Last week a dramatic EPO document fell into our hands. "Governance of the EPO: a Staff Perspective" documents internal conflicts in the EPO, staff versus management, in which the Administrative Council (AC) and President have almost totally lost the confidence of the EPO staff. In 2004, just 8% of staff expressed trust in the AC, and 28% in the President. In 2006 this figure had fallen to 4% and 7%.
The report - written by staff representatives - avoids criticism of the President, and focuses its ire on the Administrative Council, citing the conflict between national and personal interests, and those of the EPO.
The report paints the Administrative Council - who we do not defend - as a gang of self-interested schemers who hate the idea of a strong centralised EPO, and want - presumably - to shift power back to the national patent offices:
Attempts to limit staff recruitment or to worsen the working conditions for EPO staff, in particular at a time where the EPO is having difficulties recruiting examiners, are easily interpreted as a further attempt to increase the EPO backlogs and to "renationalise" its work.
The report asks us to believe that personal financial motives, rather than a desire to do what's right for society, stand behind the politics of the patent system. First we're told that:
The Chairman of the Administrative Council, as head of a national office which has to pay the tax adjustment for pensioners living in his home country from the budget of his office, stands to benefit from the abolition of said tax adjustment, a proposal that he very actively defended in the Council.
And then, an insight into why the Swiss are not the greatest supporters of an EU Community Patent:
We note that the position of the Council Chairman in relation to the Community patent is an equally delicate one. In the 2005/2006 financial report, the Head of the Swiss Patent Office points out that if the Community Patent were finally to mature, the Swiss Patent Office would risk losing a substantial part of its current designations.
The EPO President, we're told, is being out-politicked by the canny use of patronage:
Another development that is not seen positively by the EPO staff is the shift towards the Council in the balance of power between the President and the Administrative Council. This has been achieved through the introduction of Vice-President contracts which are not renewable and which foresee rewards that are highly performance related, the level of said rewards, as well as the definition of “performance”, being decided by the Council.
As for what "performance" means, we read that:
There is a strong belief amongst staff that the financial benefits to the Member States arising from the renewal fees motivate the Administrative Council, and consequently the EPO administration, to focus on the quantity rather than the quality of the granted patents.
The EPO staff have tried, we're told, to fix things, but:
When Staff Representatives mentioned such potential conflicts of interest in a recent Council meeting, some delegations reacted with irritation and even went so far as to threaten expulsion of the Staff Representatives from the Council if such allegations were made again.
The Administrative Council doesn't take such criticism lying down:
in the last two meetings of the Council, members of certain delegations have made comments implying, or even explicitly stating, that they consider EPO staff to be, among other things, unprofessional, inefficient, overpaid and malingering… It has not gone unnoticed by these staff that certain of these comments even appeared to have the implicit support of the Chairman of the Council.
The authors ask Thierry Sueur, of BusinessEurope (ex Unice, and a good friend of the patent industry) to speak on behalf of the EPO staff:
Mr. Sueur expresses an opinion which is widely shared by the EPO staff: "I am convinced that the way the EPO is managed today (by the Administrative Council) is such that it will mean either the death of the EPO or its transformation into a cash machine"
All interesting stuff. But I'm forced to be a little cynical. That talk of the "EPO's interests" leaves me wondering what we are seeing here. Certainly, a fight over money and power is part of the story. The 50-50 split over patent cash seems to leave the EPO staff dissatisfied, and that shady set of "national interests" we read about seem to be deliberately inflating the patent system for personal gain.
But surely it was the President, Alain Pompidou, who told us that the EPO was in the business of granting patents to its customers? It seems to this observer that the EPO management - President, Admin Council, and Technical Boards of Appeal alike - have been complicit partners in the rush to inflate the patent system over the last decade. Perhaps the examiners - easy scapegoats - are the only innocent party, along with society at large, who have to underwrite the billions of Euro of fake money spewing from the EPO's empty machinery.
Could this report perhaps be an attempt to spin the rather dramatic collapse of confidence into an attempt to push for more EPO control over Europe's patent law? Could there be some link between the political aspects of this fight, and the near-death of the EPO's grand plan for taking over Europe's patent courts, as described in the EPO Gazette of June?
Alain Pompidou is leaving the EPO and will be replaced by Alison Brimelow at the end of June.
It seems to me that Pompidou, though he escapes blame in this report, is not going to be missed. He oversaw the most conflictual and anti-EU period of the EPO's existence. The Software Patents Directive divided the IT sector and tried to impose US-style "patents on everything" on Europe's flourishing software sector not to mention agriculture and biotech. The European Patent Litigation Agreement took up the torch where the Directive failed, and tried to set-up a new system of courts to impose EPO authority over all Europe. These were both tragically stupid ideas. Instead of listening to society, the EPO in its arrogance has tried to impose its will on society, and is reaping the whirlwind, outside and inside its ivory walls.
This report is not the only sign of deep schisms within the EPO, set-up as a stop-gap alternative to a true Community patent. The EPO is collapsing, predictably. Setting up a for-profit administration that escaped all proper legislative and judicial oversight was a real mistake. Now the players are fighting over the spoils and with thirty years of resentment coming to the boil, it's unlikely that anyone is going to back down.
There is only one satisfactory outcome to this story, and that is the integration of the EPO into the EU, which will resolve the conflicts of interests and hopefully also hammer some sense into a patent system that seems to have lost all notion of ethics and service. Don't forget: the founding basis for a patent system is to encourage inventors to document and disclose their precious secrets. A money machine is as impossible as a perpetual motion machine.
The EPO staff make a plea for solidarity and calm. But they also admit that "closer alliance to the EU and the European legislators has also been suggested as a solution."
We will follow this with great interest.