The independence of the Boards of Appeal: Merpel roars again

Still troubled by goings-on
at the European Patent Office

There are many aspects of the recent events (See here and links concerning the suspension of a member of the Board of Appeal, and here and links concerning the strikes and demonstrations) at the European Patent Office that trouble Merpel.  One is the apparent erosion of the independence of the Boards of Appeal.  One of their jobs is to tell the first instance that what they have done is wrong, which inevitably has a negative impact on the procedural efficiency of the EPO.  Given that this procedural efficiency is the stated aim of most of the current reforms introduced by the President that are the subject of so much concern, the continued independence of the Boards of Appeal is vital for all users of the EPO.  The Boards have even condemned as in breach of the EPC those procedures that were hardwired into EPO practice, such as the pro-forma Decisions "according to the state of the file" if the applicant did not want to pursue argument further and just wanted an appealable decision (see for example here).

There are troubling signs that the independence is being eroded, quite apart from the house ban and then suspension imposed by the President and the confirmed by the Administrative Council.  (Incidentally, this was referred to in the Communique as "unanimous", but was it?  Merpel has heard that there were two votes against.  Can this be misinformation?)

Readers may recall that there was a proposal to make the Boards of Appeal more independent of the rest of the EPO.  This proposal for the "Autonomy of the Boards of Appeal" has now been pretty much expunged from the EPO website, but survives here.  This proposal is now seemingly dead in the water.  Merpel has however heard that there are plans afoot to review the position of the Boards of Appeal, and this has been discussed at the "Board of the Administrative Council" (AC) or "Board 28".  This is a subcommittee of the Administrative Council according to Article 28 EPC and is currently composed of:

Ex officio members

• Jesper Kongstad (DK) (Chairman of the AC)
• Miklos Bendzsel (HU) (Deputy Chairman of the AC) 

Elected members

• Sean Dennehey (UK)
• Serafeim Stasinos (GR)
• Habip Asan (TR)

Merpel supposes that the current examination of the institutional provisions relating to the Boards of Appeal is headed in the opposite direction from the previous proposal, ie to make them less autonomous.

There are already worrying signs that even the members of the Enlarged Board of Appeal do not consider themselves independent.  Two signatures on the now-famous letter of the EBA to the AC protesting the suspension of the Board of Appeal member were notably missing.  These are the signatures of Chairman of the EBA himself, and the member of the Enlarged Board still working (the other two have retired) who participated in Decision R19/12.  The President of the EPO is reported to have been furious at that decision, which found that an objection to the participation of the Chairman of the EBA on the basis of suspicion of partiality, because of his dual role as vice president of DG3 (the Boards of Appeal), was justified.  Can it be that pressure has been applied to these two persons?

In an interesting development, the Chairman of the EBA is also subject to an objection on the basis of apparent lack of partiality in case R 08/13.  Merpel has seen a submission recently filed on that case, which was available on the electronic case file for a short period before being taken down.  The representatives in that case argue that the non-signing of the letter to the AC by the EBA demonstrates that the Chairman's position as Vice President of DG3 is in conflict with his role as an independent judge.  There must surely be concerns that clear independence is not currently apparent.