"Oh-oh! It's the EPO": More Munich mewsings from Merpel

Munich, host to the European Patent Office's main centre of operations, has been abuzz with speculation and intrigue this week, these being features of any organisation that does not enjoy the benefit of transparent government -- and, it should be said, these also being features of many organisations that do enjoy those benefits.

In listening mode
This moggy has it from an unimpeachable source that earlier this week, Tuesday 10 February, there was an informal get-together of European Patent Office's Administrative Council chairman (Denmark's Patent and Trade Mark Office Director Jesper Kongstad) and members of the Enlarged Board of Appeal (EBoA)). As she understands it, the Great Dane was basically in listening mode for an hour or so, receiving some responses from the EBoA with regard to some proposals that had been mooted for modifying the rules of procedure regarding Article 23 of the European Patent Convention ("Independence of the members of the Boards"). There was an exchange of views on the work of Board 28 and other things.

As for the meeting of the Administrative Council (AC) on Wednesday 11 February, this moggy has little to report.  She understands that consideration was given to a paper on the reform of both the governance and the structure of the boards. If Board 28 gives the reform proposals its blessing, the AC would have to formally adopt them when it meets next, on 10 March. The nuts and bolts of their implementation would then be worked out this summer with a view to their coming into force in January 2016. It may be changed in the light of further discussion. It is believed that the EBoA will be given a chance to discuss the Board 28 proposals with Mr Kongstad and the President, though it's not known whether this opportunity for discussion is intended to provide a chance to amend and even influence affect the proposals or whether it is simply to deflect criticism that the EBoA has not been given  chance to be heard.  It is thought that Mr Kongstad may also discuss the proposals with the Association of Members of the Boards of Appeal, AMBA.

Under wraps -- but with
strings attached?
As for the proposals themselves, they remain under wraps, though they are said to "enhance the visibility of the independence and autonomy of governance". No amendment of the epc is foreseen. The 2004 project (to turn the Boards into an autonomous organisation with its own head, responsible directly to the AC ) looks like it will remain a non-starter. Finally, regarding the speculation that has excited, enthused or appalled readers of this weblog, that the EBoA is to be moved to Berlin, Mr Kongstad's response was a diplomatic "no comment" (though a vice presidential personage is said to have let it be known that the President strongly supports this option).

Meanwhile, EPO staff union SUEPO has announced another day of industrial action, Wednesday 25 February. According to SUEPO:
"The next demonstration will be aimed at the British consulate. Mr Sean Dennehey (UK), member of the British delegation, is a major player in the Administrative Council. He was also recently re-elected chairman of the Patent Law Committee for a three-year term, starting on 30 March 2014. Like Mr Kongstad, Mr Dennehey is member of the “Board 28”, the ultra-secretive think-tank of the Administrative Council. The Board 28 met this week to discuss and probably decide upon the future of DG3. ...

We wish to alert the British government to the problems in the EPO and the role played by the British delegation. We hope to be able to meet the British Consul-General, Paul Richard Heardman, to ask for his support".
This moggy observes that governments are a lot more successful in not being alerted than people are in managing to alert them. She will be watching with interest to see what happens.

Remaining with SUEPO for a moment, this moggy is aware that the union is concerned, as its recent release mentions, that the EPO is seeking to drive up productivity. There is a view that forced increases in productivity targets for patent examiners will inevitably lead to "bad" patents being granted. This moggy thinks any examiner, when required to deal with a case under pressure of time, would rather refuse a "good" patent than grant a "bad" one (to use the terminology employed by SUEPO). There is a danger in being pressed into refusing good patents: this is that the number of appeals will increase and that a truly independent Board of Appeal will not hesitate to send the case back to the examining division, irrespective of the latter's productivity targets. However, reducing the independence of the Boards of Appeal inevitably makes them more sensitive to any political pressure not to push the output of a hasty and perhaps defective examination process back on the examiners; indeed, the Boards may face pressure themselves to dispose of their own cases with less detailed scrutiny. Accordingly any push by management to bring the Boards into line, if it works, should have a real pay-off in terms of getting everyone, willingly or not, onto the same message of increased productivity and clearing away any awkward oversight of examination standards.
"Oh-oh! It's the EPO": More Munich mewsings from Merpel "Oh-oh! It's the EPO": More Munich mewsings from Merpel Reviewed by Merpel on Friday, February 13, 2015 Rating: 5


  1. Article 33 EPC
    Competence of the Administrative Council in certain cases


    The Administrative Council shall be competent to amend:



    The Administrative Council shall be competent, in conformity with this Convention, to adopt or amend:


    the Service Regulations for permanent employees,


    The recent service regulations introduced a probationary period for BoA members, and also integrated them into the EPO's pay system.

    Such measures run contrary to A.23(1) EPC.

    So, in so far as the service regulations have been amended outside of the scope of the EPC, the administrative council was not competent to amend them?

  2. Do I sense anon@14:22 suggesting that a petition to the EBoA under A.112a should be made if the BoA included a probationary member? A strictly logical argument would be that if the individual can be removed outside the 5 year period of A.23(1) then that individual cannot be considered a member of a board and therefore any board including such a "member" is not in accordance with A.21(3). Hmmm ...

  3. "There is a danger in being pressed into refusing good patents: this is that the number of appeals will increase and that a truly independent Board of Appeal will not hesitate to send the case back to the examining division, irrespective of the latter's productivity targets."

    In this you are assuming that all Applicants will have the money to pay for Oral Proceedings (Exmaining Division), followed by Appeal costs including further Oral Proceedings. For the less affluent Applicant, who has to carefully budget their IP spending and spread it over their whole Portfolio, the consequence is going to be that they have to drop otherwise "good" applications because the Examiner's targets mean that a Summons to Oral Proceedings has been issued where previously there would have been greater opportunity to continue in writing. We have seen a large spike in the number of Summons that have been issued recently, which I can't help thinking has more to do with Examiner's targets than a change in the quality of Patent Applications.

    We already have US clients who are tempted to bypass the EPO and instead file National applications in 4 or 5 key European countries. So far the desire to pursue an ex-PCT in France is pursuasive, but if it seems to be getting more difficult (and expensive) to get a Patent at the EPO, then the desire to get a French Patent may be insufficient to stop people abandoning the EPO route.

  4. This is fun isn't it. It's like paper C, except the patent to be opposed is the EPC.

  5. From recent experience of reviewing an invalid granted EP patent where the Examiner overlooked a novelty citation acknowledged in the description, I think that Merpel is being optimistic when she says that "good" patents will be refused rather than "bad" patents will be granted. Without sufficient time to properly review a patent application, bad patents can easily be confused for good ones.

    Because of the cost of knocking out granted EP patents post opposition, the EPO needs to do a proper job; otherwise there is a risk that the public perception of the value of patents will be undermined.

  6. "As she understands it, the Great Dane was basically in listening mode for an hour or so, receiving some responses from the EBoA with regard to some proposals that had been mooted for modifying the rules of procedure regarding Article 23 of the European Patent Convention ("Independence of the members of the Boards")"
    Art 23 has been extensively discussed here in relation to the recent - in the AC´s view, only provisional - removal from office of a Board member. In the meantime The Great Dane must have understood that Art 23 leaves it entirely up to the EBoA to become active in this issue or not. If the EBoA decided not to do so, in consideration for instance of a perceived illegality of the actions taken by the Investigations Unit and the evidence thus collected, the said member would automatically have to be reintegrated at the end of the suspension period. No doubt that the Great Dane may have an interest in some "procedural rules" to avoid such debacle. One can also imagine which kind of responses he might have received from the EBoA members.

  7. No, Merpel, it will be much easier to grant bad patents than to refuse good ones. Simply because for a refusal the examiner has to write a decision, giving reasons. Not so for a grant. Also, I heard from a good source, refusals are not counted as "production", whereas grants are. So why do more work and be punished when you can do less and be rewarded? You see, that is the management's view of efficiency.

  8. Thanks Merpel.

    As to the timetable you give, the AC's calendar suggests the meeting last Wednesday 11th February, and the meeting on 10th March, are both of the Board of the Administrative Council (B28), rather than the full AC. The next full AC meeting, which would have to approve the proposals, is on 25/26th March.

    You're right to criticise the lack of transparency. The EPO has a long history of implementing changes without proper consultation, and getting it wrong as a result. (Divisional time limits, anyone?) It is still possible for the AC to produce a good result here. But it is equally possible for them to get it spectacularly wrong, if the only consultation is about the nuts and bolts of something they've already decided behind closed doors.

  9. Dear Anon 14:46
    Very good point, to be backed up by further troubles earlier in the system. Instead of writing "it's not new, but if you do...it will be ok", "it's not new." is quicker and more productive, so you won't even get a clue what you might be able to do. Also "not new in view of D1" is much quicker than a long-winded novelty analysis.
    Just make sure you get your request for oral proceedings in quick.
    None the less, granting will remain the most "productive" route, so look forward to confirmation by sadistics that all is well in the EPO and all examiners are happy in their work. Perhaps a few more oppositions may be in order?

  10. I agree with the last anon who says that it is easier to grant bad patents. It depends what you mean by "easier". Does your conscience make it "easier"? Does your pride in foing a good job make it "easier" to let duff cases through? Does complying with "Raising the Bar" Quality Standards make it "easier" to let rum stuff through to issue? Does the public interest in not issuing bad patents make it "easier" for you?

    But now imagine you really are an Examiner, in dialogue with an attorney representative. Which is "easier"? Saying No to the rep, and incurring the wrath of the Applicant, or saying Yes?

    Now imagine your own line manager, who wants good "production" stats and writes your staff appraisals. Is it "easier" to bring him (or her) a case for grant or a case for refusal?

    Isn't it a "Win-Win" to set everything up for grant, as fast as possible? The only "Loser" is examiner morale. So what, some might think, or say.

    Now imagine yourself as President BB. You have just addressed the Annual Meeting of the AIPLA last autumn in Washington DC, where your main messag was: I'm going to drive down the EPO backlog, but with no loss of "quality". And without it costing you guys a penny more in fees.

    As is well-known though, you can't have all of (high) Quality, (high) Speed and (low) Price. So if Price is held down, and speed is forced up, what is the Long-term consequence going to be?

  11. The good thing is applicants get quicker results.

    But this is just a matter of priority setting. There was no need for suspending staff representatives, kicking out the staff union, inflicting tight sickness rules that are unlawful in member states, introducing a salary only based on productivity etc.

    The bad thing is the result produced may not be to your liking, i.e. only be worth the paper it is printed on.

    It is laughable that EPO wants to be competitive on price if the EPC requires 3-man divisions, allows unconditional requests for oral proceeding, has no cap on the number of office actions until a decision is reached etc. This makes EPO procedures expensive compared to USPTO and JPO, where these hurdles do not exist.

    Anyway, it is time to say farewell to the European Patent Office and hello to the Office Europeenne de Batistelli.


  12. Proposal for the Boards of Appeal to be formed as an autonomous organisation with its own head, responsible directly to the AC.

    That seems like a good idea!

    So good, that it I wonder if
    a) it has downside?
    b) it is a worthy rallying call for all stakeholders?

  13. Dear Anon 15:34:00

    The "further troubles earlier in the system" I am getting annoyed by is/are when the Examiner decides that since there is an added matter problem they are not going to consider anything else and instead will defer the assessment of Novelty etc. That makes sense where there is a big stonking issue with your independent claim(s), such that it is difficult to see anything that might be allowable, but when the added-matter objection is obviously easily overcome or (even worse) the problem is with one or more dependent claims... I am seeing this a (un)fair amount, and it is very frustrating, particularly considering some Examiners have become so unreasonably strict in their assessment of added-matter (e.g. asking for "word-for-word basis").

    Can't help thinking the productivity pressures on Examiners are responsible.

    Btw - "sadistics"; Freudian typo or scathing comment?

  14. This is the first time I read that the plan would be to move the EBoA (rather than the BoA's) to Berling. Might actually be a good compromise.

  15. Re. Consultation, or not. The staff committee has just complained.to BB about his plans to consult about the health reforms 2 days before the AC. Any comment will give him 1 day to change his paper and have it translated into the other two languages. That is, if he agrees with the advice. To what degree is that bona fide consultation.

  16. Anon 1523,
    Incorrect. To reflect the extra work, a refusal counts double. Although that still doesn't really reflect the true work since you need one reason to grant but a reason to reject each argument of the applicant.

  17. With regard to the B28, interesting to note that the German delegate's mandate runs out in June. The AC will have to choose a new member (actually they have to choose 2 of their 3 members). Don't know if you can stand again although with only 3 seats, I would guess it will rotate among the countries without an ex officio seat.

  18. To clarify some points on the debate "good patents refused" or "bad patents granted":
    - Anonymous 15:23 argued that no written decision is needed for a grant, which is not exactly the case. An internal decision is always drafted when an application is granted, but is much easier to draft than a refusal decision, for various reasons.
    - Anonymous also argued that refusals do not count as "production", which is not the case, as refusal count double.
    - However a refusal is not only more difficult to draft, but implies in most cases oral proceedings, which take a lot of time to the examiner and the rest of the division.
    - So in my view the current production pressure will lead rather to grant "bad patents" than to refuse "good" ones. A refusal is much more cumbersome than a grant, which is quickly done when the examiner did not have the time to find the best prior art.

  19. From a reliable internal EPO source :

    In BB´s plans BoAs are set to move to Berlin mid 2016.

    It will trigger a huge waive of early retirements among DG3 members if that ever happens. After all, would you leave your house, friends, habits being nearly 55-60 years old, freshly humiliated by your top management and facing a coming degradation of your retirement scheme (phase B if the new career system) ?

    Incidentally, all examiners based in Berlin will have to get used to Munich real estate prices... and explain their children why they must quit their house, their friends, their school...

    But "on ne fait pas d'omelette sans casser des oeufs" isnt it ?

  20. taking a passive position is not in interests of (E)BoA.

    what (E)BoA might do is to come up with their own proposal on independence. then, show that (E)BoA's proposal is better for EPO, its customers and an economically winning solution.

    if AC have two alternative proposals on the table, they would choose for one, which is better/optimal for the European patent system, isn't it.

    if there is no choice, a decision is obvious ...

  21. > come up with their own proposal

    appointment for 10 years, with possibility of an extension for 10 years

    appointment by AC on proposal of EBoA. no other participants in an appointment procedure

  22. Anon 15:34 responding to Anon 16:20
    I honestly could not agree with you more. As far as I'm concerned the "word for word" basis is a synonym for "switched my brain off". Even the guidelines don't recommend explicit disclosures and if you've got translation from the Japanese handled by a German attorney via a Swedish examiner it is easily acceptable that a native speaker may come up with a problem, but it is just as easy to accept what the original Japanese was trying to express. In mechanics at least you mainly look at the drawings anyway. But I must point out that the trivial explicit objections raised by attorneys in opposition does lead to a reaction from examiners. What came first, the chicken or the egg?
    The rest simply boils down to the question whether the examiner cares what he's doing or not. If he cares, he'll help the applicant to the protection he deserves (or if not then he'll explain clearly why), if he doesn't care, you get what you're given and good luck to you.
    Of course, that assumes he's allowed to care, or perhaps he cares more about the future prospects for his family?

  23. p.s. from anonymous 15:34
    No, sadistics was not a mistake - it seems so much more accurate a term.

  24. In fact you're all being misled. Having taken inspiration from the fact that Australia is taking part in the Eurovision Song Competition, the actual reason for the Board 28 meeting was to smooth the path for Siberia to enter the EPO. I wonder why?

  25. Appeal boards did make proposal after independent study. Administrating council approved proposal in 2004. President Kober and administrating council decided was ready for diplomatic conference. Then nothing more.
    If no diplomatic conference no even if article 4a say must be one then appeal board's proposal is not accepted any more. Yes, might be time for new proposal.

  26. An examiner who takes pride in the work finds it easier to refuse a poor application than to grant one, and will not try to refuse a good application unless the prior art turns something up.
    An examiner who chases production points will find granting easier. Once the second examiner is only checking dates and page number and the chairman has only fifteen minutes, only the conscientious will spend the time needed to think about it properly.
    An examiner who wants a reputation for quality and does not care how it comes, has an easy strategy. Find a document that is not obviously irrelevant, make some objection, accept the response from the applicant, grant.
    Good search and good examination are hard. If you have an examiner who can do it, that examiner is a treasure.
    If you care about the quality of examination, tell the people who matter. Tell the people loud and often what you want.

  27. Does 'ultra-secret' mean secret whereby the persons privy to the secret keep them secret? unlike, of course, Merpel's 'unimpeachable', ie entirely trustworthy, friend.

  28. Dear Zazie (21:17)
    You are of course right, but telling people about a good examination is unlikely to lead to any result, since no-one of any importance understands. The knock-on effects of bad examination are not sufficiently concrete or immediate for those who can decide to take notice until it is too late.
    In the US they are currently suffering from this problem and in the "Managing IP" blog I remember a comment along the lines of "of course it would be better if only valid patents were granted, but nobody expects that" - now isn't that sad? And if it's so sad, why introduce such a system to Europe?
    To give an analogy of the current situation, in the old days you can say the EPO played football (for our US colleagues soccer), but now it has been decreed that American football should be played, except that half of the examiners are still using the rules of football, since the rules have not been changed. None the less, they are still beaten up by a long line of colleagues. No wonder it's chaos.
    I can fully understand the voices that ask why it is now worth filing at the EPO - questionable quality, no concrete information abut the coming community patent, but the suggestion of extreme costs and no flexibility. The only point worth noting is that the alternative - the national patent offices - are the ones pushing this through on the administrative council. Do you really want to go there?
    Heaven help small industry in Europe is all I can say.

  29. "And if it's so sad, why introduce such a system to Europe?"

    What a naive question.

    Haven't you twigged it yet?

    Legal uncertainty is a "grave-train" for the legal profession.
    And it will also create plenty of "business" for the new UPC.

    A bit of a no-brainer really.

    It might be in the public interest to have a "quality" patent office.

    Unfortunately, the public were not invited to participate in this particular beanfeast.

  30. Salon 1825,
    Do you think BB will allow that? Not a chance. And even if he did, he would still play the overpaid, lazy, obstructionists cards. And Kongstad would back him.

  31. This blog is being ruined as a discussion forum for IP issues because of this constant EPO nonsense. Following the comments on other stories is a pain as the 'readers latest comments' section is swamped by the one subject.

  32. I echo the point made by Anonymous @ 12:29.

    While I will distinguish the notion that the subject matter of this thread is indeed important (even to a self-professed Ugly American such as I), the repetition factor of thread after thread after thread on the same subject with no actual new development and only a rehash of certain positions reminds me of the worst of trench warfare (WWI).

    And while I do find some of the aspersions cast towards the US system, I chuckle and would remind those so casting that the US system also goes hand in hand with the US being the most innovative (per capita) country in the world, and that what is truly sad is that the US is in the process of losing that edge because it is being co-opted by forces that desire a more "one-world," a more dare I say "European" approach. I find it ironic that some here lament the EPO becoming more like US (which would be desirable) and I lament the US becoming more like the EPO (not desirable).

    In any accord, and no matter which direction overall the evolution of the EPO progresses towards, the clear indications (at least to this foreign kat), is that your organization is corrupted beyond recovery. At a certain point, the mere "appearance of corruption" overpowers the sensibilities of outsiders looking in. I believe that a political term for this is "loss of confidence." And whatever else may be going on as reflected in the nigh constant bickering of this esteemed reflection of the thoughts of the IP community, the stalled out trench warfare most definitely reflects that loss of confidence. Trudging forward then, any resolution brought forward will be tainted - or at least will most assuredly be portrayed as tainted by one side or by the other - and thus your house will remain divided, no matter what "solution" is arrived at by the powers that be.

    My humble advice: Leadership, please recognize your losses. Resign with some semblance of dignity, and start over with new leadership.

  33. With all respect , Anon 13:07 should also understand that the EPO staff is faced to a toxic, violent and powerful manager.

    The staff is daily faced to this violence and has already been insanely punished to have shown some resistance.

    In the light of the insanity of the actual EPO management it's a miracle that the job is still well done and the respect for the public maintained.

    Channels like IpKat and others are our last window on the outside to blow the whistle on such a mismanagement.

  34. According to the information we are given Mr Kongstad said that no amendment of the EPC is foreseen. Indeed substantial amendments of the EPC cannot be carried out by the AC but would require a diplomatic conference. The measures that can be taken by the AC are very limited, as foreseen by Art. 33 EPC, according to which the service regulations must be amended in accordance with the convention.
    However, it seems that the AC has trespassed these limits and further intends to do so. Here are some critical decisions:
    1) The introduction of a probationary period for BoA members is clearly contrary to Art. 23(1) EPC.
    2) The setting of targets and managerial appraisal is arguably contrary to Art.23(3) EPC.
    3) The relocation to Berlin, if it comes in existence without previously amending the EPC, would be contrary to Art 23(3) EPC, since Berlin is a sub-office of the EPO and , as such operated under the direction of another Office, specifically The Hague (Art. 6 and 7 EPC and Protocol of Centralisation Section I, 3(a).
    If we add the unlawful suspension of a BoA member decided by the President, it seems that we are observing a coup d’ etat of the President and the AC which take decisions beyond their powers.
    These considerations are not only of academic interest. Just some examples of situations where they may play a role:
    1) National proceedings (as evocated by Sir Robin and the IP judges) where a party seeks to set aside a BoA decision on the grounds of their lack of independence.
    2) Proceedings under Art. 24(3) and (4) EPC.
    3) Request of a party to hold oral proceedings in Munich instead of Berlin.

  35. Being EPO examiner since decades, I totally agree with Zazie.
    The easiest way for unmask a fast search is to look at the first communication. When seeing many X documents -the whole document- against all claims, when seeing many correction of spelling errors, but no real reasoning on why your claims lack novelty and inventivity, be sure the reply to the applicant's answer will be a direct grant. Should your invention fall in a sensitive area, be sure oppsitions will flourish.

  36. Dear 13:07
    It honours you that you think your system is the best and it is good so. The fact that we Europeans do not share that view is also good so. The fact that both we Europeans and you from the US, with 180° opposing wishes and viewpoints both think the EPO management, shall we say "leaves much to be desired", speaks volumes.

  37. > since Berlin is a sub-office of the EPO

    sub-offices can be created only "for the purpose of information and liaison", not for BoA, art. 7 EPC.

    > require a diplomatic conference

    EPO can ran without a diplomatic conference only for 5 years, art. 4a EPC.

  38. Anon @ 19:55,

    This is the "Ugly American" replying.

    Yes, you have a point that both of us viewing the EPO management as having series, even fatal, problems does speak volumes.

    No, you do not have a point concerning your mere "opinion" on just who is the innovation leader. Yes, I do get that this is in part what makes Americans "Ugly" in the eyes of others, but the fact remains, our nation is the single most innovative nation in the world (leastwise, was before the AIA and the untowards influences degradating our patent system to be more like ROW).

    Notwithstanding that difference, I do wish all those caught up in the trench warfare well. From this vantage point, sadly, it appears that it will get worse, much worse, before it gets better.

  39. > since Berlin is a sub-office of the EPO

    >>sub-offices can be created only "for the purpose of information and liaison", not for BoA, art. 7 EPC.

    Impression is that art. 6 EPC together with art. 7 EPC do not open a possibility for moving BoA to anywhere, except The Hague.

    art. 6 EPC: offices in Munich and The Hague;
    art. 7 EPC: "for the purpose of information and liaison" at other locations.

  40. > come up with their own proposal

    >> appointment for 10 years, with possibility of an extension for 10 years

    >> appointment by AC on proposal of EBoA. no other participants in an appointment procedure

    as a follow-up:

    AC+EBoA ensure that X % of (E)BoA members are always appointed;

    Y % of (E)BoA members have served previously in the EPO for at least 5 years;

    a member of (E)BoA is appointed/removed from the Office at an AC's meeting called for this purpose.

  41. @Anon 21:10
    Art. 4a EPC only concerns a conference of ministers not a diplomatic conference (heads of state).

  42. The sub-office in Berlin was not created under Art. 7 EPC (only "for the purpose of information and liaison").

    Rather, it was created by Section I(3) of the Protocol on Centralisation.

  43. Berlin is not a sub-office created under Art. 7 EPC. The legal basis for the Berlin sub-office is Section I, Art. 3 of the Protocol on Centralisation (which is an integral part of the EPC, see Art. 164(1)).

    The Berlin sub-office shall operate under the direction of the branch at The Hague (Section I, Art. 3(a)). The AC determines the duties to be allocated to the sub-office in Berlin (Section I, Art. 3(b)).

    It is clear that search and examination work can be performed at the Berlin sub-office (assuming the AC at some point took the appropriate decision under Art. 3(b), which I did not check). It is more difficult to reconcile "shall operate under the direction of the branch at The Hague" with BoA work, but I guess one could read this phrase as "the Berlin sub-office is formally part of the branch at The Hague". That's in fact how it is usually understood.

    A three quarters majority in the AC is needed for a decision to allocate BoA work to Berlin (Section VIII of the Protocol on Centralisation).

  44. The Berlin sub-office was created according to centralisation protocol to carry out search work and further employ the staff of the Berlin Annex of the German Patent Office (EPC 1973). In the EPC 2000 the protocol was amended to allow it carry out other duties, according to Section I, (3)(b). However, these duties were meant to encompass examination work and not BoA work. This is made very clear by Section I(3)(a), according to which Berlin operates under the direction of the Hague. This is not merely a formal dependency but a real one. At present responsible for The Hague and, as consequence, Berlin is Mr Minnoye. It would surely be a good idea to have him also directing the operation of the BoA. In order to move the BoA to Berlin at least the Centralisation Protocol (and probably also Articles 6 and 7 EPC) should be amended.

  45. In order to move the BoA to Berlin at least the Centralisation Protocol (and probably also Articles 6 and 7 EPC) should be amended.

    Complete and utter tosh.

    All that's needed is a Circular issued by the President.

    That'll do the job nicely and it will teach interfering busybodies like Sir Jacob (sic) to mind their own business.

    Move along now folks, nothing to see here ...

  46. > In order to move the BoA to Berlin

    Section I, (3)(d) of the Protocol says that:"The Federal Republic of Germany shall bear any additional costs incurred by the European Patent Organisation in setting up and maintaining the sub-office in Berlin."

    So, Germany would maintain the EPO BoA? How about independence?

  47. Dear Anon 22:16 - sorry, but I can't bring myself to refer to anyone as an "ugly American".
    I fear the direction of our discussion is not one to be shared in this environment. I am sure we could have a very instructive (and enjoyable) debate on the relative merits of the two systems, but this is probably not the place. I do understand your view as I have encountered it before. None the less, at the moment those in the trenches are being bombarded with statistical (or sadistical) "facts" proving unquestionably, despite all the local evidence, that they are indeed happy, healthy and every bit as good as they have ever been. So if you don't mind, I'll stick to my view that, despite the facts on innovation, we are none the less talking "opinions".

  48. I think that what that last commenter means is "All that's needed is a Circular issued by the President, given that the AC is performing from inside the EPO President's pocket its duty to oversee its employee, the President of the EPO".

    Readers, when using the words "overlook" and "oversee" just bear in mind that, for many of those who have English as a foreign language, when they read "oversee" they think "overlook".

  49. Haven't seen anyone say if they would prefer the BoA to be in Berlin. Since the AC is one country one vote, would smaller countries prefer Berlin on the basis that they are more likely to have flights to the capital than to Munich? From say Riga, would Berlin be a direct flight? They may only have a few (or fewer) visits per year but that might not affect their voting.

  50. There are 2 flights per day from Riga to Berlin and also 2 flights to Munich. There is a direct train from Munich airport to the EPO, while in Berlin 1 or 2 transfers are needed.

  51. Sorry, but the idea that the degree of inconvenience suffered by patent attorneys travelling to oral proceedings might sway the Administrative Council in its choice of venue for EPO's DG3 is laughable.

    And if they do, they might favour the venue with the maximum inconvenience. Still on the theme of absurdity, keep in mind that the members of the AC represent the national Patent Offices, competing with the EPO for the Business to be placed by the bulk filers of patent applications.

    What other large organistation has a Supervisory Body populated exclusively by its competitors, who would like nothing more than to see it go out of business?

  52. "Readers, when using the words "overlook" and "oversee" just bear in mind that, for many of those who have English as a foreign language, when they read "oversee" they think "overlook". "

    That is why nobody can really complain if you say that the the Administrative Council is doing a great job "overseeing" the actions of the President.

  53. I wonder what reason will be presented to the AC to justify any move to Berlin. Can anyone see any upside to the possible move?

    The justification for the proposals (whatever the proposals may be) being to "enhance the visibility of the independence and autonomy of governance" strikes me as mehr Schein als Sein i.e. the appearance of independence due to geographical remoteness, whilst in reality having independence eroded.

    How many appeals will now be filed citing a lack of independence? Who will be the first to refer an EPO decision to a national (sympathetic UK?) court due to non-compliance of the BoA with TRIPS?

  54. WHAT?? "Enhance visibility of independence" by just spatially moving them? what does that help when they stay invisibly fully dependent and the Maestro stretches his fingers in an abusive way ... BB should just keep out of BoA business: they are dealing with a relative small amount of cases only, which will not be decisive for his or VP1s golden handshakes. It appears to be just personal profilation helping nobody, but erodes the European patent system.
    If the spatial separation from HQ-Munich would help anything, staff in The Hague, Berlin or Vienna would be much happier than in Munich ... don't guess that this is the case ... the envisaged move is just eyewash which only costs money (but perhaps does that go to the right pockets, who knows).

  55. Can anybody see any upside?

    Yes, I can. As I (and others) have already told you, the costs of the Berlin Office fall on the Government of Germany.

    DG3 is very expensive. The President is on a mission to drive down cost. Moving DG3 to Berlin would seem to me to drive down costs enormously, in one quick and easy step. What could be more Win-Win than that?

  56. Just as a question about the Protocol. "Section VIII: … The provisions governing the weighting of votes (Article 36 of the Convention) shall apply."

    What are the weights of countries like Germany, UK, France? Especially, Germany, which will bear the maintaining costs for Berlin BoA?

  57. "Yes, I can. As I (and others) have already told you, the costs of the Berlin Office fall on the Government of Germany."

    Shouldn't that be "the costs of the Berlin sub-office" ?

    Can the Boards of Appeal be relocated to a "sub-office" ?

    Perhaps ...

  58. Will president of administrating council answer a letter of cipa?

  59. Anon 2303,
    The UK is represented by the UKIPO and they show no sign of intervening in this way.


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