Open Letter to all Stakeholders with an Interest in Maintaining
the Boards of Appeal of the European Patent Office as an Independent Judicial Body
The Boards of Appeal (BoA) is the body within the organisational structure of the European Patent Office (EPO) that takes final decisions on appeals against decisions refusing patent applications and revoking patents. The ECHR, TRIPS, and national constitutions all require that such decisions be open to review by a judicial instance. The BoA are that instance.
After two years of work, the Office has produced a proposal for reform of the BoA. It has not been published, but has been provided to the Administrative Council (AC) as council document CA/43/16. The President will put it to a vote in the Council at the end of June.
The aim is to increase the BoA’s independence, within the limits imposed by the European Patent Convention (EPC). However, while some aspects of the proposal have a superficial appeal, even minimal reflection on the principles underlying judicial independence shows that the proposals are very wide of this goal.
The issue came to the fore after the decision R 19/12 in which the Enlarged Board of Appeal (EBA) decided that its Chairman (who is simultaneously a Vice-President of the EPO in charge of the BoA) was not independent because of his membership of various management committees in the Office. That the proposals represent a serious deterioration, as compared to the situation before that decision, is evident from the following.
The status quo before R 19/12
- Security of tenure
- The advisory body to the AC (BoAC)
In the Boards’ view, if this proposal is adopted in its present form, it will inevitably result in further challenges before constitutional courts and before the Enlarged Board as in R 19/12.
Moreover, since the proposal contains no substantial ingredients for increasing independence, like a doomed patent claim, no cosmetic amendments can rescue it. In particular, a transfer of power from the President of the Office to the AC would not increase the BoA’s independence, but merely shift the source of potential influence. Moreover, such a transfer would be of questionable legality, given that the EPC sets out where responsibilities and powers lie.
Thus, in our view, it would be far better to reject this proposal and accept that the problem underlying R 19/12 has in fact already been resolved by the Vice-President’s withdrawal from management activities outside the BoA.
This reform has not proceeded in a way commensurate with the importance or status of the BoA and the interests of users and the public. There has been a lack of transparency and of any meaningful consultation, as can be deduced from the following:
Further information can be found on the AMBA website and, in particular, in an information pack that formed the basis of a recent panel discussion event in Munich, at which six distinguished judges debated the principles of judicial independence and their application to the BoA, and the published proceedings of that event.
We encourage any stakeholder with an interest in this matter to make their views known to their national representatives in the AC, who have access to the proposal.
The Association of Members of the Boards of Appeal
15 June 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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