Battistelli and his team.

Stasi

The firing was one of a number that Battistelli has ordered due to resistance to his EPO reform plans, which have torn the organization apart. In this case of the judge, an already unpleasant episode was dragged further into the gutter when claims that the judge possessed Nazi memorabilia – two truncheons and propaganda pamphlets – were planted in the media.

Battistelli also set up a special investigation unit – nicknamed "the Stasi" internally – to root out critics to his plans. That unit, among other things, tapped people's phones, sent investigators to their homes, and carried out aggressive questioning of employees it suspected of being critical of EPO management.

When those tactics were declared illegal under the laws of the countries in which the EPO resides, EPO management announced that it was free to act away from such constraints because it is an international organization – an argument that it took to the Dutch Supreme Court, and won. That decision is currently being appealed at the European Court of Human Rights.

As a result of these actions, the Boards of Appeal decided to carry out an investigation into the firing of the judge rather than simply rubber-stamp Battistelli's decision. The judge was a member of the Boards of Appeal and the five-year position was designed to be independent of EPO management.

When it did investigate, the appeals board found a wealth of troubling details including the fact that the EPO's Administrative Council had lodged and then withdrawn two successive complaints about the judge before finally settling on a third complaint in which its initial allegations were reduced from five to two.

It also decided to give the judge the opportunity to respond to the allegations, especially since he had been publicly disparaged in the press by EPO management, and the judge asked that the board hold its meeting in public, to which the board agreed.

Boom

It was at that point that Battistelli blew up. He hired a British QC (lawyer) to produce a legal opinion on the issue that concluded "any decision to conduct this hearing in public would be unlawful." Battistelli then sent it with a letter to the board in which he claims it did not have the authority to investigate the case or conduct an appeal.

As such, he noted he would not allow any EPO witnesses to appear and argued that any decision of the board would be "unlawful."

In response, the board cancelled the hearing, refused to dismiss the judge and wrote a damning report about Battistelli's actions. "In such a situation, the Enlarged Board cannot legally continue with these proceedings," it wrote, adding: "The intervention of the Office President, and this intervention alone, prevented the Enlarged Board from continuing the proceedings as had been planned."

By threatening the board, Battistelli had "undermined the fundamental principle of judicial independence," the board noted, adding: "All present members of the Enlarged Board find themselves threatened with disciplinary measures if they continue with these proceedings in the presence of the public, and seek to determine the facts of this case."

As a result of this refusal to capitulate to Battistelli's demands, EPO management then drew up a raft of reforms that undercut the Boards of Appeal authority.

Among other things, these limited the power of the Board of Appeal's president over budget and staffing, and gave Battistelli as EPO President the right to decide who is appointed (or reappointed) in that role. Any reappointment would be subject to a "performance evaluation" carried out by the president.

Among other smaller changes, the independent boards would also no longer be able to adopt their own rules of procedure – they would be decided by, you've guessed it, the EPO President.

Erosion

In response, the Association of the Members of the Boards of Appeal (AMBA) wrote a damning letter to the EPO in which it said that the proposed reforms do not follow "the main internationally recognized principles of judicial independence" and that the end result of the changes was that "independence and autonomy are eroded."

Nevertheless, many of those reforms were then passed by the EPO's Administrative Council, as they have other reform measures that have increasingly undercut any independence within the organization and led to the EPO president being called "King Battistelli."

Despite numerous critical reports, a long list of staff strikes and even formal rebukes from the Dutch and French governments as well as the International Labor Organization, Battistelli has continued to push ahead, seemingly without consequence.

That may finally have changed, however. Last month, the job description for a new president was posted (Battistelli's term is up June 2018) and a new chairman of the Administrative Council was named after the former chair, Jesper Kongstad, unexpectedly resigned from his position of chairman of the Danish patent office. Kongstad has long been seen as the person most responsible for keeping Battistelli in a job after other countries started pushing for him to be fired.

Now, however, it appears that Battistelli may finally face serious consequences, with his forced changes on the organization standing in the way of a major strategic goal of the EPO: the creation of a unitary patent court.

If the German constitutional court does decide that the Battistelli-forced changes to the Boards of Appeal undermine its independence to the extent that it contravenes German law, then Europe will either have to drop its five-year plan or demand that the EPO reverse the changes and remove the powers of the presidency that Battistelli has fought so hard to introduce.

If that happens, it would be a fitting bookend to his destructive, egomaniacal time in charge. ®

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