Viennese waltz may be the last dance for Board members

For some it's a game,
for others a sad reality

Up until very recently, the mooted new home for the European Patent Office (EPO) Boards of Appeal was Berlin, unwilling as its members might be to move at the whim of the EPO President. But, as Merpel reported last week, a new proposal is being negotiated behind closed doors: why not move the Boards to Vienna?  Merpel understands that President Battistelli is close to sealing a deal between Germany and Austria which would make this possible.

Why Vienna?
But consider this riddle: what does a move to Vienna achieve that a move to Berlin will not?

One suggested answer is found in the EPO Service Regulations. Under Article 53, refusing to relocate to another country is a sackable offence. There is no direct provision for firing an employee who refuses to relocate to a different city within the same country.

Article 53
Dismissal for other reasons
(1) The appointing authority may decide to terminate the service of a permanent employee if:
(a) the Contracting State of which the employee is a national ceases to be party to the Convention;
(b) the employee refuses to be permanently transferred to a country other than that in which he is serving; ...

Headquartering the Boards in a different country opens up the enthralling possibility of firing Board members, possibly even without the distasteful necessity of referring such decisions to the Enlarged Board. As Mr Battistelli has discovered in the last year, even getting one Board member fired is not as easy as one might think. The European Patent Convention and due process keep getting in the way.

Why move at all?
The drive to get the Boards out of Munich strikes Merpel as either deeply stupid or entirely cynical, and she doesn't believe Mr. Battistelli is at all stupid.  The purported problem identified in Mr Battistelli's proposal to reform the Boards of Appeal was the "perception of independence". You couldn't, he argued, have Boards in the same building as other EPO employees whose decisions a Board might be reviewing -- which is an odd argument, since there are no Examining or Opposition Divisions based in the Isar building.

A rather more widespread perception around the EPO is that Mr Battistelli can't bear to have the Boards in "his" building (Merpel seems to recall that they were there first, though), and/or that he wanted to teach the Boards a lesson. Even having his own private express lift from car park to the sumptuously appointed presidential floor does not always exclude the chance that he might encounter one face-to-face during his working day.

You can be on top
and still be furious ...

The relationship was poisoned when the Enlarged Board decided Case R19/12, a decision about judicial independence about which Mr Battistelli was furious. You see, far from lacking independence, the real problem for EPO management is that the Boards are sometimes too damn independent and this cannot be tolerated. Yes, there's a structural issue in how the Boards fit into the European Patent Organisation, which would require amendment of the Convention to fully remedy, but this did not seem to cause problems in practice until now.  Nobody should pretend that this proposal to move the Boards out of Munich serves the interests of judicial independence. It is really the opposite: showing this group of ungrateful judges who's really the boss, who's in control of their careers.

Having established that the Boards had to get out of the current Munich headquarters, Mr Battistelli identified two options: find another building in Munich, or relocate the members of the Boards to Berlin (Vienna, which is now the front runner, appears to have been arranged behind the backs of the Administrative Council (AC) and of the Boards, since it never formed part of the formal proposal).

Boards of Appeal are
getting the message

One would normally think that, faced with the choice between (i) uprooting a group of senior employees from their homes and sending them to another city or country, and (ii) finding an office building in a city the size of Munich, there would be no debate over the proper and ethical course of action and no difficulty in achieving this goal, but Merpel understands that the intention was always to push the Boards out of Munich, and the option to stay there has never received any serious consideration. Whether the AC falls for this ruse remains to be seen.

Merpel wonders if there is a mathematical formula involved which governs the relationship between judicial independence and distance from those being judged? If so, then Merpel suggests that the AC really needs to think about packing the Boards off to Reykjavik - an unbeatable 2,676 km from Munich as the crow flies.