The Future of the Boards of Appeal of the European Patent Office: Board 28 to meet

Next week, on 11 February 2015, Board 28 of the European Patent Office will meet.  The only topic on the agenda of the meeting is the reform of the Boards of Appeal of the European Patent Office.

Board 28 is the sub-group of the Administrative Council that is envisaged under Article 28 EPC. Merpel has mentioned this Board before, and some of its members, but has now ascertained its full present membership. The complete composition is currently as follows:

- Ex officio members (only the first two are envisaged by Art 28(2)):

• Jesper Kongstad (DK), Chairman of the Administrative Council;
• Miklós Bendzsel (HU), Deputy Chairman of the Administrative Council;
• Roland Grossenbacher (CH), Honorary Chairman of the Administrative Council;
• Serafeim Stasinos (GR), Chairman of the Budget and Finance Committee;
• Sean Dennehey (GB), Chairman of the Committee on Patent Law;
• Josef Kratochvil (CZ), Chairman of the Technical and Operational Support Committee.

- Members appointed by the Council (envisaged by Art 28(2) and (3)):

• Cristoph Ernst (DE);
• Matti Pätts (EE);
• Habip Asan (TR).

From the fact that the current business distribution scheme for the Boards of Appeal extends only to the end of March, it seems likely that the intention is for a proposal to be decided by Board 28 next week, approved by the Administrative Council in March, and implemented in April. Put another way, whatever the proposed new arrangements are for the administration of the Boards of Appeal, they are likely to be implemented very quickly and with no consultation. Users have certainly not been consulted, and Merpel understands that until now, neither have the Boards of Appeal themselves.

A number of commentators have written about the recent changes to the Service Regulations that were approved in the December meeting of the Administrative Council.  In the new provisions, there does appear to be a justifiable concern that the Boards of Appeal are to become even less independent than they were at the time when R19/12, and the suspension of a member of the Boards of Appeal (see Merpel posts passim starting here and links), gave rise to concerns over their independence.  There is an excellent piece on the EPLaw Blog by Michael Wallinger (left), of Wallinger Ricker Schlotter Tostmann.

Merpel has also received the following analysis.  She is not herself familiar enough with the Service Regulations in their previous and current form to be sure of all of the concerns that it raises, but it does seem that if some of the new provisions are not amended insofar as they relate to Board of Appeal members, then the issues identified are of genuine materiality.  Therefore, she has decided to reproduce the analysis as she has received it.

The new Career System adopted by the Administrative Council in its meeting in December 2014, has a number of elements that have serious consequences for the independence and impartiality of the Boards of Appeal. The new Career System can be found as a CA/D 10/14 at http://www.epo.org/modules/epoweb/acdocument/epoweb2/159/en/CA-D_10-14_en.pdf. 

It is a change in the Service Regulations which define the working conditions for EPO staff. Although it is stated that these regulations only apply “insofar as they are not prejudicial to the independence” of the Boards of Appeal (Art. 1 (4) ServRegs, the new system contains various features that are in fact prejudicial to the independence of the Boards and contradict this article. A few points: 

1. The new system entails a complete integration of the Boards of Appeal in the Office career system. The consequence is a lack of distinction between the judiciary and the executive, with a large number of articles in the revised Service Regulations in which the executive has a specific (final) responsibility over the Boards of Appeal, or an influence on their functioning. 

The functions of members and chairmen are placed in the “technical” career path of the EPO, are therefore seen as a “normal” continuation of the examiner/lawyer path (Art. 3 ServRegs; its Annex I on page 19/28 of CA/D 10/14). No account is taken of the special status of the Boards of Appeal, as described in the EPC, Articles 11(3) and 23 EPC. 

2. Persons appointed to the Boards are subject to a probationary period (Art. 13 ServRegs regarding transfer/promotion/recruitment pursuant to Art. 4 (1) ServRegs). This applies to examiners/lawyers becoming members of the Boards, or external members being recruited as members of the Boards and is in direct breach of Art. 23(1) EPC. 

3. Performance will be measured by appraisal reports (Art. 47a ServRegs). Assessment of performance is a managerial responsibility. Since the members and chairmen of the Boards of Appeal are in the “technical career path”, the only manager available to assess their performance is Vice- President DG3, with as countersigning officer the President, i.e. the executive. 

Promotion depends
on performance 

Any advancement in step or promotion is made dependent “on performance and demonstration of the expected competencies” (Art. 48 ServRegs, Art Art. 49 ServRegs; page 12/28 of CA/D 10/14). Under the old system, Board members and chairmen were not subject to appraisal, so that a new appraisal framework for the Boards should be developed. It is not clear if such framework has been put into place by the Administrative Council (the Boards’ appointing authority), but any disagreement on an appraisal report will still be dealt with by the “appraisals committee” established by the President, i.e. the executive, under Art. 110a ServRegs. 

4. A further point is the independence of the support services, which according to the new system are not distinguished in any way from other support services in the office, although they perform functions of the Boards or confidential work for the Boards necessitating specific skills. With the new career system a competency model has been put into place, determined by the appointing authority (Art. 3(2)(a)(b) ServRegs). It is not clear whether such a competency framework has already been established by the Administrative Council for the Boards of Appeal. It is, however clear that the support staff performing functions of and for the Boards of Appeal have a competency model determined by the executive, their appointing authority, which does not take account of their special situation. 

These are only a few points showing that the new career system results in the Boards of Appeal being supervised by the executive, a situation that is unacceptable for a judicial body. In principle, Art. 23 EPC should offer protection against such a situation. However, there is no sanction when the president or indeed the Administrative Council contravene the EPC. As recent events have shown, already under the old system it was possible for the president to withhold proposals for the nomination of members and chairmen from being submitted to the Administrative Council, and to take over the authorization of expenditure and external activities for members and chairmen of the Boards, thus directly influencing the Boards’ functioning, without the Administrative Council even asking questions, let alone imposing corrections. Under the new system this has not improved; on the contrary, the power of the executive over the Boards of Appeal has been confirmed and strengthened. 

This decision of the Administrative Council is in clear contradiction with its own declaration at the end of the December 2014 meeting, reiterating its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognized principles of judicial independence. While formally support is expressed of the Boards’ independence, in reality measures have been put into place that go directly in the opposite direction. 

One can only wonder what purpose it might serve to strengthen the influence of the executive over the judiciary, with all the possible severe international consequences. 

Merpel hopes that these concerns will be addressed in whatever administrative arrangements the Board 28 comes up with next week.