Petition for ministerial conference on European Patent Organisation
June 17, 2022
Ahead of their meeting late June, a petition calling for a conference of ministers of contracting states under Article 4a EPC has been sent to the members of the Administrative Council of the EPO.
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According to the petition: ‘the development of the European Patent Organization (...) has increasingly departed from the structure and its mission as foreseen under the EPC and it appears that no appropriate countermeasures will be taken.
Therefore, we consider an external review of the EPO's situation by a Conference of Ministers of the Contracting States under Article 4a EPC to be expedient; such a Conference is anyway long overdue in view of Article 4a EPC.
We call on you to have anew a close look:
- at the development and administration of the organization’s resources, in particular the alarming reduction of staffing levels in the core tasks;
- at the development of EPO employment law, at the (absence of) internal dialogue with social partners; and
- at hidden attempts to de-centralize the EPO towards National Patent Offices and weaken the roles and competencies of the various organs defined under the EPC
We also call you to reflect on whether the strategic governance of the EPO is compatible with the long-term continuity of the Organization’s existence and with the future fulfillment of its mission, also in the context of its role in the Unitary Patent system.
We ask you to transmit this petition to your Ministries in order to convene such Conference without delay.’
A document with more detailed information accompanying the petition (available here) reads:
‘It appears that the EPO is being more and more transformed into a profit center, which is - in our view - inappropriate for a public service with quasi-judicial bodies responsible for granting monopoly rights by sovereign acts, which have a wide impact on their owners, their competitors and on the public. (…)
Backlogs in examination and search are increasing and it appears that for tackling the problems the current line management is tempted to return to outdated management approaches like "challenging people" measures and management "by fear", which are unworthy of a modern organization like the EPO with highly qualified personnel. At the same time the EPO plans to reduce the staffing level in core tasks even further. This adds to current plans squaring with a large-scale decentralization of EPO tasks, including transfer of tasks to NPOs. Such significant amendments of the Organization’s structure fall outside the prerogatives of the President or the Administrative Council as defined in Articles 10 and 33 EPC. Furthermore, such a decentralization of EPO tasks would also affect the legal certainties of the validity of the patents granted by the EPO.
Apart from that, virtually all reforms of employment law since 2013 have been legally challenged, a number of which were already considered as null and void by the ILOAT (see e.g. Judgments 4430 to 4435 or 4482) or even in breach of fundamental rights; no significant investments have been made for reviewing the other reforms at stake. The EPO has obviously been unable to develop and apply new policies in line with legal constraints as defined by the ILOAT, so that further embarrassing judgments are to be expected. (…)
The non-exhaustive list of signs of derailment of the EPO includes:
Management of core business and Quality:
- Staffing level in core business has been reduced significantly during the past years and the office plans to continue the reduction of staffing level in core tasks by 25% of examiners and by 50% of formalities officers;
- Since the beginning of 2021 until the end of April 2022 an increase of the examination backlog by about 12% and search backlog by 5% is visible;
- Rather than adapting the recruitment plans in core business to the actual situation the Office continues to focus on prioritizing and re-shuffling examiners tasks in examination and search;
- The latest figures of the internal quality audit disclose a decreasing trend of quality of grant decisions from an already low compliance rate of 80% in April 2021 down to less than 75% at the end of March 2022.
Decentralisation initiatives:
- The EPO has proposed a new „mobility” program which includes secondment of patent examiners between the EPO and NPOs without limitations; it further focuses on harmonization of IT structures between NPOs and the EPO rather than primarily investing in the tools to support the core work;
- By the reorganization of 1 April 2022, EPO examining divisions and EPO formality officers were artificially separated geographically to different sites, without any added value for the EPO work procedures;
- The Office has departed from long-term and permanent employment towards high rotation short-term contract jobs for the members of the Divisions defined pursuant to Articles 15, 18 and 19 EPC. (…)’
Every five years?
According to the European Patent Convention, meetings under Article 4a are due to be held ‘at least every five years’ but since 2000, when the article was introduced, such conference has never been held.
The AC meeting of 29 and 30 June 2022 is especially interesting as a decision will be made about the re-appointment of president António Campinos, who started in office in 2018, for a second five-year term.
The petition and developments at the EPO over the past period have shown that Campinos has clearly failed to achieve one important goal. Although agreements were reached with several people who had been fired or punished unlawfully by Campinos’ predecessor Benoit Battistelli, hope he would restore social peace at the EPO has vanished.
The relation between management en staff is tense. Since February industrial actions have been held, there was a day of strike and late April the Central Staff Committee reported about an outburst of anger of Campinos during a meeting described as ‘abysmal’, in which the EPO president ‘used foul language throughout (…) and insulted most of the speakers.’ The EPO declined to comment.
It remains to be seen what the AC's reaction will be to the petition, which is a sign of the troubled relations at the EPO as well. Kluwer IP Law contacted several members of the Administrative Council about the performance of Antonio Campinos during his first term, but non of them wanted to comment.
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Enough is enough! Do not pull my leg!
It is certainly an interesting move to request a Conference of Ministers in charge of PI according to Art 4a EPC. It is not by coincidence that such a conference never took place. EPC 2000 came into force on 13.12.2007. We should now be in the preparation of the third conference of this kind. The predecessor of the present tenant of the 10th floor was certainly not interested in such a conference. The same appears to apply to the present tenant of the 10th floor. On the other hand, who will brief the ministers in charge of IP if not the members of the AC? The interest of such a conference appears thus quite reduced. One could rather consider such a conference as pretty useless under such auspices. As long as the tail will be wagging the dog, and it seems that we will not see an end to this for quite a while, not much can result from such a conference. Whatever the members of the AC may think, the past and present heads of the EPO are on the opinion that the EPC can be amended by secondary legislation. And they not have hesitated to do so. On top of it, full support has been given by the AC which has given up its duty of control of the office. Starting from this postulate, the present head of the office is indeed doing everything to bring the EPO to become a mere cash cow for the contracting states. Rule of law does not seem its preoccupation and that of all the minions sitting around him. “Yes Me President” is not any longer a fiction, but sad reality. What can be said is that documents emanating from the 10th floor are full of bloomy management buzzwords which let reality seem wonderful. The contrary is true. One prime example is the document on Professional Mobility, CA 32/22. The document contains enough to blow up the EPO as we know it. The envisaged program “Pan-European Seal Young Professionals” has the aim to recruit cheap workforce, paid appallingly, for one year with the possibility to extend the contract further two full years. Training in IP would be given, but to what avail? It looks like a very convenient way to recruit cheaply and to sieve out all candidates not to the liking of the office and its managers. From a 100 the first year, 30 might be kept for the second year! It is not even known whether they will be offered a five years contract after those three years at the office. The second aspect, much more problematic, is the possible secondment of either EPO staff members to private industry or to national offices and the secondment of staff members of national offices to the EPO. There should not be any conflicts of interest is a bare minimum. Anything else is left open and this means that the head of the office can decide at his whim the precise position and benefits/obligations of those people. Secondment from national offices is based to a large extent on the model of the European Commission and of the EUIPO (what a coincidence). They will remain on the payroll of their national office, as well as of their national health system and will get on top 60% of the daily allowance valid at the place at which they are seconded. Families and children of seconded staff members will benefit from some advantages like access to the European school in Munich or The Hague. The announcement that participants to the program “Pan-European Seal Young Professionals” and people seconded to the EPO from national offices should not take part in duties according to Art 15 is not worth the paper it is written on. The decisions will be signed by EPO staff but the actual contribution of those people to the decision will remain hidden. There will also be a change for EPO staff members wanting to take unpaid leave. On the one hand, the possible period is extended up to 10 years, each year being renewable. At the same time those staff members will lose their right to return after 6 months or 12 months if seconded to an international organisation. The aim is clear: “to break away from the model of lifelong careers, as it exists within the EPO”. The EPO has also realised that it has difficulties in recruiting and intends to lower the linguistic requirements when seeking a job at the EPO. The contract extension, probably for the second period of five years, will depend on the success of the linguistic training. What the EPO does not realise or does not want to realise is that it is not any longer an interesting employer. Who wants to come to the EPO for 5 years with a wife working in the country of origin and with children who will have to leave the school system of their country of origin? And on top of it severing all ties with the national health and pension system. I do not know many. All those nice ideas have a cost. The “Pan-European Seal Young Professionals” is estimated to cost 10,5 Mio €, 7,4 Mio € more as up to now. The secondment scheme for members of national offices will also cost 10 Mio €. It simply shows how the tail is wagging the dog. No wonder that the salaries of EPO staff and pensioners had to be curtailed on the basis of a very dodgy financial study. And we have not spoken about the new working scheme in place since 01.06.2022. All those projects are designated as a “pilot” Everybody knowing the EPO is well aware that when the word “pilot” is uttered, it means the decision is taken. Such deep changes in the working methods of the EPO and the staff regulations would have warranted a Diplomatic Conference pursuant Art 4a, but why bother if the same result is achieved by simply waving banknotes in front of the AC and clad in wonderful sounding management buzzwords.
francis hagel
If your information on CA 32/22 is accurate, it would reflect an alarming short-sightedness of the EPO management. The metaphor of a cash cow is delusive, it relies on the belief of a steady flow of applications to the EPO . But this is as (un)reliable as sales projections based on past activity for commercial companies. If it becomes the fact that the EPO is an inattractive employer and struggles to recruit good candidates, and on-the-job training is a low priority, applicants will take notice. They will no longer be confident about the quality of the EPO products, primarily search reports (critical to designating the EPO as ISA in PCT applications), and the filing volumes could plummet. For AC members, this would shift the present cash cow situation to the fable of killing the goose that lays the golden eggs. A nightmare for everybody.
Max Drei
Reading the first two comments it occurs to me that the advent of the UPC allows all those attracted to the idea of "EPO as cash cow" free rein to indulge their cravings. After all, civil disputes are a matter for the courts, aren't they, and not a mere administrative body. Bulk filers at the EPO are becoming ever more used to l iving with grant certificates with a lower presumption of validity. It doesn't matter to them. Soon, the EPO (with lots of willing help from Google) will get an AI to do the searching and issuing of EESR's. Examination on the "merits" will become ever more obsessed with formalities and successful arguments for patentability under the problem-solution approach will become ever more spurious. I don't buy the notion that filing numbers by the bulk filers will decline. I expect exactly the reverse.The important thing is that the AC members will enjoy ever-increasing dividend payments. It is all a bit Orwellian. The UPC, we were all told, is there to help SME's. Did anybody except the politicians ever believe that line?. In reality, it is there to enable and empower i) the EPO to downgrade to a merely administrative certificate-issuing authority to help the AC members squeeze ever greater pay-outs out of the EPO and ii) the bulk filers to squeeze the SME's out of the market.. Why no protest from the EPI? Perhaps its members can also squeeze more profits out of the new regime?
Kay
one should not forget why Art. 4a has been inserted into the EPC. With the upcoming start of the Patent with Unitary Effect, a closer look at the necessary amendments to the EPC are necessary, management has started to spread the instructions, although the current EPC foresees no such "prior national rights", which are solely a concern for national law, but not for the EPC. How can management expect staff to comply with the "law", when they themselves are in so obvious breach of it? It's a growing frustration on the workfloor, that our immunity is used to make the law only to apply to those who do not have the power, but the rest can ignore it with impunity. Is the compliance with the EPC not part of the working contract of the President and the VPs? Because for examiners and formalities it is. And management regularly reminds us so.
Do not pull my leg!
The information on CA 32/22 are correct. As far as the quality is concerned, it is going down. No doubt about it. Claiming that it is still better than that of the USPTO might be nice and convenient, but not an answer to the problem. Even the official results of the internal audit show a decrease to around 75% of files without deficiencies at grant. This figure was in the past around 85% and does not seem to get better for the last few years. The figure is public as it was contained in the quality report published by the EPO. It is a bit difficult to find among a deluge of flowery management buzzwords. In the past, the EPO published the results of oppositions. For a few years it has stopped. It take bets that the proportion of oppositions rejected has been gradually dwindling. It is sure that the opponent puts a lot of efforts in a search, but when an Art 54(3) is not found when it is the same inventor/applicant, something is really going wrong. Whether you call it the golden goose or sawing the branch they are sitting on, it boils down to the same. Reliance on the quality of what is granted by the EPO is something of the past.