The Alicantation of the European Patent Office

News is coming in thick and fast from the European Patent Office, and so Merpel once again finds herself gracing the pages of this blog (following earlier posts here, here and here).  This time, a kind Katfriend has pointed Merpel in the direction of a most fascinating article on the website of the German magazine JUVE.  It is in German, but Merpel found that Google translate did a pretty wonderful job.  (Other online translation services are available.)

The last paragraph of this article reported the suspension of the Board of Appeal member that was reported by the IPKat yesterday.  That report in turn caused some confusion among readers, and so it seems now necessary to clarify that the suspension of the Board of Appeal member, which reportedly happened on 3 December 2014, for alleged suspicion of spreading libelous comments, is a different event from all of the following:

• The suspension of a patent examiner who was also a former member of the Internal Appeals Committee (IAC) that handles internal disputes, working in Munich, that apparently happened in October.
• The reported suspension of another former IAC member, who worked in The Hague office, and was allegedly suspended last month.
• The departure of the head of communications Oswald Schröder in October.  UK readers may be familiar with Private Eye "Curse of Gnome" - perhaps here there has been a "curse of Merpel", as only a couple of months previously Oswald Schröder had written to the IPKat "Should you wish to cross check facts in the future, feel free to contact me".  Alas that is no longer possible.

Merpel has also heard that this latest event, the suspension of a Board of Appeal member, is being protested by the Enlarged Board of Appeal to the Administrative Council (who meet next week - Merpel repeats her encouragement to write to the representative of your country if you wish to make your views known).

Returning to the JUVE article, some semblance of a plan emerges.  It seems that the President of the European Patent Office does not like having independent Board of Appeal members, and would like the Boards of Appeal fully integrated into the EPO structure and under the control of the administration.  This is of course the complete opposite of the "initiative to make the independence of the boards of appeal more visible and to revise the European Patent Convention accordingly" which is what Merpel understands the Board of Appeal themselves to have wanted.  That initiative has completely stalled under the present regime.

The plan to subsume the Boards of Appeal into the EPO management structure was termed in the JUVE article "Alicantisierung" - a lovely term that Merpel will translate as "Alicantation".  That is, to make the EPO administratively resemble OHIM.  This includes having the Court of Justice of the European Union as an appellate court from which an appeal from decisions of the EPO Boards of Appeal would lie.  As any fule kno, OHIM is an EU body and so naturally is the CJEU, while the EPO is not.  It seems hopelessly fanciful to imagine that the non-EU contracting states of the European Patent Convention, such as Switzerland, Norway and Turkey, would consent to the CJEU arbitrating their affairs.  There are other problems:

• The OHIM organisational setup means that there are 4 instances available in every case (first instance, OHIM Boards of Appeal, General Court, CJEU), which denies rapid access to justice.  Patentees and Opponents are hardly likely to welcome this for patents as well.
• The CJEU has hardly distinguished itself in the IP law that currently comes under its remit, such as trade marks, designs, and supplementary protection certificates.  
• The Unitary Patent proposal and Unified Patent Court agreement were designed to give the CJEU as little substantive competence as possible, so states are hardly likely to welcome the handing over to it the judgment of substantive patentability.

If it indeed be true that the Administrative Council will discuss such a plan next week, it will be a groundbreaking meeting.

Some commenters on earlier posts have questioned why any of this matters.  The IPKat considers that it is in the interests of all users of the patent system - applicants, patentees, third parties and opponents - that cases are dealt with by examiners and appellate bodies independently and according to the merits of the case alone.  The separation of powers envisaged by the EPC is designed to ensure that, and, when that independence is undermined, we should all be concerned.  In addition, as other commenters have pointed out, if the EPO Boards of Appeal are not considered sufficiently independent, the whole EPO setup could be considered unconstitutional by some countries such as Germany, who would then be forced to withdraw from the European Patent Convention altogether.