05.13.21

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The EPO’s War on Justice and Assault on the Law — Part 4: The President of the Boards of Appeal

Posted in Europe, Patents at 12:10 pm by Dr. Roy Schestowitz

Previously in this series:

EPO posse
Carl Josefsson (left) together with Vice President Raimund Lutz, Haar Mayor Gabriele Müller and Administrative Council Chairman Christoph Ernst at the inauguration of the Boards of Appeal premises in December 2017.

Summary: A deeper look into the ‘sausage factory’ that is EPO tribunals certainly helps us understand the inherent bias of many decisions, including a recent decision on European software patents like a controversial simulation patent

The current Chairman of the Enlarged Board of Appeal in case no. G 1/21 is Carl Josefsson.

Readers who are familiar with EPOnia will be aware that, in parallel to his judicial role as Chairman of the Enlarged Board, Josefsson also has a managerial role as the so-called “President of the Boards of Appeal”.

The office of the “President of the Boards of Appeal” is an innovation of the Battistelli era.

This position was created in the context of the 2016 reform of the Boards of Appeal which was triggered by the “constitutional crisis” unleashed by the decision R 19/12 in May 2014.

Back in 2014, the Boards of Appeal were under the management of a Vice-President, the Vice-President of DG3. By an established practice which had no formal legal basis, the Vice-President of DG3 also held the position of Chairman of the Enlarged Board of Appeal.

In R 19/12, the Enlarged Board examined this dual role of the Vice-President of DG3 and came to the conclusion that it involved a conflict of interest which potentially compromised the independence of the Vice-President of DG3 in the exercise of his judicial function as Chairman of the Enlarged Board of Appeal.

“In R 19/12, the Enlarged Board examined this dual role of the Vice-President of DG3 and came to the conclusion that it involved a conflict of interest which potentially compromised the independence of the Vice-President of DG3 in the exercise of his judicial function as Chairman of the Enlarged Board of Appeal.”There were a number of possible solutions to the conflict of interest identified in R 19/12. For example, it would have been possible to have considered separating the positions of the Vice-President of DG3 and Chairman of the Enlarged Board, or removing the Vice-President of DG3 from managerial activities under the authority and influence of the EPO President.

However, the mere fact that the EBA had had the temerity to issue such a decision enraged Battistelli. He expected his “vassals” – which he understood to include the members of the Boards of Appeal – to play their part in papering over the cracks.

Any attempt to expose issues that deserved to be tackled in the public interest was condemned as “sabotage” or “treason”.

According to those close to the centre of action, Battistelli perceived the EBA’s actions in issuing R 19/12 as a provocation and an attempted “judicial coup d’état”.

Kid judge: I want! I approve!It is reported that he went completely ballistic when R 19/12 landed on his desk. From that moment on Battistelli seemed to be hell-bent on pursuing his own private feud against the Boards of Appeal as he swore that he would make them pay dearly for their perceived lèse-majesté.

The level of Battistelli’s displeasure at R 19/12 can be gauged from the fact that the decision which was originally issued in German was not translated into the EPO’s two other official languages (English and French) and it has never been published in the EPO’s Official Journal.

Like other EBA decisions of which Battistelli disapproved – for example, G2301/15 (warning: epo.org link) and G2301/16 (warning: epo.org link) – R 19/12 is only accessible online via the case law database of the Boards of Appeal.

Battistelli’s solution to the “constitutional crisis” unleashed by R 19/12 was to draw up an elaborate window-dressing scheme for a “reform” of the Boards of Appeal.

“Battistelli’s PR machine promoted this scheme as enhancing the “perception of independence” of the Boards while at the same time he was careful to ensure that in reality those irksome in-house judges would kept on as short a leash as possible.”His plan for “reform” created a new “Boards of Appeal Unit” which was to be headed by a “President of the Boards of Appeal”. For good measure, the new unit was to be banished beyond the Munich city boundaries to the adjoining municipality of Haar.

Battistelli’s PR machine promoted this scheme as enhancing the “perception of independence” of the Boards while at the same time he was careful to ensure that in reality those irksome in-house judges would kept on as short a leash as possible.

Cutting through the PR smoke-screen and examining the small print of the “reform”, it is difficult to see how it enhanced the independence of the Boards in any meaningful way.

Prior to the reform, the Boards were headed by a Vice-President whose appointment was governed by the primary legislation of Article 11 of the EPC and was the sole prerogative of the Administrative Council.

After the reform, the Boards are now headed by the “President of the Boards of Appeal” whose appointment is governed by the secondary legislation of Implementing Rule 12a of the EPC.

“The competences of the President of the Boards of Appeal are subject to a “delegation of powers” from the President of the Office which has never been properly clarified.”As we have noted previously, in contrast to the Articles of the EPC – which can only be changed by a diplomatic conference and the unanimous consent of all contracting states – the Implementing Rules can be changed at the drop of a hat by a simple majority of the Administrative Council.

Rule 12a of the EPC specifies that the President of the Boards of Appeal “shall be appointed by the Administrative Council on a joint proposal made by the Committee [of the Administrative Council] established under Rule 12c, paragraph 1, and the President of the European Patent Office.”

This provision gives the President of the Office a de facto veto over the appointment of the head of the Boards of Appeal, a power which he never had prior to the reform.

The competences of the President of the Boards of Appeal are subject to a “delegation of powers” from the President of the Office which has never been properly clarified.

As long as Battistelli remained in office, the mysterious “Act of Delegation” was never published.

As a matter of fact it was only published in July 2018 (warning: epo.org link) after Battistelli’s successor António Campinos had taken over at the helm of the European Patent Office.

But even this belated publication by Campinos has not fully clarified the scope and limitations of the delegation.

It is also particularly noteworthy that Article 4 of the Act of Delegation allows the President of the Office to unilaterally revoke the delegation.

Although this supposed to happen in “close co-operation with the Administrative Council”, the prerogative of revocation lies with the President and there are no enforceable checks and balances to prevent abuse by a despot such as Battistelli.

A year later in 2017, Battistelli managed to persuade the Administrative Council to copper-fasten his control over the Boards by adopting CA/D 4/17 [PDF] (as images below) which stipulates that the nomination of a deputy for the President of the Boards of Appeal is subject to the agreement of the President of the Office.

All in all, a lot of questions about the “reform” of the Boards of Appeal and its effects on the independence of the Boards remain unanswered to this very day.

“In the coming parts we will take an in-depth look at the lucky beneficiary of this “legal fudge”, namely Carl Josefsson, the Swedish judge who was appointed to fill the newly-created position of “President of the Boards of Appeal”.”But when the package was proposed in June 2016, the Administrative Council was completely under the sway of Battistelli and his "protector" Kongstad and it obediently voted the “reform” through with hardly a murmur of dissent.

In the coming parts we will take an in-depth look at the lucky beneficiary of this “legal fudge”, namely Carl Josefsson, the Swedish judge who was appointed to fill the newly-created position of “President of the Boards of Appeal”.

CA/D 4/17 page1

CA/D 4/17 page 2

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