(When Merpel says "everyone agrees", she is of course referring predominantly to herself, but is reinforced in the correctness of her beliefs by the Enlarged Board of Appeal, epi, CIPA, EPLAW, CCBE, BusinessEurope, CNIPA, AMBA and most of the patent judges across Europe, all of whom have expressed views to the effect that the Boards need to be administratively independent from the management of the EPO and to be properly resourced to do their jobs.)
The problems with judicial independence were revealed a series of decisions starting with R 19/12 and culminating in R 2/14 where the Enlarged Board said its Chairman could not be subject to managerial instruction from the President of the EPO.
In general, the reform of the BOA was welcomed by the users and CA/16/15 was seen as a sound proposal and good basis for further work. The result of the user consultation was presented to the AC at its 145th meeting in October 2015 within CA/82/15 and subsequently published on the official EPO website. In parallel to the user consultation the Office held a series of consultation meetings with representatives of the BOA dedicated to the different elements of the reform.
Dear Mr President
Dear representatives of epi and Business Europe
Munich, 1 December 2015
Re: CA/98/15 - Orientation paper on the structure and efficiency of the Boards of Appeal
The Presidium apologises for having to address you at such short notice on the above mentioned paper, but we had no knowledge of the content of the document before it was posted on Micado, during the evening of Friday 27 November. Consequently, the Presidium has decided to provide a quick initial reaction, so as to reach the delegates in time for the upcoming Board 28 meeting.
The proposals in the orientation paper have not been elaborated "in close cooperation" with the BoA, contrary to what was announced in the President’s communique after the March AC. The Presidium was involved in some discussions with the Task Force preparing the Office proposals, but our proposals and the concerns we expressed are in no way reflected in the paper.
The Presidium is of the opinion that the proposed measures do not achieve the declared aims of increasing the Board's autonomy and improving the perception of independence. What's more, certain elements even cast further doubt on their independence and make them less independent than before. The most important legal question has not been answered yet - that of whether the proposed delegation of powers from the President of the Office to the President of the BoA can take place under the EPC. Further crucial aspects such as autonomy in budgetary and communication matters are not addressed.
Boards of Appeal Committee (BoAC)
In reaction to the proposal of a BoAC in CA/16/15, the BoA developed their own proposals to enhance autonomy and independence and provided these in an interim report to the task force [footnote]. The cornerstone of their proposals is the setting up of a "Senate", comparable in its role and composition, with i.a. members of the BoA, to a "Council for the Judiciary" as is common to the EPC contracting states. None of these proposals is reflected or even mentioned in the orientation paper. The BOAC as foreseen in the opinion paper CA/98/15 has advisory and supervisory functions over the President of the BoA, who is responsible for the management of the BoA. In this Committee the President of the Office has a seat while, apart from the President of the BoA, no BoA members are involved. Although the President of the Office has no vote, he is a member of this body which has far reaching competences. He is thus part of a supervisory body over the Boards, which is in clear contradiction with the required separation of powers.
The proposal for the structural reform was triggered by R 19/12 in order to solve the problems outlined therein. If the President sits on the Committee supervising the President of the BoA, who is at the same time Chairman of the Enlarged Board, the partiality issue raised in R 19/12 would become crucial again.
The orientation paper makes it quite clear that efficiency targets are intended to be set, which are then the basis for step advancement, promotion and finally for re-appointment. Linking reappointment to such efficiency targets greatly weakens the security of tenure, which is an essential element of judicial independence. Moreover, the President of the Office is involved in the body which is supposed to play a key role in setting these targets and deciding on the Board members' careers.
The comparison with the performance of the BoA of OHIM is inappropriate. The BoA of the EPO act as a final instance judiciary, whereas the BoA of OHIM do not; they merely have an administrative function within a system in which the judicial functions are provided by the EU courts in Luxemburg.
Also, the figures taken in CA/27/78 in 1978 were at the time chosen just as an initial basis for calculation, not yet knowing the number and complexity of cases which were going to come. They are at present not realistic. If at all a comparison of "production figures" is made, this should be with the Bundespatentgericht in patent cases. That comparison shows that there is no difference in the "production figure per rapporteur", with the notable difference that the BoA work in the three official languages.
The paper continues to mix the issue of efficiency with independence, despite the fact that the user survey clearly showed that the representatives’ institutions were primarily concerned with having an independent BoA provided with the necessary resources to deal with the caseload and pendency times properly. Efficiency in the sense of more decisions per member was not considered to be an issue which could be dealt with in the context of independence and autonomy.
Rules of Procedure (RPBA)
According to the proposal in the orientation paper, the RPBA are no longer to be adopted by the Presidium of the BoA themselves, but instead by the BoAC on a proposal from the Office. The BoA would not be even involved in this process. The comparison with the legislative process in a national state is not convincing. In a comparison with e.g. Germany, it would be equivalent to the DPMA (Deutsches Patent- und Markenamt) proposing the Rules of Procedure for the Bundespatentgericht. Particularly problematic is the situation that it would be the Office which would have the lead in setting the rules which the Boards would then have to follow when reviewing exactly the same Office's decisions in patent grant and opposition proceedings. All this is clearly contrary to the necessary separation of powers and cannot possibly increase the Boards' independence or autonomy.
In addition, with the BoAC as a sub-committee of the AC, it is doubtful, both from a legal as well as a logical viewpoint, whether Article 23(4) EPC allows for members of one and the same body (the AC) to both adopt and approve the legal instrument of the Rules of Procedure of the BoA. Having the same procedure apply to the Rules of Procedure of the Enlarged Board of Appeal, the highest judicial instance under the EPC, aggravates the matter even further. Also, the German Bundesverfassungsgericht (2 BvR 1848/07) decided that the constitutional protection of procedural rights of a party (Art. 24(1) Grundgesetz) is guaranteed by the BoA establishing their procedural standards via their jurisprudence.
Location of the BoA
In the orientation paper the issue of the location of the BoA is now being mixed up with other managerial issues in the Office which have nothing to do with the independence and autonomy of the BoA.
Greater autonomy is not achieved by moving the Boards to a place other than Munich, because it is the institutional separation, not the physical distance from the Office which is decisive. Moving the Boards to another city (e.g. Berlin or Vienna) runs the risk of losing a large number of highly experienced Board members. Such expertise is quite specific to the European patent system and cannot simply be replaced by increasing the recruitment of external candidates as suggested. Moreover, neither the EPC nor the Protocol on Centralisation provide a basis for moving the Boards of Appeal to Berlin or Vienna: Article 7 EPC allows only for sub-offices other than in Munich or The Hague, if they are for the purposes of "information and liaison"; the Protocol on Centralisation puts the sub-office of Berlin under the direction of the branch of The Hague.
Conflicts of interest
Here, the orientation paper mixes up something that might possibly be an issue with other senior appointees of the AC and the President, with the issue of the independence of the BoA. Any cooling-off period after leaving the service of the BoA coupled to a system with an uncertain reappointment (even with the partial financial compensation envisaged] would have a serious detrimental effect on the Boards’ ability to recruit technical members from among sufficiently qualified European patent attorneys and legal members from among sufficiently qualified attorneys-at-law and national judges.
In any case, the provisions in the EPC (Art. 24 EPC) and in the present Service Regulations already sufficiently provide for issues of conflicts of interest.
Guarantees for judicial review
Since the judicial status of the BoA is an essential pillar in the European patent system, because they take final decisions on European applications and patents, their independence should be clearly guaranteed and not weakened. If the proposals contained in the paper find approval with the Administrative Council, it is foreseeable that cases filed before national (constitutional) courts would have a higher chance of success. Indeed, they could be based on the argument that the Boards of Appeal can no longer be considered a judicial body compliant with Article 6 European Convention of Human Rights and Article 62(5) of the TRIPS agreement.
Furthermore, the BoA also have the competence to revoke unitary patents by a final decision. In any new structure created for the BoA, which are part of the future unitary patent system, the independence of the BoA - in the sense of the ECHR and TRIPS - must be safeguarded beyond any doubt.
The present letter is merely a first reaction which aims to reach the AC delegates before the Board 28 meeting of 4 December.
More than one-and-a-half years have passed since the decision R 19/12, which acted as the catalyst for the process aimed at solving the issue of real and perceived judicial independence of the BoA. We fear that the result of that process, as put forward in the orientation paper, will not improve the situation at all. Quite the opposite, in fact. Apparently the concerns we have expressed and arguments we have presented have not been convincing. The reasons for that are not clear to us. Maybe we are believed to be biased, as we are directly affected by the proposed reform. In order to avoid that any such impression dominates the debate, we recommend to involve independent external experts - as was done in the reform process before 2004 (in which the BoA were fully involved) - to help the Organisation find a solution which puts the judicial independence and functioning of the Boards of Appeal on a solid legal footing.
The Presidium and AMBA would appreciate to meet with the Chairman and members of Board 28 of the AC, to address these matters, with a view to arrive at a workable solution. Finally, the BoA are still faced with a stop on recruitment, even though compared to 2014 there has been no significant change in the number of appeals filed or in the number of withdrawals of appeals. As a result, the loss of manpower through retirements is negatively affecting the capacity of the Boards to deal with the incoming work not to mention reducing the back log.
We would therefore urge the Council to treat this issue as a matter of urgency.
The Presidium of the Boards of Appeal
[footnote] see: http://www.amba-epo.org/page/get/reform-proposal