EPO Boards of Appeal: a landmark reform

05 July 2016 - No comments »

EPO President Benoît BattistelliAt the meeting of the Administrative Council last week, the EPO’s Member States adopted a proposal from the Office for reform of the Boards of Appeal, one of the most significant decisions in the history of our Organisation. Indeed, reform of the Boards of Appeal has been a topic on the table for some time now. While the BOA have solidified their status over 35 years of judicial decision-making, a number of factors were impeding the timely delivery of decisions, generating an increasing backlog of cases for the last ten years and whose growth showed little sign of relenting.

This situation is not specific to the EPO Boards of Appeal: there is a clear steady trend of rapid increases of litigations and legal procedures, overwhelming many judicial or quasi-judicial systems for the last 20 years at national and international levels. However many of them have engaged in comprehensive reviews and reforms to address the situation and better manage the workflows but not at the EPO so far. Moreover, the Board of Appeals were headed by a Vice-President, assisting the President of the Office, and, if this situation never created an issue regarding the independence of the Boards in their decision making process, it could give a wrong external perception, according to a decision of the Boards themselves.

Clearly then, change was needed if the BoA was to be able to continue to operate in a way that is synonymous with a judiciary body playing a fundamental role in the European Patent system. Such reforms had been attempted previously in 1995 and 2004 but regrettably failed. The reform of 2016 was even more challenging as it was conducted without any change to European Patent Convention, contrary to the preceding attempts.

It was therefore a landmark occasion when, last week, significant changes were delivered with a comprehensive set of measures proposed by the Office and endorsed with a nearly unanimous majority of Member States.

Firstly, the Chairman of the Enlarged Board of Appeal will be given, by delegation of powers of the President of the Office, the full administrative and managerial responsibility for the Boards of Appeal. In accordance with these responsibilities, the Chairman will occupy a newly created post, entitled President of the Boards of Appeal,  solely responsible to the Administrative Council and hierarchically independent of the President of the Office. In addition, a new committee of the Administrative Council, the Boards of Appeal Committee (BoAC) is to link the BoA with the Administrative Council and advise the President of the Boards of Appeal. This BoAC is also tasked with liaising with the user community in order to receive their feedback and it is expressly foreseen to consult them on the rules of procedures of the BoA – a strong request from the many users who exchanged with the Office these last months.

Four main other elements were also included that not only ensure autonomy and independence of the Boards, but are also set to bring considerable improvements to organizational and managerial efficiency in equal measure. Hence there is now a new career system for members of the BOA, which introduces some elements of performance in their advancement, in full respect of their independence. Rules relating to conflict of interest post service are also to be implemented in order to foster the public’s trust in the integrity of the services provided by the Boards. This request for specific rules was expressed in a decision of the BoA some 20 years and it was high time for the Council to address it.

Furthermore, in order to incentivise a more efficient management of the BoA, a general orientation for a better cost coverage was also supported. These measures are to be complemented with a move of the BoA to a separate building in Munich, a symbolic measure which was also implemented by the German authorities in the same city in the early 90s when they decided to move their Federal Patent Court from the premises of the German Patent and Trademark Office for external perception issues.

These improvements are set to deliver significant improvements not just for the BoA themselves, but also for the Office, the Organisation and our users. Fast moving developments in the European patent system demanded that improvements were needed for a body who is at the epicentre of the EPO’s appeal system. Their independence and their efficiency are vital for the long-term sustainability of the patent system in Europe and for timely delivering decisions on the rights of the parties. After all, we have built our European patent granting process on the basis of legal certainty and it is therefore right that in cases of dispute, that same legal certainty is assured for the sake of our users and for innovation in Europe.

Benoît Battistelli

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