The Future of the Boards of Appeal of the European Patent Office: Board 28 to meet

Next week, on 11 February 2015, Board 28 of the European Patent Office will meet.  The only topic on the agenda of the meeting is the reform of the Boards of Appeal of the European Patent Office.

Board 28 is the sub-group of the Administrative Council that is envisaged under Article 28 EPC. Merpel has mentioned this Board before, and some of its members, but has now ascertained its full present membership. The complete composition is currently as follows:

- Ex officio members (only the first two are envisaged by Art 28(2)):
Jesper Kongstad (DK), Chairman of the Administrative Council;
Miklós Bendzsel (HU), Deputy Chairman of the Administrative Council;
Roland Grossenbacher (CH), Honorary Chairman of the Administrative Council;
Serafeim Stasinos (GR), Chairman of the Budget and Finance Committee;
Sean Dennehey (GB), Chairman of the Committee on Patent Law;
Josef Kratochvil (CZ), Chairman of the Technical and Operational Support Committee.
- Members appointed by the Council (envisaged by Art 28(2) and (3)):
Cristoph Ernst (DE);
Matti Pätts (EE);
Habip Asan (TR).
From the fact that the current business distribution scheme for the Boards of Appeal extends only to the end of March, it seems likely that the intention is for a proposal to be decided by Board 28 next week, approved by the Administrative Council in March, and implemented in April. Put another way, whatever the proposed new arrangements are for the administration of the Boards of Appeal, they are likely to be implemented very quickly and with no consultation. Users have certainly not been consulted, and Merpel understands that until now, neither have the Boards of Appeal themselves.

A number of commentators have written about the recent changes to the Service Regulations that were approved in the December meeting of the Administrative Council.  In the new provisions, there does appear to be a justifiable concern that the Boards of Appeal are to become even less independent than they were at the time when R19/12, and the suspension of a member of the Boards of Appeal (see Merpel posts passim starting here and links), gave rise to concerns over their independence.  There is an excellent piece on the EPLaw Blog by Michael Wallinger (left), of Wallinger Ricker Schlotter Tostmann.

Merpel has also received the following analysis.  She is not herself familiar enough with the Service Regulations in their previous and current form to be sure of all of the concerns that it raises, but it does seem that if some of the new provisions are not amended insofar as they relate to Board of Appeal members, then the issues identified are of genuine materiality.  Therefore, she has decided to reproduce the analysis as she has received it.
The new Career System adopted by the Administrative Council in its meeting in December 2014, has a number of elements that have serious consequences for the independence and impartiality of the Boards of Appeal. The new Career System can be found as a CA/D 10/14 at
It is a change in the Service Regulations which define the working conditions for EPO staff. Although it is stated that these regulations only apply “insofar as they are not prejudicial to the independence” of the Boards of Appeal (Art. 1 (4) ServRegs, the new system contains various features that are in fact prejudicial to the independence of the Boards and contradict this article. A few points: 
1. The new system entails a complete integration of the Boards of Appeal in the Office career system. The consequence is a lack of distinction between the judiciary and the executive, with a large number of articles in the revised Service Regulations in which the executive has a specific (final) responsibility over the Boards of Appeal, or an influence on their functioning. 
The functions of members and chairmen are placed in the “technical” career path of the EPO, are therefore seen as a “normal” continuation of the examiner/lawyer path (Art. 3 ServRegs; its Annex I on page 19/28 of CA/D 10/14). No account is taken of the special status of the Boards of Appeal, as described in the EPC, Articles 11(3) and 23 EPC. 
2. Persons appointed to the Boards are subject to a probationary period (Art. 13 ServRegs regarding transfer/promotion/recruitment pursuant to Art. 4 (1) ServRegs). This applies to examiners/lawyers becoming members of the Boards, or external members being recruited as members of the Boards and is in direct breach of Art. 23(1) EPC. 
3. Performance will be measured by appraisal reports (Art. 47a ServRegs). Assessment of performance is a managerial responsibility. Since the members and chairmen of the Boards of Appeal are in the “technical career path”, the only manager available to assess their performance is Vice- President DG3, with as countersigning officer the President, i.e. the executive. 
Promotion depends
on performance
Any advancement in step or promotion is made dependent “on performance and demonstration of the expected competencies” (Art. 48 ServRegs, Art Art. 49 ServRegs; page 12/28 of CA/D 10/14). Under the old system, Board members and chairmen were not subject to appraisal, so that a new appraisal framework for the Boards should be developed. It is not clear if such framework has been put into place by the Administrative Council (the Boards’ appointing authority), but any disagreement on an appraisal report will still be dealt with by the “appraisals committee” established by the President, i.e. the executive, under Art. 110a ServRegs. 
4. A further point is the independence of the support services, which according to the new system are not distinguished in any way from other support services in the office, although they perform functions of the Boards or confidential work for the Boards necessitating specific skills. With the new career system a competency model has been put into place, determined by the appointing authority (Art. 3(2)(a)(b) ServRegs). It is not clear whether such a competency framework has already been established by the Administrative Council for the Boards of Appeal. It is, however clear that the support staff performing functions of and for the Boards of Appeal have a competency model determined by the executive, their appointing authority, which does not take account of their special situation. 
These are only a few points showing that the new career system results in the Boards of Appeal being supervised by the executive, a situation that is unacceptable for a judicial body. In principle, Art. 23 EPC should offer protection against such a situation. However, there is no sanction when the president or indeed the Administrative Council contravene the EPC. As recent events have shown, already under the old system it was possible for the president to withhold proposals for the nomination of members and chairmen from being submitted to the Administrative Council, and to take over the authorization of expenditure and external activities for members and chairmen of the Boards, thus directly influencing the Boards’ functioning, without the Administrative Council even asking questions, let alone imposing corrections. Under the new system this has not improved; on the contrary, the power of the executive over the Boards of Appeal has been confirmed and strengthened. 
This decision of the Administrative Council is in clear contradiction with its own declaration at the end of the December 2014 meeting, reiterating its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognized principles of judicial independence. While formally support is expressed of the Boards’ independence, in reality measures have been put into place that go directly in the opposite direction. 
One can only wonder what purpose it might serve to strengthen the influence of the executive over the judiciary, with all the possible severe international consequences. 
Merpel hopes that these concerns will be addressed in whatever administrative arrangements the Board 28 comes up with next week.

The Future of the Boards of Appeal of the European Patent Office: Board 28 to meet The Future of the Boards of Appeal of the European Patent Office: Board 28 to meet Reviewed by Merpel on Thursday, February 05, 2015 Rating: 5


  1. Appeal board are all talking of rumour that president will move them to Berlin. I do not know where this rumour is coming from but members of appeal boards are worrying about it.

    Who wants to move?
    Only ones with no life in München. No families with life in München.

    Appeal board already do not have enough members. Just when starting to reduce delay, president is stopping to allow new people. No new people for one year.

    Appeal board will lose more people if president moves it. Who is doing the work then? Is difficult to find good people, and many all at one time will be extra hard. You want good people, people with experience?

    Who is paying to move all the people?

    How is better independent by moving and losing members? Is not city but structure of president that makes problem.

    Is good for Europe patent system that appeal board members unemployed? Is good use of good people?

  2. The Boards of Appeal never had the credentials of judges proper. Appointed at by the AC at the suggestion of the President, only five year terms. The previous presidents did create the illusion of judicial status by not exercising their right to nominate and always renewed whoever. Now with the present president it becomes clear they are never were anything close to judges.

  3. The rumour of Berlin, I think, is no more than rumour spread by the President. It may be to spread fear. It may be so that the real proposal, no matter how bad, will look better.

  4. Concerns are justifiably raised about fundamental constitutional issues like independence of the judiciary, etc., but who genuinely thinks that the middling civil servants who the heads of patent offices are at home have the political overwiew over weighty matters like these and the wisdom to decide them correctly. However, I am prepared to let myself be surprised ...

  5. Is not really true what anonymous said over independence. EPU does not let president interfere in appeal boards.
    President can propose members for appeal boards and can be consulted over reappointing but can not veto.

    It is administrating council that do not stop president and that do not insist on own powers. Administrating council do not car for doing well. Do not care if new careers system is discriminating women for example. Do not care if new sick rules are stupid and do not work. Just care they are paid. President and Kongstad do what they want and rest not caring. If administrating council is doing its work appeal boards are independent.

    Is not very good independence. Is not best standard independence. Is needing improving but is independence.

  6. sick leave stupid rules like home checks for sick people , 1 st day of sickness doctor visit which you cant really do because you must be home to be checked by the office doctors anyway, if you get sick while in leave not home you must have asked for permission beofre you got sick......... and no medical commities anymore..... only an independnent presidential doctor to see if you are ...sick or not

  7. Note the warning by Sir Robin Jacob and the European Patent Judges:

    "The present events seriously threaten the judicial independence of the Boards of Appeal and by doing that call in question the guarantee of an independent and impartial review of the European Office's decisions by a judicial body."


    " - the point could well come up in a real case concerning the status of Board of Appeal decisions."

    The message is clear. Unless Board 28 comes up with some huge changes next week, it is only a matter of time before patentees start to petition national courts to review decisions by the Boards of Appeal. Historically, national courts have refused to do that, because they said the Boards of Appeal had the necessary judicial independence to comply with TRIPs. But if that changes...?

  8. As an outsider (but a concerned outsider, I have represented clients who have EP applications and patents), US patent attorney, I find this all deeply troubling.
    The thesis of the EPO was that it would provide a central patent processing organization that was fully skilled and professional (and I think it has by and large done that) with an impartial review of its processes (the Boards of Appeal and Extended Board).
    Now what seems to be proposed is nothing more than the current US PTAB (and its predecessor, the BPAI), a board that is subservient to the wishes of the organization.
    But at least the PTAB is subject to the review of both the US District Court (under 35 USC 145) and the Federal Circuit (under 35 USC 144); but Batistelli, and his enablers on the Administrative Council, are destroying the idea of the EPO.
    Heaven (or those who enable it on earth) help the UPC!

  9. It should be clear that judicial independence from the administration of the Boards of Appeal is essential and, of course such independence will make it necessary to separate the BoA from the rest of the EPO otherwise serious constitutional legal questions will arrive in the EPC member states courts in the context of BoA decisions in the future that will lead to a disfunction of the EPC system. Such national court decisions are out of reach of the EPO management, but will have certain impact on the EPO. Thus, there is no alternative to seperate the BoA from the EPO if the EPC system should survive.
    Some kind of ,Alicante-System' is for sure no alternative because at firt the CJEU and the General Court are EU institutions that will not be accepted by the non EU EPC member states for general political reasons and at 2nd these courts do not have any man power and, of course no legal expertise to decide a huge amount of patent cases.
    Therfore in the mid-run it is absolutely necessary to do a diplomatic confernce on this issue with the outcome to transform the BoA to an EPC Court of Appeal. In the meantime the BoA have to be seperated from the rest of the EPO as much as possible in the actual legal framework an d this implies also a physical separation.
    I'm sure that the Administrative Council is no hindrance on that way because its members are NOT independent, but bound by instructions of their goverments (at the very end the responsible minister will decide). The EPC member state goverments are not interested to corrupt the EPC system and so they will instruct their delegates in the Administrative Council to take measures to ensure the judicial independence of the BoA. That happens already in UK and also in Germany.
    But, the price for judicial independence and separation from the rest of the EPO may be a move to another city. In view of the aforesaid serious constitunional legal and political problems, the personal opinion of the members of the BoA and their families, of course should not be a basis of a decision. Otherwise such a decision will look a ,bush-league' one.

  10. Have you read the names of the members of Board 28?
    None of the members would be able to contribute anything valuable on a reform of the boards of appeal. The project is made elsewhere (10th floor of the Isar Building). There Sir Robin has been seen few days ago. Meeting with the President? Reprimand or co-operation? We'll see the product of such a meeting in the next days. Board 28 would approve anything that comes from the President's office. Resurrection of the boards or sunset boulevard? A pessimist is never disappointed.

  11. The article above states: "While formally support is expressed of the Boards’ independence, in reality measures have been put into place that go directly in the opposite direction."

    If I read the last Official Journal, I believe these measures have not (yet) been put into place, and that there is still hope that AC cares about the independence of the boards:

    Report on the 142nd meeting of the Administrative Council of the European Patent Organisation (10 and 11 December 2014):

    On personnel/policy matters, the Council approved a new career system for EPO staff, on the understanding that the provisions regarding appraisal, performance, step advancement, bonus, promotion and all career-related elements for Council appointees as members of the boards of appeal will not apply until specific provisions have been included in documents concerning the organisation and functioning of DG 3, to be submitted to the Council at its next meeting, in March 2015.

  12. Thank you Merpel for keeping public awareness of the lack of independence of the Boards alive. This is the only means to put pressure on the Council which has so far been unwilling to stop the President exercising pressure on the members of the Boards. The Service Regulations expressly including the Board members have been adopted and have entered into force. The vague promise followed that they would not be applied to Board members, "until specific provisions have been included in documents concerning the Organisation and functioning of DG 3". What kind of law is this, which is at the discretion of the President not to be applied? A point not addressed by Merpel is the activities of the EPO's own Secret Service, the Investgation Unit which is under the exclusive control of the President. The temporary removal of a Board member seems to show that the communication of Board members is not excluded from these activities. Only a clear institutional separation of the Boards from the Office can stop the continuing influence of the President on the Boards. But experience so far rather suggests that the Council confines itself to cosmetic measures. A mere local separation (the rumours about a move to Berlin) would be the worst solution.

  13. The members of the AC are under the obligations imposed on their governments to uphold TRIPS Article 32:

    "An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available."

    If the Boards lose their judicial character, the AC is not doing its job.

  14. Or, as someone else points out, we shall now see a rash of national decisions reversing Board of Appeal decisions in opposition, with the result that a) the EPO register will no longer be a good guide to the validity of a right in any national jurisdiction and b) any harmonising effect of the EPC will be lost. Also possibly c) the UPC will be asked to enforce/declare validity of unitary patents revoked or limited in Opposition by a Board of Appeal on the grounds that no judicial review had taken place.

  15. LL at 2301, yes the President can and does interfere with the boards by refusing to pass on proposals to the admin council. And by refusing recruitment. Already there are two boards without chairmen although the successors had been chosen. More are to follow. Already there is a lack of legal members, that will be worse by the end of the year. I heard it say that by the end of the year one third of the posts for legal members will be vacant! No posts are advertised. And the admin council does not even ask questions! Soon the patentees and opponents will start to feel it, because there is no way that the boards can keep up their work while being hindered in this way. Who has ever heard of an employer sabotaging its own employees???

  16. Sabotaging staff or not - the current president only wants to be the constant focus of everyone's attention. Frequent trips with images of shaking hands around the globe help make this come about, as does taking decisions that cause him to be the topic of discussion in conversations, in print or on web blogs.
    His ideas must be implemented, never mind whether or not they are in compliance with the EPC or national laws, or how good or bad they are for the Office, its staff or its users or the patent system as a whole.
    Lasting fame is the aim.

  17. "The project is made elsewhere (10th floor of the Isar Building). There Sir Robin has been seen few days ago" (see Anonymous at 7:08).
    This is excellent news, whatever will now come out will be the result of "in-depth consultation with most eminent european patent judges"

  18. Alibi consultation: you talk to people at such a point in time that nothing can be changed anymore and then say you consulted them. Or you invite a group to be represented, then you say that the representatives are unacceptable and then you say that the group refused to send representatives. Not real? It has all happened at the EPO.

  19. "Lasting fame is the aim."

    Or at least notoriety ...

  20. Fame? Notoriety?

    BB: "Infamy, infamy, they've all got it in for me!"

  21. As BB said recently in an email to a Danish paper (see for details), you can consult but eventually you have to make a decision. His definition of consult may be up for grabs though and, according to the staff committee, it seems to be perfunctory at best. I speak , you speak, i confirm my decision.

  22. @Anon 07:04:
    I agree that judicial independence may justify as price to be paid the relocation of the Boards of Appeal to another European city even if this will put the members of the BoA in a difficult personal situation.
    However, moving to another city may not be such an easy task in view of Art. 6 EPC. In R13/14 the petitioner already questions whether summons to attend oral proceedings in a city different then Munich.

  23. This reminds me of that famous speech in the UK Parliament (somewhere around the year 1900). The heckled Prime Minister stood up and declared that he was very willing to receive "any evidence that confirms the view I have already reached". The original "confirmation bias".

    Consultation is there only as a safety net for the Decider, to alert him to anything that he might have overlooked and which is serious enough that the Decision he has already reached might leave him looking foolish.

    Take Oral Proceedings in DG3. Do readers ever detect there anything in the nature of a Confirmation Bias?

  24. The steps that people are worried about appear to me to simply be the logical conclusion of a path already taken. It is not mentioned often enough in my point of view, so I'll mention again that in theory at least the examination and opposition divisions should take their decisions independently. Since the post of examiner has been replaced by the post of "target achiever", this decision is heavily dependent on the promotion chances of the deciders, coupled with vastly increased production targets, the result can only be rubbish. It is, however, utterly pointless encouraging rubbish from the lesser folk and then have a bunch on know-betters overturn any decision they take. Thus, logically, also the board of appeal needs to accept that in which the examiners are already rejoicing. I fear Mr Freyburg (05:49) has hit the nail on the proverbial head, what we are seeing is a further example of "harmonisation" without even the security net the US has foreseen. I do hope the boards of appeal have an answer.

  25. Dear anonymous 1000,
    yes, president is attacked indpendence. Is because administrating council allowing it.
    Anonymous 0841 says administrating council must keep independece for trips. Is true and it is not doing it.
    EPC 2000 article 4a says must be conference of ministers discussing patents each five years. Did not happen. Is time for ministers to do this.
    Does move to Berlin make appeal board more idependent? If is under president no. If is not under president, no because is independent already. Is British supreme court independent? Is in same city as government. Is French supreme court independent? Is in same city as government. Is Spanish supreme court independent. Is in same city as government.
    No. If moving appeals board is punishing like school playground bully boy.

  26. It is almost amusing to see the sense of panic. Sir Jacob, Mr Minnoye's friend, is spotted near the Isar Building. The president and a vice president visits Berlin. As likely to be about relocating the examiners there and having a nice day out as anything else, but the president is surely enjoying the fear.

  27. One minute all this handbags at dawn stuff is about PB forcing poor, hard-done-by examiners to grant everything, and the next he's stopping them granting oh-so-worthy-patents on nothing-inventions.

    Make your mind up people.

  28. In my opinion the commentators that regard the impact on the boards` members of a possible relocation as irrelevant are missing the point.
    In the present situation we have seen that some actions of the boards have “irritated” the President (R19/12, the reaction of the enlarged board to the member´s suspension and possibly more). This irritation is clear to this observer for instance from measures such as the recruiting stop and the failure to consult the boards on their future.
    If now these measures are followed by a relocation to another city this further measure, exactly in view of its impact on the members and their families, will be clearly seen as a retaliation for the decisions which irritated the president. After that it will apparent to any board member and to any informed member of the public that any decision which does not please the President or the administrative council may result in some kind of punitive measures imposed on the board´s members (maybe a further transfer).
    Therefore, in my view a relocation to another city in the present situation would be contrary to the idea of independent boards of appeal. As a matter of fact it is a widely accepted principle that the transfer of judges without their consent is inconsistent with an independent judiciary.
    The problem would not arise in case of relocation to another building in the same city, which does not entail personal consequences for the board members. But this would still be merely cosmetic measure, because what is needed is institutional separation rather than physical separation.

  29. 0006,
    Sorry, I don't understand your last point.

    And does the B28 produce any report after next week or do we have to wait for the next BFC and/or AC for details? Or will there be a CA document published before the meeting? Given the secrecy so far, the denouement surely requires some grand moment for BB.

  30. To understand the mindset of BB and his machinations, it may be helpful to study Debords's "La Société du spectacle":

    Do not forget that he is a product of that "grande nation" whose ruling class has bequeathed to the world such delightful personages as the Marquis de Sade who is the ultimate personification of the principle of deriving pleasure from inflicting pain upon others.

  31. I totally agree that institutional separation is key for the judicial independence for the Boards of Appeal and a mere relocation is not sufficient.
    If and only if said institutional separation would for whatever political reasons also require a relocation of the Boards of Appeal, it should be acceptable, even for the members of the Boards of Appeal.
    Not always a transfer of judges without their consent can be regarded as contrary to the idea of judicial independence. In Germany, e.g., the Federal Administrative Court, the Federal Social Court and a Senate of the Federal Court of Justice got relocated due to the reunification.
    I already indicated that the relocation to another city may be contradictory to Art. 6 EPC. Furthermore, relocation without institutional separation in the current situation would of course put even stronger doubts on the judicial independence of the Boards of Appeal.

  32. Follow the money. Can EPO-CEO BB get costs down far enough that he qualifies for his EUR 20 milion sweetener? In that regard, ask yourselves, how much does it cost the EPO to run DG3 i) for as long as DG3 sits in Munich, and ii) if it were to move, lock, stock and barrel to Berlin?

    Hint: recall the origins of the EPO building in Berlin. Who paid to have it there?

    I put it to you that moving DG3 to Berlin ticks all the boxes. With costs driven down, the prospects for the Member States to get bigger dividends out of their shares in the EPO are improved, BB gets his bonus, the journalists, politicians, attorney representative organisations and industry associations are placated, SUEPO is cowed, and DG3, quarantined in its isolation ward in Berlin, can more easily be given its "judicial independence" the more so just as soon as an Intergovernmental Conference can be convened.

    And BB departs, celebrated as a reforming hero.

    Meanwhile, back at the EPO, the backlogs in DG3 get worse and worse, and quality goes down and down.

    But who cares about a loss of quality? The bulk filers? Those who often file oppositions at the EPO? I put it to you that it is naive to suppose they might care one jot. After all, the world of industry bosses is what BB is emulating at the EPO, to the general acclaim of the fawning politicians. Who else should care?

  33. "Furthermore, relocation without institutional separation in the current situation would of course put even stronger doubts on the judicial independence of the Boards of Appeal."

    Not only that.

    I could also make it more difficult for the Investigative Unit to snoop on the Board members.

    Has BB thought about that ?

  34. Ano 1120, snooping will be just as easy. Or do you really believe that the Boards would have their own Network, separate from the EPO ?

  35. By the way a well informed source said that the EPO has hired some hackers.

    Coincidently the SUEPO website has been hacked last wednesday

  36. @Anon 0946.
    I agree with you that in the case of Germany´s reunification the relocation of some courts could be considered justified and not an attack to the independence of the judiciary.
    However in this case we do not have a reunification of Germany but only a decision (R19/12) which, as acknowledged by Mr Kongstad in his interview has prompted the measures to be taken.
    If a measure taken in response to this decision can be regarded as punishment of the board´s members (independently of the true intentions of the council) I don´t that anybody will believe that the boards are independent in their decisions.

  37. I agree with MaxDrei at 11:05, although I do not understand all the historical references.

    The bottom line is that those who will suffer under this creeping patent reform will be the start-ups and slightly bigger companies that would become competitors to the large multinationals if they could legally carve a niche for their activities.

    BoA members will have to observe the situation carefully, and a number of them would find a workplace at the UPC another option, if they are forced to move.

    Best wishes,

    George Brock-Nannestad

  38. "By the way a well informed source said that the EPO has hired some hackers.
    Coincidently the SUEPO website has been hacked last wednesday"
    I also have it form a reliable source that a person with intelligence experience in Iraq and Afghanistan is now working for the EPO.

    Surely BB made the complacent life at the EPO much more lively, more like a TV series! What a world of difference: from a solid, serious, professional institution to judge the rather dry issue of validity of patents in the interest of industry, it has become a money source for some politicians with a scared and suppressed staff, spied upon as if they were the enemy inside. At the cost of industry. What on earth does a decent organization professional hackers and spies for??? I find this shocking!

  39. Additionally is it normal that Mr Battistelli shows up in the EPO premises surrounded by bodyguards?

    After trying to terrorize the staff, would he be too, terrorized himself?

    But why?

  40. What on earth does a decent organization need professional hackers and spies for???

    Oh don't be so naive!

    To protect the innocent and to neutralise external threats like this of course ... use your loaf for God's sake ...

  41. There are rumours that BB is building a little pad on Sardinia with the architect involved in The Hague project.
    Any criticism of these erections is below the belt!

  42. Recruitment stop? Berlin? Alicantation?
    Nobody seems to know what will come but one thing is sure:
    the revenge of Mr Battistelli is coming and after that the boards of appeal won´t dare again to take a decision that displeases him.

  43. Nobody seems to know what will come but one thing is sure:
    the revenge of Mr Battistelli is coming and after that the boards of appeal won´t dare again to take a decision that displeases him.

    "Vengeance is Mine, and retribution,
    In due time their foot will slip; For the day of their calamity is near,
    And the impending things are hastening upon them.'"

    Deuteronomy 32:35

  44. The erosion of the independence of the Boards of Appeal and the deliberate reduction in the prosecution quality of European patent applications will have long-term consequences for the legal certainty of EPO-based patents in Europe.

    For the members of the “enhanced cooperation” (the Unitary Patent/UPC arrangement) the erosion will not have grave consequences for an accepted European Patent Application if and when it survives – justified or not – opposition and appeal. There is legal recourse “higher up in the system” (UPC) for the unitary patents obtained by registration of the accepted European Patent Applications. Nullity is a proper defense, unless bifurcation sets in. But will be a more expensive route.

    It is much worse for applicants whose application is refused during prosecution and who also lose appeals. Here there is no legal recourse at all. This means that the Boards of Appeal constitute the only (!) independent evaluation of the case and its administration. This means that when the independence is eroded, this group is left without any legal security at all. You could say that the old unsymmetry-failing of the EPC hits doubly hard if the Boards of Appeal are not truly independent.

    If members of the Boards of Appeal become dependent on the administration of the EPO, there is every risk that they will be chosen according to their will to adhere to the administrative rules that may prevail at any one time and in particular their will to find good reasons why a defective examination fulfills the rules after all. Bonus schemes may be put in place, which may also be used to control the outcome of an appeal.

    This is not very far from a situation where bribery is used to obtain a specific legal result. Officially, industry frowns on such practices, but the truth is that many contracts would never be entered into, unless suitable lubrication takes place. It will not be overt in the case of the Boards of Appeal (now manned according to the wishes of the EPO management), but it will be something like what is known from the pharmaceutical industry when dealing with the medical profession: conferences and meetings at exotic places will be fully paid for, etc., etc. The Board members will obviously have to ask the administration for permission, and it will be given, because it will obviously serve an educational purpose. And it is definitely team-building.

    Thankfully, this will not affect national patents. Yet! However, some EPC member countries, such as France, very early went so far in integration that they prevented the designation of the country in PCT applications, unless it was as a part of the designations of a European patent application. If you only went for national applications and wanted France as well as those that you could designate directly, you had to spend the extra to go via EPO and then use conversion.


    George Brock-Nannestad

  45. So let me get this straight: the EPO hires hackers, spies and lawyers who specialize in employment law and there is a recruitment stop on the boards of appeal? In the mean time I heard that many disciplinary procedures are taking place against examiners who at the end will be thrown out without the possibility of legal recourse. So who grants the patents? And is this the kind of patent organization the EU wants? Apparently yes, because the administrative council gives its full support and its members are again supported by their ministers. So what is the aim? Back to national patents? And then an EU wide recognition of nationally granted patents? Are they really so ignorant? Or incompetent? Or worse?

  46. Instead of writing about bribery at the board of appeal level as if it was happening - which at least with the current membership is almost inconceivable (perhaps that explains BB's ire!) - should George Brooke-Nannestad perhaps have looked at the jollies AC members have in the past been invited to by BB at "his" expense. Should some aspect of those jollies perhaps have been declared to the national revenue authorities but wasn't? Plenty of pressure points there if that were indeed the case!

  47. One point is sure
    The board 28 will have a good medical protection next week.

    A short time ago, Mr Batistelli, has granted to the council members the benefit of our medical insurance.

    "Bribery (Wikipedia) is the improper use of gifts and favours in exchange for personal gain. This is also known as kickbacks or, in the Middle East, baksheesh. It is the most common form of corruption. The types of favours given are diverse and include money, gifts, sexual favours, company shares, entertainment, employment and political benefits. The personal gain that is given can be anything from actively giving preferential treatment to having an indiscretion or crime overlooked.[17]

    Bribery can sometimes be part of the systemic use of corruption for other ends, for example to perpetrate further corruption. Bribery can make officials more susceptible to blackmail or extortion."

  48. Hackers at The site had a blip during the midweek but the forum has been down for a while so is it not a site problem? Since everyone internally at the EPO can view the site, there doesn't seem to be much to gain unless BB wants to know who is posting the articles. But even that doesn't seem too hard to guess. And often they're only posting links to here etc. Recruiting employment lawyers while not recruiting BoA members is a different matter...

  49. "Bribery can sometimes be part of the systemic use of corruption for other ends, for example to perpetrate further corruption. Bribery can make officials more susceptible to blackmail or extortion."

    It may also be worth having a look at the following German law:

    See also § 108e of the German Criminal Code.

  50. First of all I would like to make a small clarification to my response of Sunday, 8 February 2015 at 10:34:00 GMT. I stated about the Boards of Appeal, “(now manned according to the wishes ......)”. What I meant was “by now manned”, indicating that the draconic measures and proposed administration of this purportedly independent organ would materially change its composition. If I had intended to indicate that there is anything the matter with the present manning, I would have written “presently manned”. Just so that no idle discussion over foreign matter emerges!

    Now for a more frightening observation.

    There is a recurring pattern in organisations, which I have seen before. Whenever the anomaly “an honorary chairman” is appointed, one may assume that this previous regular chairman has bestowed certain favours on the person proposing (overtly or via prior convincing of others) this extraordinary chairmanship. I will provide a case history offline to persons who identify themselves, if they do not believe this model.

    In the present case the compositions of the Administrative Council and the “Board 28” point to a much longer history of manipulation and failing in the Administrative Council than we have been aware of. It has gone completely under the radar, and the symptoms could only be seen in the dissatisfaction with the reduction in quality expressed by the EPO examiners over several years. Alas, envy and jealousy was used to wipe those under the carpet, and we have seen such expressions recently as well. And because they are anonymous, we cannot be certain that they are not planted by the administration.

    I am not sufficiently versed in the working of the Administrative Council, and I do not have a complete collection of decisions and other working documents; furthermore some may never have been publicly available and some may even have been removed from access again. But I do remember that the present chairman took office with the intention of farming out some of the work of the EPO examination to EPC member state patent offices, and that this idea is completely dead now. Why? What happened to make a close cooperation with the present Head of the EPO Administration a much better, according to rumours: personal, prospect?

    Now, what can be done about it? How can a message be sent to the Administrative Council and the Head of the EPO Administration that such developments – erosions – cannot be tolerated? The rumoured but much-touted “bonus” of the present Head of the EPO Administration is obviously made contingent on something (2 speculations in one, here!). A person who develops an organisation diligently deserves a bonus. We cannot know how the contract is phrased, because for some strange reason it is not open to the public. Some of the rumours consider the whole contract to be an insider-game. We know neither the carrot, nor the goals to be fulfilled. And in particular the latter is frightening to a lot of EPO’s customers. But not “big industry”.

    I think we need a concerted action, but obviously one that will not endanger the livelihood of staff. On the other hand, carefully executed and verifiable leaks would be very welcome. Rumours are virtually worthless and can only add to conspiracy theories, which are easy to shrug off.

    "Yes we can" (sorry, I am not that confident),

    George Brock-Nannestad

  51. Apropos bribery and corruption, have a look at this:

    Corruption and bribery of elected officials

    (1) Who as a member of parliament of the Federation or of the federal states (Länder) demands or accepts the promise of an undue advantage for himself or a third party as a consideration for the performance of an action or omission in relation to his mandate, shall be punished with imprisonment up to five years or a fine.

    (2) Who offers, promises or grants a member of parliament of the Federation or of the federal state (Länder) an undue advantage for that member or a third party as a consideration for an action or omission in relation to that member’s mandate shall be punished likewise .

    (3) The following members are equivalent to the members in paragraphs 1 and 2

    5. member of a parliamentary assembly of an international organization

  52. all these comments show one thing to me: everybody, not just examiners anymore, feel powerless. And rightly so - BB will do what he wants the way he wants, whether people like it or not. Now that leaves the profession in an awkward position: can a salary be justified by a legal expertise in dealing with an organisation which does not care about law?

  53. In an EPO opposition case I am watching, on the EPO Patents Register, the scheduled short date for oral proceedings has just been set back, to mid-2016.

    Something has come up, you might think. New evidence, perhaps. An intervention by an infringer under Art 105 EPC?

    Can't be. Nothing else has arrived on the file since the case started in 2012.

    Other explanations? Hang on a minute. Could it be that backlogs in the EPO are on the increase?

    If so, I wonder why. Can anybody here think of a reason?

  54. Yesterday 1445, Update,
    In fact SUEPO has now informed members, by email, that there was a Denial of Service attack on Thursday and Sunday from sources in 'China, Korea and Belgium'. No suggestion from them about who might be behind that but Suepo are considering reporting the matter to the appropriate national authorities. Seems they have had some damage and the site has operating problems.
    Likely source? Despite my antipathy to EPO mgt, I would doubt the EPO-based rumours. The Suepo site might just have been tried out as a possible entry point to the EPO site in general, a far more interesting site for some? Conspiracy theories may need to be put on hold.

  55. Maxdrei2245, is it a board without a chairman perhaps? Or one with less than four technical members? An anon said somewhere that soon the parties would start to feel the consequences of the recruitment stop. Might this be it?

  56. 0804 and 2245,
    Is it a case before an opposition division or a BoA?

  57. Just to clarify: the case I am watching is an opposition that started in 2012. The orals now put back to 2016 are of course still in the first instance, the Opposition Division, not yet the Technical Board of Appeal.

    One might wonder how many years this particular opposition has to run, and how many more years my watching client must wait for the outcome, if it (like most oppositions, because there is no great cost pressure to settle) runs the full 2-instance course before the EPO.

  58. MaxDrei, is it a case where the decision of a pending G case may affect the outcome? Perhaps a clarity or priortiy/divisional issue?

  59. Hacker attack to the SUEPO site from Belgium?
    Hmm.... Willy Minnoye connection?

  60. Observations:
    No reactions from Sir Robin to insults from DG1
    Visit of Sir Robin to President Battistelli in Munich
    On 11.02 Board 28 decides on the future of the Boards.

    Fishy situation!

    No one is incorruptible!

    Bye bye Boards!

  61. Good point, anon at 09:23. There is indeed a priority issue. I guess that explains the long date. Thanks.

  62. So if it is stayed pending another decision does that mean the anti-PB rhetoric is once again without foundation.

    Never let the facts get in the way eh, chaps?

  63. It could well be that the delay till mid 2016 is because we have to wait till then for the EBA to decide the G Referral on poisonous divisional/priority.

    Likely it is, that a rapidly increasing number of pending cases are being thus suspended.

    So the EBA should decide the G referral as soon as it can. But if the good burghers of DG3 are now too busy with other more pressing matters, the G Decisions will just have to wait, won't they?

  64. There is also G3/14 - clarity when combining dependent claims with independent claim in oppositions.

  65. I don´t understand all the anxiety about Board 28. Mr. Battistelli and Mr Minnoye have already decided that the boards of appeal (or what will be left of them) will move to Berlin within a couple of years. So Board 28 and the Administrative Council will just rubber-stamp this decision: their consultation is a farce.
    Anyway if by chance the decisions of the Administrative Council are not perfectly in line with his will Mr Battistelli simply ignores them. At the December Council it was decided that the elements of the new career system concerning promotions, boni etc. should provisionally not apply to the boards of appeal. Some days later, on December 19th, Mr Battistelli issued circular which states that those elements apply to all the staff, including the members of the boards of appeal.

    An independent Administrative Council is an illusion and independent boards of appeal will soon belong to the past.

  66. The comment by anonymous @ 9 February 2015 at 11:12:00 GMT sadly reminds me of a very senior English judge who decided an Apple vs Samsung case in favour of Samsung and some weeks later became a consultant for Samsung - most probably pure coincidence ...

  67. So there is a rumour that the Boards will be forced to move to Berlin to teach them who is boss? Not surprising really. Disgruntled people do tend to talk such nonsense and start spreading stupid rumours.

    I heard a rumour that all disgruntled staff will be sacked and forced to make their way in the real world. Must be true as I heard it directly from my own horses mouth.

  68. All this talk of splitting DG3 is a farce, since it is an acknowledged authority which worked perfectly well as long as it was allowed to do so. A long way further up, someone said look for the money. Have no illusions, we are not talking BB's 20 million, if it exists at all. That is but peanuts and he is but a small cog replaceable if necessary. Obviously the EPO has seriously disturbed some string-pullers with its out-of-date equality-for-all and patents-with-a-high-probability-of-validity and this must be stopped at all costs to bring the playing field properly out of level as it should be. Is it a coincidence that biotech EPO applications are getting rare? and will they increase once the EPO becomes more pliable?
    That the administrative council should allow this just means that they are being pulled by the string-pullers. DG3's independence is not the problem.
    So, it looks like the only half-way reasonable solution is for the administrative council to sack themselves. I would suggest a 5-man replacement, one from European industry, one from the enlarged board of appeal, two from EU countries and one non-EU country. All 5 to declare provable lack of conflict of interests. Staff and Attorneys with observer status.

  69. Dear anonymous @ 9. 2. 2015 at 18:02:00 - surely, you must be writing either tongue in cheek, or from total ignorance of the integrity of present board members, or as a spokesman for BB - which is it?

  70. It sounds like a long prepared action:
    1) no new BoA nominations since a year
    2) no real schedule for BoA-oral proceedings
    3) Presidential house ban of a BoA member shortly before an AC without any real need (apparently; if it is the Topic-issue than it is known since about 2 years).
    -> public reaction
    -> he needs to do "something urgently"
    -> B28 will come up with something Bugs Bunny was precooking a long time
    ... how about excission of the money costing BoA from the rest money-earning EPO ... it's a great way to cut costs
    at least in such a way that no Diplomatic conference is needed, but eg by making the completely independent, in particular financially from the rest ... OK it will cost a lot of money to sustain the BoA appeal structure ... but that ain't be the problem of the president of the rest-EPO.
    (and anyway ... just increase the appeal fees ... hohoho; why should EPO-customers have access to a judicial body when the EPO-staff doesn't have it)

  71. I am 18:20 and I speak for El Presidente. How could you tell? Did I not disguise myself amongst you all well enough?

  72. Anon 2206: AT least in one point the EPO customers are treated live staff: no consultation whatsoever.On the other hand, they are also not asked to waste time on drafting elaborate papers on job description that then disappear and never reach the admin council. Waste of time, alibi function.

  73. Anon at 10 pm last night, Well Said.

    Suppose there is consultation, at presidential level, between the EPO and the USPTO. Remind me about the USPTO fee structure that came in with the AIA. I seem to recall some outrageously high fees for their equivalent of appeals and oppositions. The reasons given? Why complain when it is still so much cheaper than to litigate and, anyway, we have to balance our books don't we?

    Shrugging off DG3? In the eyes of the Member States on the AC, a BB masterstroke.

  74. 2200,
    Or simply reduce the number of BoA members and save money directly? Make the service of DG3 less appealing (pardon) so that their roles are taken over by the EU patent courts? Win win situation for BB??

  75. It makes me so sad and angry to see how such an excellent group of people with their unique expertise and professionalism is treated like filth by a bunch of incompetent people who haven't got a clue about patents. They are destroying a well working system built over cpdecades and respected in the whole world, just because they play "manager". Yes, they are even destroying the very cornerstones of democracy. If that is what they teach in the so-called elite schools, those should be put under supervision. If the industry does not take action now, the consequences will be for them.


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