EPO NOT BOUND BY HUMAN RIGHTS CONVENTION

The Court of Session, Scotland, has ruled that the operation of the Boards of Appeal of the European Patent Office is not subject to the European Convention on Human Rights and that, accordingly, decisions of those Boards are not open to review under that Convention even if their alleged effect is to deprive a patent owner of his property without giving him the opportunity to challenge the decision. This ruling, in ITP SA v Coflexp Stena Offshore Ltd, follows a sequence of events that make grim reading for any patent owner. Things started off well for ITP, when its patent was initially held valid by an EPO Opposition Division and was then held valid and infringed by Coflexip in proceedings before the Scottish courts. The patent was then held invalid, as a result of proceedings before the EPO's Board of Appeal that were strongly criticised in terms of their propriety.

The Court of Session cited with approval the decision of Jacob J. in the Patents Court in Lenzing AG's European Patent (UK) [1997] R.P.C. 245, where he said:

"This country has agreed with the other State members of the EPC that the final arbiter of revocation under the new legal system is to be the Board of Appeal of the EPO. Other States would be justly entitled to complain if we in this country were to ignore such a final decision ... The suggested course would be to: 'hijack an organisation to which [one sovereign State] and other States had given birth and subject it (contrary to the treaty terms) to its own domestic jurisdiction' per Bingham L.J. in Arab Monetary Fund v Hashim (No 3) [1990] 2 W.L.R.139 at page 164. One can put the matter another way: the EPO has an internal legal system of its own. This follows inherently as a matter of course from its own structure as an international organisation. And it is made explicit by Article 1. ...

Suppose the position were otherwise. Then so far as I can see there would be no limit on collateral attacks on decisions of the Board of Appeal... A party would be able to say that a Board had gone wrong to the extent of an excess of its powers for any of the kinds of reason set forth in that question: procedural misfeasance, error of law (including both misinterpretation of the Convention or a misreading of a patent claim or the prior art) acting in the absence of any evidence and so on might all be said to be otherwise than in accordance with the Convention. Parliament cannot had intended by those general words such a breach in the 'common system of law' created by the Convention".

The IPKat thinks this must be true. Yet it seems anomalous that the national patent laws of European's various nations must all operate in accordance with principles of human rights while no such check is placed upon the operations of the European Patent Office itself.

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