Posted: July 1st, 2016
The structural reform of the Boards of Appeal (BOA) aims to increase their organizational and managerial autonomy, the perception of their independence and also their efficiency, in order to respect the principle of effective legal protection within the current legal framework of the European Patent Convention.
It introduces a new institutional framework in which the BOA will no longer be a Directorate General of the EPO directed by a Vice-President but a separate unit called Boards of Appeals Unit headed by a newly created President of the BOA. The Chairman of the Enlarged BOA will act as President of the BOA. The President of the EPO will delegate to the President of the BOA managerial functions and powers including the right to propose new members of the BOA and to propose re-appointment after the term of appointment.
A new advisory body, the Boards of Appeal Committee (BOAC) is created as a subsidiary body of the Administrative Council (AC), composed of six members appointed by the AC, three of them representatives of the member states in the AC and another three from among serving or former judges of international or national courts. The President of the EPO and the President of the BOA have the right to attend BOAC meetings, without voting rights.
Neither interested circles nor elected members of the BOA are represented in the BOAC, which will provide guidance to the Boards of Appeal Unit and its President on its management and organization in general, in particular with regard to the issue of efficiency and independence. It will also have the task of adopting amendments to the BOA’s Rules of Procedure, on a proposal from the President of the BOA and after the President of the Office has been given the opportunity to comment. Approval of the Rules of Procedure will remain the competence of the Administrative Council. The President of the Enlarged BOA will be appointed on a joint proposal of made by the BOAC and the President of the EPO.
In order to reinforce among the parties to appeal proceedings the impression that they are appearing before an independent body a separate building is proposed. The search concentrated on the south-eastern area of Munich, a precise proposal will follow.
Considering that the present cost coverage for an appeal is 6.3%, the AC aims at increasing the cost coverage within the next five years to 20 to 25%. A first increase of the appeal fee is envisaged for 2018 and a reduction of the unit costs as a result of efficiency gains should be achieved.
It appears that the concerns expressed by the members of the BOA (see post dated June 13, 2016) had little influence on the final decision of the Council. The most serious concern seems to be the security of tenure which is a very weak one as a result of the combination of a very short appointment period of five years with re-appointment based on achievement and subject to availability of posts in the budget. The reference in the document to the Boards of Appeal in Alicante seems to be not very relevant since Boards of Appeal in the EU structure provide administrative review, whereas judicial review of their decisions is given by the General Court and the ECJ. Terms of appointment and reporting systems are known as isolated elements in European judicial systems, but a model for the combination foreseen for the BOA can hardly be found elsewhere.
The problem is aggravated by the conflict of interest rules restricting activities for not re-appointed members foreseen in doc. CA/29/16 which has not yet been published. Another challenge for independence may be seen in the continuing integration of the BOA into the general administration of the EPO, in particular Human Resources and IT. It remains to be seen whether the Office continues to claim competence to undertake investigations against members of the BOA and the integrated IT structure casts doubts whether the confidentiality of the decision making process in the BOA is safeguarded.
A copy of Doc. CA/43/16 Rev. 1 can be read here.