REVEALED: EPO Boards of Appeal reform plan Part III - Merpel's comments

Lack of transparency can lead
to some pretty scary consequences ...

Merpel understands that, on Tuesday 10 March [or, to put it another way, tomorrow], the Boards of Appeal (unclear exactly who, but perhaps the members of the Enlarged Board of Appeal and the Association of Members of the Boards of Appeal) will meet with the President of the EPO and the Chairman of the Administrative Council to discuss these proposals (presumably any members having Oral Proceedings on that day being excluded).  According to the Calendar of the EPO there is a meeting of Board 28 on the same day. This does not seem to give much time to consider such far-reaching proposals.  Indeed, the whole procedure is characterised by lack of consultation, or transparency.  The whole thing seems completely rushed, since the Administrative Council seems to be supposed to approve the principles of the proposal in its meeting on 25/26 March 2015, according to the Timeline in Annex 1.

On the face of it the proposals go some way to addressing the problems of lack of autonomy that have caused so much uproar recently.  For example, making the President of the Boards of Appeal (new position) who is also the Chairman of the Enlarged Board of Appeal, responsible for much of the management of the Boards (see para 15) is to be welcomed.  It is in accordance with R19/12 that this person is not a Vice President of the EPO.  It is also to be welcomed that the President of the Boards of Appeal will assume from the President of the EPO the right to propose appointment of BoA members and propose reappointment (to the Administrative Council) (see para 19).

But on thinking further and digging deeper (not that there has been much time to do either), Merpel has the following concerns:

(1) There is a conflation of autonomy and efficiency.  These are entirely separate issues and it is not advisable to lump them together.

(2) There is a plain desire to avoid any amendment of the EPC.  However, such an amendment would give proper opportunity for debate, consideration and consultation.  Avoiding any amendment gives the impression of a botched job done for convenience.

(3) The proposal goes a considerable way to separate the Boards of Appeal from the rest of the management structure of the EPO.  However, it replaces this with a new President and a new Committee, which is not composed of members of the Boards themselves.  On the face of it, this does not actually look very autonomous.

(4) The budget for the Boards of Appeal is submitted to the President of the EPO (para 21).  There is clearly a danger that the budget will be used as an means of indirect control, since the Boards clearly cannot be self-financing through appeal fees (just as the EPO is not self-financing through procedural fees but is reliant on renewal fees).

The perception
of independence?

(5) There is too much emphasis on "perception of independence" (the expression is used six times) whereas the proposal should be concerned with actual independence.

(6) Related to the perception is the completely unnecessary proposal that Boards should move to a new premises.  This is folly.  If they move to Berlin there is a danger that a substantial number of members will not move, and the already highly depleted cadre will fall so low in members that quality will suffer, backlogs will increase, and in recruiting new members the institutional abilities will be forgotten.  Another premises in Munich is an unnecessary waste of money.  there is already sufficient physical separation with the Boards in Bob-van-Benthem-Platz, where first instance divisions do not operate.

There is much criticism of the Boards for the current number of pending cases and time taken to a decision.  This is a bit rich, given that, as reported by Merpel here, the EPO President has been systematically reducing the manpower of the Boards by refusing to recruit new members to replace retired members, and renominate existing members on expiry of their five-year term until the very end of that term is in sight.  On the topic of efficiency, a kind reader conducted an analysis of the statistics quoted in Annex 2 to the proposals, and, since Merpel cannot find fault with the reasoning, takes the liberty of reproducing it.

First, some figures are provided on the number of cases handled by the BOA and their duration. This bit isn't too problematic.

But the latter part is a misleading comparison is made with the CJEU and the Bundespatentgericht, which is naturally extremely unfavourable to the BOA.

It is first stated that the two branches of the CJEU each have 28 judges which respectively dealt with 719 and 814 cases. One would naturally divide one number into the other, and be impressed by the 29 cases handled by each member of the tribunal, and find the BOA truly appalling.

What the authors of the proposal neglect to say is that each and every judge or AG at the CJEU are entitled to at least three, and most frequently four, law clerks ("conseillers référendaires") that do the the legwork (analysing the case, researching the law, drafting the decisions). If you have nearly 5 times as many people, the comparison suddenly reverses.

Skipping to the BPatG, the figure of 2,320 cases handled by merely 117 judges also makes the BOA look bad. But if one bothers to look up the 2013 report, the truth jumps out again.

The largest contingent of cases handled by the BPatG is for trade marks (not a valid comparison basis with the BOA), with 1188 cases by 7 senates each composed of 3 legally qualified members.

Contrary to the EPO, the patent senates at the BPatG are specialised. Nullity proceedings are handled with either 3 or 5 members, with respectively one or two legally qualified members. These are first instance proceedings.

The Technical senates are responsible for appeals of DPMA decisions, and are much more comparable to the BOA, with the exception that 90% of their work concerns examination appeals and only 10% opposition. These senates have three technical members together with one legally qualified one -- one more technical member than a standard EPO TBoA.

This is a more adequate basis for a comparison, and it gives 722 cases were concluded by 13 senates. That would make 13 cases per member, in what are mostly ex parte proceedings. The BOA does not look bad any more, especially considering that 50% of the appeals at the EPO concern more complex inter partes opposition proceedings.

The mean duration of proceedings before the technical senates was about 51 months in 2013, down from 55 in the previous year. The 34 months average at he EPO doesn't look bad either.

The differences between the technical and nullity senates can probably be explained by staffing levels and priorities, and so do the delays at the BOA. Should the president of the BOA decide that more members are required, and that "incentivization" (positive or negative) doesn't work, will he get his wish?

Returning to the CJEU, IP cases there mostly trade marks, which doesn't require scientific or technical expertise. If the data from the BPatG trade mark senates is any indication, the low backlog is rather unsurprising.

There is a reference (footnote 2 to Annex 2) to a CJEU press release dated barely three days before the proposal. Is Annex 2 an ex post facto justification?

Paragraph 7 of the proposal mentions a benchmarking of other systems. Where can it be seen? Is it as valid as Annex 2? German judges are acutely opposed to performance related pay, notable for constitutional reasons. And it is proposed for the BOA?

Well, Merpel has had her say, aided by a kind reader.  No doubt the IPKat's other readers will have their own views. The IPKat and Merpel welcome comments.

Finally, Merpel 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.