A Public Service Organisation out of control?

As has been widely reported in the last few days, the European Patent Office appears to consider itself not to be bound by European Directives. In the specific case mentioned there was an alleged contravention of the Directive on Biotechnology in relation to European Patent EP-B1 0 695 351.

The European Patent Office is not part of the European Union

Although originally intended to be the authority charged with the grant of patent rights for the European Community, the EPO was created outside the framework of the European Union. As a result, the European Patent Office is in many respects an "autonomous state", which is not bound by any of the directives of the EU unless it so chooses. The "Head of State" is the President, Ingo Kober. He is responsible solely to the Administrative Council, a body made up of representatives from the 19 contracting states who are party to the European Patent Convention. This body is not democratically elected and is accountable only to the respective national governments. As a body created by a separate international treaty this body is not directly bound to any national or international law other than the European Patent Convention, the EPC.

Further loosening of democratic control is contemplated

This Administrative Council is currently contemplating far-reaching changes to the Eurpoean Patent Convention. These changes will effectively mean that in future the Administrative Council can decide autonomously on the future direction of the law governing the award of patent rights in Europe, and the very law by which it is governed itself. No agreement by the European Parliament or any other publicly accountable European organisation will be needed and, as in all deliberations of the Administrative Council, many of which are held in secret session, there will be no participation of society at large. This opens the door to uncontrolled wide-ranging changes to the European Patent System. Recent events suggest that these changes may be against the interest of European citizens.

The Administrative Council already fails to defend the interests of the European public

The Administrative Council has put the Office under pressure to grant patents as fast as possible, without, however, creating the conditions that would make it possible to recruit the necessary staff. This means that the existing staff, already working to their full capacity, are being put under pressure to examine cases faster and faster. With less time being allowed to consider the complicated technical and legal questions which arise in patent examination, it is to be feared that the standards applied will drop. Statements in the press attributed to an EPO spokesman acknowledge that increasing production pressure can indeed lead to errors. See for example:

http://news.bbc.co.uk/hi/english/uk/scotland/newsid_653000/653067.stm

www.tagesthemen.de/archiv/2000/02/22/sendung/tt-2230/meldung/gene.html

This could in turn lead to a larger number of patents of dubious validity ("junk patents"), thus impeding fair and open competition in the European Market, and hence threatening the employment market in Europe. This is however simply the tip of the iceberg. Lack of legal security for staff threatens standards The EPO is not bound by many of the laws or regulations that most of the citizens of Europe take for granted, such as the European Convention on Human Rights.

Some examples:

• The Employment Law offers the staff extremely limited protection. Staff can be dismissed almost at will by the President and have no claims to unemployment pay or other social security payments:
• Basic legal rights are ignored. The President is the ultimate ruler of the EPO. He is judge, jury and executioner. His decisions on matters within the office are final. Any decision made by the President can be enacted immediately. There is no "stay of execution" pending the outcome of appeal hearings. Sanctions are arbitrary and harsh. This makes the staff extremely vulnerable to pressure from the management in order to meet demands, e.g. by increasing output to a level beyond which it is possible to assure sufficient attention to detail.
• European safety and health standards are not applied on EPO premises.
• Even criminal law is disregarded: In 1995 the then President of the EPO physically attacked and injured a staff member, the Administrative Council of the EPO subsequently refusing to lift the immunity of the President.

Conclusion

The Administrative Council has shown a tendancy to treat the office as a commercial entity rather than as the public service organisation it is. This results in the continuing demands for ever more granted patents, while refusing to increase the resources of the European Patent Office accordingly. SUEPO, the Staff Union of the EPO soundly condemns this development due to the risks it poses to the quality of patent rights granted in Europe. It is high time that steps are taken to change the structure of the Organisation making it accountable for its actions to the citizens of Europe and their elected representatives.