Extraordinary news has just reached Merpel.
Today was the day fixed for the Oral Proceedings before the Enlarged Board of Appeal in which the Administrative Council of the European Patent Office was seeking a proposal from the Enlarged Board for the removal from office of a Board of Appeal member. Under Article 23 EPC, only the Enlarged Board can make such a proposal, and without it, a BoA member cannot be removed from office. Amazingly, this was the third set of such proceedings; two previous cases in respect of the same matter had been concluded with no admissible requests made by (or, more strictly, on behalf of) the Administrative Council. Merpel says "on behalf of" because it appears that it is employees of the European Patent Office, technically employed by the President as their appointing authority, who are acting on behalf of the AC in this matter. (For the background of this case, see the first section "Boards of Appeal - disciplinary case" of Merpel's post here).
Today's hearing was not published on the Oral Proceedings calendar of the EPO, but there were notices announcing the hearing placed around the EPO, which indicated that the Oral Proceedings were public. Article 12a of the Rules of Procedure of the Enlarged Boards of Appeal, setting the rules for proceedings under Art 23(1) EPC, states:
(9) Unless and to the extent that the Enlarged Board decides otherwise, the proceedings shall not be public and shall be confidential.
Clearly, then, the EBA had decided to make the Oral Proceedings public. Merpel can only surmise that this must have been with the agreement of the Board of Appeal member concerned.
Now, Merpel has heard a couple of reports of what happened today. Apparently, despite the notices, in fact for the beginning of the hearing the public was in fact excluded. Merpel understands that the reason was that the President had written to the Enlarged Board in an attempt to stop them from making the proceedings public. Merpel is then told that the proceedings continued in public - the EBA stated that they had received a threatening letter from a non-party to the procedure (presumably the President), and asked "the petitioner in its quality of the members' appointing authority to distance itself from the threats in that letter" (see comment here at 17:54 today). [Edit 21.40] Merpel understands from this and later information that the EBA asked the Administrative Council (the petitioner) through its Chairman to distance itself from the President's letter, which the AC Chairman did not do to the EBA's satisfaction.
Merpel then understands that the EBA considered that it could not continue under these circumstances and closed the case without proposing removal from office of the Board member concerned.
Will this be the end of the disciplinary case? Merpel does not know. She presumes that any semblance of due process does not allow an unlimited number of attempts to prosecute the same matter, and three seems quite a lot. But as ever in the EPO at the moment, who can say?
Merpel finds such an attempt to nobble persons acting in a judicial capacity, as here, even over a procedural matter, quite outrageous. It increases the suspicion that the President's proposals to reform the structure of the Boards of Appeal is aimed at perception of independence (window-dressing such as the physical location) while decreasing actual independence (removing security of tenure and removing from the Presidium of the Boards of Appeal the right to determine their own rules of procedure).
Concerning the proposed reform to the Boards of Appeal, the latest proposals are due for consideration by the Administrative Council at the end of the month. AMBA - the representative body of the Board of Appeal members - has criticised the proposals, adding to earlier concerns expressed by AMBA and the Presidium of the Boards of Appeal (which you can read here). AMBA states:
In the Boards’ view, if this proposal is adopted in its present form, it will inevitably result in further challenges before constitutional courts and before the Enlarged Board as in R 19/12.
In our view, it would be far better to reject this proposal and accept that the problem underlying R 19/12 has in fact already been resolved by the Vice-President’s withdrawal from management activities.
Merpel completely concurs.