Interest in unlikely sources - the Business Distribution Scheme for the Technical Boards of Appeal

Following on from yesterday's post, Merpel has been alerted to intriguing conclusions that can be drawn from a detailed study of the Business Distribution Scheme for the Technical Boards of Appeal.  Merpel is very grateful indeed to a correspondent who provided the following analysis.

This fascinating document is issued at the beginning of every year by the Enlarged Presidium of the Boards of Appeal* and is a plan which essentially sets out which cases, according to their international classification, are to be handled by which Technical Board of Appeal. It also sets out ("designates”) how the various Technical Boards of Appeal are to made up, namely with the Chairman, the technical members and the legally qualified members. The actual appointments of people as chairmen, technical or legally qualified members is a separate matter: these are made by the Administrative Council on a proposal by the President.**

Left to right: two technical members, one legal member ...
The usual panel of a Technical Board is made up of a technically qualified chairman, four technically qualified members and two or three (sometimes even four) legally qualified members. A less common type of panel is made up of a legally qualified chairman and four technically qualified members (no need for any additional legal members). These numbers are not laid down anywhere but have been found to work well in practice. The numerical make-up of a Technical Board for any particular appeal is laid down (Article 21 EPC) and is in almost all cases two technical members and one legal member, all taken from the panel.

The scheme often shows the dates during the coming year when someone will be retiring/leaving a Board, and also the names and dates where already-appointed persons are joining the Boards.*** Also, the scheme is often amended from time to time during the year, as other appointments become known or other retirements become known.  Sometimes, according to the Business Distribution Scheme, a Technical Board appears to be under-strength, but that the reason for this is usually that someone has retired and their replacement has not yet been confirmed by the Administrative Council and so cannot be named in the Scheme.

Bearing these considerations in mind, readers may now notice the following things about the Business Distribution Scheme which has been published for 2015:

(1) The scheme is only stated to be for the period ending on 31 March 2015. You will never have seen this before: previously, plans have always been for the whole calendar year (even if later amended).

(2) There are two Boards, namely Boards 3.4.02 and 3.5.01, where the post of chairman is stated to be vacant. The former chairmen of these Boards, namely Andre Klein and Stefan Wibergh respectively, both technical members, retired on 31 December 2014. In previous years, where a chairman has retired at the year’s end, or shortly afterwards, his/her successor has been appointed in good time and is named.***

(3) Readers will also notice that there are six Technical Boards (3.2.03, 3.2.04, 3.2.06, 3.3.01, 3.3.08 and 3.5.07) which are under strength, namely with only three rather than four ordinary technical members. Taken with the two Technical Boards which have no chairman (above), this means that eight out of a total of 28 Boards are under-strength. While, as noted above, there is sometimes apparently some shortfall, nothing on this scale has ever been seen before.

Readers may now also recollect, although you probably did not give it much thought at the time, that, rather unusually, no appointments of any new chairmen or any new members of the Boards of Appeal were made at the meetings of the Administrative Council in October or in December, as would usually have been the case (at the December meeting, only some renominations were made, i.e., renominations of Appeal Board members whose five-year term under Article 23(1) EPC was running out).

Even the renominations in the December AC meeting, announced in the 12 December Communique, were, Merpel understands, only those for members whose term would expire before the next AC meeting.  According to Article 11(3) EPC, second sentence **, these re-appointments require only the consultation, not a proposal, from the President.  Previously, these re-appointments have been confirmed well in advance of the 5-year deadline.  What is the cause, or intended effect of this brinkmanship?  A worrying but plausible conclusion is that it is to make the Members concerned more biddable as their term comes up.  Any such pressure, whether subtle or overt, would of course completely conflict with accepted principles of judicial independence.

*Rule 12 EPC:
“(1) The autonomous authority within the organisational unit comprising the Boards of Appeal (the "Presidium of the Boards of Appeal") shall consist of the Vice-President in charge of the Boards of Appeal, who shall act as chairman, and twelve members of the Boards of Appeal, six being Chairmen and six being other members.
(4) Before the beginning of each working year, the Presidium, extended to include all Chairmen, shall allocate duties to the Boards of Appeal. ... The extended Presidium shall designate the regular and alternate members of the various Boards of Appeal.”

**Article 11(3) EPC
"The members, including the Chairmen, of the Boards of Appeal ... shall be appointed by the Administrative Council on a proposal from the President of the European Patent Office. They may be re-appointed by the Administrative Council after the President of the European Patent Office has been consulted. "

*** A good example can be seen in the Business Distribution Scheme for 2014 as regards Board 3.3.04

Coming next:  Proposals for the Reform of the Boards of Appeal
Interest in unlikely sources - the Business Distribution Scheme for the Technical Boards of Appeal Interest in unlikely sources - the Business Distribution Scheme for the Technical Boards of Appeal Reviewed by Merpel on Wednesday, January 07, 2015 Rating: 5


  1. This is shocking and a clear sign that the EPO has failed to recruit and train the best people in recent years, such that there are no clear candidates to replace the present high-quality Board members who came through the system when examiners were more able, diligent and put the interests of those affected by the patent system (patentees and third parties) ahead of other concerns.

    I wish the current President well in fixing the system that is now so clearly broken.

  2. We live in an age where words are routinely devalued, one of them beiung "outrage" and another being "scandal". But when EPO management plays fast and loose, to make "biddable" the judges who routinely decide validity of patents for 40 European states, i think that is an outrage and a genuine scandal.

  3. This analysis confirms the real intentions of Battistelli. He can do it because he faces no resistance from the Vice-President of DG3 who is one of his servants. The former VP would have gone mad. And rightly so.
    If Battistelli dares this with the Boards can you imagine what he does at other levels, i.e. DG1 , DG2, DGs 4 and 5? Pure terror and intimidation.
    Can this ensure a smooth functioning?
    Those who did not want to see this coming should now open their eyes and begin to act as brighter mind do under constant threath of disciplinary measures and investigation.

  4. Anon 08.43 said "This is shocking and a clear sign that the EPO has failed to recruit and train the best people in recent years"

    Or perhaps there are well-trained candidates available, but the Administrative Council cannot appoint them because Article 11(3) requires Battistelli to propose them first, and he is failing to do so?

    If so, then the AC should get a grip with Battistelli. They want him to reduce the EPO's unacceptable delays. He tells them that his aggressive policies are aimed at that. Yet some of the longest delays in the EPO occur in the appeals process. Failure to appoint sufficient staff to man the Boards of Appeal is not designed to reduce delays.

  5. Hhhmm, 3-5-01 has no chairman seems to be quite the mystery. It was, historically, the main board for software decisions though now seems to be more concerned with business method cases. As for 3-5-07 being understaffed, again not a good sign for those who deal with software based applications.

  6. There have been no adverts internally for board positions recently. A colleague did get a post last year but BB did not put it to the AC so he has not started. Why? Who knows...

  7. 1107.
    Indeed some of these posts were with closing date in 03/14 and there have been no posts listed since. Assuming they're were no suitable candidates(?), that surely leaves time to widen the scope (externally?) or re-list the posts.

  8. Supremely relaxed about multiple unfiled posts in DG3, is it?

    Anybody would think that the President is not bothered by ever-growing case pendency. But that can't be, can it, for that would flatly contradict the message he is giving the world in his energetic international advocacy in support of the painful medicine he is obliged to administer to his beloved EPO.

  9. Look at the 2015 Membership List of Board 3.5.04. One named member has been "exempt" since 01.07.14. Who will explain that to us?

  10. 0843,
    Of course causing the system to break further is a sure way to get your own plans through?
    The lack of recruitment or contract extension /renewal is a handy means to simplify any changes which will be clear at AC in March 15. Rumours abound but what reason could there be for systematically not filling vacancies? No need? Alternative candidates who wouldn't meet current rules? Plan to replace those who don't agree to new scheme? New contract to be signed after March? The most obvious is that the EPO has no benefit on giving BoA members a renewal of their current contract of it isn't totally necessary i.e. changes are to be expected.

  11. "Of course causing the system to break further is a sure way to get your own plans through?"

    Look up false flag operations.

    This is decidedly NOT a new trick...

  12. Regarding the question if there were no suitable candidates or no proposal form Batistalli to the AC, from the way the business distribution scheme is worded, my conclusion would be the latter. Please note that the BDS has only been prepared for the unusual period of only three months. Also the fact that the empty posts are not indicated as usual as N.N. but rather as "vacant" is a sure sighn that suitable candidates had been selected but that Batistelli refuses to propose them to the AC. In fact I heard more than rumours that such is the actual case. Now if the president of the EPO can do this, it is in fact the president, not the AC who decides on the nomination of new members and chairmen of the BoA. How is that for independence??? As to what the motivation behind hindering the proper functioning of the BoA might be, one can only wonder......but the notion of revenge does come to ones mind.

  13. Breaking the system may have dear consequences in this case. After all, the Community Patent as well as the TRIPS agreement depend on the presence of a judicial = independent body. Now that it becomes clearer and clearer that the EPC does not guarantee the indpendence of the BoA, the EPO cannot be seen as providing the required judicial body, so that the institution does not qualify for either of the Community Patent or the TRIPS agreemtn. Does the AC realize these consequences of their lack of control? Is it their intention? Or incompetence? Or don't they simply care?

  14. it reminds me:

    some years ago, in Hungary, a retirement age of national judges was lowered, what allowed a significant rotation of judges within a short period of time. it led to the CJEU case Commission vs Hungary.

  15. The number of vacancies for Board Members posted on the EPO website last year was extremely low in comparison with 2013. Strange indeed...

  16. In order to receive said bonus (of 20 million €) BB needs to reduce costs.

    Clearly the Boards of Appeal are expensive and cost more than all appeal fees imposed by the EPO.

    Thus, it is a very likely aim of BB to separate the Boards of Appeal from the EPO (of course also in a financial manner so that the Boards will have their own budget responsibility and will need their own financial sources) or at least to reduce the man power within the Boards of Appeal.

    Therefore, it is a logical and understandable approach not to reappoint vacant Board member posts.

  17. Maybe there are the competent people but not the appropriate ones for BB: French speaking BB's apple polishers.

  18. Apparent lack of internal good candidates => obvious need to recruit from external sources.
    From .... which western European country where cheese rhymes with damages?


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