Perhaps the most damning response to the EPO's dysfunction and its seeming complete lack of accountability however came in a speech by former German constitutional court judge Prof Dr Siegfried Bross several weeks ago.
The speech – a translated version of which was published in English this week – tackles a subject that Bross has repeatedly raised this year – whether the planned Unitary Patent Court (UPC) for Europe is actually legal.
The UPC was due to be ratified earlier this year but Brexit and a legal challenge at the German Constitutional Court have stopped it in its tracks. Bross gives a lengthy explanation for why he feels that having a single court decide patent cases across Europe is not legal, most of which boils down to a single concept: the European Patent Office sits outside normal legal jurisdictions.
Indeed, the EPO's unique position as an international organization immune from the laws of the countries in which its offices reside has been held upheld in Dutch court following a complaint about how EPO management was using illegal surveillance on its staff as part of an effort to identify critics of its reform efforts.
The UPC had progressed for years with little pushback, despite the EPO's legal status, but the actions of Battistelli, combined with the failure of the Administrative Council to hold him to account, his interference with the supposedly independent Boards of Appeals, and his explicit argument that he was immune from any and all European laws, have put a red flag on the matter.
Independence? We're heard of it
"There is a lack of institutional independence of the judicial panels viz their own budget, own legal personality and a management that is independent of the management of the European Patent Office," noted Bross in his speech.
He also charges that European government representatives "ought to have been aware of the difficulties and negative developments via the administrative council of the European Patent Organization" and notes the "significant deficits" in the EPO's treatment of staff that produce "irreconcilable contradictions with the EU’s value set, and in particular due to the Charter of Fundamental Rights."
He has other strong words for the implications of the EPO's behavior and status. It "casts the whole project into a constitutional and democratic grey area"; it produces issues "that cannot be resolved constitutionally and democratically"; and an "irresolvable structural defect."
In short, he's not a fan.
And this week the EPO's Administrative Council, by failing to properly address this critical question of accountability, has only strengthened arguments against it. ®