AMBA Statement on the Current Situation
At its 148th meeting of 29 and 30 June 2016, the Administrative Council adopted a series of measures, subsequently published as council documents CA/D 5/16, 6/16, 7/16, and 8/16. The corresponding structural reform of the Boards of Appeal (see CA/D 6/16 and 7/16) came into effect the following day.
As a result of these measures, the Boards of Appeal are no longer constituted within a Directorate General (DG3) of the European Patent Office under the direction of a Vice President but are organised as a separate unit, the Boards of Appeal Unit (“BoAU”) within the European Patent Office, under the direction of the President of the Boards of Appeal. Thus the present Vice President DG3, Mr van der Eijk, is no longer in charge of a Directorate General. He remains, however, Chairman of the Enlarged Board of Appeal.
According to Rule 12(a)(1), second sentence, EPC, the Chairman of the Enlarged Board of Appeal “shall act as President of the Boards of Appeal.” However, under Rule 12(a)(1), third sentence, EPC, the President of the Boards of Appeal shall be appointed by the Administrative Council on a joint proposal made by the Boards of Appeal Committee (BoAC) and the President of the European Patent Office. The BoAC has not yet been constituted, and so there has been no such appointment. Moreover, the President of the European Patent Office has not delegated any function or power to the President of the Boards of Appeal (see Rule 12a(2), first sentence, EPC).
The present situation seems to be that the Boards of Appeal are now constituted within the BoAU, that the post of President of the Boards of Appeal is not yet occupied, that Mr van der Eijk is acting President of the Boards of Appeal, but that no power has been delegated to him. Thus, the President of the European Patent Office can be seen as exercising direct control over the Boards of Appeal.
This direct control may influence not only the daily work of the BoAU, but also decisions that have far-reaching consequences on the perception of independence and efficiency of the Boards of Appeal, such as those concerning the budgetary framework of the BoAU or its location.
AMBA considers that this situation does serious harm to the perception of independence of the Boards of Appeal and starkly contrasts with the stated aims of the reform. It is to be hoped that the current situation is anomalous and that the anomaly will be removed forthwith.
11 August 2016
AMBA Statement on the Reform of the BoA
On 30 June, the Administrative Council adopted the reforms in “CA/43/16 Rev.1”. The concerns expressed by AMBA, the Presidium and others, most recently the IP Federation and CIPA, apply, for the most part, to this reform just as the previous proposals.
The reform appears to improve the independence of the BoA vis à vis the President of the Office in some respects:
However, the reform also contains measures that reduce the independence of the BoA and falls way short of what should and could have been achieved:
Finally, other measures in the reform appear either at odds with the EPC or to improve only marginally the independence of the BoA for far too high costs:
Much depends on the how the BoAC and the President of the BoA choose to act. This could lead either to an increase in independence, or the opposite. For 40 years, the President of the Office and the Vice President of DG3 have enjoyed broad discretionary powers. The BoAC and the President of the BoA have similar powers, and their decisions could lead to problems similar to those underlying R19/12. The reform, rather than transferring the problem, should rather have set new guarantees in the written text of the law (albeit secondary law).
15 July 2016
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AMBA comprises almost all members of the Boards of Appeal of the European Patent Office.
The purpose of the Association is to monitor issues of relevance for the judicial functions of the members of the boards of appeal, especially with a view to safeguarding their independence and promoting their self-government as members of a judiciary, and to gather its members for deliberations on questions of common interest, in order that they will be heard in bodies deciding or making proposals of relevance for these functions.
This website is designed to achieve those aims by: Highlighting aspects of independence of the judiciary, and Filling a gap in the information available about the Boards of Appeal.
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