Breaking News:

The President of the Boards of Appeal and the President of the Office jointly propose to the Administrative Council to re-locate the Boards of Appeal from Haar to the building Pschorr-Höfe 7 in Munich, owned by the EPO, as of 2025/2026.

While this pretty spectacular U-turn still has to be confirmed by the Administrative Council in 2022, I have little doubts that the AC will do so (the tail is usually wagging the dog in Eponia). And in this case, it would clearly be the right decision for many reasons, even though we have not yet seen the price tag associated with this planned measure. But it makes little sense at least to me to rent expensive office space outside Munich while leaving EPO-owned facilities empty. It is still amazing and puzzling to me that this simple insight came so late.

Apparently, it takes years to undo the workings of a President who had obviously forgotten everything he had or should have learned about Montesquieu and the great tradition of French enlightenment.

Meanwhile I hope that the public will soon learn more about the EPO’s “New Ways of working” (CA 77/21), and whether these “New Ways” will bring a lively office back to the EPO’s premises, which are currently pretty deserted. Stay tuned!


_____________________________

To make sure you do not miss out on regular updates from the Kluwer Patent Blog, please subscribe here.


Kluwer IP Law

The 2021 Future Ready Lawyer survey showed that 81% of the law firms expect to view technology as an important investment in their future ability to thrive. With Kluwer IP Law you can navigate the increasingly global practice of IP law with specialized, local and cross-border information and tools from every preferred location. Are you, as an IP professional, ready for the future?

Learn how Kluwer IP Law can support you.

Kluwer IP Law
This page as PDF

19 comments

  1. Thorsten, looking at the CSC’s comments upon CA 77/21, it seems that the “New ways of working” are all teleworking, including the possibility of mandatory teleworking.

    It is not clear to me why CA 77/21 is mentioned in the Joint Declaration. However, I rather suspect that it has a lot to do with a likely reduction in size of the office space allocated to the Boards. I would also not be surprised if CA 77/21 has led the President of the Boards of Appeal to make assumptions regarding the proportion of appeal oral proceedings that will be held by VICO (with possible “remote” participation of members of the Boards).

    If my suspicions are correct, then the planned move might only be feasible if, contrary to all reasonable expectations (in the light of G 1/21), Article 15a RPBA remains in force in unamended form. This raises the prospect that the promise of a move back to (central) Munich could, in the wrong hands, effectively be used as an “inducement” for members of Boards of Appeal to uphold Article 15a RPBA in its current form.

    Of course, I am not saying that there is any such skulduggery going on. However, such a possibility cannot be ruled out entirely unless and until the EPO publishes all of the relevant documents (namely, CA 77/21, the MoU between the two Presidents and, most importantly, the relative size of the office space that will be allocated to the Boards in the building Pschorr-Höfe 7). Given the vast number of important documents that the EPO does not make publicly available, I will not hold my breath waiting for anything on this point.

    1. The MoU between the two presidents is in BOAC/12/19 mentioned in the Annual report of the BoA. In that case, its referred documents should be somewhere available on the BoA website.
      Otherwise, ask the press officers of the BoA:
      Nikolaus Obrovski
      Jeannine Hoppe
      Spokespersons of the Boards of Appeal of the European Patent Office
      boa-press@epo.org

      1. Whilst BOAC/12/19 should be on the BoA website, it appears that it is not. I wonder if the press officers would be prepared to provide a copy of CA 77/21 too?

  2. Taxpayers’ and consumers’ money will therefore have been wasted on an epic scale, likely numbering in the millions of euros. Yet nothing will happen to the careers of anyone involved in making this decision. That’s the unaccountability of international organizations for you.

    @Concerned observer is right to mention that there may be a link with Article 15a RPBA. I’m inclined to believe that, in view of the reasoning set forth in G1/21, Article 15a RPBA is plainly ultra vires and therefore good as dead. But that’s assuming that the EBA sitting in another composition will not find another “dynamic interpretation” of the EPC…

    1. I would say that is now crystal clear that the EPO has no intention whatsoever of bringing the RPBA into line with the EBA’s ruling in G 1/21.

      In this respect, I suggest that you watch closely for “interesting” interpretations of G 1/21 (such as that in T 0245/18, as discussed in http://justpatentlaw.blogspot.com/2021/12/t-024518-art-15a-rpba-compatible-with.html).

      It will also be important to keep a close eye on EPO proposals to extend (and excuses for extending) the applicability of provisions that mandate the use of VICO. I have no doubt that there will be some “interesting” developments on this front in the next 6 months or so, most likely using the pandemic as cover for effectively overriding the EBA’s ruling in G 1/21.

  3. There is no seperation of powers anyway.

    There is recycling of people who worked for the EPO before, it is all the same blood.

  4. Will Mr. Battistelli be made responsible for the damage resulting from the longest lasting lease contract (15 years) in the history of the EPO and the cost for adapting the Haar building to the needs of the Boards?

  5. I agree with Extraneous Attorney. There is also no mention of the Orwellian “perception of independence” (CA/43/16) that served as the basis for the exile of the Boards in the new press release. Instead, it almost sounds like having Examiners in home office freed up space for the Boards the was previously occupied.

    1. The reason given in 2016 for the move to Haar was an alleged desire to “reinforce among the parties to appeal procedures the feeling that they are appearing before an independent body as opposed to EPO examining and opposition divisions”.

      The move back to (central) Munich now confirms what any objective observer was always able to perceive, namely that the REAL motivation was to “punish” the Boards for having the temerity (in R 19/12) to point to flaws in the set-up of the EPO that gave rise to a justifiable fear of partiality in certain appeals.

      As has been reported on this blog (http://patentblog.kluweriplaw.com/2020/11/03/a-few-thoughts-on-trust-and-judicial-independence/), the flaw identified in R 19/12 is just the tip of the iceberg when it comes to justifiable fears of partiality. It therefore speaks volumes that, in response to being alerted to serious problems with their governance structure, the EPO has either done nothing (eg in response to the articles cited in the above-mentioned blog post), or has punished the messenger (by moving the Boards to Haar).

      Rather than be diminished by the move to Haar, justifiable fears of partiality have actually increased since 2016. Whilst the farcical conclusion to G 3/19 might be the most obvious manifestation of this effect, there are worrying signs of a gradual decrease in the number of members of the Boards of Appeal that are both willing and able to resist the will of the President of the EPO. The acid test on this point is likely to be how G 1/21 is interpreted and implemented by various Boards of Appeal.

      My guess is that there will be more than one Board that will be prepared to effectively ignore the EBA’s reasoning relating to the role of the parties’ consent. The EPO President’s “New normal” agenda effectively demands this outcome. Indeed, for reasons that I have previously mentioned, the proposed move back to Munich could be interpreted as providing the Boards with an extra incentive to reach decisions that do not anger the EPO President.

      Of course, by failing to address structural flaws that give rise to objectively justifiable fears of partiality, and by taking decisions that could be perceived to make the situation even worse, the EPO is taking a very big risk. That risk is that a national court might find that the members of the EPO’s Boards of Appeal are not adequately independent. One possible consequence of this has been discussed on this blog (http://patentblog.kluweriplaw.com/2020/01/18/whats-the-worst-that-could-happen-constitutional-complaints-against-the-epo-in-germany/). However, it is important to remember that judicial independence is also essential for compatibility with other legal systems, such as TRIPS, EU laws and the European Convention on Human Rights. The potential consequences of an adverse ruling could therefore be devastating for the EPO.

      So why is the EPO prepared to take such incredible risks, instead of just adjusting the EPC to fix the structural flaws? Perhaps they know something that we do not, as might be suggested by the period of more than a decade that one of the constitutional complaints against the EPO has been pending at the BVerfG. Or are they just complacent that their privileges and immunities will shield them from any fall-out? With regard to the wasting of EPO funds on an epic scale (by renting and adapting new office space whilst EPO-owned space lies empty), that certainly seems to have worked for the former President.

  6. Why Pschorr-Höfe? As far as I know the original BOA rooms in the Isar building (at least the rooms used for hearings) are still unoccupied.

    1. Because the city of Munich torpedoed the sale of PH VII, hence a new use for the building had to be found.
      the “perception” can be upheld this way.

    1. I am truly shocked to discover that the management of the EPO might be adopting policies and procedures that are inconsistent with the EPC! If only there had been some kind of evidence from their prior behaviour that might have warned us that they were capable of such a thing.

      Joking aside, the issue brought to the attention of the EPO’s Patent Law Committee is truly very serious. As things currently stand, it seems that management can, without providing any legal justification for doing so, order an ED to change its decision in connection with a specific patent application. Unless this legal loophole is closed, then the possibilities for rampant abuse of this apparently unchecked power are mind-boggling.

      1. This possibility was always there, as changes in examining divisions have never been excluded.

        BTW, the current drive of “timeliness” includes many thoughts of exchanging divisions as often as necessary to bring the procedure to a quick conclusion.
        Guess which conclusion is fastest and has no waiting time in which the applicant could exert any control over how to react to known prior art?

      2. If a director wants to influence the behaviour of an ED (or even an OP) he has two ways.
        He can “advise”, not to say order the ED to decide in a certain way, i.e. he acts as a kind of “4th member”. This is indeed perfectly illegal.
        The more subtle way, but legal, is to put himself in the ED. When you know that nowadays examiners only receive 5 years contracts, it is very easy for a director to obtain the result he wants when he is chairing the ED.
        For examiners with a life contract, the bonus distribution or the marking could suffer.
        As marking is a discretionary power, unless it is flagrantly incorrect, neither the internal appeal committee nor the ILO-AT in Geneva will bat an eyelid.

        One way to bring such aspects to light would be to publish in the register the various compositions in time of the ED (or the OD). After all it is the case in the BA, why should it not be the case in first instance.

        Another way to bring such aspects to light would be to publish the reasons for the internal decision of the ED, i.e. the “Votum”, that means the presently non-public part of Form 2035.
        After all the reasons for refusal are public, why should not the reasons for grant be public?
        I know applicant’s fear that it could influence what is happening in other jurisdictions, like in the US, but this is not a reason not to be honest.

        I am pretty sure, should the votum become public, that we would come across nice surprises, but it would force ED to really reflect on what is proposed by the first examiner.

        When you see a search report full of X documents and after none or purely cosmetic amendments or a mere statement of the applicant, it ends up by a direct grant, one wonders what happened. It is manifest that something went wrong during the search.
        The same applies when claims are limited by features from the description and the next step is grant. Was the search complete? Often reasonable doubts are justified.
        No wonder that in lots of cases the opponent brings then the relevant prior art and the patent is either revoked or maintained in amended form. This results in an absolute waste of money and resources
        Nowadays the two other members merely sign what has been proposed by the 1st examiner. In the past they could briefly meet or the chairman would go down the corridor to see the 1st member, but with teleworking becoming the norm, it is much too complicated.
        When looking at certain SPV it is manifest that the ED did not work properly.

        The conclusion is clear: there is no legal loophole to be closed when the director acts intelligently!

  7. It is farcical to see that the president of the EPO and the president of the BA sign a MoU!

    One should not forget that the latter only has the powers delegated to him by the former.
    As long as the president of the BA cannot present directly its budget needs to the AC, the BA will never be independent.
    As long as the reappointment of BA members is dependent on a performance assessment, the BA are not independent.
    This is the more so since the criteria for re-appointment are not even public. One of the criteria is certainly linked to production/productivity, and probably, but not written, an excellent flexibility of the spine.

    What is infuriating is that BB will never have to pay for the damage he caused and the millions of € spent in vain.
    It was pure revenge of him for the EBA not willing to rubber stamp its disregard of the separation of powers and of the problems raised in R 19/12.
    I take bets that with the actual president of the BA and some EBA members it would have ended differently.

    As far as the “New way of working” is concerned it is mandatory teleworking, for members of the BA as well.
    In this respect, OP by ViCo are an absolute necessity.
    I can agree with Concerned Observer that we will face sooner or later a dynamic interpretation of G 1/21.

    The only driver for the present tenant of the 10th floor is to save money at any rate.
    He started with salaries and pensions on the basis of a fake study from which he took the worse scenario possible. Even after one year the financial results shows that there was no need to cut salaries and pensions. But the “special allocations” for the top management and its buddies have drastically increased.

    By imposing teleworking the aim is clearly to sell office space. BB was already dissatisfied that when he introduced “part-time home-working” not many examiners were asking for it.
    The pandemic offered his successor the reason he could not invoke for forcing teleworking: saving office space in order to sell it. The EPO tried to sell BT-VIII, the one immediately next to Hackerbrücke, but the city of Munich blocked it.

    The new building in Rijswijk was conceived with a maximum of open office space, also for examiners.
    The budget has also been provisioned such as to pay for a transformation of the present buildings in open space.

    What is the most disappointing is that the AC has completely given up its control function and has degraded itself in a rubber stamping machine for the wishes of the president.
    It is difficult to accept that countries with barely any applications have the same weight in the AC as the big contributing countries. There is a weighted voting system in the AC, but it is barely used, for obvious reasons.
    This is probably the biggest scandal!

    1. Attentive, if you want to understand the behaviour of the EPO’s management, and of the AC delegates, then it seems to me that the only way to do this is to follow the money.

      Why on earth would the EPO make financial predictions that are based upon demonstrably unrealistic assumptions and that tell a (false) story of impending financial doom? What advantage does the EPO gain from doing this? Well, from the perspective of EPO management, setting very low (financial) expectations is a sure-fire way of guaranteeing that you deliver a stellar performance relative to what has been predicted. Trebles and massive bonuses (for the management) all round! Whilst the AC delegates may be alert to this obvious manipulation of the figures, they may be inclined to keep quiet because the prediction of impending doom provides the perfect excuse to reduce the EPO’s operating overheads … for which read cuts to the benefits of, and poorer working conditions for, for the bulk of the staff … and to thereby, in the long run, increase the proportion of the EPO’s income that is available for redistribution to the member states.

      Quite how the tail (the EPO President) manages to wag the dog (the AC) so efficiently when it comes to getting pretty much everything he wants is perhaps harder for outsiders to understand. However, it is beyond doubt that individual delegations to the AC are almost always VERY keen to avoid objecting to a proposal from the President unless they are certain that the majority of other delegations will take the same stand. Indeed, it seems that abstaining from voting on a proposal is about as much rebelliousness that AC delegations dare to demonstrate, even where it is clear that they strongly disapprove of the proposal in question. Given that the AC delegations are supposed to be the ones in charge, why are they so timid? What do they have to lose by standing up for what they want, or what they believe is right? Whilst I do not know the answer to this question, I have no doubt that the real reasons can be learned by following the money …

  8. G 1/21 clarified that ViCo OP are compatible with the EPC, despite not being the “gold standard” (in-person OP).

    However, the AC can now introduce a new Rule 115a EPC: “Oral proceedings shall be held by videoconference” (forever), can’t it?

    I find the EPO branches in Berlin, Rijswijk (which is not The Hague) and Haar more incompatible with the EPC.

  9. The setting up of a R115a is something I have been expecting for a long time.
    OP by video still do not have any legal basis in the EPC and in its implementing Regulations.

    It would however make it pretty obvious that the EPC is trodden on, so it is better to clad in decisions of the president or in the RPBA. And what has started in G3/19

    In G 1/21 the president’s representatives have however made abundantly clear that the EPC can be amended by secondary law! This has started with G 2/19 and especially with G 3/19 with the direct complicity complicity of the EBA

    The problem with OP by ViCo is that in their present embodiment allow the deciding panel, be it in first instance or in appeal, not to sit together.

    It is difficult to claim that the EPC being silent about this case it allows it. But the management supported by the AC decides what it wants, as long as it can promise savings to the AC, the latter will gobble anything presented by the president.

    What is not normal at all, is that the conference of ministers in charge of patents in the contracting states, as foreseen in Art 4a, has never been convened. That the two presidents since its adoption do not like it is irrelevant. They are appointed to apply the EPC not to disregard or worse maim it!
    This is however what has happened since 2010

Comments are closed.