Independence of the Boards of Appeal - EPLAW and CCBE comment

Merpel wrote back in March on the proposal by the President of the European Patent Office for plans to reform the administration of the Boards of Appeal (proposals here and here; Merpel's comments here).  Readers may recall that there is currently running a consultation on these proposals, and that both AMBA (the Association of Members of the Boards of Appeal) and the Presidium of the Boards of Appeal  have commented on them already.

Merpel now notes that EPLAW (the European Patent Lawyers Association) and CCBE (the Council of Bars and Law Societies of Europe) have submitted comments, which have been reported and posted on the EPLAW Blog.  Two points raised by EPLAW merit repeating:

5. Two aspects of the Proposal cause most concern to EPLAW. 
6. One is that the EPO almost equates the (desired) perceived autonomy of the BoA with their (undesired) perceived inefficiency; in fact most of the Questions deal with this perceived inefficiency. We believe that these subjects (autonomy/independence and efficiency) require separate handling. The independence of the BoA is a much more fundamental issue than its (in)efficiency. Moreover, we don’t think that the connection suggested by the EPO - that excellent performance (efficiency) would generate independence (autonomy) - has any basis in law. Efficiency is a matter of perceived fact, whereas autonomy is a matter of constitutional law. 
7. The second point is that the EPO stresses that any improvements should be achieved within the legal framework of the current EPC. The current EPC envisages that both the AC and the President of the EPO have certain powers vis-à-vis the BoA. The Proposal in essence suggests that (only) the President’s powers be delegated to a newly to be created President of the BoA, rather than to revise the relevant EPC-based AC and Presidential powers. The CCBE in their letter to Mr. Kongstad have raised the question whether such delegation would withstand the scrutiny of constitutional lawyers: Does it achieve the desired independence of the BoA (to be compared with the judicial branch of a state), or could the delegation be withdrawn by the President of the EPO?

Merpel is in particular concerned about the conflation of autonomy and efficiency, and considers that these two issues are totally separate.  As to whether the proposals are legal within the existing framework of the European Patent Convention, she will leave to constitutional Kats to decide.  The CCBE response, which is a more detailed analysis of the proposals, at several points considers otherwise.  For example, in relation to a number of proposed transfers of powers from the President of the EPO to the President of the Boards of Appeal or to the planned Board of Appeal Committee (BOAC - consisting of seven members, with three being members of the Administrative Council and four being external members to be chosen by the Council from among presidents and/or senior judges of national, European and international courts upon proposals from the delegations), CCBE comments:

it is important that the delegation of powers by the President of the EPO be both permanent and irrevocable.  It is not clear whether as a matter of constitutional law that can be achieved; if not amendment of the EPC may be required.

The CCBE questions what kind of judges should be eligible to serve on BOAC - Merpel in turn wonders whether direct administrative supervision (as opposed to more distant supervisory oversight) of the Boards by a committee containing members of the Administrative Council (who are effectively the legislature of the EPO) is appropriate in any case.

Finally (for now), Merpel notes that the CCBE considers that it would be better for the Boards of Appeal to be located in a different city from the rest of the EPO, which Merpel still thinks would be folly.

If any of these comments inspire you to submit ones of your own, Merpel reminds readers that the consultation will run until 30 June 2015.

As ever, Merpel welcomes comments, but begs to remind readers of the following:
Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).  The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.

Independence of the Boards of Appeal - EPLAW and CCBE comment Independence of the Boards of Appeal - EPLAW and CCBE comment Reviewed by Merpel on Friday, June 05, 2015 Rating: 5


  1. We should not be so negative as concerns having the Boards of Appeal to be located in a different city from the rest of the EPO, the bad idea is just that this suggests the BoA should move. Best would be to move everything EPO *except* the BoA out of Erhardstrasse and relocate them to another place, Examiners and Opposition are far away in Pschorrhöfe, that's no problem. The president and his staff can actually move wherever he likes, the farther the better!

  2. What an excellent idea, from that last contributer.

    We know how big a building is needed for DG1 (the Examiners). We know how big for DG3 (the Boards of Appeal). But I have no idea how big a building is needed, to squeeze the EPO President in, together with all his little helpers.

    But I should like to know. And reserving a building just for them might be a good first step in getting a "handle" on how big his personal entourage is.

  3. I especially like the CCBE letter where it states: “We would encourage the Administrative Council to seek its own independent legal advice on constitutional law. It should not rely on advice obtained by the President of the EPO.”

    The point concerning relocation seems to be based on the false statement of the President according to which the BOA share the same premises with the examiners. Moreover, it is certainly not a legal requirement. Indeed it appears that the President is trying to relocate the BOA as far as possible merely as a personal revenge for R19/12 and the letters of the Enlarged Board and the Presidium which criticised him (probably for the same reasons he imposed a ban on recruiting).

  4. We are the office said:

    I don't understand this business about geographical distance between the office and the boards of appeal.
    This poor guy from DG3 was not thrown out because his office was a few stairs down from the President's. Had his (or the President's) office been in Timbuktu his fate would have been exactly the same.

  5. It may be that a new location for the Boards of Appeal should have been envisaged at the time the court was created. However, at that time the future case load was uncertain. To relocate the BoA now would mean that a noticeable fraction of their members and chairs would prefer retirement than mooving. Thus additionally to the now vacant posts (which apear to add up to about 20 at the end of this year) a lot of further vacancies would arise. This means that from about 150 member/chair posts about 50 would be vacant (assuming that 30 more resign due to the relocation). To select, recruite and train a third of its staff would be an enormous effort without guarantee of success. The possible consequences are not hard to imagine.

  6. Perhaps BB has been looking enviously at the USPTO and the PTAB with its 30 min. hearings. Relocate to cut costs via early retirement then deal with the resulting overload by introducing Mickey Mouse hearings.

    Wrote H. Bosch

  7. How about this: the President delegates his powers to appoint/reappoint board members (strictly speaking, for reappointments he needs to be heard, but has no right to stop reapointments) to the Enlarged Board of Appeal, together with the already exercised right to frame Rules of Procedure. To give the whole thing stability this transfer of power would state that the President can regain those powers only if the EBA decides unanimously in favour of doing so. (Shoulsd they ever do so, then the Boards would not be worth their salaries) Simples!

    For the finances, the EBA goes directly to the Admin Council, again with some guarrantees that the boards would get the finances they resonaby require, based on some fraction of the Office budget.

  8. Timeo corsum, et dona ferens.

  9. @ Eponus::
    As one should - but i fear the lessons of the Trojan war have long been forgotten!
    Let's just remember why we have an issue now: it's only because BB has to meddle in things he can't, and never will be able to, understand!

  10. Battistelli is also organising a "structural reform" of SUEPO with the help of Control Risks. The Dutch press has reacted :

    That's what Battistelli meant when he proposed to integrate SUEPO into the "legal framework of the EPO".

  11. In most countries (even though Germany is a rare exception), the highest court sits in the same capital city as the executive and legislative powers. And yet nobody contests the independence of the U.S. Supreme Court on the basis that it is located in Washington DC, just a stone's throw away from both Capitol and White House. Nor do I remember, when the Supreme Court of the UK was established, any calls for it to move out of London, or even Westminster, on the grounds of its perceived independence. This is just a red herring, calculated to stir fear and confusion.

  12. The Red Herring says:

    Even in Germany, the Federal Patent Court (Bundespatentgericht) is located in Munich in the same city as the German Patent and Trademark Office:

  13. EPLAW is again concerned:

    Kind regards,


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