European Patent Office: announcement

This moggy has received some information concerning today's meeting of Board 28 and the future of the European Patent Office Boards of Appeal (on which see her earlier blogpost here).  At this time of night it's not easy to verify it, but she hopes to publish something illuminating in the near future.

Meanwhile, will people who want to post comments on the EPO and its latest developments please do so here, and not on yesterday's Tuesday Tiddlywinks or "Fool's Errand" posts -- which cover non-EPO issues.

Thank you!
European Patent Office: announcement European Patent Office: announcement Reviewed by Merpel on Wednesday, February 11, 2015 Rating: 5


  1. Battistelli has already decided to transfer the Boards of Appeal to Berlin and will submit this proposal to the Administrative Council. Germany totally disagrees and Battistelli replied: "Germany is only 1 vote among 38 in the Administrative Council".

    How can the voting system in the Administrative Council be such that member states like Malta and Liechtenstein (no offense intended) have the same weight as the most designated state (Germany) of the European Patent Organisation?

  2. And presumably DG1 in Berlin gets moved too to make way? Is it immediate or over time?

  3. While you're at it, maybe IPKat can solve the mystery of how many EPO renewal fees are being consumed by such activities as disclosed here:

  4. Well shiver me timbers!
    It looks like the British Consulate in Munich is about to be stormed later this month:

  5. "How can the voting system in the Administrative Council be such that member states like Malta and Liechtenstein (no offense intended) have the same weight as the most designated state (Germany) of the European Patent Organisation?"

    Welcome to "social democracy" aka the "FIFA effect"!

  6. Germany acts as a very hypocritical country. It cares only about its interests. For months, evident violations of basic human rights have taken place (and still are taking place) on its territory and it did not care. Now that some hidden interests are touched it reacts with a negative vote. This is a ridiculous country!

  7. Indeed. Fasching (carnival) well suits them.

  8. As to voting on the AC, it is child's play to set Germany off against the rest of the 38 Member States. Germany has more European Patent Attorneys than all the other 37 Member States together doesn't it? That makes the 37 out in the cold all jealous of Germany, doesn't it?

    As to Berlin, Why should Germany begrudge the cost of paying for thebuilding in Berlin when it now has the chance to make Berlin the centre of Europe for all the biggest decisions on patent validity? Franz Josef Strauss didn't baulk at the cost of a new building in Munich to get the EPO in 1973 to Munich. Was that a shrewd decision? I'll say!

    So, where are we now? Prosperous Munich ever more full of filers and prosecutors and poor (but sexy) Berlin set to fill up with high-living, high-earning patent litigators. You would think Germany would be well happy.

    And probably it is! Think Brer Kaninchen (Rabbit). Germany, in the tight grip of the wily French fox (and his 37 AC voters) pleads desperately "Oh please. I'll do anything if you will only, please. please, not throw DG3 in the Berlin thornbush"


  10. Please lets not lose sight of two things....

    firstly, the independence of the Boards of Appeal should be addressed (even if the announcement is in connection with a physical move - of far more import is ACTUAL independence)

    secondly, the staff issues at EPO, the International recourse for staff disputes (Is this ILO?) is too long, this is no recourse to justice, and should be addressed (I am much less hopeful about this).

    Openness, transparency, cooperation, consultation with involved parties - should be a prelude to addressing concerns re independence, and indeed also a prelude to a physical change(such as a move).

    There are no magic wands, and indicating a physical relocation solves problems, is simply trying to wave a stick in the air.

    For all those concerned about the EPO and its future (and the UPC), lets wait to see what is formally announced and if appropriate, canvass our politicians and AC members. Such canvassing should be in the spirit of openness and cooperation for appropriate resolution of the apparent failure to keep the BOA independent (as evidenced by the removal of the Board member, and the change in staff performance conditions to apply to Board members. )

    I can see a future where national courts refuse to respect EPO rulings, because of a lack of judicial independence. But I sincerely hope such things do not come about.

  11. A section of the court for the EU patent will be based in Munich. So the EPO boards have to disappear from the scene otherwise they could overshadow it. It doesn't matter if people with long experience who have settled in Munich with their families have to go elsewhere. If they leave the office, it will be easier to lower the level of the boards to that of just an opposition division. They will be more obedient and refrain from hindering the reform course of the President.
    The future court will be accomodated in some building paid by the EPO in a Platz bearing Battistelli's name.
    Immortality! The next step of the roi soleil.
    In the end also Germany will agree to the plan.

  12. There is a problem in the EPC that has allowed the independence of the BoA to be undermined.

    This has been recognised in the and proposals for addressing this were around in the early 2000s, but a diplomatic conference would be required it seems.

    The situation has not improved as recent events bear out.

    A physical relocation of anything (even the BoA) does not in any way address the issue of independence of the BoA.

  13. Maxdrei,
    But isn't the EU appeals court going to be situated in Munich? So litigation will still be a Munich-based activity, at least in part?
    Nice to think that BB has Germany's best interests at heart.
    What if the AC says, why Berlin? Why not eastwards?

  14. That the substantive law of patent validity in Europe is so sharp and clear is the result of a historical accident, that a decision of a Technical Board of Appeal at the EPO to revoke the patent is final, unappealable to any court. What a tragedy it would be, for innovative industry throughout Europe, if that now changes, and no dispute over the validity of a patent is reached until the CJEU has spoken. the more so if the disruption was all caused by squabbles at the EPO about the size of the profits cake and who gets which slice of it.

    A tragedy in my eyes, that is. And for retired patents judge Robin Jacob, too, I think, for he it is who is always proclaiming that industry "needs certainty". In that regard, consider the USA, what level of certainty is the Supreme Court bringing to patent law these days? Certainty that the lawyers can make even more money as transaction costs keep on growing?

    But amongst the deciders, the top level people who chat to each other each year in Davos, this is all boring detailed stuff, too time-consuming to sweat, and anyway unworthy of their powerful and precious high-floating economist minds.

  15. Would moving the Boards of Appeal, as a central Institution within the EPO, not be another breach of the EPC? In my humble recollection, Art. 6 EPC requires the EPO to have ist seat in Munich (and The Hague as a branch-office). Berlin as well as other cities are not mentioned in the EPC.

  16. @Anon 0943:
    The Court of Appeal of the Unified Patent Court will have its seat in Luxembourg (Art. 9(5) UPCA).

    Moreover, (infringement) litigation has never really been a Munich-based but Dusseldorf-based activity.

  17. Berlin, the centre of a European superstate.

    Oh, the de je vu.

  18. The sub-office in Berlin is governed by Section I(3) of the EPC Protocol on Centralisation. This says that the AC shall determine the duties to be allocated to it.

  19. 1103,
    Mea culpa. Indeed, Munich will have one of the three courts of first instance rather than appeals.
    So why not move DG3 to Luxembourg if anywhere?

  20. To Ano at 10:34
    "Would moving the Boards of Appeal, as a central Institution within the EPO, not be another breach of the EPC?"
    Who cares? There is no sanction provided in the EPC or else against those who might cause such violations. Quite on the contrary, the Protocole on Priveleges and Immunity expressiley provides for immunity from jurisdiction for any acts done by representatives of the contracting states or employees of the office in the exercise of their functions (see Art. 12 and 14, respectively)

  21. With the Board of Appeals moving to Berlin, they will empty up the perfect location for the Munich Central Division of the first instance of the UPC court (and may be also for the Munich based local division of the UPC). Being overseen by the Paris based president of the UPC first instance and under clear local supervisoon from Mr. B., this will be a true resurrection of the European German-Franch axis.

  22. According to the Protocol on Centralisation (can be found on page 569 of your copy of the EPC 2000), Section I, Art. 3(a) the sub-office of Berlin "shall operate under the direction of the branch at The Hague".
    It is hard to reconcile an enhanced independence of DG3 from the EPO with putting it under the direction of The Hague (VP1/DG1).
    May be one should construe "under the direction" in a purposive manner so that it means "more independently" ...

  23. Maybe we in London would be willing to host the BA? We like to think of ourselves as fostering a spirit of independence.

  24. "Germany acts as a very hypocritical country. It cares only about its interests."

    Well I declare, there's a chap who obviously never heard of Viscount Palmerston.

    How about "Germany acts as a very typical country."

  25. "The nations, not so blest as thee,
    Must, in their turns, to tyrants fall;
    While thou shalt flourish great and free,
    The dread and envy of them all.


    Thee haughty tyrants ne'er shall tame:
    All their attempts to bend thee down,
    Will but arouse thy generous flame;
    But work their woe, and thy renown."

  26. re Anon at 13:06 hr. The EPO's flagship (EPO-nymous?) Isar site, powerhouse and home to its DG3 spearhead, re-branded as a mere sub-Office of the all-important Paris-based Central Division of the UPC? Now there's a thought to conjure with.

  27. Plenty of space in Building 1000...

  28. It will be interesting if, maybe now, BB will come out to the public and declare what the strategy of the AC or EPO is with regard to the long term. We never hear anything and it is all speculation. If I were an attorneplans are just speculative. Is it the intention to turn Munich into a sub-office? Is it the intention to remove all appeals from the EPO? Will pay off the EPO move elsewhere?
    We seem to have no clear goals and B seems happy to keep it that way. Knowledge is power! Staff are beginning to head for the doors at the EPO.

  29. Re Ano at 15:09
    I would love think that Germany acts as "a typical country" but history has shown that it is not the case.
    It bears now the responsibility of accepting on its territory - as some papers put it - "the last dictatorship on German soil" i.e. the EPO. The German VP5 who originates fom the German delegation is the strongest supporter of BB. German judges, German ministers and delegates are aware the abuses at the EPO but they remain silent. No interest for the time being. Once the dirty work is done by BB & Co, they will show interest in the top positions.
    Hypocrits is the right word. There is no hope with the host country.

  30. In view of all the recent events and my great confidence in the supervisory work of the AC, I trust that the one German vote protests only against the move of DG3 to Berlin so as to raise his bonus when he finally gives in.

  31. To all those who attack the DE delegation, have you forgotten that they were allegedly the only voice against exiling the BoA? And that while a weaker and disjointed EPO might suit the DPMA?

    By the way, Merpel promised a more considered output once she was ale to confirm the early rumours. Any advance on that? When I read it again, The first comment here was a bit vague about time and who decided when. Just want to be sure the facts are facts and not presumptions.

  32. Merpel should be very cautious not to confuse rumors and facts, as was shown with the Laura Smith-Hewitt story.

    I am afraid the only decision that was taken at the B28 has already been published (see "The Administrative Council's calendar has been updated"), and that is... let's continue discussing on 10 March 2015 (another round of the gravy train for its participants).

  33. Anon 1913,
    The B28 normally meets in advance of the AC to prepare the agenda et al. Not sure what the update was but the meeting this week dealt primarily with the BoA so maybe they just changed the date? It's now set only 2 weeks before the next AC rather than the usual month or so - see the rest of the calendar. I guess the change concerned the date rather than ay content?

  34. To set the cat among the pidgeons, I propose they move the entire BoA to Istanbul! (I like the city and it would be fun to go and visit it on proceedings occasionally)

  35. It's Friday 13th: there must be more developments in this horror story.

  36. Part One.

    Three preliminary notes:

    - do you really base all that Germany-bashing on the statement of an Anonymous?? And I am shocked that everybody takes it for granted that there is bribery involved in the decisions of the Administrative Council. However, I fully understand the fear that such elements may be involved, because that is merely the extrapolated fear of an apparently independent judicial review not being independent anyway.

    - to be honest, I am sick and tired of the need to sift the few grains of potential truth from the chaff in the flood of non-information that is made available. I have made myself a digest of all the 20 postings and their comments on IPKat from 2 December 2014 to to 31 January 2015: a total of 909 comments. It is a Word document of 291 pages. The expression “Anonymous said...” appears 850 times! The expressions of jealosy and innuendo were more frequent in the beginning, but are as superfluous as ever.

    - would it not be equally relevant to move the Boards of Appeal to Vienna? That would mean that they would be closer to the educational centre of the UPC in Budapest. Members could thus take turns to travel and teach future UPC judges what it was like to be a judicially independent body.

    When a European patent application is refused, the lack of recourse to multiple instances of the courts of justice concerning the loss of rights is an open wound that has only been grudgingly acceptable through the independent review by the Boards of Appeal. It is the only judicial review that a refusal will see. For this reason, in all legal systems that we swear by in our part of the world, such a body must be independent, have the status of a court of law. Obviously a court must have its own administrators, but it must be completely independent of the administration that made the contested decision.

    George Brock-Nannestad

  37. Part Two.

    It is incredible that it appears possible for mere bureaucrats to completely erode judicial independence in the evaluation of certain administrative decisions, and thereby completely revise the functioning of the patent system.

    It is lack of perspective of our politicians that a diplomatic conference to revise the EPC has not been called to include access to courts after a refusal by the appeal boards. With the presently envisaged erosion shame falls on the societies that accept it to happen under their noses.

    Unfortunately this area of law appears so impenetrable to the common voter and so far from daily life that it generates absolutely no interest. Sneaking attacks on basic human rights are now so commonplace that nobody cares if a patent applicant is treated unjustly, possibly even via a potential mechanism of bribery.

    In the recent developments I perhaps see a completely different way to approach the problem of not having an independent judicial review of refusals: refusals will simply be a thing of the past! Most applications, except those that are obviously defective, will be accepted. There will be no need for a review of the prosecution of a refused application. That this will in the end entail a slide towards mere registration need not worry us, because we will have a complete legal system in place to deal with patent conflicts. Hence, there is no need for a diplomatic conference after all. But the extra expense will be borne by the smaller applicants.

    I think it is a disgrace that civil servants impose such conditions on the quite obvious need for information of the users of this public service. The EPO has not had any real competition until now, it will be a fully blown monopoly for the supply of Unitary patents, so the need for commercial confidentiality should be nil. It is completely unreasonable that the General Manager and the Chairman of the Board of the EPO should assume an attitude of secrecy.

    But the competition will increase: I and several colleagues intend to streamline national foreign filing for our smaller clients and to completely avoid the basket case of EPO in the future. It has not been much in focus, but it will improve the long-term legal certainty, and it will give the applicant a greater overall predictability. We might use the EPO as a searching service; time will tell if that also is going to suffer due to the reduction in quality. Users will vote with their feet!

    The same way that some called the European Parliament a “Mickey-Mouse Parliament”, we should call the future European Patent Office a “Mickey-Mouse Patent Office” (no offense intended to the delightful Disney character).

    George Brock-Nannestad

  38. "The same way that some called the European Parliament a “Mickey-Mouse Parliament”, we should call the future European Patent Office a “Mickey-Mouse Patent Office” (no offense intended to the delightful Disney character).

    Well spoken Mr. Brock-Nannestad.

    And no doubt your next contribution will be to scandalise the judiciary by calling the members of the EPO Boards of Appeal "Mickey Mouse judges" (in all but name) !!!!

  39. G B-N is scandalised, that a "mere bureaucrat" can "erode" judicial independence. Me too.

    Looking at the EPC, Article 23 addresses the Independence of BoA members. Who would have guessed that an EPO President would make the re-election of such members (after each 5 year term of service) dependent on their meeting Performance Targets set by the President? Should we have foreseen it? Merely to have suggested it, before the present President took office, would have prompted ridicule.

    Were the members independent before the present President took Office? Just because they and their clerks are paid a fixed salary by the EPO, does that take away their independence? Surely not.

    Did anybody take seriously, before the present President, that the members of the Boards are de facto the puppets of the President? I don't recall but I think not. Truly amazing, what a "mere" change of EPO President can accomplish.

    One thinks of overseeing the security services, and the dodgy deeds they have been getting up to in recent years. I recall and the remark that "These days, we can do a lot of things undreamed of in the past. But just because we can do something doesn't mean that it is OK to do it. We need rules imposed on us by our overseers, to tell us which of the things we can do are permitted us to do". At the EPO there is an overseer, the Administrative Council. I hope it will now start to get active, and do its duty.

    As an eye-opener, I commend to you the Robert Harris book "An Officer and a Spy" about the Dreyfus affair in France. More than a hundred years ago, but when it comes to human nature, a hundred years is nothing.

  40. "At the EPO there is an overseer, the Administrative Council. I hope it will now start to get active, and do its duty."

    Amen to that.
    I'm sure they will just as soon as they've managed to find their way out of the President's pocket!

  41. G B-N is scandalised, that a "mere bureaucrat" can "erode" judicial independence. Me too.

    The power to do so is implicit in Article 11(4) EPC and this point was even raised in the "Travaux Preparatoires" back in the 1970s.

    But it was never really dealt with back then and it is still with us.

  42. Do you know where in the traveaux preparatoires?
    And thank you G B-N for raising the level of the commentary

  43. Travaux Preparatoires:$File/Art23eTPEPC1973.pdf

    Look at p.27 and the comment from the Luxembourg delegation.


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