In yesterday's post, Merpel looked at the current Business Distribution Scheme of the Boards of Appeal of the European Patent Office. We know that the current organisation of the BoA is to be reformed. But how to achieve this objective remains pretty much a complete mystery. In this post, Merpel focuses on what we know about the imminent reforms and, equally importantly, how much we don't know, but should.
(1) How do we know that reform of the Boards of Appeal is planned?
It is the UK Government position that the Boards of Appeal should be independent of the executive of the EPO, and be seen to be so. This view is shared by other EPO member states and we expect proposals to make this clearer to be considered by the Administrative Council, the Office’s supervisory body, in March 2015.This states quite clearly that the AC will consider proposals for reforms of the BoA in March.
Moreover, as Merpel reported here, Board 28 (of which more below) was reported to have examined the institutional arrangements pertaining to the Boards of Appeal in its meeting on 16 October 2014. Presumably this was to formulate a proposal to put to the AC.
(2) Why is reform necessary?
This is less clear. On the one hand, it is clear that Mr Battistelli, the President of the EPO, would like to bring the Boards of Appeal more within the ordinary management structure of the Office, according to his comments suggesting that "Alicantation" is the correct path forward (reported by Merpel here). On the other hand, following R19/12 (see here for the report of the case itself, and here for the aftermath), which stated that the Chairman of the Enlarged Board of Appeal could not also exercise duties as a Vice President of the EPO, presumably some reform of the administrative arrangements would be necessary to make the Boards of Appeal more independent. In respect of the measures announced in May in response to R19/12 (essentially relieving the Chairman of his administrative functions as Vice President, but, controversially, passing them to Mr Battistelli himself) it was stated: "The above mentioned measures are precautionary and taken, pending further analysis". So, on the face of it, what Board 28 was doing would seem to be that "further analysis".
(3) So what is Board 28?
Merpel mentioned Board 28 in an earlier post here. At one level, it is very clear and totally above board (pun intended): it is a subcommittee of the Administrative Council according to Article 28 EPC. On further investigation at a deeper level, however, things become more murky.
|Nicolasa the Peruvian Surfing Cat|
puts Board 28 through its paces ...
Secondly, as just mentioned, the minutes of the meetings of the Board receive limited circulation and contain no detail. It seems odd that there is so little publicity or wider consultation with regard to the matters that Board 28 is considering.
(4) What reforms are being considered?
Here things become even more tricky. Merpel understands that even the Boards of Appeal have not been consulted about what plans for reform are being considered, so practically no-one has any idea. Apart presumably from the President and a few senior people at the EPO, and the members of Board 28 themselves. As mentioned in section (2) above, it is not even clear whether the reforms are to make the Boards more independent, or less independent, of the main management of the Office. It is likewise not clear whether the reforms are within the framework of the current provision of the European Patent Convention, or whether troublesome parts, such as the guaranteed independence of the Boards of Appeal (Art 23 EPC), are to be revoked, which would require a Diplomatic Conference to agree a new formulation.
As mentioned in an earlier post, there was a proposal to make the Boards of Appeal more independent of the rest of the EPO. This proposal for the "Autonomy of the Boards of Appeal" has now been pretty much expunged from the EPO website, but survives here. Merpel presumed that this proposal was dead in the water, since there was so little sign of it in live EPO documents. The FAQ relating to the Boards of Appeal state:
What is the status of the initiative to make the independence of the boards of appeal more visible and to revise the European Patent Convention accordingly?
The initiative has resulted in what is a complete draft for revision of the European Patent Convention, with the goal of organisationally separating the boards of appeal from the European Patent Office. However, in order to implement the initiative, a Diplomatic Conference attended by the representatives of the member states of the European Patent Organisation will be necessary. The boards of appeal, together with their associated administrative services, would then no longer be integrated into the European Patent Office as Directorate-General 3 but would become a separate body within the European Patent Organisation.Perhaps in fact this is being considered. But it seems equally possible that bringing the Boards of Appeal directly under the authority of the President is being considered, in line with the idea of Alicantation. This would require some external appeal, and it was reported that the idea was to delegate this to the CJEU. Although there are evident constitutional problems in giving the CJEU oversight over an non-EU body, perhaps these are not unsurmountable if (and this is a HUGE if) the non-EU contracting states of the EPC consent to this. Merpel finds herself having to resort to the purest speculation here, so will now desist from further imaginings.
Another rumour, and it is really no more than that, that Merpel has heard is that the Boards of Appeal might be moved to Berlin, to make them physically distant and so give implied independence by geographical separation. But it is not clear whether this would accompany greater, or less, actual independence and separation of their judicial function from the administration of the EPO. And it may just be a rumour that has gained traction because of the neatness of the idea.
Merpel will continue to closely monitor developments, and will post again when there is something significant to report.