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Law & practice

Official Journal April 2019

Download PDF (multilingual)
Citation: OJ EPO 2019, A40
Online publication date: 30.4.2019

Decision of the Disciplinary Board of the European Patent Office dated 18 February 2019

in case

No. DB 03/15 (formerly CD 03/14)

N.N. v N.N.

Complainant:

N.N., Germany

Defendants:

N.N., N.N. and N.N., Germany

Composition of the Disciplinary Board:

Chair: Hans-Christian Haugg

Members: Gemma Campabadal, Christoph Matthies, Arni Vilhjalmsson and Herman Zaaiman

Language of the proceedings: German

I. Summary of facts and submissions

The Disciplinary Committee's decision in case 03/15 (then CD 03/14) reports the following facts:

1. A complaint was filed by letter dated 13 June 2014 (received by the epi on 16 June 2014 and sent to the Disciplinary Committee by letter dated 23 June 2014).

2. It was filed by Dr N.N., a member of the Institute of Professional Representatives before the European Patent Office from the law firm N.N. (hereinafter: "the complainant"), against (1) Dr N.N. (hereinafter: "defendant 1"), (2) Dr N.N. and (3) law firm N.N. (hereinafter jointly: "defendants"). The complainant accuses the defendants of having grossly breached the Regulation on discipline and the Code of Conduct. The complaint was substantiated by numerous documents and supplemented during the proceedings by additionally cited facts and documents.

3. As regards the background to the case, reference is made to the Disciplinary Committee's very detailed decision, which the Disciplinary Board fully endorses and which is deemed to be an integral part of this decision, even if it is not actually attached to it and no passages are cited in it verbatim.

The facts can be briefly summarised as follows:

4. The defendants were involved in a legal dispute with the complainant because they considered that he was unlawfully using a doctor's title (with or without any designation for an additional qualification) in both his own name and his law firm's name.

5. Ruling at first instance on 28 April 2014, the Regional Court ordered the complainant to make certain corrections to the title he was using. On appeal, the Higher Regional Court upheld the contested order by judgment of 31 October 2014 and both courts' judgments then became final.

6. The complainant made the corrections ordered by the Regional Court without delay.

7. Even before the ruling at first instance had become final, and continually from then on, the defendants reported on their court "victory" by means of stickers on envelopes and in brochures and circulars – some of which were also addressed to clients of the complainant – as well as on web pages, including their homepages, and suchlike. The "reports" were not only about the court ruling but also included allegations against the complainant's law firm and his staff. The complainant successfully defended himself against their "reporting" and was awarded injunctions in a series of court actions, but this did not stop the defendants from continuing with their "reports". Although they always adapted their contents to the injunction awarded in each individual case, they continued to issue them until September 2015 (decision of the Disciplinary Committee, paragraph II.6.13), i.e. until a few weeks before the Disciplinary Committee's decision.

8. Having thoroughly examined the complaint's 42 annexes, the Disciplinary Committee concluded in a very detailed decision that there had been a particularly serious breach of professional duties that had discredited the complainant and damaged the reputation of the epi and its members.

9. The Disciplinary Committee therefore decided not to take its own decision on the matter but to refer it to the Disciplinary Board of the EPO.

II. Reasons for the decision

Admissibility

10. The Disciplinary Committee referred the matter to the Disciplinary Board by the time limit prescribed in Article 6 of the Regulation on discipline. The complaint is considered to be admissible only to the extent that it is directed against the member of the Institute of Professional Representatives before the European Patent Office: Dr N.N. (hereinafter: "defendant 1"). The complaint is not admissible against the second defendant, Dr N.N., because he is not a professional representative before the European Patent Office and is therefore not subject to the disciplinary authority of the competent bodies of the European Patent Organisation. Nor is the complaint admissible against the law firm (third defendant) because it is not a natural person and therefore cannot be a party to disciplinary proceedings.

Reasons for the decision

11. The Disciplinary Board agrees with the Disciplinary Committee's assessment of the facts in this case and the legal opinion expressed in its decision. Accordingly, it fully endorses the Disciplinary Committee's factual and legal findings and decisions and deems them to be an integral part of this decision, even if they are not actually attached to it and none are cited in it verbatim.

12. As set out in the Disciplinary Committee's decision, the defendant took the complainant to court over his use of academic titles. He did not file a complaint with the Institute of Professional Representatives at the European Patent Office (epi) about this use and so it is not at issue in these proceedings. The national courts have issued final judgments on the matter and the complainant has complied with their rulings.

13. The Disciplinary Committee's decision, together with its annexes, shows that the defendants missed no opportunity not only to make these court judgments known by means of stickers on envelopes and in brochures and circulars – some of which were even addressed to clients of the complainant – as well as on webpages, including their homepages, and suchlike but also to add allegations about the complainant and the staff at his law firm.

14. Whatever the defendants' reasons for doing so, the Disciplinary Board is in no doubt that what they "reported" was defamatory and discreditable and therefore amounted to serious accusations against an epi member. The complainant regularly – and successfully – took court action against them. However, they did not stop their "reporting" altogether, but only corrected it as far as necessary to comply with each individual injunction. They nevertheless carried on as before and continued to "report" publicly on the complainant in a manner unworthy of the profession.

15. Their conduct is in no way in keeping with a legitimate exchange of information, permitted advertising or a professional account of (patent-related) court cases, but, in the Disciplinary Board's unanimous opinion, reached after a thorough assessment of the Disciplinary Committee's findings, amounts to a defamatory campaign to discredit a fellow professional representative and his law firm that is highly liable to cause lasting damage to the complainant's reputation and standing.

16. Such conduct, which was not a one-off incident but was repeated over a long period of time, is unworthy of a professional representative, is prejudicial to the standing those working in the profession must have and the confidence their clients need to have in them and casts the profession as such in a bad light.

17. Defendant 1's conduct must therefore be classed as serious. As the Disciplinary Committee has already found in its decision, the Disciplinary Board likewise concludes – after carefully assessing all facts adduced and investigating all relevant circumstances – that he has infringed Articles 1(1) and (2) of the Regulation on discipline and Articles 1(e), 2(a), 3(a) and (b) and 5(a) and (b) of the Code of Conduct of the Institute of Professional Representatives of the European Patent Office.

18. Article 12 of the Regulation on discipline for professional representatives has been observed since defendant 1 was given an opportunity to comment on the allegation made against him.

19. However, defendant 1 did not make use of this right.

III. Order

20. Defendant 1's misconduct is such that it must be sanctioned by a disciplinary measure that properly reflects and is commensurate with its nature, extent, vehemence and duration.

21. The complaint is considered inadmissible as to the remainder.

22. Based on the above findings, a fine under Article 4(1)c) of the Regulation on discipline for professional representatives is appropriate as a disciplinary measure. In view of the circumstances in this case and of the nature, extent, severity and duration of the misconduct, the fine is set at EUR 5 000 (five thousand euros).

23. It is also decided in accordance with Article 16 of the Additional Rules of Procedure of the Disciplinary Board to publish this decision.

24. The fine must be paid within two months of this decision's becoming final, with "fine in DB 03/15" entered in the reference field, into the following bank account of the European Patent Organisation: ...

IV. Right of appeal

V. Signatures

Hans-Christian Haugg

Chair

Nadine Latham

Registrar