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Tuesday, 4 August 2015

The AMBA Consultation on the Reform of the Boards of Appeal

Fellow Kat Jeremy briefly reported that AMBA (the Association of the Members of the Boards of Appeal) has launched its own consultation on its proposed new structure of governance for the Boards of Appeal of the European Patent Office.  Now, Merpel has had a chance to purr-ruse the proposal, and would like to share her thoughts.

AMBA: not to be
confused with Amber
The IPKat has already reported that the EPO launched a consultation on its proposed new governance structure for the Boards of Appeal, set out in document CA/16/15.  That consultation closed on 30 June 2015.  There was perceived a need for reform of the current structure for a number of reasons, but chiefly in order to increase the actual and perceived independence of the Boards of Appeal following Enlarged Board of Appeal decision R19/12.  The main feature of the proposal was to set up a new position of President of the Boards of Appeal, to whom certain powers of the President of the EPO would be delegated, and a Board of Appeal Committee (BOAC), to be composed of seven members, with three being members of the Administrative Council and four being external members to be chosen by the Council from among presidents and/or senior judges of national, European and international courts upon proposals from the delegations.  AMBA, the Presidium of the Boards of Appeal, the European Patent Lawyers Association and the Council of Bars and Law Societies of Europe, among others, have all commented on these proposals (reported by the IPKat here and here).  The EPI (the Institute of Professional Representatives before the European Patent Office) has also commented and provided its own proposal.  In the comments, the legitimacy of the proposed transfer of powers from the President of the EPO to the President of the Boards of Appeal has been questioned, and the constitution and proposed function of the BOAC has also led to doubts.  Moreover, the conflation in document CA/16/15 of the independence of the Boards of Appeal with their efficiency and the management of conflicts of interest of Board members has led to adverse comment.

The new AMBA proposal, dated 18 June 2015, reiterates the earlier concerns, but then takes the further step of proposing alternative possible reforms to the structure and governance of the Boards of Appeal in order to increase their autonomy.  It is a detailed and considered document.  The main feature of the proposal is to have, in place of the proposed BOAC of CA/16/15, a different body, called (for the sake of nominative differentiation) the "Senate of the Boards of Appeal", that would have external members (in the same way as the proposed BOAC), but, importantly, would include a majority of Board of Appeal members.  This would integrate better with the already existing "Presidium of the Boards of Appeal", whose residual function under the CA/16/15 proposal was unclear and seemed rather limited.  AMBA's proposals are analysed with reference to accepted standards for the governance of the judiciary, embodied in the Burgh House Principles on the Independence of the International Judiciary, and the Council of Europe recommendations on the judiciary CM/Rec(2010)12,  "Judges:  independence, efficiency and responsibilities".
The section of the AMBA website with the consultation (http://www.amba-epo.org/reform) also has useful background materials (see menu on the right hand side), including the background and key issues, a summary of the CA/16/15 proposal, a summary of the AMBA proposal, a summary of the EPI proposal, and a comparison table of these different proposals.  There is also background information on each of the areas covered by the AMBA consultation (which mirrors the structure of the EPO consultation), such as efficiency, conflicts of interest, and appointment and re-appointment of Board of Appeal members.
Readers are of course very welcome, nay encouraged, to comment here, but it will be of more benefit to the world of IP in general to respond to AMBA at http://www.amba-epo.org/reform.  There is no specific deadline for response, but Merpel believes that the reform of the structure of the Boards of Appeal will be discussed at the Administrative Council meeting in December, so it would assist AMBA to have feedback in good time before then (Merpel has also noticed an additional meeting of the Administrative Council "to be confirmed" on 15 September, and is not sure what this will be for, but she does not understand it to be to consider CA/16/15.)

As ever, Merpel welcomes comments, but begs to remind readers of the following:
Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).   The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning of the comment itself (for example, start your comment with "Descartes says: You forgot one point ..."). This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.

9 comments:

Anonymous said...

The 15 September Council meeting deals with the disciplinary case against a BOA member.

Old man of EPO said...

Isn't 15th September connected with the disciplinary case involving a member of the BoA?

Anonymous said...

Black Sheep writes:

It is significant for the present situation of the Boards of Appeal that the proposal for their reform was developed without their participation. Apparently this is why the Presidium and AMBA hat to choose their own forum in order to influence the restructuring process via the public.
The President’s proposal boils down to partly replacing the undue influence of the administration on the judiciary by an undue influence of the Administrative Council which is dominated by the President. As far as the Boards of Appeal are concerned, the lack of control of the President by the Administrative Council is illustrated in particular by
-The continuing power of the Investigation Unit to check the communication means of the Board members (e-mail, telephone, copying machines);
-The continuing policy of not replacing retired members. As reported last month in the EPLAW blog, this means already at present that 10% of the posts of technically qualified members and 20% of the posts of legally qualified members are not occupied, with 3 Boards without chairmen. The situation will rapidly deteriorate since no selection procedures are pending for present and future vacancies. This act of reprisal against the Boards immediately following R 19/12 is going to severely damage the proper working of the Boards.
All this shows that the concern about the Boards’ efficiency alleged by the President with misleading figures is only a pretence for maintaining control over the Boards. Creating an independent judiciary by realizing a clear separation of powers is not the Presidents intention.

Calendar watcher said...

The extraordinary meeting has been provisionally scheduled for 15 September.
http://www.epo.org/about-us/organisation/calendar.html

But it has not yet been confirmed ... watch this space ...

Fafnir said...

Q: What's the worst thing for a control freak?
A: It's to find something is not under his control.

This lack of control must be remedied, and this is precisely what is going to happen to the Boards; objections as to lack of separation of powers etc. are just so much poppycock and shall be ignored.

Anonymous said...

http://www.epo.org/law-practice/case-law-appeals/recent/d120006eu1.html#q=%22D%200006%2F12%22

Sally Cooper said...

Sorry - but AMBA to me still refers to Association of Masters of Business Administration. Enough that (it seems) anyone can claim .MBA - so SALLYCOOPER.MBA - without (to my way of thinking) this other AMBA!

Calendar Watcher said...

"Extraordinary" news from the EPO

The "extraordinary" session of the AC scheduled for 15th September seems to have been cancelled.
http://www.epo.org/about-us/organisation/calendar.html

Meldrew said...

"AC scheduled for 15th September seems to have been cancelled"

Or just moved to October to stay next to the SC meeting that moved?

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