The suspension of a Board of Appeal member by the EPO President, under the guise of a "house ban", reported here, has generated enormous disquiet, not only among bloggers, attorneys and EPO union officials, but now also within the Enlarged Board of Appeal.
The Enlarged Board’s letter strongly argues that the suspension was not validly imposed: the authors don't suggest that Board members are above disciplinary procedures ("independence does not imply immunity"), but they do say that neither the President nor his Investigations Unit have the required authority to suspend a Board member. They also note that the computer belonging to the Board member was confiscated, thereby giving office staff access to possibly confidential information about ongoing cases.
The Enlarged Board members express their concerns about the turn of events, saying:
The actions of the investigation unit on the orders of the President also appear to be a clear challenge to the judicial independence of the Boards of Appeal.
They urge the Administrative Council to take action and bring Mr Battistelli into line, stating that:
What is needed is a clear limitation on the executive power, as far as the Boards of Appeal are concerned, in situations like the present, so as to avoid any impression of undue influence on their judicial work, contrary to the independence requirements of Article 6 of the European Convention on human rights.Merpel cannot remember any such internal EPO dispute spilling out into the public domain with such vehemence. The letter from the Enlarged Board should dispel any preconceptions that the current troubles at the EPO and the complaints about Mr Battistelli are confined to a few disgruntled examiners looking to protect their cushy jobs (a view she has heard from several quarters).
Merpel wishes to note in passing that she has also been provided with a translation of a letter from Dr. Tilman Mueller-Stoy, a Partner in the renowned Bardehle firm, addressed to Christoph Ernst, the main representative of the German delegation to the Administrative Council. To do that letter justice she will return to it in the morning, but notes in the meantime that Florian Mueller's FOSS Patent blog has posted a copy with his comments here.
Breaking News: Enlarged Board appeals - direct to the Administrative Council Reviewed by Merpel on Monday, December 08, 2014 Rating: