Developments at the European Patent Office - Parliamentary oversight and lack of it

On Christmas Eve according to the Gregorian Calendar, Merpel posted a round-up and summary of what has been going on at the EPO.  Now that we have come to Christmas Eve according to the Julian Calendar, it seems appropriate to revisit the subject.  There have been a large number of developments over the last couple of weeks, and the IPKat and Merpel have received an enormous amount of correspondence.  There is actually too much for a single post, so Merpel will start with a round-up of brief news, in particular relating to the UK Parliament and the EU Parliament, together with some other snippets.  In her next post, Merpel hopes to delve into the Business Distribution Scheme of the Boards of Appeal, where some interesting facts become apparent, and she will also look a bit more into Board 28.

1) European Parliament Rejects Petition 2848/2013 as inadmissible; not competent to investigate the EPO

Back in November, Merpel reported on and asked whether the EU could investigate the EPO.  Readers may be unsurprised that the answer is "no".  Cecilia Wikström has responded to the Petition 2848/2013 stating that the issue does not clearly fall within the fields of activity for the European Union for which the Parliament is competent, and so the Petition is not being taken further.  You can view the letter here, and download it here [jpg].

Rather oddly, the response suggests that the Petitioner contact the Enlarged Board of Appeal of the EPO; yet when the Enlarged Board protested the suspension of a member of the Boards of Appeal by the President of the EPO, even when this protest was endorsed by external members who are national judges (see here and here), the result was that the Administrative Council simply de facto endorsed the Presidential action.  So it seems hardly likely that writing to the Enlarged Board will achieve anything, and, indeed, there seems no provision in the European Patent Convention that suggests otherwise.

2) More protests to the Administrative Council

The body that is supposed to have oversight of the operation of the European Patent Office is the Administrative Council, made up of delegates from the member states, usually the heads of the respective patent offices.  An ongoing mystery is why this body apparently continues to endorse the reforms and actions of the President that are causing so much controversy.  Protests to the AC continue, however.  The IPKat has received a letter to the representatives of the delegations to the Administrative Council of the EPO sent by the Board of Directors of EPLAW.  You can view the letter here and download it here [pdf].

Merpel considers that most readers will agree that the EPO should follow the provisions of the EPC, but some may quibble with paragraph 7 of the letter which goes further and suggests that the EPC itself does not go far enough to guarantee the independence of the Boards of Appeal.  EPLAW argues that Article 11(4) EPC, which give disciplinary power over members of the Boards of Appeal to the Administrative Council, falls short, and that such power should be with the judicial peers, ie the Boards themselves.  In any case, will the AC actually take any note of such interventions when they do not seem to have regarded the Enlarged Board itself?

3) Parliamentary Answer from the UK

As reported by the IPKat here, the MP for Cambridge, Dr Julian Huppert tabled a question to ask the Secretary of State for Business, Innovation and Skills:

What steps he is taking to protect the independence of the Enlarged Board of Appeal of the European Patent Office.

[Incidentally, while Merpel congratulates Dr Huppert for tabling this question, it would have been better phrased without the "Enlarged"; fortunately, the response addresses the better formulation.]

Yesterday the IPKat learnt that there has been a response as follows:

Officials in the UK Intellectual Property Office are closely and actively involved in discussions relating to the Boards of Appeal of the European Patent Office (EPO), including the Enlarged Board. It is the UK Government position that the Boards of Appeal should be independent of the executive of the EPO, and be seen to be so. This view is shared by other EPO member states and we expect proposals to make this clearer to be considered by the Administrative Council, the Office’s supervisory body, in March 2015.

Cautious Katpat to Her Majesty's Government - if there are indeed proposals to make the independence clearer then the IPKat and Merpel applaud the efforts.  Thanks to several readers who alerted the IPKat to this.

4) Christmas Present from Mr Battistelli to EPO Employees

Finally, Merpel understands that just before Christmas Mr Battistelli wrote to the Chairmen of SUEPO, the EPO Union, threatening disciplinary action should the members who wrote to various EPO representatives suggesting that they cancel oral proceedings during strike action be identified.  She is also informed that in his pre-Christmas circular, he promised that neither the direction nor the pace of reform would be altered in the coming year.  Merpel imagines that this did nothing to calm staff anxiety.  While the treatment of members of the Boards of Appeal caused international outrage, the position of the ordinary employees of the EPO still appears to raise no such widespread concern.

Coming next: What might be the proposals for reform of the Boards of Appeal, and issues concerning their current constitution, appointment, reappointment, and workload.