Ignore the Enlarged Board, EPO President tells Administrative Council

File under 'F'
for 'Fiction'

In the lead-up to this week's European Patent Office EPO) Administrative Council (AC) meeting, the AC delegates have received an extraordinary communication from the EPO President, Benoit Battistelli. In it, he asks the AC to disregard a key provision of the European Patent Convention, and to bypass the Enlarged Board of Appeal (EBA) which he accuses of not properly carrying out its duty. The background to this is the "House Ban" saga (summarised here: briefly it concerns a Board member who was accused late last year of disseminating defamatory materials and subsequently suspended; readers may recall that the AC called in December 2014 for an investigation of this matter to be completed "as soon as possible"). In June of this year the Enlarged Board was asked by Mr Kongstad, Chairman of the AC, to propose dismissal of the Board of Appeal member. As judicial figures, EPO Board members are given special protection in the European Patent Convention. Article 23 contains a dual safeguard, in that removal from office can only be decided on by the AC -- and even then only when this dismissal has been proposed by the EBA:

Article 23

Independence of the members of the Boards

(1) The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. Notwithstanding sentence 1, the term of office of members of the Boards shall end if they resign or are retired in accordance with the Service Regulations for permanent employees of the European Patent Office.

This dual safeguard is not accidental. The involvement of the EBA was deliberately inserted into the procedure by the drafters of the EPC to prevent “arbitrary compulsory dismissal by the Administrative Council”. For this reason the EBA was deemed a necessary safeguard to protect judicial independence and to prevent dismissal except when the EBA and the AC were of one mind.

So, if the AC were to dismiss a Board member without having received a proposal from the EBA, this would plainly fall foul of both the letter and the spirit of Article 23. This is why it is so extraordinary that Mr Battistelli is urging the AC to do just that at this week's meeting. His memo exhorts the AC to ignore the Enlarged Board, to bypass Article 23, and to fire the Board member without the EBA's further involvement or consent.

The final straw, which drove Mr Battistelli over the edge (constitutionally speaking, you understand), is that on September 17 the EBA rejected as inadmissible the request put to it by Mr Kongstad to make a proposal for dismissal. The EBA has not yet communicated its reasons for finding the request inadmissible, but Mr Battistelli does not need to wait for the reasons to conclude that the EBA has failed in its duty and rendered itself superfluous to the process. 

By not complying immediately with a "simple and obvious request", says Mr Battistelli, the EBA has failed to “fulfil its institutional and administrative role”. He writes further that rejecting a request as inadmissible was not a course of action open to the EBA (how the Enlarged Board members must wish Mr Battistelli was present at their deliberations so he could have set them straight on their duties and powers there and then). He helpfully if inaccurately tells the AC that the EBA was “set up to review decisions relating to the patent granting process and not as judiciary authority over the Council. The decisions of the Council in personal [sic] matters can be reviewed exclusively by the ILOAT in Geneva.”

File under 'L'
for 'Law'

These arguments are remarkable on two fronts. The first is that they are so clearly wrong. For example, taking his contention that the EBA is only competent to "review decisions relating to the patent granting process", clearly the Enlarged Board's mandate is broader than this narrow description. In Article 23, the drafters of the EPC explicitly granted the EBA a role outside the narrow patent granting process, and even more specifically as a bulwark against incorrect dismissals of Board members being made by the AC. The second reason that the arguments are remarkable is that the President of the EPO has set himself in direct opposition to the EBA's judicial independence, and wants to lead the AC into the same polarised position, hoping that the AC will sideline the EBA. But what would the consequences be if the EBA were to be undermined, in line with the President's wishes? Might this not render untenable the position of EBA members if their authority is explicitly challenged by both the President and the AC?

The net result of the EBA finding the request inadmissible, Mr Battistelli says, is that it reveals a “dilemma between Article 23(1) EPC, Article 11(3 and 4) EPC as well as Article 10 EPC”. Is there really a dilemma here? Mr Battistelli appears to be using the term dilemma to mean a conflict between provisions of the EPC. But there's no conflict. It's merely the case that the EBA is independently examining a request submitted to it, as the drafters of the EPC envisaged, and this independence is not to the President's liking (note: he is not actually a party to this procedure at all.) 

Should everyone concerned take a collective breath, examine the legal provisions, wait to hear from the EBA, and see if the dilemma exists and/or can be resolved? Hell, no, says Mr Battistelli, there's no time for any of that. I've spotted a hitherto unknown dilemma and we have to fire this Board member right away. We can't wait for due process with so much at stake.

Memo to Mr B:
Merpel is watching you

Of course Merpel is paraphrasing somewhat for dramatic effect, but Mr Battistelli's position is that the AC must act, and act swiftly. The dilemma he identifies must be resolved "by recourse to general principles of law, in particular good administration of justice, due process for all parties concerned, protection of the integrity of the institution and the individuals as well as the good functioning of the Organisation and of the Office." Taking all those factors into account, he identifies a surprisingly simple solution: “the Council should take a decision on the employee in its quality as sole appointing and disciplinary authority according to Article 11(3 and 4) EPC.” A less politically acceptable way of saying exactly the same thing is: the Council should refuse to follow the procedure envisaged under Article 23 EPC, and take a decision without the co-operation of the Enlarged Board of Appeal.

The decision which Mr Battistelli believes the AC should take, needless to say, includes dismissal. But Mr Battistelli is of the "firing is too good for 'em" school of thought. He suggests that the disciplinary committee were far too indulgent in recommending mere dismissal. The AC, he advises, should also reduce the pension of the soon-to-be-ex-Board member by one-third. Pour encourager les autres, and all that.

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Merpel wonders how the Organisation can survive undamaged if the AC sides with the President and against the EBA on such a black-and-white legal issue. She wonders how the Administrative Council can survive undamaged if it contravenes the EPC, merely to show support for its embattled appointee as President.

More fundamentally, the President's proposal urges the AC to assume powers which the drafters of the EPC explicitly did not entrust to the AC alone. The AC only exists by virtue of the EPC; that document is the constitution under which the Administrative Council, President and Boards all must function. Once the AC decides to ignore or bypass inconvenient provisions of the EPC, they send a signal that the law is subservient to the internal politics of the Office.

Quite apart from the question of Mr Battistelli’s legal credentials versus those of the EBA members, Merpel wonders if the AC ought to be taking legal advice from someone who has a dog in the fight, so to speak. 

She hears that Mr Battistelli’s memo caused grave disquiet to at least some AC delegates. The course of action urged on them by Mr Battistelli was so unsettling that the AC reportedly commissioned an eminent professor of law to provide an independent opinion on the legality of Mr Battistelli's proposal. This expert's advice is rumoured to be unequivocal: dismissing a Board member without a proposal from the EBA is not legally permissible. Where the AC goes from here is anyone's guess.

Stepping back for a moment (never a bad idea when one is on the brink of a momentous decision), Merpel wants to put this crisis in context. What's at stake here is the relationship between the institutions of the European Patent Organisation and the credibility of the AC to work within the EPC. And why is the Organisation and its reputation being put at such grave risk? Is the Office facing an existential fight for existence that justifies throwing caution to the wind? No, this is all being proposed simply so that a single employee can be fired, to remove an irritant from under Mr Battistelli's skin. From that perspective, the actions urged, namely contravention of the EPC and undermining of the EBA, seem entirely disproportionate and bizarre.

Merpel suggests the AC ought to politely thank the President for his memorandum and place it to one side, perhaps weighing it down and covering it with a copy of the EPC for emphasis. Then the AC should await the Enlarged Board's written reasons, and if it wishes to refer the matter again it can do so, avoiding whatever defects caused the inadmissibility of the initial request. If the EBA ultimately proposes dismissal, then the Board member will go; if not, then that's the outcome of the due process and so be it. In the meantime, Mr Battistelli might usefully be urged to return to the Office with a directive to spend more time building bridges and less time wiring them with dynamite.