CIPA gives the Administrative Council something to chew on

The current ongoing controversy over the (mis)governance of the European Patent Office (EPO) Boards of Appeal is due to come before the Administrative Council (AC) when it next meets on 25 March. As this moggy recently reported, some groundwork has been done in advance of that meeting, with proposals apparently having been drafted by the members of the AC's inner sanctum, Board 28. Jesper Kongstad, who chairs the AC, met with members of the Boards of Appeal, without sharing the details of the proposed reforms, but the topic will undoubtedly come before Board 28 when it convenes again on March 10.

In this context, this moggy has seen a letter to Mr Kongstad, from Jim Boff, written on behalf of the Patents Committee of CIPA (the UK's Chartered Institute of Patent Attorneys). The text of the letter is reproduced below, and Mr. Boff's pawnotes [the IPKat reminds Merpel that "footnote"s is the more widely accepted term] are inserted in the text where they occur [the footnotes are shown like this].

As the letter below explains, CIPA is urging the AC to take interim measures to increase and copperfasten the independence of the Boards, while noting that these measures are not a substitute for amending the EPC itself.

Jim Boff

Whether in the short term (with rule changes) or in the longer term (with an amendment of the Convention), the aim would be to set in stone the separation of powers which has been overwhelmingly demanded by the users of the EPO, Europe's patent judiciary, the EPO staff, and the members of the Appeal Boards themselves. Everyone, that is, except the management of the EPO which appears hellbent on bringing the Boards under its nurturing and protective wing. The AC has acknowledged the principle of independence of the Boards, but Merpel awaits the details of their proposals to see how their actions match their rhetoric.

Jesper Kongstad

Merpel thinks that the AC could do worse than take the template set out by CIPA below, and use this as a starting point for their reforms. It seems to deal with all the majors gaps in governance that have emerged in the last three months, and to suggest practical ways of plugging those gaps until the EPC is eventually amended (something that won't happen during the tenure of Mr Battistelli, bets Merpel). In addition to the legal reforms required to separate powers, Merpel is interested to see that CIPA is also proposing fiscal changes, to give the Boards their own budget and financial independence.

Text of the letter starts here:

6th February 2015  

Dear Mr. Kongstad,  

re: Independence of the Boards of Appeal 

On behalf of the Chartered Institute of Patent Attorneys I submit the following comments on this matter of great importance.
The EPC set up a system with a rough separation of powers between:- 

• a legislative/oversight body (the Administrative Council); 

• an executive body (the Office through the President); 

• a judiciary (the Boards of Appeal). 

The separation of the judiciary from the Office was intended to be ensured by disciplinary powers over the members of the Board of Appeal being with the Administrative Council (legislature) rather than with the President (executive). While not a complete separation of powers, this was thought by many to be sufficient to ensure the independence of the Boards of Appeal. [Indeed, some have complained that the members of the Boards of Appeal are too independent, in the sense that different strands of opinion are evident within the Boards, and references to the Enlarged Board of Appeal take place only when a Board decides or on a reference by the President.] 

The subject of judicial independence of the Boards of Appeal has been put into sharp focus by recent events, and in particular by: 

• the exclusion of a member of the Boards of Appeal from the premises of the EPO pending investigation of alleged disciplinary offences; 

• the decision R19/12 and its effect on the role of VP3.

The confusion that has resulted implies that the balances built into the EPC appear not to be functioning, and that strengthening of the separation of powers may be necessary.
There have been previous proposals to change the institutional framework of the Boards of Appeal to ensure their judicial independence. [For example see CA/46/04 and CA/103/03] These proposals, which would have required a diplomatic conference to amend the EPC to make the Boards of Appeal a clearly separate arm of the European Patent Organisation, were not carried through, even though they attracted wide support in principle (although not necessarily in detail). [NB CIPA does not necessarily support all aspects of that proposal, in particular the prospect of lifetime tenure without adequate safeguards for removing erratic members of the Boards of Appeal, and the determination of promotion in the hands of one person.]  

Given the experience with ratification of EPC2000, amendment to the EPC will take too long to deal with the immediate problem, but should not be ruled out, particularly given that the Article 4a EPC conference of ministers is long overdue and the above mentioned proposal for autonomy was made over 10 years ago. [A conference under Article 4a EPC to discuss “issues pertaining to the Organisation and to the European patent system” would appear particularly opportune given the imminent arrival of the unitary patent.]  

Amendment to the EPC Rules is within the competence of the Administrative Council and can be done relatively quickly.  

The EPC is explicit that disciplinary power concerning senior officials and the members of the Boards of Appeal shall lie with the AC. [Article 11(4) EPC; Article 23 EPC]  However, the recent events have highlighted a gap, in that the AC is not in a position to take immediate action if it appears necessary, and the President’s authority to intervene is controversial (CIPA take no position on the specific case in question).  

Complete financial independence is not necessary for judicial independence. Courts in most European countries are supported by the state, and court fees do not necessarily cover full costs. What is necessary is security of finance for the courts and the judiciary, which must be visibly independent from interference by the executive, so that the decisions in any case are based on the case itself and not on extraneous pressures.

 The European Patent Office does not have the resources of a state and is reliant on income from users and so users will suffer if costs are not appropriately controlled.
Establishing an independent judiciary does not necessitate a separate body, nor does it necessitate establishing a separate fee structure, building, and administration. All of the physical infrastructure requirements for an independent Board of Appeal are present in the current arrangements: what is missing is an appropriate reporting structure and assumption by the Administrative Council of its disciplinary role. It has been suggested that a degree of physical separation between the Boards of Appeal and the Office might assist in the appearance of independence: however this appearance would only be gained at considerable expense and loss of efficiency. 

To provide at least an interim solution to maintaining the independence of the Boards of Appeal it is suggested that some rule changes may assist while a long-term solution is sought, desirably through amendment to the EPC. Suggested rule changes include:  

A.    Amendment to Rule 9(1) EPC to place direction of the Boards of Appeal and Enlarged Boards of Appeal with a Director of the Boards of Appeal, who would not be a Vice President of the Office. He/she would have budgetary responsibilities and would report directly to the Administrative Council. This avoids the current blend of responsibilities to the executive and judiciary that led to R19/12. He/she might also be Chairman of the Enlarged Board;  

B.    The President’s supervisory authority over BoA members (Article 10(2)(f) EPC) to be delegated to the Director under Article 10(2)(i) EPC. This fills the gap highlighted by the recent events. If urgent action to exclude a BoA member appears necessary, pending disciplinary proceedings by the AC, then it can be taken by the Director. This is to the benefit of the President since there would be no reason why he need become mired in controversy.  

C.   Amendment to Rule 12(1) EPC by replacing reference to the VP with reference to the Director of Boards of Appeal.  

D.    Provision for the Director to be appointed by the AC on a proposal of the Enlarged Board (or for an extremely independent approach - by election from the Boards of Appeal subject to approval by the AC);  

E.    Introduction of Rules under Article 11(3) EPC concerning how and under what criteria the President will propose BoA members, in particular relating the number of Board members to demand and backlogs, and indicating how people may put their names forward;  

F.    Provision for a separate Chapter in the EPO budget relating to the Boards of Appeal to provide transparency as to costs; 

G.    If they do not exist, the AC to introduce and publish disciplinary rules for Board of Appeal members and for others over whom it has disciplinary authority [The institutional secrecy of the EPO is damaging to its reputation and allows rumours to spread unchecked. The damage done is evident from recent events.];  

H.    Introduction of Rules or guidelines concerning under what circumstances (e.g. health, safety, public order), and for what duration, the President may temporarily exclude members of the Board of Appeal from the premises of the EPO without prior agreement of the Director of Boards of Appeal.

The above proposals only represent interim measures. CIPA is of the view that amendment to the EPC is necessary to give a secure guarantee of independence. When the EPC is next amended CIPA will be ready to contribute to the debate on what specific changes are necessary.   

Yours sincerely,

J. C. Boff, Chairman of CIPA Patents Committee