Decision of the Disciplinary Board of the European Patent Office dated 21 October 1993 - DB/02/92
Subject of the proceedings:
Breach of obligation to be truthful inter alia
Composition of the Disciplinary Board:
B.I. Cawthra (EPO)
T. Karamanli (EPO)
R. Cramer (EPO)
R. Harlé (EPI)
L.W. Kooy (EPI)
1. Mr X's name has been on the list of professional representatives before the European Patent Office (EPO) since 25 August 1981.
2. In a letter of 9 March 1992, received on 13 March 1992, a complaint was lodged against Mr X with the Institute of Professional Representatives (EPI). The complaint stated that in the case of European patent application No. ... Mr X had not only failed to observe all the time limits, including the preclusive time limits, set by the European Patent Office, but had also not informed his client, the applicant, of the application's procedural status. Furthermore, it had not been possible to contact Mr X since 12 December 1991. He had not replied to messages left on his telephone answering machine or to letters addressed to him. The complainant, the applicant's new representative, therefore contacted the EPO by telephone on 23 January 1992 and asked for copies of the relevant parts of the file. These copies, which the complainant received on 27 January 1992, indicated that the situation was as follows:
Although the client had settled Mr X's account of 9 October 1989, the examination fee and renewal fee for the patent application had not been paid. Mr X had received four communications from the EPO, but had neither responded to them nor forwarded them to the client. During a visit on 4 March 1992 to Mr X's office, the address of which was known to the complainant, it emerged that the office had been closed on 31 December 1991 after notice to quit had been given and that no new office address was known.
3. In accordance with Article 8 of the Additional Rules of Procedure of the Disciplinary Committee of the Institute of Professional Representatives before the European Patent Office, a copy of the complaint within the meaning of that Article was sent to the professional representative concerned, Mr X, in a letter dated 27 March 1992. This letter also asked Mr X to comment on the complaint by 15 April 1992.
4. At the same time the rapporteur of the competent Chamber of the Disciplinary Committee (hereinafter referred to as the Disciplinary Chamber) tried to satisfy himself that the details given in the complaint were correct by attempting himself to contact the representative by telephone. It was not possible to speak to Mr X in person on the telephone, as only his answering machine was switched on.
5. In response to the complaint forwarded to him, the representative contacted both the Chairman and the rapporteur of the Disciplinary Chamber in April 1992. He explained that he had closed his office and notified all his clients. In the complainant's case, it had been agreed with the former head of the patent department that Mr X would merely take charge of the filing but not the further processing of the case, as this would be carried out by the client's own patent department. Therefore, when he closed his office, Mr X had seen no reason to notify the client as well. Mr X gave an assurance that he would immediately contact the client to clarify how the patent application referred to in the complaint could be rescued, and what he could do to help. Only then could he comment on the complaint.
The rapporteur of the Disciplinary Chamber gave Mr X a period of one month, expiring at the end of April, in which to submit a further report. He also told him to bear in mind that if the application could be rescued it was possible that the complainant would withdraw the complaint.
6. After the above-mentioned time limit had expired with no result, Mr X was again contacted by telephone. During this telephone call Mr X reported that he had already spoken to the Chairman of the Chamber, who had extended the time limit until mid-May. This statement subsequently proved to be incorrect.
7. Not having heard from Mr X by mid-May, the rapporteur again tried to contact him by telephone. Once again, only the answering machine replied, so the rapporteur was only able to leave a message asking him to get in touch and submit a new report.
8. As Mr X did not contact the rapporteur in any way during the following week, the rapporteur tried to ascertain from the client what progress had been made in the discussions with Mr X. It emerged that, despite Mr X's assurances, he had never contacted the client and had made no move whatsoever to rescue the threatened patent application mentioned in the complaint or to contribute in any way to its rescue. The rapporteur also learned that for these reasons a withdrawal of the complaint was out of the question.
9. In the decision of the Disciplinary Committee of the EPI dated 17 June 1992 (ref. CD 2/92), the complaint against Mr X was referred to the Disciplinary Board of the EPO in accordance with Article 6(2)(c) of the Regulation on discipline for professional representatives (RDR) (OJ EPO 1978, 91 et seq.).
10. The grounds advanced in support of the above decision state that, in the Disciplinary Chamber's opinion, Mr X's conduct towards the Chamber could hardly be said to comply with Article 1 RDR, as the statements he had made with regard to making contact and the extension of the time limit had on subsequent investigation turned out to be incorrect. Furthermore, according to the complaint lodged, Article 3 RDR had been infringed.
11. Since Mr X had closed his office and given a P.O. box number in Zurich as his only address when speaking to the rapporteur of the Disciplinary Chamber on the telephone on 2 April 1992, the rapporteur of the Disciplinary Board of the EPO contacted Mr Y by telephone on 13 January 1993 to ask him for Mr X's private address, which was faxed to her the same day.
12. In a letter to Mr X dated 10 March 1993, the rapporteur of the Disciplinary Board summarised the facts once again. She also pointed out that if the Disciplinary Board were to come to the same conclusion as the Disciplinary Committee - i.e. that Mr X's conduct towards his client infringed Article 3 RDR and his conduct towards the Disciplinary Chamber infringed Article 1 RDR - this would most probably lead to the Disciplinary Board imposing on him one of the penalties provided for in Article 4 RDR. The penalty for such a serious infringement as this could quite well be deletion from the list of professional representatives for an indefinite period (Art. 4(1)(e) RDR).
In the same letter Mr X was given the opportunity under Article 12 RDR to comment by 30 April 1993 on the allegations set out above.
13. The letter referred to in point 12 was sent to both Mr X's private address and to the P.O. box number in Zurich he had given. The letter to the P.O. box address in Zurich was returned to the EPO as undeliverable. The letter to the private address was delivered on 27 March 1993, having been handed over to an authorised recipient.
14. Mr X also allowed the time limit laid down in the letter of 10 March 1993 for commenting on the allegations made against him to expire without making any response.
15. Oral proceedings were not requested.
II. REASONS FOR THE DECISION
1. A professional representative must not knowingly make any false or misleading statement (Art. 1(1), second sentence, RDR). This obligation to be truthful applies not only to the exercise of the profession but also to statements in disciplinary proceedings (Decision of the Disciplinary Board of Appeal D 08/82 of 24 February 1983 (OJ EPO 1983, 378)).
Mr X did not satisfy this obligation to be truthful, since he made untruthful statements to both the Chairman and the rapporteur of the EPI Disciplinary Chamber. He stated to both of them that he would contact the client to clarify how the patent application referred to in the complaint could be rescued and what he could do to help. During a telephone conversation with the client, arranged by the rapporteur of the Disciplinary Chamber, it emerged that Mr X had still not established any kind of contact with the client even six weeks after giving an assurance that he would do so.
In another telephone conversation with the rapporteur Mr X stated that he had already been given an extension of the time limit by the Chairman of the Chamber. This statement subsequently proved likewise to be incorrect.
In the Disciplinary Board's opinion the obligation to be truthful, laid down in Article 1(1), second sentence, RDR, has therefore been infringed.
2. Under Article 3(1) RDR a professional representative is required to inform his client forthwith if he is unwilling to accept a call upon his professional services or wishes to withdraw his services. In the latter case he is also required to take appropriate measures to enable the client to avoid detriment.
In the present case the client was not informed by Mr X that he had closed his office and consequently withdrawn his services.
The complainant sets out in his complaint that Mr X was assumed to be representing the client for the European patent application in question. Mr X did indeed claim to the rapporteur in a telephone call in April 1992 that he had agreed with the former head of the patent department that in this client's case he would deal only with the filing but not the further processing. For this reason, when he closed his office he had seen no reason to notify the client as well. However, since Mr X made a number of incorrect statements to the Disciplinary Chamber and, moreover, made no further comments on this point, the Disciplinary Board assumes that Mr X's statements are not truthful in this connection either. The Board consequently supposes that the client could have assumed that it was being represented by Mr X for the European patent application in question and should therefore also have been informed by him of the closure of the office.
However, even if Mr X assumed that his services only involved filing the application, he must have had doubts about the agreement he had accepted between himself and his client when he started receiving communications from the EPO. Since these communications were delivered to him, he should - for example - have forwarded them to the client, if he considered his services to have terminated once he had filed the application. The client could then have taken the necessary steps to observe the time limits relating to the patent application. However, Mr X did nothing of the kind.
Mr X took no appropriate measures whatsoever to enable the client to avoid detriment. In the Disciplinary Board's view Mr X therefore also infringed Article 3(1) RDR.
3. In accordance with Article 1(1), first sentence, RDR, a professional representative must exercise his profession conscientiously and in a manner appropriate to its dignity. Furthermore, in accordance with Article 1(2) RDR, he must conduct himself in such a manner as not to prejudice the necessary confidence in his profession.
In the present case, Mr X failed to observe all the time limits, including the preclusive time limits, laid down by the EPO and gave his client no opportunity to take action itself. Nor did he inform his client of the unobserved time limits and the necessary procedural steps.
As the client was confident that the professional representative would duly perform his services, it assumed that Mr X would represent it conscientiously before the EPO.
In addition, in the disciplinary proceedings Mr X gave a P.O. box number to which post could not be delivered. It was only because the private address was tracked down by the rapporteur of the Disciplinary Board that it was at all possible to deliver the letter of 10 March 1993 to Mr X. One of the preconditions for exercising the profession of professional representative conscientiously is that the representative must give an address to which post for him can be delivered. In this respect too, Mr X did not exercise his profession conscientiously.
The manner in which the professional representative in question conducted himself was not in any way compatible with exercising his profession conscientiously. Moreover, the client's confidence in him was severely prejudiced.
For these reasons the Disciplinary Board considers that the professional representative in question has, through his conduct, infringed Article 1(1), first sentence, and (2) RDR.
4. To sum up, Mr X's conduct is found to infringe the rules of professional conduct set out in Article 1(1), first and second sentences, and (2) and Article 3(1) RDR.
He may therefore incur one of the following penalties in accordance with Article 4(1) RDR:
(a) a warning,
(b) a reprimand,
(c) a fine not exceeding DEM 20 000,
(d) deletion from the list of professional representatives for not more than six months,
(e) deletion from the list of professional representatives for an indefinite period.
The case in hand involves a serious infringement of several rules of professional conduct. The conduct of the professional representative in question gives rise to reasonable doubt as to whether he is at all capable of properly exercising the profession of professional representative. He has not only conducted himself in an unprofessional manner towards the client in several respects, but has also not conducted himself during the disciplinary proceedings in a way one would expect of a professional representative.
For these reasons the Disciplinary Board of the EPO has taken the following decision:
In accordance with Article 4(1)(e) RDR the name of the professional representative, Mr X, is to be deleted from the list of professional representatives for an indefinite period.