SUEPO

Mr. Benoît Battistelli has been elected the sixth president of the European Patent Office. SUEPO congratulates him on his election.

In our opinion the EPO has suffered as a result of the unfortunate "tandem presidency" of Mr. Alain Pompidou and Ms. Alison Brimelow, and emerges from it discredited and weakened. The election process that we have just seen seems to be a symptom of those last 6 years.

The professional career of Mr. Battistelli suggests a strong attachment to Public Service. This gives us hope that he will respect the public service mission that has been accorded to the EPO and allow the EPO to concentrate on its raison d'être: the search, examination and granting of high quality patents. SUEPO hopes that he will also demonstrate the sorely missed capacity of listening to his staff.

If so, then SUEPO is looking forward to cooperate with Mr. Battistelli in closing a painful chapter in the history of the EPO.

The Administrative Council held an extraordinary meeting in Munich on 2 and 3 Feb. in order to continue with the attempts to elect a new President for the Office. This again failed to produce a definitive result and the process will continue with the same candidates, in another extraordinary session on 1 March. This is only two weeks before a scheduled regular council meeting.

The original four candidates for the post were Roland Grossenbacher (CH), Benoît Battistelli (FR), Jesper Kongstad (DK) and Susanne Sivborg (SE). All of the original candidates are heads of their national patent Offices and heads of their delegations in the Council. Three out of four original candidates had prominent positions in the Council: Mr. Grossenbacher was Council Chairman until April 2009, Mr. Battistelli was his successor on the job and Mr. Kongstad was Vice-Chairman. The latter two had to temporarily give up their position in order to be a candidate.

Mr. Kongstad has now withdrawn his candidacy and been re-instated as Vice-Chairman of the Council. In that function he will chair the next meeting given that Mr. Battistelli is still a candidate.

In the opinion of SUEPO Mr. Kongstad lacks the neutrality required for chairing the election process.

As the Vice-Chairman of the Admin. Council, Mr. Kongstad would be in a good position to take over from Mr. Battistelli should the latter be elected President of the EPO. Mr. Kongstad thus stands to benefit from a possible victory of Mr. Battistelli. Moreover: this constellation (Mr. Battistelli as President of the EPO, Mr. Kongstad as Chairman of the Council) is exactly what these two candidates had proposed to the Council in a joint policy statement made during the October 2009 session.

The CSC has raised this issue in an open letter to the Administrative Council, whereas SUEPO sent a letter to the Members of the European Parliament. In the meantime, by means of reply to the CSC, Mr Kongstad has simply made a promise to do his "very best in a neutral and impartial way to find a solution".

During the October meeting of the Administrative Council, none of the four candidates for the post of President of the EPO obtained the required 75% majority. This stalemate could not be resolved during the December meeting or during an extraordinary session on Feb 2nd and 3rd. A further such session is to be held in March in order to continue the election procedure. The original four candidates for the succession of Alison Brimelow (UK) were Roland Grossenbacher (CH), Benoît Batistelli (FR), Susanne Sivborg (SE) and Jesper Kongstad (DK). The latter, however, withdrew his candidature in December in order to be re-instated as Vice-Chairman of the Council.

Staff at the EPO follow the elections with concern. Similarly, the press has generally been critical of the election process. Below are some reactions:

FTD - Gemeinsam sind wir schwach (10.2.2010, reproduced with kind permission)

Heise - Administrative Council still deadlocked on new EPO president (4.2.2010)

IAM - Administrative Council still deadlocked on new EPO president (3.2.2010)

IAM - EPO staff cry foul over presidential vote (15.1.2010)

Heise - Führungskrise beim Europäischen Patentamt (11.12.2009)

IAM - New EPO presidency vote set for February as Brimelow deplores lack of transparency (11.12.2009)

IP::Jur - Administrative Council Fails To Determine New EPO President (10.12.2009)

Wirtschafts Woche: Wie die Teppichhändler (7.12.2009, reproduced with kind permission)

VDI-Nachrichten - Wahl zum neuen EPA-Chef bleibt umstritten (3.12.2009)

Following similar surveys of their readership by IPKat and MIP, SUEPO asked the staff of the EPO whom they would chose as their President, but also whom they would not. Like in the surveys by IPKat and MIP, Ms. Susanne Sivborg (SE) came out the most popular candidate: 46% of the respondents voted for her. Ms. Sivborg has a wide experience in IP. She has been an examiner at the EPO and left a good impression with those who knew her. She furthermore managed to avoid the errors made by the other candidates. Ms. Sivborg was followed by Mr. Battistelli (FR) with 18% of the votes. Together Mr. Kongstad (DK) and Mr. Grossenbacher (CH) collected less than 10% of the votes, the remaining 24% ticking the box "other", thereby rejecting all 4 candidates. A large majority of the respondents (68%) identified Mr. Grossenbacher as their least favourite candidate.

SUEPO has long expressed concerns about the governance of the EPO. Recently it sent a letter to the ministries in charge of intellectual property of the Member States drawing their attention to the ongoing election process.

As shown by our survey, the candidate who attracted the most votes in the last round of elections, Mr.Grossenbacher (CH) is extremely unpopular with staff. As a powerful 8-year chairman of the Council, staff holds him responsible for the current situation of the Office. His negative attitude towards the Community patent throws further doubts on his suitability for the function.

All four candidates are heads of their national patent offices and of their national delegations in the Administrative Council. Mr. Grossenbacher was until March of this year Chairman of the Administrative Council and as such an important driver behind recent developments. Mr. Battistelli was his successor in that function but gave up his position as Chairman after only 3 months in order to apply for the more lucrative post of President of the Office. Mr. Kongstad is Vice-Chairman of the Administrative Council.

Their interviews in MIP show that all four candidates support or at least consider the formation of a European Patent Network (EPN). The EPN is is variably described as a "network of equal partners" (CA/170/08, point 57; CA/142/09, point 53) or as a "new division of work where the EPO functions as a back office of the system and the national patent offices constitute EPO's front office" (Mr. Kongstad, 2006). What is common in both visions is that search and examination work currently done by the EPO will be "shared" by the national offices. A common IT system, to be developed and financed by the EPO will form the basis of such an "enhanced cooperation".

The main users of the system (patent attorneys and industry, including small and medium-sized enterprises) as well as academics and economists strongly oppose such a decentralization of the European patent system: see citations below.

SUEPO has repeatedly pointed out that the Members of the EPO Administrative Council have a conflict of interest. In an earlier posting we showed that a large part of the income of the national patent offices (NPOs) is derived from patents granted by the EPO. On top the EPO finances cooperation projects with the NPOs, provides software and training for the NPOs etc. The staff representation of the EPO has therefore repeatedly demanded a study of the finances of the European system as a whole (CA/99/09), thus far to no avail.

SUEPO fears that the EPN will serve as an excuse for siphoning off even more money, and eventually work, from the EPO to the benefit of national patent offices. Despite lip service to a centralized examination system, recent interviews by the candidates seem to confirm that those fears are founded. In interviews with MIP Magazine Mr. Grossenbacher refers to "enhanced training for local staff", while Mr. Battistelli more openly prioritises IT development/improvement (to be shared by the NPOs) and laments recent cuts in "technical cooperation allocations" (for the NPOs).

Citations from SUEPO interviews

Dr.Lothar Steiling: There is no need to outsource work to the NPOs (Dr. Steiling is Chief Patent Counsel of Bayer AG, President of the VPP):

"Basically, we're used to the EPO's work, we're happy with its quality and we see no reason at all to depart from EPO standards. We therefore see no need to outsource work to national offices; they're hardly likely to do it better than the EPO. If lack of resources should make giving work to national offices unavoidable, then we as users would still want the EPO to review it to safeguard quality."

Dr. Klaus Dieter Langfinger: Outsourcing to the National Patent Offices is to be rejected (Dr. Langfinger was until 2007 leader of the Competence Center Global Intellectual Property of the BASF, and since then has been active as European Patent Attorney)

"If however the idea is to solve EPO workload issues by outsourcing its tasks to national offices, then it is not a good one: most users are not in favour, and industry is solidly against. It is also doubtful whether outsourcing core EPO work is lawful, given the clear provisions of an EPC which is binding on all the member states."

Ruud Peters: The uniform search quality has to be guaranteed (CEO of Philips Intellectual Property & Standards and Executive Vice President of Philips International BV)

Our preference is to have a strong EPO that has the necessary resources to take care of the total patent process, from search to examination. However, in view of the current backlog we could accept that under strict conditions and fully under the supervision of the EPO at least some NPOs (having the relevant resources and capabilities) handle some task for the EPO, like pre-filtering of applications that clearly don't meet the filing criteria or patent searching. In this respect it is of utmost importance that strict quality standards are applied and monitored in order to ensure that uniform search quality is guaranteed."

Bruno van Pottelsberghe: NPOs should definitly not grant patents (Bruno van Pottelsberghe is Senior Research Fellow at Bruegel and Professor at the Université Libre de Bruxelles (ULB), Solvay Brussels School of Economics and Management (SBS-EM), where he holds the Solvay S.A. Chair of Innovation.)

"NPOs have a very important role to play in helping national inventors. The NPOs should strengthen their services to domestic innovators, including training, search and coaching services to young, innovative companies. They could also be information providers to local business on counterfeiting issues and they could eventually offer search services for PCT applications. But they should definitely not grant patents."

Alfons Schäfers (Lawyer, Founding father of the EPO)

"The quality and uniform conception of the European search and substantial examination should not be undermined by decentralisation and a constant squabble over the central tasks."

Dr. Ulrich Schatz: Industry hates it and it is illegal (Lawyer, one of the founders of the EPC)

"Should the Board 28, however, still be trying to use the workload issue as a pretext for stirring up the hoary old outsourcing debate again, then I say:

• outsourcing will not help, and you know it
• industry hates it and
• it's illegal."