Disciplinary authority over the EPO Boards of Appeal: a former member speaks

A Cat speaks ...

The events that unfolded in the European Patent Office (EPO) in Munich in December 2014 have been extensively covered by Merpel on this blog, and have attracted many comments.  Almost the entirety of the internal members, and many (here and here) of the external members, of the Enlarged Board of Appeal wrote in protest at the so-called "house ban" imposed on a member of the Board of Appeal, referred to by the administration as a "member of staff". The actions of the administration were also criticised by many European judges in a letter from Sir Robin Jacob.  The Kats are delighted to receive this legal analysis of the situation from Catarina Holtz, a former member of the Boards of Appeal of the European Patent Office.  Catarina writes:

"The altercation at the EPO in December 2014 concerned a member of the Boards of Appeal who was ousted without any further ado by the President. This action was subsequently condoned in a suspension decision by the Administrative Council. 

In legal terms this is a borderline case with regard to Article 23 EPC 2000, which gives the power to remove members exclusively to the Enlarged Board of Appeal. The word “removal” suggests permanent severance from the position of member, but an action with no previous preparation should be avoided. 

Article 23 is part of the necessary self-management of a court, in keeping with the European Convention of Human Rights, Article 6 (which deals with the rights to a fair hearing and a fair trial, and primarily to a court of law). Under Article 10(2)(h) EPC 2000, the President has the power to exercise disciplinary authority over employees. However, with regard to senior employees he only has the function  to propose disciplinary actions, which are for the Administrative Council to decide upon. This rather suggests that the President cannot take action without a previous decision by the Council. Where it may be dangerous to delay, there might be a margin for actions by the President -- but this is not in keeping with the organisation of a court, where the chief of the court would have the right and function to discipline colleagues, possibly with the help of a group of colleagues (for example, as in the EPO, the Enlarged Board of Appeal). 

Decision R 19/12 means that the system in place, with the Boards of Appeal as part of the European Patent Office, is deficient in that the Boards of Appeal are not considered a court. The agreement proposed for the forthcoming European Unified Patent Court is a highly commendable model: it provides for the Boards, e.g. to be a separate body, and to have a transparent recruiting organisation, introductory education of new members and self management by the judges themselves as well as re-education during their tenure in the court and a well organised system for removal from office. Germany and Sweden have both operated such a system for several decades, with a separate patent appeal instance. This should now finally be done for the Boards of Appeal of the European Patent Office."

Catarina Holtz, LLD, SSE, Stockholm (Retired appellate judge, Svea Court of Appeal Stockholm, retired member of the Boards of Appeal of the EPO)

The IPKat and Merpel thank Catarina for her comments, adding that it is always a pleasure for the Kats to entertain a Cat ...