Leading European IP Judges join the chorus of condemnation

The chorus of condemnation: a true
example of harmonisation in Europe?

Just when Merpel thought her week could not get any more exciting, she’s proved wrong. She has learnt that two of the best-known and most highly renowned members of Europe’s IP judiciary have now thrown their weight into the debate over the "house ban" of a member of the Boards of Appeal.  If you’ve been following the developments in this week-long saga, you can probably skip below the bullet points (hint: this is not about the strikes, the pay and promotions reform, or the generally abysmal staff relations, though they are not unrelated topics). Since not everyone reads every IPKat post, here is the shortest potted history of the "house ban" controversy that Merpel can manage.

• A week ago today, a member of one of the EPO’s Boards of Appeal was escorted out of the building, and banned from the premises pending an investigation of alleged misconduct.
• It is believed that the reason for the “house ban” or suspension was the alleged dissemination of defamatory material.
• Widespread criticism ensued immediately both inside and outside the office, both on the grounds that this directly breached guarantees of judicial independence (Art. 23 EPC), and that this was a further instance (among many) of heavy-handed suppression of criticism, dissension and debate within the EPO.
• The ultimate governing body of the EPO, the Adminstrative Council (AC), meets this week. It is this body alone that would be empowered to impose sanctions such as suspension or dismissal on a Board member.
• On Monday, members of the Enlarged Board of Appeal (EBA), which is the highest judicial authority in the European Patent system took the unprecedented step of complaining about the conduct of the President, and of his interference in their judicial independence, directly to the AC delegates arriving for their meeting.
• Simultaneously, another letter emerged from a Partner in Bardehle Pagenberg, exhorting the head of the German delegation to the AC to take the lead in rectifying the President's actions.

Merpel understands that a further letter has been sent to the AC by two highly respected IP judges -- Sir Christopher Floyd (Court of Appeal, England and Wales) and Robert van Peursem (Advocate General, Supreme Court of the Netherlands).  This letter references the earlier letter from the EBA members and expresses support for the position taken. They argue that the Board of Appeal members are judges and that interference by the President infringes basic principles of judicial independence, which the EPO cannot disregard.

"Come on, AC! Carpe diem"

Merpel believes the onus really is on the AC now to step up to their responsibilities. With the intervention first of the internal EBA members and now of two senior patent judges from large contracting states, it is not credible for the AC to go along with Mr. Battistelli's dismissal of widespread EPO unrest as being simply a symptom of resistance to the changes and reform programmes which he has been pursuing (with, it must be noted, the wholehearted support of the AC to date).

It may also be tempting to dismiss the oft-repeated cliché that a culture of fear now exists within the EPO, as being the product of hyperactive imaginations or of hyperbole, but Merpel suggests that the AC delegates should make it their business to look beyond the cliché. In recent weeks, each day has provided Merpel with ample evidence that extremely conscientious, loyal (to the organisation, if not its current President) and in many cases quite senior EPO staff share a real concern that they may be identified as engaging in any dissent, disloyalty or resistance This is not good for the Office, the staff, or the users of the European Patent system.