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

King Battistelli finally facing consequences for his actions

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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