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

  • The President’s respect for the BoA’s judicial independence meant he did not intervene in their functioning, and de facto delegated his powers to the Vice-President, on the basis of Article 10(2)(i) EPC.
  • The BoA were responsible for selecting members and chairmen, whom the President then proposed for appointment by the AC.
  • At the end of a member’s five-year term, re-appointment was the default, in the absence of serious reasons.
  • The Rules of Procedure of the BoA were adopted by the Presidium, subject to the approval of the AC. The President played no part.
  • The President and the AC shared responsibility for selecting and appointing the Vice-President in charge of the BoA, who is simultaneously the Chairman of the EBA – the highest judicial position in the European Patent system.

The proposal

- Delegation

  • The President of the Office delegates his powers of management and appointment to the Chairman of the EBA in his new role as President of the BoA. This “act of delegation” aims to formalise the customary lack of influence over the BoA, but in fact makes clear that the Office President can and will intervene for any number of reasons, whenever he considers the “interests of the Office” to be at stake.

- Independence

  • There is a problem of external independence. Apart from being accountable to the AC, the President of the BoA is bound also by the “guidance” and “objectives” of the new advisory body to the AC (BoAC – see below), and holds delegated powers only so long as the President of the Office deems fit.
  • There is a problem of internal independence. Key judicial tasks are placed in the hands of a single person, the BoA President. This is aggravated by the following point.
  • The AC can only appoint a President of the BoA that the President of the Office proposes, because the latter retains his power to propose the appointment of the Chairman of the EBA.
  • Shoehorning the career structure of the BoA members into the performance-based system of the rest of the Office ignores the BoA’s judicial nature. It also produces strange, not to say inexplicable, results: young members start on unusually high grades and experienced members are downgraded.

- Security of tenure

  • There is, de facto, a loss of security of tenure, already very short at five years, because re-appointment is subject to a positive recommendation in the light of unspecified reporting and performance criteria.

- The advisory body to the AC (BoAC)

  • The BoAC is to “monitor the independence” of the BoA, but has no means of guaranteeing it, or, indeed, clarity as to what such monitoring entails.
  • The BoAC is responsible for “guiding” and “controlling” the President of the BoA regarding general objectives, performance criteria, the annual report, the budget request and its execution, and even criteria for the distribution of cases, an area that currently falls within the power of the Presidium.
  • The President of the Office is entitled to participate in all meetings of the BoAC.
  • The BoAC, rather than the Presidium, adopts the Rules of Procedure of the BoA after consulting the Office President.

Conclusion

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.

Additional considerations

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:

  • The ideas in the project have essentially not changed since the original paper CA/16/15 of March 2015, which was criticised by the Boards, users and some delegates of the Administrative Council.
  • The “consultation” with the BoA amounted to no more than hearing our proposals, no aspect of which was incorporated, and last-minute discussion of finished drafts, which were not changed at all.
  • No meaningful consultation took place with any stakeholder. The on-line user consultation invited users to give answers to leading questions about invented problems, and the responses were then not presented in full.
  • The proposal contains several aspects that the AC had regarded as secondary (efficiency, location) or had not been aware of at all (vastly increasing fees).
  • A new location is being pursued without any contact with the BoA or mandate from the AC.
  • An efficiency study of the BoA was commissioned without informing either the BoA or the AC.
  • It is estimated that the disruption caused by this reform process and the provisional measures taken after R 19/12, which included leaving vacancies unfilled for two years, has resulted in the loss of some 1000 settled cases.

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.

Yours faithfully,

The Association of Members of the Boards of Appeal

15 June 2016

Previously...

Presidium/AMBA on latest proposal

Presidium/AMBA second proposal

Proceedings of AMBA event

AMBA on reform proposal CA/98/15

AMBA on results of the user survey

AMBA´s User Questionnaire

AMBA/Presidium first reform proposal

AMBA on the online user consultation

AMBA on reform proposal CA/16/15

Comparison of independence indicators

Timeline of independence - see the most important events in the history of the boards

Navigate the events in sequence using the arrow at the right or by dragging and clicking on an event in the timeline itself.
The events are classified vertically by actor.

About this Website

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.

Article 1 of AMBA Statute

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.

We welcome any error reports and suggestions for improvement at the webmaster´s address.