11.16.20

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Judges at the EPO (Boards of Appeal) Can Still be Punished for Ruling ‘Unfavourably’ on Patent Maximalism

Posted in Europe, Patents at 8:57 am by Dr. Roy Schestowitz

When judges are appointed or reappointed for loyalty/agenda things are bound to go south, with decisions acutely distressing

Roland Freisler
His Master’s Voice Roland Freisler, Germany’s own William Barr

Summary: The EPO follows juridical standards reminiscent of ‘third-world countries’ and even the German Constitutional Court is raising concerns about it, perhaps recalling a harrowing past of judges as mere extension of the executive (and executing) branch

THE EPO‘s Central Staff Committee has been very busy during the lock-downs. It wrote a large number of internal publications and circulated letters; while staff was besieged at home the representatives sought to guard the rights of staff. We applaud them for this; the same people who risked firing/defamation from António Campinos had also done that in the Benoît Battistelli era; we see many of the same names (staff trusts these people and re-elects them).

We have not heard about the Boards of Appeal’s (BoA) Presidium for a very long time. Years in fact. It’s still there, however, along with AMBA and other key bodies which lashed out at Battistelli and Kongstad (the corrupt slaughterer of chinchillas).

Roland Freisler, Franz Schlegelberger, Otto Georg Thierack and Curt Rothenberger“Career System for the Boards of Appeal,” as the Central Staff Committee put it, was also discussed. “Consultation in the Presidium” was done as the “Administrative Council ha[d] decided in 2019 that the Presidium of the Boards of Appeal (BoA) should be consulted on any proposal which concerns the conditions of employment of the members and chairs of the Boards, instead of the GCC. The Presidium has now given its (quite interesting) opinion on the Performance Evaluation Guidelines and the Career System for the BoA.”

For the uninitiated, every BoA deals with matters of law and compliance (like the EPC), unlike the EPO’s examiners, accountable directly to the Office. It’s very important that BoA members are well compensated (to attract suitable and competent candidates) and also independent, which they still aren’t. We occasionally see the Office meddling in their affairs. This harms their ability to judge independently, so impartiality can no longer be presumed.

Here’s what the publication from the Organisation says:

4 May 2020

Presidium’s Opinion on the Performance Evaluation Guidelines and the Career System

Dear Members of the BoAC,

The President of the Boards of Appeal asked the elected members of the Presidium to provide you with advice on the amended performance evaluation guidelines. While the elected members do not have major problems with the few editorial changes with respect to the previous version, they find it appropriate to provide their opinion on the whole document in the broader context of a discussion on amendments to the career system and to the performance evaluation guidelines. We note that Article 9 of the proposed guidelines provides a link between evaluation reports and the career system. In our view, the issues are also so inextricably linked that our main comments belong in a single document.

Summary

We generally welcome a fair and transparent Performance Evaluation System for certain purposes, however we think that the current career system in combination with its Performance Evaluation Guidelines are not suitable for the career development and re-appointment of members of the Boards of Appeal with judicial, in particular final instance judicial functions.

Career System

Although it is hard to explain all the principles, history, issues and problems in a short text, in the following, we try to give a comprehensible summary.

Before the introduction of the new career system, board members were in the A5 grade scale and chairs (then called chairmen) in the A6 grade scale. Step advancement within the grades was automatic (i.e. based on experience), yearly or two-yearly. There was some overlap between the grades. Moving from the post of member (A5) to chair (A6) required a new appointment based on a selection procedure that included a performance assessment and an assessment of the candidate’s suitability for the new post. The functions of members and chairs were clearly separated.

The new Office career system introduced “technical” and a “managerial” career paths, each with a hierarchy of job groups and a corresponding range of non-overlapping grades. Step progression is performance-based, and grade advancement is via a promotion.

Job group Technical path Managerial path Grade range Old grade
Job group 2 Principal advisor
Board of appeal chairman
Principal director G15, step1 –
G16, step 4
A6
Job group 3 Senior expert
Board of appeal member
Director G13, step 3 –
G15, step 4
A5

All members of the Boards are in the “technical” career path. Members are in job group 3 and chairs in group 2. The previous grades (A5/A6) corresponded to these job groups, but the relevant new grades (G13-G16) are more fine-grained. As a result, there was more than one new grade in each job group and hence a possible promotion within each job group. This still applies to members (see below).

In its December 2014 meeting, the Council approved the new system “on the understanding that the provisions regarding appraisal, performance, step advancement, bonus, promotion and all career-related elements for Council appointees as members of the boards of appeal will not apply until specific provisions have been included in documents concerning the organisation and functioning of DG 3…” (OJ 2015, page 4)

In May 2015, the Presidium and the committee of the Association of the Members of the Boards of Appeal (AMBA) noted this in a letter to the joint DG3/Office Task Force responsible for the institutional reform of the Boards of Appeal. They also offered their view that the provisions presented to the Council should be appropriate for persons exercising a judicial function and should have inter alia:

- No performance-related pay (Nr. 55 of CM/Rec(2010)12), which implies:
• A third career path “Boards of Appeal” with a single grade per function;
• Job profiles with core competencies which are specific to the BoA;
• Seniority based step in grade advancement;
• No bonuses;
• A salary package which will allow the BOA to recruit competent members bothfrom inside and outside the Office.

In September 2015, the Presidium/AMBA met with the Task Force and presented further considerations for an appropriate career system (see Annex 1).

The Office subsequently submitted an orientation paper CA/98/15 on the structural reform. AMBA commented on it in a position paper in December 2015 inter alia as follows:

7. The proposal puts the Boards back in the Office’s “technical” career path (as defined in Art. 47 ServRegs) [24]. The Council recognised this as inappropriate for the Boards, which is why a transitional system was adopted. Not mentioned is the Boards’ paper regarding a career system. The main points were that the principles of judicial independence and security of tenure require that re-appointment should not be based on performance and that all board members (or chairs) do the same job so that proficiency levels and promotion within a job level make no sense and would give a strange impression to the parties. The paper also proposed various scenarios to address these problems, by having grade advancement at re-appointment.

In June 2016, the Council approved the reform of the Boards of Appeal (CA/43/16 Rev.1), which put the members and chairs in the same “technical” career system as examiners, but with a modified progression (paragraphs [31-42] and the changes to the ServRegs in CA/D 8/16). Essentially, members and chairs were assigned the fixed grades G14 step 1 and G16 step 1, respectively. There was no possibility of step advancement and the promotion of members from G14/1 to G15/1 (there is no corresponding provision for chairs) was dependent on a recommendation by the President of the BoA at the same time as reappointment (i.e. once every five years).

This structure was favourable for new members, who would start in the Boards on the grade of G14/1, which corresponded to the old grade of around A5/9, i.e. up to nine years ahead of where they would have been previously. However, it was not so good for experienced members who, being at the same grade, effectively lost around nine years in comparison to new colleagues. Moreover, the only available further advancement was the “promotion” to G15/1, which was conditional on a recommendation determined solely by the President of the BoA.

In July 2016, AMBA commented on this as follows:

Instead of a providing a career system appropriate to a judicial body, the link between grade and performance evaluation for the Technical and Legal members may result in substantial differences in remuneration for members doing essentially the same work. This sort of substantial monetary reward for productivity is unknown in Member States (two or three do have a very small fraction of judges’ salary dependent on appraisal, and they are strongly criticised for it by the CCEJ).

Recently, Germany’s Federal Constitutional Court held, in their decision BVerfG, 2 BvR 780/16, Rdnr. 59 (unofficial translation from the German original) that:

Measures concerning the status of the judge may also be indirect influences on the judicial decision. By limiting such possibilities of influence, the danger of “rewarding” or “punishing” for a certain decision-making behaviour is to be countered….

For this reason, the advancement of judges in the pay grades must be standardised by law and must not be left to the discretion of the executive.

It would be unconstitutional for the administration of justice to have discretion to assign judges with the same office and the same judicial function to posts of different grades.

Furthermore, in order to protect the independence of judges, Article 97 paragraph 1 German constitution (Grundgesetz) contains the fundamental obligation to avoid a hierarchical structuring of the judiciary by creating “Beförderungsämter” (loosely: promotion positions) along the lines of the career development principle under civil service law and to provide for as few promotion positions as possible.

It is our view that the present career system does not respect these basic principles; the advancement is not standardised by law, but is at the sole discretion of the President of the BoA based on his evaluation of performance, there is assignment of members with the same functions to different grades (G14/1 and G15/1), which is a hierarchical structure that follows the Office’s “technical” career path.

The fact that, unlike others in the same job group, members and chairs have no possibility of reaching the final grade and step is a further cause for concern, but is left aside for the purposes of this paper.

Evaluation Guidelines

The President of the BoA has drafted guidelines for the evaluation of the performance of members and chairs (chairmen) of the Boards of Appeal.

However, these do not remove the “discretion on the part of the judicial administration to appoint [Board members] with the same office and the same judicial function to posts of different grades” as objected to in the above noted German constitutional court decision. Rather, they retain the President of the BoA’s sole authority over such discretion. This amounts to what is often referred to as a lack of “internal” independence.

Although the Presidium objects to this lack of internal independence as such, the current system would already be improved if the Guidelines specified how the discretion was to be exercised. This would go some way towards the “standardis[ation] by law” of the advancement in grade. It is regrettable that the Guidelines give no guidance at all, but only refer to the evaluation reports in Article 9(1) and need for at least one assessment of very good in Article 9(3).

The evaluation report templates in the Annex to the Guidelines, in turn, give no guidance in this respect, since, in the definition of the overall grades 1 and 2, there is no explanation of what is meant by contributes greatly or significantly to the performance and functioning of the board (see the explanations under “Overall grade”, Grade 1 and Grade 2 in item 4 of the Annex), or how any objective judgment of this can be made; moreover, in plain English, they are synonymous. As will be recognised, it is the overall grade, and that alone, which is of importance and which determines possible advancement, and this is entirely at the discretion of the President of the BoA.

Further, it will be noted that, in the Annex to the Guidelines, before point 1 (Objectives), the introduction states that the “focus of the performance evaluation shall lie on quality”, and indeed many of the competencies refer to aspects attributable to quality. However, the overall grade which “shall depend on how the individual competencies have been evaluated”, is not based on this, but on unstated criteria concerning the contribution to the performance and functioning of the Board, leading to an unpredictable result. An example of this is the inexplicable discrepancy in the promotion rate of legally and technically qualified members.

It should also be understood that the President of the BoA, who exercises discretion on the overall grade, is faced with input from chairs who each evaluate their own Board members without knowing what standard other chairs are using in their evaluations. Simply put, one chair might evaluate their members as “very good” while another chair might evaluate their members as “sufficient”, although performance is essentially equal. Thus, even the evaluations provided by the individual chairs will not provide the President of the BoA with the information needed to exercise discretion in an objective manner.

Conclusion

The elected members of the Presidium, the autonomous authority within the Boards of Appeal Unit under R. 12(b)(1) EPC, welcome the opportunity of presenting our view on the career system and its application.

In our view, the present career system and its guidelines are not suitable for the promotion and re-appointment of members of the Boards of Appeal with judicial, in particular final instance judicial functions.

We would respectfully ask that you recognise this and consider initiating improvements.

Alternatively, and as a preliminary step, we would invite you, as the Administrative Council’s advisory body in respect of its supervisory duties relating to the BoA (CA/D 7/16, Article 4, paragraph 1), to advise the AC to have an independent review of the system carried out by an appropriate internationally recognised body such as the European Network of Councils for the Judiciary (ENCJ).

Finally, in analogy with the Administrative Council’s rules for staff representatives at council meetings, we would request that two members of the Presidium be present at BoAC meetings to discuss this matter (see Rules of Procedure of the AC, Article 7, paragraph 4.1 and Article 14, paragraph 5, which also applies to the meetings of the BoAC, see CA/D 7/16, Article 3, paragraph 4).

Yours sincerely,

The elected members of the Presidium.

This shows that in legal and practical terms little has improved; Campinos squashed the 'Haar question' and judges never regained their autonomy/independence. Now, as it turns out, the system for promotion (or demotion in the sense of lack of promotion as per a fixed scale, set aside re-appointments) is another way to ‘punish’ judges who rule the ‘wrong’ way. This is the pattern of judgments we’re accustomed to seeing in primitive nations where law is tied to religion, monarchy, cults and superstitions.

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