February 2015: Proposal for a reform of the Boards of Appeal The proposal (CA/16/15) states its goals as “to increase the organisational and managerial autonomy of the BoA, the perception of their independence (enshrined in Article 23 EPC) and also their efficiency, in order to respect the principle of effective legal protection within the legal framework of the current EPC”.
It proposes a new function of President of the BoA, to whom managerial and organisational tasks will be delegated by the President of the EPO (pt.15).
It also proposes creating a BoA committee (BoAC) as a subsidiary body of the AC (under Article 14 of the Council’s Rules of Procedure), with advisory and preparatory functions (pt.25).
The BoAC comprises seven members, with three being members of the AC and four being external judges (pt.31). The members of the BoAC will be nominated and appointed by the Administrative Council, upon proposals from the delegations (pt.30).
March 2015: AMBA Position on CA/16/15 (Reform proposal)
In a position paper, the members of the Boards welcome the proposal to separate the Boards of Appeal from the Office, in particular, the creation of the position of President of the BoA and the delegation of powers by the President of the Office.
However, they do not consider that the newly created BoAC (BoA Committee) can be considered as a council of the judiciary, but rather a subsidiary body of the AC (hence BoAC could be more correctly seen as Board of the AC). As a result, the powers given to the BoAC undermine the self-governance of the BoA.
The incomplete and inaccurate statistics in the proposal’s annex do not seem to establish the alleged problem of efficiency in the BoA. The problems of timeliness mentioned in the report appear to have causes other than the BoA. These are being worsened by the current disruptions to succession planning that affects over 10% of posts.
The members consider that linking re-appointment to “quality and efficiency” violates the principles of independence and security of tenure.
Other problems are seen in the circumstances at the end of appointment, lack of staff representation, potential removal of the BoA away from Munich and absence of consultation with the members prior to the proposal.
It is suggested that the proposal could be improved by giving the functions that are proposed for the BoAC to the existing statutory body for the governance in the BoA, namely the Presidium.
In conclusion, the members consider that the proposal does not solve the problem of independence of the BoA and urges the AC not to support it in its present form.
April 2015: Legal Research of BOA Report on the Role of the BOAC.
In its report The role of the BOAC in the future institutional framework of the Boards of Appeal, the Legal Research Service of the BoA considers that the BOAC, foreseen in reform proposal CA/16/15, is a subsidiary body of the Administrative Council (AC) and an advisory body to the AC.
It cannot have competences which concern the management of the boards of appeal, nor competences to make proposals to the AC for amendments to certain texts such as the Implementing Regulations or the Service Regulations – these competences do not lie with the AC. The BOAC should also not have competences with regard to the internal administration of the boards of appeal or anything as regards the judicial processes, including the allocation of cases. Applying the Burgh House Principles, the boards should be free from any interference from another organ of the EPO in these matters.
The main role of the BOAC would be an advisory function to the AC with regard to the following matters: Rules of Procedure of the EBA and the boards of appeal; proposed amendments to the Implementing Regulations, Service Regulations and other texts; budget for the boards of appeal; appointment of board members (incl. chairmen); report by the President of the boards of appeal to the AC; disciplinary matters.
May 2015: Law Associations raise concerns about CA/16/15
Various law associations have written letters expressing concerns about the proposal to reform the Boards of Appeal:
A letter dated 15 May 2015 from the CCBE (the Council of Bars and Law Societies of Europe).
A letter dated 4 June 2015 from EPLAW (the European Patent Lawyers Association)
June 2015: Epi position paper on CA16/15
In a position paper, the epi proposes creating an independent Judiciary Committee (JC) for the BoA (although only with representatives of the AC).
The epi is of the opinion that present safeguard of independence of the BoA should not only be kept, but rather substantially improved, so as to test an new institutional arrangement to be then formalised by a change of the EPC.
July 2015: AMBA/Presidium alternative reform proposal
A mixed working group Presidium of the BoA / AMBA Committee presents a first draft for an alternative proposal for carrying out the aims of the reform proposed by the Office in CA/16/15, i.e. to increase the organisational and managerial autonomy of the Boards of Appeal, the perception of their independence and also their efficiency within the framework of the current EPC. The proposal argues why the judicial tasks foreseen in CA/16/15 for the BoAC, which is a body within the AC, are a) problematic in view of the separation of powers between the President of the Office and the AC foreseen by the EPC, b) a deterioration as compared with the present arrangement which is largely uncodified and based on convention, and c) contrary to internationally recognised principles of judicial independence as set out in various standards.
The proposal gives responsibility for the tasks to a new body within the BoA and, thus, within the Office. This body, tentatively named the Senate for the BoA, essentially consists of the existing Presidium, but with an extended composition to include members nominated by the AC and the President of the EPO, as well as external observers. This is analogous to a national Council for Judiciary, where all three powers are represented so as to insulate the functions of appointment, promotion, and discipline of judges from undue interference from the other powers while ensuring an acceptable level of accountability.
August 2015: AMBA Questionnaire on the Reform of the Boards of Appeal
The questions in the five categories of the Office’s online consultation focused mainly on efficiency and procedure, but not the structural setting of the BoA or the users’ views on the effect of the structure on the perceived independence of the BoA, which was the decisive point in decision R 19/12 and the trigger for the proposal in CA/16/15 to reform the BoA within the limits of the EPC.
AMBA has therefore launced its own questionnaire, designed to explore users’ views on the structural aspects of the reform of the Boards of Appeal.
October 2015: AMBA Provides Additional Information on the Summary of the Results of the User Survey
AMBA has written a letter to the AC containing additional information on the Office’s summary of the results of the on-line consulatation set out in CA/82/15. Noting that the summary in CA/82/15 does not give any weighting to the responses from the major professional associations and that ten of these responses have been published, AMBA summarises their content and compares the results with the summary in CA/82/15.
The results reveal interesting nuances in the interpretation of the users’ views on independence, relocation, appointments/re-appointments, conflicts of interest, efficiency, procedure and the composition of the BoAC.
December 2015: AMBA Comments on Orientation Paper CA/98/15
In a position paper, the members of the Boards of Appeal set out why they think that they were not properly consulted before the publication of the orientation paper CA/98/15 on the structural reform of the BoA.
Furthermore, after nine months the paper does not represent any real advance over the original proposal in CA/16/15. In fact, it contains new elements that appear to decrease the autonomy of the BoA, such as giving the President of the EPO the right to propose the Rules of Procedure and involvement in setting up the BoAC.
Desite the fact that the legality of the delegation of powers of appointment and management from the President of the EPO to the President of the BoA is still unclear, the paper concentrates on secondary or irrelevant issues, such as conflicts of interest and relocation, which have not been seen as a problem by users or delegates of the AC.
December 2015: AC Mandates B28 to Produce Guidelines for Structural Reform of the BoA
At the 146th meeting of the Administrative Council, (Munich, 16 and 17 December 2015), the AC had an exchange of views on the envisaged structural reform of the EPO Boards of Appeal. Orientation paper CA/98/15 was wihdrawn.
The AC mandated its Board 28 to elaborate guidelines to serve as a basis to the President for the drafting of concrete proposals to be submitted for decision to the Council possibly at its March 2016 meeting.
February 2016: AMBA Event on Judicial Independence
AMBA organises an event entitled ‘AMBA Panel Talk: Fundamentals of Judicial Independence: Implications for AMBA’s Proposals for Reform’ on 27 February.
A panel of six distinguished European judges discussed aspects of judicial independence in general and their application to the Boards of Appeal.
The agenda included sessions on:
– International Courts, Comparisons with National Courts, Judicial Independence
– Internal Independence, Appointment, Promotion, Appraisal
– Autonomy, Security of Tenure, Irremovability, Impartiality, Code of Conduct, Budget, Training
The discussions were guided by a comprehensive document setting out the background to the independence of the Boards of Appeal, the status quo, problems that have arisen and proposals for solutions.
March 2016: AC Gives President Principles for Reform of BoA
At the 147th meeting of the Administrative Council, (Munich, 16 March 2016), the AC requested the Office President to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BoA.
April 2016: AMBA/Presidium Present Board 28 with Outline Proposal for Reform
In view of the Council’s request to take comments from the Presidium into account in the proposals to reform the Boards, the Presidium/AMBA set out some general considerations about the need to regulate the proposed delegation of powers and the role of the Presidium in key judicial tasks and adopting the Rules of Procedure of the Boards.
They also sent an outline proposal for reform, based on previous reform suggestions and internationally recognised principles, that took these considerations into account.
June 2016: The office presents the proposal for the reform of the BoA
The long-awaited proposals for reform of the Boards of Appeal (CA/43/16) have been put on the agenda for the Administrative Council at its June meeting.
A lot can be achieved in two years. The project that produced the EPC 2000 took that length of time. A lot can be achieved in less than two years, such as the BoA independence project, which was ripe for approval by the AC in 2004. Those projects took a clear, shared goal, hard work, and good will from all involved. Those are essential ingredients.
The two years spent on the current project of structural reform of the BoA, which aims at improving autonomy and rendering clearer their independence, has not been so fortunate. To say that it misses its goal would be a misstatement. Indeed, it rather seems that the team has been playing towards the wrong end of the pitch. That is an unfortunate thing to spend two years doing.
The Presidium has set out why the present proposal, the result of two-years of work, is not fit for purpose.
AMBA has also written an open letter urging stakeholders to react.
June 2016: AC decides on the reform of the BoA
The Boards of Appeal have made many reasoned objections to the substance and manner of the Office´s proposal for reform proposed in document CA/43/16, most recently an optimistic open letter to all stakeholders and a desperate letter to the AC on the President’s response to its resolution.
Despite being unpublished, the proposal had also drawn criticism from professional organisations, including most recently the IP Federation and CIPA. Indeed there were objections from many AC delegations on the first day of the June council. It thus came as a surprise to learn that after a last minute rework on the evening of the first day, the proposal was passed on the second day.
However, as with the danger of hastily accepting a modified claim late on in a long oral proceedings, an examination in the cold light of day of the amendments shown in CA/43/16 Rev.1 reveals worryingly little substantial change.
December 2016: Carl Josefsson is appointed President of the EPO’s Boards of Appeal
The Council, based on a joint proposal by the Boards of Appeal Committee and the President of the Office, appointed Mr Carl Josefsson (SE) President of the Boards of Appeal for a term of five years, beginning on a date to be negotiated between him and the Council chairman. It also appointed Mr Josefsson Chairman of the Enlarged Board of Appeal, legally qualified member of the Boards of Appeal and Chairman of the Disciplinary Board of Appeal, each for a term of five years, beginning on a date to be negotiated between him and the Council chairman
December 2016: AMBA Resolution Against the relocation of the bOards of appeal to Haar
At the end of November 2016, AMBA has 138 members and thus represents 95,2% of all members and chairmen of the Boards of Appeal.
The AMBA Committee and others have previously provided the members of the Administrative Council (AC) and of the Boards of Appeal Committee (BoAC) with detailed information concerning specific problems with the current proposal to move the Boards of Appeals to the 8inOne building.
The following resolution was formulated, in order to inform the AC and the BoAC about the general view of those most directly concerned by the removal. AMBA members were invited to express their opinion on the resolution.
126 members supported the resolution (94,7% of the participating members).
No member disapproved of the resolution.
Seven members expressly abstained.
Thus, the resolution sets out the unanimous position of the members of AMBA concerning the current proposal.
September 2017: The Boards of Appeal relocate to Haar.
AMBA 