The Boards of Appeal of the European Patent Office are to be reformed -- but how?

In yesterday's post, Merpel looked at the current Business Distribution Scheme of the Boards of Appeal of the European Patent Office.  We know that the current organisation of the BoA is to be reformed.  But how to achieve this objective remains pretty much a complete mystery.  In this post, Merpel focuses on what we know about the imminent reforms and, equally importantly, how much we don't know, but should.

(1) How do we know that reform of the Boards of Appeal is planned?

Well, first and most unarguably, Mr Edward Vaizey (right), who is the UK's Minister of State (Business, Innovation and Skills) (Digital Industries), stated in his answer to the written question tabled Dr Julian Huppert MP the following:
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.
This states quite clearly that the AC will consider proposals for reforms of the BoA in March.

Moreover, as Merpel reported here, Board 28 (of which more below) was reported to have examined the institutional arrangements pertaining to the Boards of Appeal in its meeting on 16 October 2014.  Presumably this was to formulate a proposal to put to the AC.

(2) Why is reform necessary?

This is less clear. On the one hand, it is clear that Mr Battistelli, the President of the EPO, would like to bring the Boards of Appeal more within the ordinary management structure of the Office, according to his comments suggesting that "Alicantation" is the correct path forward (reported by Merpel here).  On the other hand, following R19/12 (see here for the report of the case itself, and here for the aftermath), which stated that the Chairman of the Enlarged Board of Appeal could not also exercise duties as a Vice President of the EPO, presumably some reform of the administrative arrangements would be necessary to make the Boards of Appeal more independent.  In respect of the measures announced in May in response to R19/12 (essentially relieving the Chairman of his administrative functions as Vice President, but, controversially, passing them to Mr Battistelli himself)  it was stated: "The above mentioned measures  are precautionary and taken, pending further analysis".  So, on the face of it, what Board 28 was doing would seem to be that "further analysis".

(3) So what is Board 28?

Merpel mentioned Board 28 in an earlier post here.  At one level, it is very clear and totally above board (pun intended):  it is a subcommittee of the Administrative Council according to Article 28 EPC.  On further investigation at a deeper level, however, things become more murky.

Nicolasa the Peruvian Surfing Cat
puts Board 28 through its paces ...
First, while the composition of the Administrative Council is clear and its members can be seen here, the composition of Board 28 seems for some reason to be shrouded in secrecy.  Indeed, Merpel's previous information seems to have been incomplete, and she is now given to understand that it additionally includes Roland Grossenbacher (CH), Christoph Ernst (DE) and Mr Matti PÄTS (EE). The limited minutes that have limited circulation do not record attendance, although they do sometimes refer to apologies for absence.

Secondly, as just mentioned, the minutes of the meetings of the Board receive limited circulation and contain no detail. It seems odd that there is so little publicity or wider consultation with regard to the matters that Board 28 is considering.

(4) What reforms are being considered?

Here things become even more tricky.  Merpel understands that even the Boards of Appeal have not been consulted about what plans for reform are being considered, so practically no-one has any idea.  Apart presumably from the President and a few senior people at the EPO, and the members of Board 28 themselves.  As mentioned in section (2) above, it is not even clear whether the reforms are to make the Boards more independent, or less independent, of the main management of the Office.  It is likewise not clear whether the reforms are within the framework of the current provision of the European Patent Convention, or whether troublesome parts, such as the guaranteed independence of the Boards of Appeal (Art 23 EPC), are to be revoked, which would require a Diplomatic Conference to agree a new formulation.

As mentioned in an earlier post, there was a proposal to make the Boards of Appeal more independent of the rest of the EPO.  This proposal for the "Autonomy of the Boards of Appeal" has now been pretty much expunged from the EPO website, but survives here.  Merpel presumed that this proposal was dead in the water, since there was so little sign of it in live EPO documents.  The FAQ relating to the Boards of Appeal state:
What is the status of the initiative to make the independence of the boards of appeal more visible and to revise the European Patent Convention accordingly? 
The initiative has resulted in what is a complete draft for revision of the European Patent Convention, with the goal of organisationally separating the boards of appeal from the European Patent Office. However, in order to implement the initiative, a Diplomatic Conference attended by the representatives of the member states of the European Patent Organisation will be necessary. The boards of appeal, together with their associated administrative services, would then no longer be integrated into the European Patent Office as Directorate-General 3 but would become a separate body within the European Patent Organisation.
Perhaps in fact this is being considered.  But it seems equally possible that bringing the Boards of Appeal directly under the authority of the President is being considered, in line with the idea of Alicantation.  This would require some external appeal, and it was reported that the idea was to delegate this to the CJEU.  Although there are evident constitutional problems in giving the CJEU oversight over an non-EU body, perhaps these are not unsurmountable if (and this is a HUGE if) the non-EU contracting states of the EPC consent to this.  Merpel finds herself having to resort to the purest speculation here, so will now desist from further imaginings.

Another rumour, and it is really no more than that, that Merpel has heard is that the Boards of Appeal might be moved to Berlin, to make them physically distant and so give implied independence by geographical separation.  But it is not clear whether this would accompany greater, or less, actual independence and separation of their judicial function from the administration of the EPO.  And it may just be a rumour that has gained traction because of the neatness of the idea.

Merpel will continue to closely monitor developments, and will post again when there is something significant to report.
The Boards of Appeal of the European Patent Office are to be reformed -- but how? The Boards of Appeal of the European Patent Office are to be reformed -- but how? Reviewed by Merpel on Thursday, January 08, 2015 Rating: 5


  1. JFK famously said 'I am a doughnut'
    DG3 has very few staff willing to become doughnuts.

  2. Just a very brief word of thanks to Merpel and all the Kats for illuminating some very murky corners of an imprortant organisation and improving institutional governance - more power to your Kat claws!

  3. Concerning a possible relocation of the Boards of Appeal to Berlin it may be worth looking into the file of European patent application 05021885.8, which has lead to decisions T 0933/10, T 1142/12. A petition for review of the latter is pending under number R 13/14.
    The decisions and the petition basically concern the question if the location (city) of oral proceedings may be fixed by the EPO or if the EPC prescribes that they have to take place in Munich.

  4. Why in principle could non-EU states not accept the competence of the CJEU as independent judicial body with regard to EPO administrative procedures. It is not unheard of for one sovereign nation to outsource functions to another, from the British railways being outsourced to Deutsche Bahn to the British Privy Council for several years being the outsourced ultimate appellate body for Commonwealth courts?

    Indeed, the CJEU could maintain a specialist EPO Appeal Division, populated by ex-BoA members or ex-National patents judges, to hear EPO appeals, much as the House of Lords maintained the Appellate Committee to discharge its ultimate appeal function, or as the IPEC is a specialist list of the High Court.

    With a bit of creative thought, there is more than one way to achieve effective administration of justice.

  5. If this is all correct, about this Board 28, and it certainly looks like it, then its only objective can be to make the BoA more dependent and bring them under the supervision if the executive. Because why else are the BoA not only not involved, but even not informed about what concerns them directly? Whereas BB, though not formally a member of Board 28, is present at all their meetings? And I must say I have heard this also from other, pretty reliable sources. Alicantation does seem what they want. Perhaps the nonEU member states are supposed to leave the EPO so it becomes a complete EU institution for which the CJEU would be the independent judicial body. By that time the European Parliament perhaps starts to realize what utter nonsense their reason was for not accepting the complaint.

  6. Can I add my support to Anonymous @09:31?

    As a solicitor whose IP practice deals relatively little with patents, I initially ignored all the Merpel posts and thought they were only of interest to patent attorneys. It does however seem that the matters raised here are of fundamental importance to us all, particularly if the treatment of judicial independence within the EPO is seen as establishing a precedent for other bodies that carry out judicial and quasi-judicial functions. What might happen within the OHIM, with which my practice has more contact, national offices and competition authorities etc?

    Well done Merpel, I say.

  7. If CJEU is declared competent to judge EPO appeal cases, will it also be competent to judge on disputes between EPO and its staff instead of ATILO ?

    In view of what has been happening to the staff regulations in the last years, I'm not so sure the EPO management would welcome such a development...

  8. Berlin? How to antagonise Munich based attorneys ? (although attorneys through the rest of Europe may see it differently...). While examination/opposition is not solely in Munich, it would be significantly less efficient to have proceedings spread around Europe. Still, if the EU patent can cope...
    I think this is one of the last likely options. Battistelli losing power over DG3 also seems less likely. There's an empire/legacy to protect there.

  9. Has anybody considered how many members of the boards of appeal would be willing to moove to Berlin or to any other city? If, for example, 20-30 members choose an early retirement this may result in a gap that may take some time to fill causing a larger pendency of appeal cases.
    On the other hand, if some monetary compensation is offered to make the moove more attractive, should the user's money be used for something which is only a political reason?
    Independency from the EPO has nothing to do with physical distance.

  10. The substantive law of patent validity in Europe is clear. Patent attorneys in Europe can confidently give opinions on validity, those in the rest of the world not.

    How come? Because, alone in all the world, the EPO does not have, sitting on top of it, some non-specialist court of appeal. Such courts can be relied upon to complicate the law of patent validity. If we appreciate clear law on validity we should give thanks to DG3 for the work it has done, over the last 30 years or so.

    How much harm could the CJEU still do, to the existing solid corpus of patent validity law in Europe, if it were henceforth to hear Appeals from the decisions of the EPO's DG3? Perhaps we shouldn't worry too much about the development of substantive law.

    But I worry about delay. The English court of appeal takes about a year. Why can't other jurisdictions match that?

    And on another point, beware Orwellian doublespeak, whenever you hear somebody assuring you that his efforts are calculated to make DG3 more independent. Suspect the opposite.

  11. 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.

  12. Anon 1209, pray, which bonus do you refer to?

    As regards budget, no national court is financially self supporting. Justice does come at a price which in a democratic environment the governments are willing to pay. Trying to make the boards financially independent would mean a huge increase in fees, effectively inhibiting access to justice for at least some parties. Consider the costs of just oral proceedings with interpreters, costing several thousands of euro's.

  13. Great comment from anon at 12:09. At the level of a political President and AC members simply doing the bidding of their political masters, Money Talks. So, what one should do is simply "Follow the Money".

    Duh! Of course! Why didn't we all think of that, front and centre?

  14. Anon 12:32, for reference to the bonus, I suggest you look at the Anon comment at 08:10 on 5 December 2014 on the following IPKat post:

  15. So you (ANON1300 and ANON1309) think BB is provoking the separation of the Boards of Appeal from the EPO by “suspending” a BoA member in order to save costs (and thus in order to get his bonus)?

  16. Two facts:

    1. The Administrative Council will consider proposals for reform of the Boards of Appeal in March.

    2. Unusually, the BoA Business Distribution Scheme runs only until March, rather than for the full calendar year.

    Could it be that after March the Boards expect to be organised differently?

    If so, that suggests that not only will reforms be considered in March, but will also be implemented at the same time. Without any external scrutiny or opportunity for comment by users, attorneys, industry or national judges.

    For something as fundamental as the independence of the Boards of Appeal, surely that's not acceptable?

  17. It's so good to see that we finally have someone in charge who knows better than the intellectual giants such as Bob van Benthem, Kurt Haertel, François Savignon, Romuald Singer, to name but a few,, who were the founding fathers of the European Patent Convention ...

  18. The coverage of this issue on the IPkat is great.

    It really does seem like there is a risk of some kind of fait accompli being delivered in March.

    It really is past time for VPP, CIPA, FICPI, UNION, IPfederation, and all the other alphabet organisations in Europe to make a bloody big noise about the BoA issue, which is so critical to confidence in the system.

  19. I agree with Anon at 17.15.

    The statement on CIPA Website appeared on 23 Dec 2014.....

    Joint EPO statement from CIPA, FICPI-UK and the IP Federation
    Published: 23 December 2014
    By: Neil Lampert

    From the Presidents of CIPA, FICPI-UK and the IP Federation:

    We took the opportunity of one of our regular meetings with John Alty and Sean Dennehey of the UK-IPO, at which a number of IP issues were discussed, to obtain clarification about recent events at the European Patent Office:

    •the exclusion of a member of the Board Of Appeal from the EPO buildings, and their subsequent suspension by the Administrative Council, was the result of unprecedented circumstances,
    •the Administrative Council (on which John Alty sits as the UK delegate) is in control of the situation,
    •we are assured that the EPO President had reasonable cause to follow the action taken and involved members of the Administrative Council appropriately.
    An investigation is ongoing under the control of the Administrative Council, who will ensure that it is conducted properly and promptly. The results will be communicated in due course and we encourage members to await those results and not to speculate further.

    This statement does not seem to address or recognise the seriousness of the situation, and also seems to fly in the face of the spirit of the later answer (5 Jan 2015) to the question tabled in the House of Common which states "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. "

    The independence of the judiciary form the Executive is a vital component in the EPC/EPO and doubt in this throws doubt in the minds of users. It is very odd that the EU is intending to delegate such commercial power (via the Unitary patent) to the EPO at this time.

    Whilst it is the suspension of member of the Board that has caused the most noise, linked with this whole matter and symptomatic of something wrong in the system, is that employees' disputes take several years (up to ten according to some commentators) to resolve. This is not justice. And without active plans to address this, as well as active open transparent plans to address the more serious allegations regarding the independence of the Boards, this leaves something not right at the core of the EPC/EPO.

    On a related issue, Robin Jacob said criminal matters at the EPO could be dealt with by criminal authorities, but other commentators have said no police are allowed on site - would anyone have any further comment on these matters?

    It is time for a more fundamental review of the structure of the EPC/EPO to ensure that the rule of law is applied there in every circumstance (patent law, criminal law, employment law) and it is clear and transparent how and when and which law applies.

    All IP organisations and governments should be cautious in advocating change that has not been properly scrutinised and commented on, but should be vocal indeed when the law in place is not followed, as seems to be the case here. The AC should not have endorsed removal of the Board member.

  20. Would effective castration of the Boards really be possible without a diplomatic conference?

  21. The sense of a possible move to Berlin is not clear to me.

    Geographical distance has nothing to do with independence. The UPC central division is going to seat (also) in Munich and is not meant to be dependent from the EPO.

    It seems to me that, since Berlin is a sub-office of the EPO (Art. 6-7 EPC) and as such dependent from the other offices, this move would rather mean less independence (and possibly some sort of personal retaliation).

    More in general I find the fact that a reform of the BoA is planned without involving the users or even the BoA members extremely worrisome.

  22. 1806,
    I gather even VP3 is out of the loop...

  23. One comment in one of the threads told us that the public prosecutor in Munich has started proceedings against an employee of the EPO for slander (or libel, I forget which).

    If so, that might explain the self-righteousness of the cabal around BB, forever waving the word "criminal" around. What a convenient answer it gives those including Robin (Jacob) and his Merry Men who worry about judicial independence (setting aside criminal acts).

    But nobody seems to know what the accused said (or wrote). Meanwhile, BB in his press interview is warning everyone of the consequences of repeating the words in question. He would, wouldn't he?

    One supposes that the words might be in an email sent to somebody else inside the EPO. One supposes that the accused has been relieved of his laptop and that it is now in the hands of the person at the EPO who is simultaneously i) close to BB ii) Head of HR and iii) Head of Digital Security.

    To what sort of affair is the public prosecutor (perhaps unwittingly) lending his support. Has he been duped? Have others too?

  24. Reading through the raft of rumours and gossip, my guess is that the BoA member was on picket duty, handing out SUEPO leaflets which happened to mention the issue of whether a senior management might be the subject of a police investigation. BB then decided to make an example of him or her pour encourager les autres.

  25. The SZ article just said a complaint had been filed. Therafter an enquiry is made as to whether there is any substance to the complaint and if there is the public prosecutor will take a decision as to whether to bring charges.

  26. Even assuming there is enough flexibility for the EU to accept jurisdiction from a non-EU body (likely, and also considering it may assume jurisdiction as a labour court tribunal for ESM-personell), and assuming that the 10 non-EU countries would accept that, it still seems terribly inconsistent with the way in which many member states have opposed too much CJEU jurisdiction regarding unitary patents and the unified patent court. Why take a fight with the European Parliament in 2012 to move substantive patent law from the unitary patent regulation to the UPC-agreement , and then confer jurisdiction on CJEU regarding EPO-appeals at the same time?

  27. @Anon 20:43
    From the SZ Article

    "Die München Staatsanwaltschaft bestätigt, dass ihr eine Strafanzeige wegen angeblicher Verleumdung eines Mitglieds der Leitungsebene der EPA vorliege, beschuldigt werde ein Mitarbeiter des Amtes"


    The Munich public prosecutor confirmed the presence of criminal complaint/charges on account of alleged defamation of a member of the higher management, accused is an employee of the office.

    Doesn´t "Strafanzeige" imply criminal?

  28. And when the public prosecutor comes to the conclusion that there is nothing to it, BB will call him a saboteur and punish the person in question anyway? That has, after all, happened before, if I heard correctly.

  29. The more pertinent questions may be the ones posed here:

  30. BB is a clever person. He kicked out a BoA member in order to accelerate the discussion of the dissociation of the Boards of Appeal and the EPO.

    Thus, BB will probably reach the goal of substantially reducing EPO costs (by cutting off the costs for GD3 - the appeal staff) within his appointment period. Hence, he will be in the position to collect his bonus (20,000,000.00 €).

    Unfortunately, hence all individuals and organisations (cf. all the letters of attorneys, judges, etc. mentioned on this website) appealing against BB’s suspension of a BoA member become BB’s willing executioners.

  31. Thank you, that contributer of yesterday at 22:25 hr, in reply to my question whether folks are being duped here.

    Your words remind me how easy it is for a big bully patent owner to start infringement proceedings against a start-up, to wipe it out, ewven though there is no substance to the charge of infringement.

    Suppose the complaint to the Munich public prosecutor has no substance. If the complaint is a deliberately vindictive and vexatious act, what remedy does the subject of the complaint have? My guess: in theory, not much; in practice, nothing.

    What a way to run an organisation? I ask you!

  32. Foss patents has a nice summary

    and to summarise a bit more....

    Mr B and Mr T should both go, not because they have been proven in the wrong but because in such positions they should be acting with integrity so as not to bring the EPO into disrepute, and should be being seen to do so!

    The AC should be exercising oversight appropriately. It appears it has not done so yet.

  33. There is a huge amount of speculation here, with a wide variety of different opinions. Maybe some of the speculation is close to the truth. But at least some of it must be wildly wrong, simply because there are conflicting opinions.

    There is a reason for all this speculation. It is because of a complete lack of transparency. Nobody knows what is going on behind the scenes in Board 28. And the independence of the Boards of Appeal is hugely important. People care and worry about it.

    It is of course entirely correct that the disciplinary proceedings against an employee should be private. In that respect, I note the request not to speculate, which evidently stems from a meeting that John Alty and Sean Dennehey of the UK-IPO held with patent office user organisations. John and Sean are the UK's representatives on the Administrative Council.

    But when it comes to Board 28's proposals for reform of the Boards of Appeal, I think that is in a different category.

    It is in the public interest that these proposals should be out in the open. Board 28 should publish its proposals, and engage interested user groups like CIPA, FICPI, IP Federation, EPLAW etc in consultations.

    Only in that way will we get an outcome that works well and commands support from the EPO's users.

    The EPO has a long history of making reforms with damaging unintended consequences, because they didn't consult adequately with users before pushing them through the Administrative Council.

    In particular, several posters here have expressed concern that in March we might be presented with a fait accompli. That the Administrative Council will just adopt Board 28's proposals with no opportunity for public comment and discussion.

    Will that happen? I don't know. Like everything else here, it's pure speculation.

    Sean Dennehey sits on Board 28. Mr Dennehey, if you are reading, I'm sure you want to end the wild speculation. There is an easy way that you can do so. Tell us what is going on, so that we don't have to speculate. Instead, we'd like to engage in a meaningful debate about the best way forward. We care and worry about what you are doing.

    For a start, please tell us whether the AC meeting in March will be take a final decision, or if it will merely open a period of public consultation.

  34. 1155,
    Indeed. However the Xmas message to staff from BB stated:
    "Systematic opposition on the part of some to the overall strategy and policies adopted by the Organisation and implemented by the Office will not affect either the direction or the pace of necessary reforms."

    While this is presumably directed at staff reps (especially unions), it does make his unwillingness to change his plans clear. Even to do so in the light of user objections would weaken him since it would risk making staff objections or concerns appear to be effective. Or worse, valid!

    I hope Mr.Dennehey reacts but I suspect that nobody wants to cross BB!

  35. This comment has been removed by the author.

  36. I am not aware of Mr Cooper's case but would point out, as far as I understand it:

    a) the ILOAT does not allow oral or personal hearings, the cases are always held based on documentary evidence,
    b) the ILOAT deals with administrative matters only i.e. they decide whether a procedure was administratively correct rather than factually correct so that the decision applied the relevant rules/laws correctly. Thus if a tribunal or committee has the right to take a (wrong) decision and has followed its own rules then that would not be a problem for them.

  37. I am sure that the irony was rather unintended...

    I suppose that there is a reason for the removal of Marvin Lee Cooper's post, but having read the post, noting its rather personal nature, and seeing it made by a non-anonymous author, I saw nothing wrong with the contents, leastwise anything that would prompt removal.

    Perhaps an additional note as to why the removal was undertaken (such as, please do not post personal legal situations that may still be in action...?) might be appropriate, especially given the context here of "executive" actions that lack clarity. As it is, the removal appears to place the moderators subordinate to a certain power (the power criticized by the post).

    Censorship is a delicate power, and as seen several times on this blog, raises questions when it APPEARS to be used without clear explanation. Not that the moderators are required to provide such - make no mistake that they are not - but would it be that much more effort to use the power with some additional words of explanation and guidance, and so as to not inadvertently create any wayward appearances?

  38. "This comment has been removed by the author."

    Those of us who managed to read it before it was taken down will wonder why ... or rather, they won't.

  39. Perhaps Anon at 12:47 should pay more attention: it states "This comment has been removed by the author." It does not state "This comment has been removed by a moderator." If you want to know why the post was removed, it appears that you should ask Mr Cooper.

  40. Fair enough point Anonymous @ 14:33, except for one thing.

    Does author refer to the blog author or to the comment author.

    Comment authors - as far as I can tell - do not have power or authority to remove even their own posts, so a note saying "removed by author" is NOT as clear as you would seem to indicate.

  41. Or go to his google+ site

  42. May I, as anonymous at 12.47 ask anonymous at 14.33 to do a bit of lateral thinking - I did not for one moment suggest that it was a moderator who removed the comment ...

  43. Mr Cooper seems to have removed it from his own page too.

  44. Anon 15:42:00

    It seems that the comment has been removed from that Blog too! One wonders why?!?

  45. I would suggest that the multiple anonymous (anonymice...?) try and remove their own comments, then report back on their success, or lack thereof.

  46. Or just RTFM:

    "You can delete any comment that you create on anyone else's blog, as long as you signed in to your Google Account when you left the comment. "

  47. Perhaps a little less vociferous for those who have never used a Google Account and do not know of such a thing, eh A @ 23:11...?

  48. At the EPO the IM department in in the end of a crony of Battistelli, Mr Rene Kraft. Moreover, the EPO has an agreement with Google. Thus, anything is possible.

  49. Don´t worry, Anon at 7:48. In his recent declaration on the EPO website in relation to the tragic events in Paris, Mr Battistelli reaffirmed his unrestricted support to the "fundamental values that form the bedrock of democracy in Europe, namely freedom of expression, freedom of thought and freedom of the press".

  50. Back to the topic at hand, i.e. reform of the board of appeal.

    This is what BB said, as reported in other blog comments, to the AC concerning the reform of the EPO career system which was voted on in December last year.

    “We are not here trying to build a reform which is compatible with each of your nation, each of your state law. We are trying to build something which is useful for the office, for the organization. So if in some cases it is not compatible with German law, with the UK law, or with the French law, this is not the issue. The issue is, is it useful for the organization, is it necessary now? “

    The AC should be hanging their heads in shame, particularly the German, UK and French delegations. The EPO president does not care about national law only when it becomes a useful tool to file a complaint against members of staff.

  51. "Dutch MEP Dennis De Jong, Criticising Battistelli and Topić, Calls for Action Against EPO Management"

  52. It seems that in the meanwhile, not only Mr. Cooper's comment has been deleted, but also his entire blog and even his google profile (though you can still find part of his blog with google cache, but I guess that will soon be gone as well).

    I wonder why, and whether he has been put under... whether he has been kindly asked to do so (honi soit qui mal y pense)?

  53. "It seems that in the meanwhile, not only Mr. Cooper's comment has been deleted, but also his entire blog and even his google profile (though you can still find part of his blog with google cache, but I guess that will soon be gone as well)."

    Maybe he will soon be issuing a public apology.

    It seems to be all the rage these days ...

  54. Vesna Stilin Renews Her Fight for Justice in Željko Topić Case





    Lots of work on organisational autonomy of the BOA has been done!
    Happy reading


    Nice Summary and some consequences

  60. To Anon who posted all these links - these (apart from the stjerna article) all seem to relate to the previous plan to make the Boards of Appeal an independent entity. As mentioned in the main blogpost "This proposal for the "Autonomy of the Boards of Appeal" has now been pretty much expunged from the EPO website, but survives here." It seems unlikely that precisely the same proposal is being resurrected. So yes indeed lots of work has been done a long time ago, but it seems much more likely that what is planned now is rather different (or possibly totally different).

  61. Dear Merpel
    What needed fixed back in 2004, has as far as I can make out, not yet been fixed. So the new proposals should (although I suspect they won't) fix these questions of autonomy raised back in 2003/2004.

    I posted the links because CA/46/04 of 28 May 2004 has disappeared from the link Stjerna (and IP Kat previously) pointed to, and is not found elsewhere and I am suspicious other links to the historical review of autonomy may disappear in the upcoming current debate on EPO BOA autonomy.

    We all stand on the shoulders of giants, and the work done previously may help fuel the present debate in the minds of interested observers who care about the future of the EPO as a robust, reputable, respected, transparent organisation with an autonomous judicial arm.

    Apologies for simply posting links without making that point clearer.

  62. To those who mentioned the possibility of moving the BoA to Berlin:
    I don´t think that these rumours have substance.
    Not only would such a move be clearly a personal retaliation of the president after R19/12 and the recent letter of the EBoA but it would provide further arguments to those that criticize the lack of independence of BoA (it has been pointed out that Berlin is a sub-office), thus endangering the unitary patent.

    Moreover another aspect to be considered are the costs. It will mean another building project and on top of it the EPO won´t be able to avoid paying some kind of compensation to those who are forced to move without any good reason. Who is going to pay the bill? In the present economic situation the Contracting States should know better than financing a one man´s folly.

    For these reasons I trust that the Administrative Council will rather propose some measure to actually increase the BoA autonomy without necessarily moving them.


    In the eplaw blog Michael Wallinger provides a good analysis of the erosion of the independence of the Boards of appeal which took place under the presidency of Mr Battistelli without any opposition of the Administrative Council.
    We will soon see (Board 28 meets next week and the Administrative Council meets mid-March) whether they continue in this erosion or change direction.

  64. Moving the BoA to Berlin does not require any new building, just a reorganisation. Move the employees that work there to Munich/The Hague, et voilá, an empty building ready for whoever wants to keep their post. The AC is unlikely to stop it (when was the last time that the AC did not approve a proposal from the president?). Just wonder how quickly will something like this happen, given that the distribution lists for the BoA were only defined until the end of March this year.

  65. > Moving the BoA to Berlin does not require any new building, just a reorganisation.

    It sounds like an unrealistic scenario. In Munich, many patent law firms are concentrated. Mainly due to the fact that Munich hosts EPO bodies.

    Moving BoA to Berlin would reduce the attractiveness of Munich's patent firms. Munich would become only one of granting offices, with no difference with Rijswijk.

  66. Being cynical, the new EU Patent will have a court in Paris et al. What better way for the new system to benefit than for DG3 to be side-tracked away from Munich. Not great for German IP firms; not bad for Parisian IP lawyers? Boards of Appeal could be eased out. I hope not but it saves the EPO money in the long run, France benefits, the EU bears the costs and the President empowers DG5 with the legal powers. DG3 withers and he is a visionary for recognising it rather than being the cause of it.


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