Next week, on 11 February 2015, Board 28 of the European Patent Office will meet.Board 28 is the sub-group of the Administrative Council that is envisaged under Article 28 EPC.IPKat reports that new arrangements are proposed for the administration of the Boards of Appeal, "they are likely to be implemented very quickly and with no consultation. Users have certainly not been consulted, and Merpel understands that until now, neither have the Boards of Appeal themselves."

The new Career System adopted by the Administrative Council in its meeting in December 2014 (CA/D 10/14) already has "a number of elements that have serious consequences for the independence and impartiality of the Boards of Appeal".

"This decision of the Administrative Council is in clear contradiction with its own declaration at the end of the December 2014 meeting, reiterating its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognized principles of judicial independence. While formally support is expressed of the Boards’ independence, in reality measures have been put into place that go directly in the opposite direction.One can only wonder what purpose it might serve to strengthen the influence of the executive over the judiciary, with all the possible severe international consequences."

EPLAW Patent Blogrecently published an open letter of the European Patent Lawyers Association (EPLAW) to the Delegations of the Administrative Council (AC) of the EPO.EPLAW joined the chorus of patent professionals expressing their concerns about the temporary removal of a member of the Boards of Appeal (BoA) from office, as ordered by Mr Battistelli, President of the EPO, and confirmed by the AC. In addition to public discussions among patent professionals, further developments regarding the status of the BoA have taken place "behind the scenes".These are detailed in the article available here.

The article also reports on the public concern expressed in many letters and in numerous discussions about the recent actions and considers that:

"Co-operation between the AC and the EPO is in many situations the best choice. However, for the sake of safeguarding the independence of the BoA, simply avoiding independent and critical assessment of obvious flaws for the sake of the appearance of 'business as usual' is not good enough and is not in the long-term interest of the EPO users. [...]Transparency is of crucial importance and the AC should try to regain the lost confidence of the users of the EPO, e.g. by seeking external advice from judges, users and last but not least by members of the BoA before taking far-reaching decisions."

On Wednesday 21 January, approximately 1,000 EPO employees took the streets in Munich and went to the Danish consulate. The Danish consulate was chosen because a Danish public servant, Mr Jesper Kongstad, is the Chairman of the Administrative Council of the European Patent Organisation and has always aligned with controversial president Benoît Battistelli.

FOSS Patents reports on the demonstration and publishes a SUEPO flyer

IPKat reports on a reaction from a Vice-President of the European Patent Office (EPO) to the letter of Sir Robin Jacob addressed to Mr Jesper Kongstad, Chairman of the Administrative Council of the EPO.This letter protested the treatment of a member of the Boards of Appeal of the EPO, and reiterated the importance of the judicial independence of the Boards of Appeal.

FOSS Patents analyses the on-going situation and considers that "opacity has its limits, and the EPO is simply too important for people like Sir Robin (and so many others) to ignore what is going on there":

"The bottom line is that reform is needed. The Administrative Council has been part of the problem, not part of the solution. Sir Robin and others were too polite to address someone other than the Administrative Council. They should have contacted politicial decision-makers and members of different parliaments. The Administrative Council appears to be the fox in charge of the henhouse, though it would be great if it could prove its critics wrong in the months and years ahead and bring about meaningful change, rather than endorse and rely on meaningless sophistry."

On Wednesday 21 January 2015 a demonstration will take place in Munich (Germany) starting from the Kurt Haertel passage at 12h and ending at the Danish consulate.

Staff of the EPO reproach the governing body of the Organisation which is the Administrative Council chaired by Mr Jesper Kongstad (DK) for:

• its failure to exercise due oversight over the President of the EPO,
• its failure to fulfill its duty of care towards EPO staff,
• its lack of transparency towards the EPO's users and the general public.

Simultaneously, in The Hague (Netherlands), EPO staff will demonstrate in front of the Dutch Ministries of Justice and Foreign Affairs.

For further information see the SUEPO publication What does EPO staff want ? (also in French and German)and Governance of the EPO.

Dr. Ingve Björn Stjerna is a Rechtsanwalt in Düsseldorf, practicing patent infringement law.

On his website, Dr. Stjerna published an article in English and German about the Unitary Patent and comments on the adequacy of the legal protection at the European Patent Office especially in view of the recent events culminating in the suspension of a Boards of Appeal member by the President (see pages 3 and 4): "The incident of 3 December 2014 shows that the situation at the EPO has very serious deficiencies with regard to the Rule of Law".

Dennis de Jong, a Dutch member of the European Parliament, wrote an article about the unrest and the problems of governance at the European Patent Office. Mr de Jong mentions the attacks on the "legal means of redress" for employees and the introduction of a "culture of intimidation".

Translations in English, German and French are available by scrolling through the document.

The current organisation of the Boards of Appeal is to be reformed, but how to achieve this is still a mystery.IPKat reports that the Board 28, a subcommittee of the Administrative Council (AC) according to Article 28 EPC, is discussing this reform. However, the composition of the Board 28 is shrouded in secrecy and the minutes of such meetings that have limited circulation do not record attendance and contain no detail.

A rumour is that the Boards of Appeal might be moved to Berlin, to make them physically distant and so give implied independence by geographical separation. It is not clear whether this would accompany greater, or less, actual independence and separation of their judicial function from the administration of the EPO.

Following the scandal caused by the suspension of a member of the Boards of Appeal, FOSS Patents considers that the EPO suffers from structural issues and that: "The Administrative Council plays a key role in the "reign of terror" that tries to discourage EPO staff, including judges, from fighting for basic human rights and one of the most fundamental values of the civilized world: judicial independence. [..] "Instead of exercising oversight, that body is largely responsible for the banana republic that the EPO has become."

The Intellectual Property Judges' Association (IPJA) expresses in a letter to Mr Jesper Kongstad (Chairman of the Administrative Council) "the extreme concern of European Patent Judges" to the order of Mr Battistelli, acting on his own initiative, to physically remove a member of the Boards of Appeal from his office and to take possession of his computer.IPJA is the representative association of European National Patent Judges and their letter has near unanimous support and no objection by anyone. IPKat publishes a copy of the letter.

According to IPJA, the events "threaten the judicial independence of the Boards of Appeal [...] Not tolerating that should be the common interest of all Member States of the EPOrg". A copy of the letter will be sent to EPLAW, IPKat and Managing IP. Managing IP is the magazine which published the controversial interview of Mr Battistelli and Mr Kongstad on 19 December 2014.

Further concerns are raised by IPKat following astudy of the "Business Distribution Scheme for the Technical Boards of Appeal".This document is issued at the beginning of every year by the Enlarged Presidium of the Boards of Appeal and it sets out ("designates”) how the various Technical Boards of Appeal are to be made up, namely with the Chairman, the technical members and the legally qualified members. The scheme for 2015 is only stated to be for the period ending on 31 March 2015. Usually plans have been for the whole calendar year. In addition to that, some Boards have no Chairman, some are understaffed and re-appointments are still pending.

IPKat concludes that "A worrying but plausible conclusion is that it is to make the Members concerned more biddable as their term comes up. Any such pressure, whether subtle or overt, would of course completely conflict with accepted principles of judicial independence."