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