Time for a Haar-cut - please do not relocate the Boards of Appeal of the European Patent Office
The President of the EPO wants to move the Boards of Appeal to Haar. “Where?” Merpel hears you ask. Precisely. Haar is a municipality on the outskirts of Munich, most famous (not that it is famous at all) for housing the largest mental hospital in Germany. Is this just a sick joke on the part of M Battistelli? Because there is nothing else that could justify this – excuse Merpel – insane idea, which is to the detriment of applicants and patentees, opponents, professional representatives, and the Board of Appeal members themselves.
The official justification for the move is to increase the perception of independence of the Boards of Appeal. But in the consultation of users carried out by the EPO itself, the geographical location of the Boards was overwhelmingly not considered an important factor to their independence. An earlier proposal to move the Boards to another city or country completely (which would have destroyed the Boards as we know them) has thankfully been dropped.
The idea put forward that members of the Boards of Appeal might be influenced in their decisions by the possibility that they might encounter in the canteen an examiner disgruntled because they have been over-ruled is ludicrous in principle, and not borne out by the actual experience of the EPO over the last four decades, even when first instance examiners worked in the same building as the Boards of Appeal. They no longer do. First instance divisions are located in other buildings in Munich, or in The Hague, or in Berlin. The person who does however share the Isar building with the Boards of Appeal is, of course, the President of the EPO, and Merpel gets the impression that he wants those pesky Board members as far away from his domain as possible.
At the June meeting of the Administrative Council, reforms to the structure, management, and career structure of the Boards of Appeal were pushed through in haste, despite opposition from both the Praesidium and AMBA (see also Merpel's post here).
Merpel suspects that the rush to change the constitutional position of the Boards of Appeal was to change the legal and factual framework from that which pertained at the time of decision R19/12, so that the challenges currently pending in the German constitutional court to the legitimacy of the Boards of Appeal as a judicial instance could be thwarted. The decision in those cases is still awaited, and it is quite possible that this objective has been achieved.
Merpel understands that the Boards of Appeal have also objected to the move to Haar, as the premises are unsuitable, there is not enough room for the Board of Appeal members and for sufficient rooms for hearings, there are security issues, and the location is inconvenient. Patent attorneys representing their clients at hearings will also be seriously inconvenienced.
Merpel suspects that for many Board of Appeal members, many of whom are not far from retirement anyway, this will be the last straw, and they will resign. They are particularly incentivised to do so before 1 January 2017, when new restrictions on the post-retirement work of EPO employees including Board of Appeal members comes into effect. This could have a catastrophic effect of depleting the composition of many Boards, already below full strength despite a recent resumption of new appointments, to below a functioning level, with resulting loss of institutional memory and competence.
With all the earnestness and seriousness that she can command as a mere fictional feline, Merpel beseeches and implores the Administrative Council – please do not approve the relocation of the Boards of Appeal, to Haar or to anywhere else. Keep them where they are in the Isar building.
The official justification for the move is to increase the perception of independence of the Boards of Appeal. But in the consultation of users carried out by the EPO itself, the geographical location of the Boards was overwhelmingly not considered an important factor to their independence. An earlier proposal to move the Boards to another city or country completely (which would have destroyed the Boards as we know them) has thankfully been dropped.
The idea put forward that members of the Boards of Appeal might be influenced in their decisions by the possibility that they might encounter in the canteen an examiner disgruntled because they have been over-ruled is ludicrous in principle, and not borne out by the actual experience of the EPO over the last four decades, even when first instance examiners worked in the same building as the Boards of Appeal. They no longer do. First instance divisions are located in other buildings in Munich, or in The Hague, or in Berlin. The person who does however share the Isar building with the Boards of Appeal is, of course, the President of the EPO, and Merpel gets the impression that he wants those pesky Board members as far away from his domain as possible.
At the June meeting of the Administrative Council, reforms to the structure, management, and career structure of the Boards of Appeal were pushed through in haste, despite opposition from both the Praesidium and AMBA (see also Merpel's post here).
Merpel suspects that the rush to change the constitutional position of the Boards of Appeal was to change the legal and factual framework from that which pertained at the time of decision R19/12, so that the challenges currently pending in the German constitutional court to the legitimacy of the Boards of Appeal as a judicial instance could be thwarted. The decision in those cases is still awaited, and it is quite possible that this objective has been achieved.
Merpel understands that the Boards of Appeal have also objected to the move to Haar, as the premises are unsuitable, there is not enough room for the Board of Appeal members and for sufficient rooms for hearings, there are security issues, and the location is inconvenient. Patent attorneys representing their clients at hearings will also be seriously inconvenienced.
Merpel suspects that for many Board of Appeal members, many of whom are not far from retirement anyway, this will be the last straw, and they will resign. They are particularly incentivised to do so before 1 January 2017, when new restrictions on the post-retirement work of EPO employees including Board of Appeal members comes into effect. This could have a catastrophic effect of depleting the composition of many Boards, already below full strength despite a recent resumption of new appointments, to below a functioning level, with resulting loss of institutional memory and competence.
With all the earnestness and seriousness that she can command as a mere fictional feline, Merpel beseeches and implores the Administrative Council – please do not approve the relocation of the Boards of Appeal, to Haar or to anywhere else. Keep them where they are in the Isar building.