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Is the EPO in crisis?

James Nurton, London

The EPO’s Administrative Council meets in Munich this week against a backdrop of strikes, protests and public letters criticising the Office

This week, members of the Enlarged Board of Appeal have published a letter expressing concern about “a clear challenge to the judicial independence of the Boards of Appeal” and a leading German practitioner has written to a member of the Administrative Council voicing his concerns about judicial independence and “the EPO’s worldwide reputation”.

EPO strikeMeanwhile, strikes and demonstrations organised by the SUEPO union started on November 20 and are due to continue until December 19 (right). SUEPO claims the action, taking place in Munich and The Hague, is designed to protect the rule of law, freedom of association and honest negotiation of reforms. Additional demos have been organised in support of two colleagues facing disciplinary procedures.

But, speaking to Managing IP, EPO President Benoit Battistelli described the concerns as exaggerated and denied there is a crisis at the Office. He added that the Office’s productivity has improved since last year.

Judicial independence

Both of the letters released this week arise from an incident on December 3 where a member of the Boards of Appeal was escorted out of the Office by the investigation unit, which reports to Battistelli. A “house ban” was imposed on him and his computer was confiscated.

In a letter to the Administrative Council published on the IPKat blog, 35 members of the Enlarged Board of Appeal say that only the Council can decide to suspend an employee in these circumstances, and the president can merely propose such a disciplinary measure.

“This specific distribution of roles is part of the concept of separation of powers and the independence of the Board members as enshrined in Article 23 EPC."

“This specific distribution of roles is part of the concept of separation of powers and the independence of the Board members as enshrined in Article 23 EPC. However, in the present case, the President decided in lieu of the Administrative Council, for which no provision appears to exist,” they write.

They add that the confiscation of the computer could give the investigation unit access to confidential information regarding cases without “proper, legally sound guarantees”.

The signatories say they are “deeply concerned about this conduct” and that the actions “appear to be a clear challenge to the judicial independence of the Boards of Appeal”.

They urge the Administrative Council to ensure the independence of the Boards by placing “a clear limitation on the executive power”.

Deep concerns

In a separate email to Germany’s representative on the Administrative Council (Christoph Ernst), Tilman Müller-Stoy of Bardehle Pagenberg in Munich says he is “deeply concerned about the judicial independence at the EPO and about the EPO’s worldwide reputation”. The email is reproduced, in English, on the FOSS Patents blog.

“We have now reached a point where it is necessary for a public discussion to start”.

As well as addressing the situation of the Board member described above, Müller-Stoy also voices concern about the President “de facto” controlling reappointment of members of the Board. “The personal independence, the indispensable requirement of an also critical examination of administrative decisions, cannot be guaranteed under such conditions,” he writes.

Speaking to Managing IP, Müller-Stoy said he had decided to write the email because “we have now reached a point where it is necessary for a public discussion to start”. He has not yet received a reply.

“The initial and overriding point is that I’m really concerned about what’s happening at the EPO. All users of the system need a functioning EPO,” he said. “There is the question of the separation of powers. It is important that judges – though they are called members of the Boards of Appeal – must be not influenced by reasons other than the facts and legal status of the case in making their decisions.”

Battistelli responds

BattistelliSpeaking to Managing IP today, Battistelli (left) said the problems aired this week had been exaggerated: “There is no crisis at the EPO.”

He added: “What we have is we are about to implement important reforms and this creates some tensions … There is resistance to change, as has always been the case at the EPO. A minority of persons are afraid of change and express their dissatisfaction.”

Among the reforms proposed, and approved unanimously by the Administrative Council, is a move to pay based on performance rather than seniority. Battistelli said this was typical of the way salaries are calculated in many countries and institutions and was “appropriate for the 21st century”.

Battistelli said that the first strike in the current wave, on November 20, saw 36% of the Office’s staff walk out, but that yesterday only 5% of staff were on strike for either a half day or a full day.

Regarding the Board of Appeal member referred to in the letters, Battistelli said there was an “ongoing investigation” that he could not comment on. But he added that there had been a preliminary investigation regarding “serious misconduct” involving “disseminating defamatory and injurious documents”.

"My duty is to preserve the reputation of the EPO and its staff members."

This resulted in sufficient evidence to warrant the temporary removal of the Board member, pending a decision by the Council, he added. “My duty is to preserve the reputation of the EPO and its staff members … The person involved has the right to defend himself and we will see what the result will be.”

More generally, he said: “There are specific rules to preserve full independence of the Boards. These are to assure independence in specific cases, not to guarantee full immunity to each member.”

He also said he had no regrets about the reforms he has undertaken at the Office, and would not be changing tack: “Why should we change anything? The results are there and the policy is supported by the Council. Our continuing efficiency and quality policy is favourably received by the users.”

Managing IP also contacted Administrative Council Chair Jesper Kongstad and asked him to comment, but has not yet received a response. It is likely he is travelling to Munich today.

The Administrative Council includes representatives of all EPC member states, as well as the president, board of auditors, staff committee and observers. It is meeting on Wednesday and Thursday this week.


Article Comments

The president actually banned staff representatives from attending meetings of the Administrative Council. They would be more than happy to explain their point of view to the delegates.

anonymous Dec 11, 2014

Comparing the productivity of examiners would be fair if they were producing the same thing. Search reports and examinations of the EPO are much better than those produced in the US or corea. Unless you don't care about the validity.

The salary at the EPO is more than generous. Maybe it should be renegotiated. I ask myself which salary justifies the loss of basic human rights, like having an access to justice when you are accused of an abuse or the right to have an attorney to represent you.

anonymous Dec 11, 2014

A slight correction - the AC includes only representative of the EPC member states. The EPO president may take part in deliberations and various observers may also attend.

Concerned Representative Dec 11, 2014

It is interesting that the president states that only a minority objects, since yesterday there was a demonstration in front of the building where the administrative council was holding their meeting, and at least 1500 staff where protesting on the street in front of the building. The management of the EPO had refused the DEMO to take place on the grounds of the EPO, the city of Munich was more accommodating.
The president states that the staff members are adverse to change. This is incorrect! Not against change per sé, but against change without real consultation Against change being imposed unilaterally, and detrimental to the work to be done, which is to deliver good, legally sound patents. Look at what performance related pay did to the banks, is this what the users want to happen to the world of patents?

Dec 11, 2014

It would be interesting to see:
1. A comparison of productivity of EPO Examiners with those in other IP5 offices, and
2. A comparison of the compensation, benefits and tax-exclusion packages of EPO Examiners with those of examiners in other IP5 offices, and with those of European Patent Attorneys.

John Pegram Dec 10, 2014

anonymous: Thanks for those figures. The "minority" is obviously a direct quote from M. Battistelli.

Re the reforms, no second sight. In the interview, the president said that the AC approved the 5 roadmaps, including the HR roadmap, unanimously at its June meeting. This "identified reform of the career system as a priority for the coming years" (

We understand the details of that reform are indeed being discussed at the AC this week so let's see what comes out of that. Happy to make that clear. We have asked to see a copy of the full AC agenda but have not been sent that yet.

Incidentally, we have asked SUEPO to offer a spokesperson to comment on all these matters, but have not yet received a response.

James Nurton Dec 10, 2014

Two points:

1. "A minority of persons..." is a little disingenuous. It happens to be a sizeable minority:

The actual figures for strikers are:

20 November - 2537
25 November - 1580
26 November - 1455

Obviously, with a strike intended to cover 15 working days in the space of a month, not everyone will be happy to lose 75% of a month's salary in one go, so numbers have fallen off more recently. People pick and choose.

2. "Among the reforms proposed, and approved unanimously by the Administrative Council, is a move
to pay based on performance rather than seniority."

Really? This measure is only being voted upon today. You have the gift of second sight, perhaps? Or was this implicit in what he said?

anonymous of Rijswijk Dec 10, 2014

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