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Wednesday, 18 February 2015

CIPA gives the Administrative Council something to chew on

The current ongoing controversy over the (mis)governance of the European Patent Office (EPO) Boards of Appeal is due to come before the Administrative Council (AC) when it next meets on 25 March. As this moggy recently reported, some groundwork has been done in advance of that meeting, with proposals apparently having been drafted by the members of the AC's inner sanctum, Board 28. Jesper Kongstad, who chairs the AC, met with members of the Boards of Appeal, without sharing the details of the proposed reforms, but the topic will undoubtedly come before Board 28 when it convenes again on March 10.

In this context, this moggy has seen a letter to Mr Kongstad, from Jim Boff, written on behalf of the Patents Committee of CIPA (the UK's Chartered Institute of Patent Attorneys). The text of the letter is reproduced below, and Mr. Boff's pawnotes [the IPKat reminds Merpel that "footnote"s is the more widely accepted term] are inserted in the text where they occur [the footnotes are shown like this].

As the letter below explains, CIPA is urging the AC to take interim measures to increase and copperfasten the independence of the Boards, while noting that these measures are not a substitute for amending the EPC itself.

Jim Boff
Whether in the short term (with rule changes) or in the longer term (with an amendment of the Convention), the aim would be to set in stone the separation of powers which has been overwhelmingly demanded by the users of the EPO, Europe's patent judiciary, the EPO staff, and the members of the Appeal Boards themselves. Everyone, that is, except the management of the EPO which appears hellbent on bringing the Boards under its nurturing and protective wing. The AC has acknowledged the principle of independence of the Boards, but Merpel awaits the details of their proposals to see how their actions match their rhetoric.

Jesper Kongstad
Merpel thinks that the AC could do worse than take the template set out by CIPA below, and use this as a starting point for their reforms. It seems to deal with all the majors gaps in governance that have emerged in the last three months, and to suggest practical ways of plugging those gaps until the EPC is eventually amended (something that won't happen during the tenure of Mr Battistelli, bets Merpel). In addition to the legal reforms required to separate powers, Merpel is interested to see that CIPA is also proposing fiscal changes, to give the Boards their own budget and financial independence.

Text of the letter starts here:
6th February 2015  
Dear Mr. Kongstad,  
re: Independence of the Boards of Appea

On behalf of the Chartered Institute of Patent Attorneys I submit the following comments on this matter of great importance.
The EPC set up a system with a rough separation of powers between:- 

  • a legislative/oversight body (the Administrative Council); 
  • an executive body (the Office through the President); 
  • a judiciary (the Boards of Appeal). 
The separation of the judiciary from the Office was intended to be ensured by disciplinary powers over the members of the Board of Appeal being with the Administrative Council (legislature) rather than with the President (executive). While not a complete separation of powers, this was thought by many to be sufficient to ensure the independence of the Boards of Appeal. [Indeed, some have complained that the members of the Boards of Appeal are too independent, in the sense that different strands of opinion are evident within the Boards, and references to the Enlarged Board of Appeal take place only when a Board decides or on a reference by the President.] 
The subject of judicial independence of the Boards of Appeal has been put into sharp focus by recent events, and in particular by: 
  • the exclusion of a member of the Boards of Appeal from the premises of the EPO pending investigation of alleged disciplinary offences; 
  • the decision R19/12 and its effect on the role of VP3.
The confusion that has resulted implies that the balances built into the EPC appear not to be functioning, and that strengthening of the separation of powers may be necessary.
There have been previous proposals to change the institutional framework of the Boards of Appeal to ensure their judicial independence. [For example see CA/46/04 and CA/103/03] These proposals, which would have required a diplomatic conference to amend the EPC to make the Boards of Appeal a clearly separate arm of the European Patent Organisation, were not carried through, even though they attracted wide support in principle (although not necessarily in detail). [NB CIPA does not necessarily support all aspects of that proposal, in particular the prospect of lifetime tenure without adequate safeguards for removing erratic members of the Boards of Appeal, and the determination of promotion in the hands of one person.]  
Given the experience with ratification of EPC2000, amendment to the EPC will take too long to deal with the immediate problem, but should not be ruled out, particularly given that the Article 4a EPC conference of ministers is long overdue and the above mentioned proposal for autonomy was made over 10 years ago. [A conference under Article 4a EPC to discuss “issues pertaining to the Organisation and to the European patent system” would appear particularly opportune given the imminent arrival of the unitary patent.]  
Amendment to the EPC Rules is within the competence of the Administrative Council and can be done relatively quickly.  
The EPC is explicit that disciplinary power concerning senior officials and the members of the Boards of Appeal shall lie with the AC. [Article 11(4) EPC; Article 23 EPC]  However, the recent events have highlighted a gap, in that the AC is not in a position to take immediate action if it appears necessary, and the President’s authority to intervene is controversial (CIPA take no position on the specific case in question).  
Complete financial independence is not necessary for judicial independence. Courts in most European countries are supported by the state, and court fees do not necessarily cover full costs. What is necessary is security of finance for the courts and the judiciary, which must be visibly independent from interference by the executive, so that the decisions in any case are based on the case itself and not on extraneous pressures.
 The European Patent Office does not have the resources of a state and is reliant on income from users and so users will suffer if costs are not appropriately controlled.
Establishing an independent judiciary does not necessitate a separate body, nor does it necessitate establishing a separate fee structure, building, and administration. All of the physical infrastructure requirements for an independent Board of Appeal are present in the current arrangements: what is missing is an appropriate reporting structure and assumption by the Administrative Council of its disciplinary role. It has been suggested that a degree of physical separation between the Boards of Appeal and the Office might assist in the appearance of independence: however this appearance would only be gained at considerable expense and loss of efficiency. 
To provide at least an interim solution to maintaining the independence of the Boards of Appeal it is suggested that some rule changes may assist while a long-term solution is sought, desirably through amendment to the EPC. Suggested rule changes include:  
A.    Amendment to Rule 9(1) EPC to place direction of the Boards of Appeal and Enlarged Boards of Appeal with a Director of the Boards of Appeal, who would not be a Vice President of the Office. He/she would have budgetary responsibilities and would report directly to the Administrative Council. This avoids the current blend of responsibilities to the executive and judiciary that led to R19/12. He/she might also be Chairman of the Enlarged Board;  
B.    The President’s supervisory authority over BoA members (Article 10(2)(f) EPC) to be delegated to the Director under Article 10(2)(i) EPC. This fills the gap highlighted by the recent events. If urgent action to exclude a BoA member appears necessary, pending disciplinary proceedings by the AC, then it can be taken by the Director. This is to the benefit of the President since there would be no reason why he need become mired in controversy.  
C.   Amendment to Rule 12(1) EPC by replacing reference to the VP with reference to the Director of Boards of Appeal.  
D.    Provision for the Director to be appointed by the AC on a proposal of the Enlarged Board (or for an extremely independent approach - by election from the Boards of Appeal subject to approval by the AC);  
E.    Introduction of Rules under Article 11(3) EPC concerning how and under what criteria the President will propose BoA members, in particular relating the number of Board members to demand and backlogs, and indicating how people may put their names forward;  
F.    Provision for a separate Chapter in the EPO budget relating to the Boards of Appeal to provide transparency as to costs; 
G.    If they do not exist, the AC to introduce and publish disciplinary rules for Board of Appeal members and for others over whom it has disciplinary authority [The institutional secrecy of the EPO is damaging to its reputation and allows rumours to spread unchecked. The damage done is evident from recent events.];  
H.    Introduction of Rules or guidelines concerning under what circumstances (e.g. health, safety, public order), and for what duration, the President may temporarily exclude members of the Board of Appeal from the premises of the EPO without prior agreement of the Director of Boards of Appeal.

The above proposals only represent interim measures. CIPA is of the view that amendment to the EPC is necessary to give a secure guarantee of independence. When the EPC is next amended CIPA will be ready to contribute to the debate on what specific changes are necessary.   
Yours sincerely,
J. C. Boff, Chairman of CIPA Patents Committee  

35 comments:

Anonymous said...

Well done CIPA and well said! This all seems very reasonable, and quite possible to achieve.

Anonymous said...

Very proud of CIPA today

Well done Jim, Patent Committee and Council

Anonymous said...

Totally agree. I would have appreciated such a statement from the epi...

Anonymous said...

Jesper Kongstad, Sean Dennehy - are you reading this? Will someone tell them to?

MaxDrei said...

Remember Margaret Thatcher's comment about her minister David Young: Why is David so valuable to me? Other Ministers bring me problems but David brings me solutions. That's why!

Well done, CIPA and its Patents Committee. What a breathtakingly positive and straightforward contribution, so helpful for an AC with a problem. Despite the grumbling about the EPO on the European mainland where is anything from the mainland that offers the AC any practical help whatsoever, to find a way out of ist Dilemma?

Once again, one must lament sadly England's ever more visible and extreme remote and aloof attitude to Europe. How much better mainland Europe would function, if only the UK would, as a matter of course, roll up its sleeves in Brussels and, from the get go, when the flow of Events can still be influenced, get stuck into the dirty work of identifying a practical way forward.

Had the UK been fully engaged, back in the day, we would have had a unit of currency that actually works, rather than the dysfunctional one that was foisted on the mainland by France, which ended up making export world champion Germany ever richer, and the rest of the EU ever poorer.

Events like this letter from CIPA to the AC reveal what uniquely pragmatic Britain is capable of, when it sets its no nonsense practical mind to the task. Well done indeed.

Mind you, these days anything coming from the UK is treated with deep scepticism if not total indifference, the more so when it has anything to do with international law or respect for the Rule of Law. I expect AC members to give it hardly a glance. That is, assuming the AC Chairman even deems it fit to show to them.

Anonymous said...

Max Drei, don't be silly. It's nothing to do with CIPA being English, British, or UK-ish. The letter to Jesper K is nothing other than an example of the problem-solution principle and, once you set out the EPO's problem(s), you can reach the solution without the need to break into a sweat, or to invoke any inventive step

Anonymous said...

Eminently sensible. Can't see BB going for it so will be interesting to see how he would adapt it to his own interests as he clearly isn't interested in DG3's best interest other than as part off his bigger picture. Maybe a mate as the new CEO of BoA? And there's the pensions issue which could make a mess of his next roadmap of DG3 is not pay off the scheme.
Money says it is shunted to the side or was discussed already at B28 and discarded? It was sent before that meeting but, of course, we won't find out yet whether it was considered (seriously). Or has CIPA had any feedback?? Is that why it has been published on the 16th i.e. After the B28 meeting?

Anonymous said...

There appears to be a procedural problem here in that the AC can, I understand, only decide on proposals of the president, but not make - at least major - proposals of its own. So, in order for CIPA's excellent contribution not to be immediately dismissed on formal grounds, it seems to be necessary as a matter of urgency to send the same, or a very similar, letter to the President of the Office, putting him in a position to place the very sensible proposals of CIPA before the AC for discussion and possible adoption.

MaxDrei said...

Yes I agree with that last anon. The CIPA letter would have been sent to help Sean Dennehey at B28.

Publishing it now is surely not enough to lift it out from where the Chairman has dumped it, namely, the "Too Difficult" tray.

Recall the mantra from DG3 at every oral proceedings: This is something you could have filed much earlier in the opposition proceedings. Why should we look at it now, in 2015, for the first time, at this very late stage? You are too late I'm afraid. The die is cast.

Anonymous said...

Anon 13:14 should first read the rules of procedure of the administrative council. The president does not set the agenda, it is done by the chairperson.

Anonymous said...

Anon 13:14,

I don't see why the AC is generally limited to proposals of the President? I can't see anything to that effect in Article 33 EPC (competence of the Administrative Council in certain cases - including changing the Rules). Nor in Article 9 of the AC's Rules of Procedure (agenda for each AC meeting to be drawn up by the Chairperson).

There are certain specific exceptions, e.g. appointments of BoA members are on a proposal from the President (Article 11(3) EPC).

Meldrew said...

"There appears to be a procedural problem here in that the AC can, I understand, only decide on proposals of the president, but not make - at least major - proposals of its own."

I see no legal basis for this suggestion.

Article 10(2)(c)EPC is permissive in extent indicating that the President "may submit to the Administrative Council any proposal for amending this Convention,
for general regulations, or for decisions which come within the competence of the Administrative Council
": but this does not take away from the general power given to the AC in Article 33(1) EPC to amend the Implementing Regulations: it certainly does not prevent the AC making such proposals.

In practice, it is probably convenient for the Office (and hence the President) to formulate proposals, but convenience does not trump competence.

Damn! Two anonymice beat me to the draw on this erudite point and trumped me with reference to the AC Rules of Procedure.

PS why are anonymice so fond of an IPKat?

Anonymous said...

Unfortunately the legal details about agenda setting in the AC do not really matter because the AC will never vote against the wishes of the president even if they were legally allowed to do so. Most AC delegations come from small national patent offices which are mostly financed by EPO "cooperation" projects and would never risk having their perks being taken away by the EPO president.

This is also the reason why the CIPA proposal would not change much in practice, as the DG3 director would still report to the AC which is in turn controlled by the president.

In related news, it appears that yesterday in a case brought by the EPO staff union an appeals court in The Hague has lifted the immunity of the EPO and ordered the EPO to rescind several recent changes to the staff regulations. While this judgement will certainly be appealed, it shows at least that national courts are willing to have a close look at the judicial independence of international courts (and boards?) of appeal.

Anonymous said...

Significant news from The Hague? The union, SUEPO (or VEOB in its dutch form) has had an appeal heard of its earlier case about freedom of association et al (case 200.141.812/01 before The Hage court).

The office top management had trumpeted the first hearing of the 'kort geding' (a Dutch legal system for reaching decisions in a shorter period where necessary - can be used to stop strikes etc.) where the first level judge refused to act against the EPO since it is trans-national. In the appeal (binding) the three judges saw it differently and declared themselves able to apply the principles of international treaties e.g Human Rights. It's all in Dutch and runs to 15 pages (don't know where to see it outside the office, will try to find public link) but some interesting conclusions for DG3 come in to it.
Primarily, and applicable to The Hague branch only, the office must stop blocking Suepo.org emails within 7 days, can not dictate the length and type of industrial actions and, within 14 days, must allow the union to enter into collective bargaining.
Now this applies to NL but it raises issues for the BoA and their association of members even if they are based in DE. Could the Dutch delegate back any decision which has not been subject to discussion with the BoAs as a collective partner if that was significant? Would the move to Berlin (if true) affect the members right to a family life? Would a German court agree with the Dutch court?

This could be interesting.

Anonymous said...

> has lifted the immunity of the EPO

Is the decision already online? Do you happen to know a case number?

Anonymous said...

it should be posted here in due time (at the moment you can only see the judgement of the first instance which was apparently reversed yesterday):

http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2014:420

Anonymous said...

> right to a family life?

It's great stuff. A fundamental right, art. 8 ECHR.

Anonymous said...

Don't see it online - the cases seem to vary in time between decision and publication, some just a matter of days. Suepo had a faxed copy on their site.
Case is 200.141.812/01

Lifted immunity?? I didn't say that and you have to read the decision for the legal thinking. But certainly the court feels it can have some authority over the EPO with regard to principles of human rights. It explicitly describes the protection of the staff's human rights in one case as 'manifestly deficient' (they used the English term for some reason). That one case seems to refer to the inability of Suepo to be heard at the ILO (only individuals can petition) and thus the union's lack of an option to be heard before a court if this court doesn't hear them.
There's a lot to ponder and many questions remain.

Anonymous said...

Anon 20:07,
The new EPO health roadmap dictates that ill staff must be available at home within certain hours for a visit from a doctor. I wonder what a Dutch judge will say about that, given that article and the inviolability of the home. Equally, long-term invalidity now requires that the staff member stays near the offices, in case they recover, until they can get an invalidity pension (not before 55 and not before 10 years of invalidity). That also raises questions. Can't wait to read the judgement!

Anonymous said...

"Lifted immunity" should probably be understood as the Dutch national court issuing an order to the EPO with this specific judgement, the EPC Protocol on Privileges and Immunities notwithstanding. Of course judgements by different courts and on behalf of different claimants may come to different results.

Anonymous said...

May I kindly offer this in response to the comment by anonymous at 15:34 (translated from Singer Stauder Commentary on the EPC, 6th edition, Commentary on Art 10 EPC, paragraph 10):
"The President [of the office - ed.) may submit to the Administrative Council proposals for the amendment of the EPC, for general implementing regulations and for decisions which come within the jurisdiction of the Administrative Council (see in particular Article 33). It is unclear to what extent individual delegations or groups of delegations to the Council an independent right to submit draft resolutions[6]. When in the past documents were presented by a delegation or a group of delegations, they were mostly to request that the office take a particular course of action and work out corresponding proposals for discussion and action by the Council.
Footnote [6] See: Braendli in MünchGemKom, Art 10 Rn 15 und 97 ff, and Art 9 (2) rules of procedure of the AC"

Anonymous said...

The judgement is very clear about the illegality of Batistelli dictature concerning the suppression of communication means for SUEPO.

And also about the fact that immunity can not protect any insanity.

He can go on "cassation" but it's not suspensive of the decision.

He can ignore it but I would like to see the face of the judge when they will arrive in front of him after having ignored the 2nd instance decision.

It's a great victory for the staff.

The council, Mr. B, the governments can not faint anymore that everybody is happy in the kingdom of terror and illegality that became the EPO.

The road is now open for a tsunami of appeals in front of national courts.

Our destroyed careers, the insane future health policy, the work paid per quantity, the punished staff representatives, our rights to strike, to communicate, to work in a professional and peaceful atmosphere.

Your mafias, your intelligence officers, your secret police, your school, your scared managers, your humiliations.

Be prepared, Mr. Batistelli, because we are coming
and we are very, very angry.

Anonymous said...

And also about the fact that immunity can not protect any insanity.

I'm afraid it is only clear about the fact that a union must have a legal recourse to defend its own rights as a union (right to communicate with staff, right to organise strikes, right to take part in collective bargaining).

SUEPO has no access to ILOAT. SUEPO sued to defend its own rights. Therefore the Dutch court had no choice but to reject the EPO's immunity defense. This does not mean that the various reform measures affecting the rights of staff can now also be contested in Dutch courts. Staff members do have access to ILOAT, at least in principle.

Of course this is still a huge victory for staff / SUEPO. The rejection of the immunity defense should not come as a surprise to the EPO (although it probably does!). But the appeal court is very clear about the measures against SUEPO being in violation of international legal norms.

EPO management (and the AC) might want to reconsider the many childish measures taken over the past years designed for the sole purpose of nagging staff. Really, what kind of grown-up person would think of forbidding a union to contact staff by e-mail?

Anonymous said...

I think this is the third time a Dutch Court lifted the immunity of the EPO in staff matters. Only applicable in that specific case. The German courts have yet to show such courage.

In the mean time, the interference of the executive with the work of the boards continues. Missions are forbidden by the president and I heard that members who are due for renomination were asked to give reasons why they should be renominated. Since I do not see any legal basis for that in the EPC, It seems to me that this is the application of the new career system, which the president declared not applicable to the boards. Well well. Also, the boards should double their production. Aha, so that is why there is a complete recruitment stop and the move to Berlin is contemplated. That way you lose half the staff very quickly and the remaining half will compensate by doubling the production. How? No more reasoned decisions? No more oral proceedings? Those are not possible in Berlin anyway, so will they be held in Munich? Or The Hague, of which Berlin is a branch? And should some vacancies be filled, no doubt people with no clue about patents will fill them because the president likes them. Who cares about laws and rules, they just do as they like, going against the EPC and nobody corrects them. Applicants, beware!

Anonymous said...

The great man may reinvent himself as Benny the Benevolent.Then again he might just keep digging that hole deeper and deeper until it hangs him.

Anonymous said...

@ anon 0:15:
Oral proceedings are possible in Berlin. I have an invitation on my desk.

As to the original topic:

Why is the EPI so silent? Because I'd say that would be the first and foremost representative body for professionals working with the EPO, rather than CIPA.
Silent diplomatic action or don't care?

(having said that, I do appreciate this initiative by CIPA)

Anonymous said...

Epi is silent as they have to understand in which direction the wind blows.
As for CIPA it will be soon disappointed by the refusal of Battistelli and cronies to listen. At any rate, many of their proposals were already on the table as documents provided by AMBA contained them.
Battistelli has his plan and will continue with his strategy unless he is stopped.
The fight must continue until he is sacked.

Anonymous said...

On many occasions, Mr Battistelli has stated, publicly and privately, that the boards are "too" independent and by this they hinder the smooth functioning of the Office (he possibly meant as a "granting machine"). So he has taken the first opportunity (possible misbehaviour of a member) to put in place his plan.
He has neither knowledge of nor respect for the rules of law and he doesn't care. His VPs tell him that is doing right and well. The AC, feed with cooperation money and promises of future posts, supports him.
Sad but real.

Anonymous said...

> Why is the EPI so silent?

Because many of them want to become BoA ???

So many places will come free if BoA would have to move to Berlin. A member of BoA, this is something very different than "pro bono" eqe activities.



Anonymous said...

> Why is the EPI so silent?

The fact that epi does not have a position on decisive developments in the European patent system also contributes to a governance crisis at EPO. If active participants of the patent system would express their official positions, it would be more clear in which way to steer the European patent system.

Apparently, it appears that only CIPA is a sufficiently consistent and mature professional body to participate in a dialogue on BoA.

MaxDrei said...

Why nothing from any practitioner organisation except CIPA?

German one too big and slow-moving? All the others suppose they are insufficiently mighty to carry any significant weight?

And then there's a nasty thought from the USA, that if you speak out you are henceforth a marked man and sooner or later you (and your firm) will be punished (discriminated against) by a vindictive EPO management. Your clients will be very unhappy about it, if you make the EPO President cross. Can you afford that? What would the other partners in your firm think of you. After careful consideration, it's safer to keep stumm, eh?

And anyway, here we are all much too busy to spare any time for these matters, aren't we?

Anonymous said...

MaxDrei:
> Why nothing from any practitioner organisation except CIPA?

I know some are moving. Below the radar. In close communication with fellow countrymen who have already very clearly expressed their opinions in public.

That's all I can say publically - as an anonymouse.

Anonymous 12:33:
> > Why is the EPI so silent?
> Because many of them want to become BoA ???

I was not referring to tutors and exam folks. I was referring to the board and other delegates of the EPI, the association I have to be a member of to be able to practice before the EPO.

Anonymous said...

In a previous discussion, it was mentioned that one of the members of the epi disciplinary committee supposedly was a former partner in the law firm of the apparently somewhat controversial VP4 of the EPO. Could that be a reason for the apparent silence of epi?

soliman said...

why is the epi so silent?

have you ever heard them on any of the important questions, such as the future of the eqe, the management of the epo, ...?

amici curiae letters is the best they can do. too busy travelling, eating petits fours and telling each other how great they are. pathetic lot.

Anonymous said...

coming back to independency of BoA.

BoA can be seen as a body guarding free competition in acquiring patent Intellectual Property rights, by creating and applying uniform rules to all market players.

In view of that, it seems that BoA should possess a quite high level of independence and should not be bound to decisions of any single-person external bodies.

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