Bonum Certa Men Certa

Association of the Members of the Boards of Appeal Urges EPO Administrative Council to End Battistelli's Coup

Association of the Members of the Boards of Appeal (AMBA)



Summary: A call for the Administrative Council to take swift action and remove Battistelli along with his outrageous plans (risking collapse of the entire organisation) has just grown louder

As of last night, based on the timestamp in the page, the Association of the Members of the Boards of Appeal (AMBA) had this to say as Battistelli's attacks on the boards intensify (they don't mention Battistelli specifically, for the sake pf diplomacy):



Open Letter to all Stakeholders with an Interest in Maintaining the Boards of Appeal of the EPO as an Independent Judicial Body



The Boards of Appeal (BoA) are the body within the organisational structure of the European Patent Office taking final decisions on appeals against decisions refusing patent applications and revoking patents. Thus, they must meet the requirements of TRIPS and national constitutional law “Rechtsweggarantie/Access to justice”.

After two years of work, the European Patent Office has produced a proposal for re-structuring the BoA. The President will put this to a vote by the Administrative Council (AC) at the end of June.

The aim is to increase the BoA’s independence, within the limits imposed by the EPC. However, while some aspects of the proposal have a superficial appeal, even minimal reflection on the principles underlying judicial independence shows that the proposals are very wide of the goal, namely to increase the functional independence of the BoA without changing the EPC.

The issue came to the fore after the Enlarged Board’s decision R 19/12 in which the Enlarged Board of Appeal (EBA) decided that its Chairman, who is simultaneously Vice-President of the BoA, was not independent because of his administrative functions within the Office. That the proposals represent a serious deterioration, as compared to the situation before that decision, is evident from the following.

The status quo before R 19/12

  • The President’s respect for the BoA’s judicial independence meant he did not intervene in their functioning, and de facto delegated his powers to the Vice-President, on the basis of Article 10(2)(i) EPC.
  • The BoA were responsible for selecting members and chairmen, and the President then proposed their appointment by the AC.
  • At the end of a member’s five-year term, re-appointment was the default, in the absence of serious reasons.
  • The Rules of Procedure of the BoA were adopted by the Presidium, subject to the approval of the AC. The President played no part.
  • The Office President shared the responsibility with the AC of selecting and appointing the BoA Vice-President, who is simultaneously the Chairman of the EBA – the highest judicial position in the European patent system.

The proposal

- Delegation

  • The President of the Office’s “act of delegation” aims at clarifying his lack of influence over the BoA, but in fact makes clear that he can and will intervene for any number of reasons, including whenever he considers the “interests of the Office” to be at stake.

- Independence

  • The proposal does not codify any new guarantee of independence.
  • There is a problem of external independence. Apart from being accountable to the AC, the President of the BoA is bound also by the BoAC’s “guidance” and “objectives”, and holds his powers only so long as the President of the Office deems fit.
  • There is a problem of internal independence. Key judicial tasks are placed in the hands of a single person, the BoA President. This is aggravated by the following point.
  • The AC can only appoint a President of the BoA that the President of the Office proposes because the latter retains his power to propose the appointment of the Chairman of the Enlarged Board of Appeal.
  • Shoehorning the career structure of the BoA members into the performance-based system of the rest of the Office ignores the BoA’s judicial nature. It also produces strange, not to say inexplicable, results: young members start on unusually high grades and experienced members are downgraded.

- Security of tenure

  • There is, de facto, a loss of security of tenure because re-appointment is subject to a positive recommendation in the light of unspecified reporting and performance criteria.

- The advisory body to the AC (BoAC)

  • The BoAC is to “monitor the independence” of the BoA, but has no means of guaranteeing it, or, indeed, clarity as to what such monitoring entails.
  • The BoAC is responsible for “guiding” and “controlling” the President of the BoA regarding general objectives, performance criteria, the annual report, the budget request and its execution, and even criteria for the distribution of cases, an area that currently falls within the power of the Presidium.
  • The President of the Office is entitled to participate in all meetings of the BoAC.
  • The BoAC, rather than the Presidium, adopts the Rules of Procedure of the BoA after consulting the Office President.

Conclusion

In the Boards’ view, if this proposal is adopted in its present form, it will inevitably result in further challenges before constitutional courts and before the Enlarged Board as in R 19/12.

In our view, it would be far better to reject this proposal and accept that the problem underlying R 19/12 has in fact already be resolved by the Vice-President’s withdrawal from management activities.

Additional considerations

This reform has not proceeded in a way commensurate with the importance or status of the BoA and the user and public interest. There has been a lack of transparency and any meaningful consultation, as can be deduced from the following:

  • The ideas in the project have essentially not changed since the original paper CA/16/15, which was criticised by the Boards, users and some delegates of the Administrative Council.
  • The “consultation” with the BoA amounted to no more than discussing our proposals, no aspect of which was incorporated, and last minute discussion of finished drafts, which were not changed at all.
  • No meaningful consultation took place with any stakeholder. The on-line user consultation invited users to give answers to leading questions about invented problems, and the responses were then misrepresented.
  • The proposal contains several aspects that the AC had regarded as secondary (efficiency, location) or had not been aware of at all (fees).
  • A new location is being pursued without any contact with the BoA.
  • An efficiency study of the BoA was commissioned without informing either the BoA or the AC.

Further information can be found on the AMBA website and in particular in an information pack that formed the basis of a recent panel discussion event in Munich where distinguished judges debated the principles of judicial independence and their application to the BoA.

We encourage any stakeholder with an interest in this matter to make their views known to their national delegations in the AC, who already have access to the proposal.

Yours faithfully,

The Association of Members of the Boards of Appeal





Board 28 has already warned about a "crisis" and the Administrative Council should sack Battistelli for his failure to even listen to the Administrative Council. It's long overdue. Here are contact details for delegates to the Administrative Council.

Our next post will shed more light on why Boards of Appeal and Battistelli cannot get along and also shed light on the timing of the above letter.

Recent Techrights' Posts

Punching People Doesn't Work
It makes nobody any safer
This is How Microsoft's XBox and Entire Consoles (If Not Gaming) Ventures Will Ultimately Die
Ensure you can blame "Tariffs" (politics)? If not "hey hi", the fashionable go-to excuse when businesses fail?
The Complaint About Brett Wilson LLP - Part II - UK SLAPPs for Americans, SLAPPs for Profit
Brett Wilson LLP has a track record of this kind
Cloudflare Gives Us All Another Reason to Boycott Cloudflare
If Cloudflare wants to use its vast surveillance network (which is what it does as a CDN) to foist paywalls and maybe something worse (like DRM on top), then Cloudflare should be more widely rejected as a company
 
'Cancel Culture' Isn't About Enforcing Ethics (and It's Done by People on the Right, Not "The Leftists")
Smarter folks would leave social control media
Russia's Attack on Europe (and NATO) Will Worsen Censorship and Corruption in Europe
Can we still debate issues that predate the invasion of Crimea?
Lawyers Should Permanently Lose Their Licence (and Worse) for Using Chatbots in Legal Work
They not only waste people's money and time. They pollute the literature with falsehoods. They commit perjury. [...] Brett Wilson LLP sent the Judge nearly 1,000 pages of material (mostly mine, copied without proper permission) shortly before a short Hearing, which lasted less than an hour
GAFAM and MATA (Mythical, Metaphor) as Explained by analognowhere.com
They're instruments of suppression that sponsor the oppressor
We've Already Mentioned Who Nowadays Funds Garrett's SLAPP Against Us (Not Garrett), Let's Examine Who Sponsored His Litigation Partner (Other Than Microsoft Salaries There's a Buddy of Bill Gates)
it's alleged that the Serial Strangler from Microsoft got money from him
Florian Müller: Using Software Patents to Attack Software Developers, Agitate Against Patent Reform
He also promotes attacks on the German Constitution and laws
Reliance on Typepad Seems to Have Doomed the Voice of Software Patents and Patent Maximalists in PatentDocs
Follow the money
UEFI 'Secure Boot' is Potential Mayhem to the Environment (Older and Leaner Distros Stop Working)
creating new problems, disguised as "solutions" to problems that do not exist
Sometimes 'Cancel Culture' Backfires Badly
There's no such thing as "too much" coverage
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 24, 2025
IRC logs for Wednesday, September 24, 2025
Links 25/09/2025: Jimmy Kimmel Returns to Air (With Limitations) and London Stansted Airport Latest to Have Incident (Fire)
Links for the day
Slopwatch: Fake Articles, SPAM With Slop, and Google News Directs People to Read Slopfarms
why does Google News insist on still linking to prolific slopfarms?
Gemini Links 25/09/2025: New Game for Gemini Protocol, Eleven, and Network Solutions Woes
Links for the day
Look Ma, No "Cloud"
So far this year we've had an almost perfect uptime
Links 24/09/2025: Autism Blame-Shifting and Typhoon Ragasa Enters China
Links for the day
Buying From Oneself is Not Business Success
This isn't at all a joking matter even if you already laugh at the whole thing because your pension, savings etc. are tied to this scam at some level
What They Really Hate David Heinemeier Hansson (DHH) for
Nothing to do with code
Smart People Won't Buy 'Smart' Cars
Imagine trying to sell someone a house (proper home) while insisting that it'll need to be demolished 5 or 10 years later, then rebuilt again from scratch on the same vacant lot
The Relationship Between IBM Red Hat and Microsoft, Visualised
This metaphor goes a long way (projects, collaborations, and outsourcing
The Complaint About Brett Wilson LLP - Part III - Spying on Reporters' Families, Chaining Cases for Microsoft Employees Who Demand Censorship of Facts (Even Politely Expressed)
the time seems right to wrap up this introductory series
Links 24/09/2025: "NASA Moving Out of Entire Buildings as It's Gutted" and Purge of Online Critics (Opposing Fascism Becomes Unlawful)
Links for the day
Science is Under Attack
Oligarchy prefers a dumbed-down population
Someone Expiring Certificates on the Day of the 9/11 Attacks is Not Someone I Would Want Controlling My PC (or Deciding What's Authorised for Booting)
"social justice warriors"
The Solicitors Regulation Authority (SRA) Has Reportedly Failed People With Wrong Advice
At the moment the SRA has a PR blunder
The Man Suing Brett Wilson LLP and Gervase de Wilde (5RB)
Now he's probably using the (almost) 200,000 pounds he's supposed to receive to sue Brett Wilson LLP and former colleagues/partners
More Microsoft-Red Hat Cross-Pollination as the Company Loses a Managing Director
some people move from Microsoft to Red Hat and some do the opposite
Slopwatch: A World Wide Web That's Rotting for Companies That Won't Even Exist in a Few Years
some of the junk Google News is promoting
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 23, 2025
IRC logs for Tuesday, September 23, 2025
Links 24/09/2025: Qt Creator 18 Beta, Microsoft Cannot Bail Out "ChatGPT" Anymore, China and US Intensify Censorship
Links for the day
Gemini Links 24/09/2025: Gemlogs and Politics
Links for the day
Links 23/09/2025: Japan Limits Uses of Skinnerboxes ('Smartphones') With Toxic "Apps", Fentanylware (TikTok) Tapped by "MAGAts"
Links for the day
Brett Wilson LLP Has Just Been Sued (by Their Own Clients!)
Vladimir and Alla Yanpolsky sued Brett Wilson LLP in BL-2025-001167 at the end of last week
Mayday: Optus emergency calling crisis
Reprinted with permission from Daniel Pocock
Links 23/09/2025: Massive Data Breach, Slop Versus Productivity, and Vista 11 Update Breaks Things Again
Links for the day
Code of Censorship
Extortion is peace
The Free Software Foundation (FSF) Has Un-cancelled the Best People, Just in Time for the Big 4-0
Mr. Oliva should have been there all along (since 2019)
Most "Modern" Technology Makes You Slower and Dumber
Because proprietary software makes you worse off
"What Comes After Free Software?" Wrongly Insinuates We've Reached the Goal (Prison is Not the Goal)
The oil tycoons use similar tactics against environmentalists, giving them fake "wins"
Making More Work Space
I learned the hard way that less is more in circumstances where more means distraction
MAHA is a Lie, Public Officials Never Valued Citizens' Health (They Still Value Private Businesses, Their Sponsors)
Reject demagogues
Free Software Foundation (FSF) Has a New Press Kit for the Weekend After Next Weekend (40th Anniversary)
miles better than social [sic] media [sic] quips, moderated by narcissists and oil tycoons.
Microsoft Had Two Waves of Mass Layoffs This Month (That We Know of) and It'll Get Worse for Microsoft Soon
Will the axe fall again by month's end?
Gemini Links 23/09/2025: Happy Equinox, Photronic Arts, and Perception Cognition
Links for the day
Lessons We've Learned After 17 Years of American Hosting
GAFAM is "all-in" with the "Trump agenda"
Back to Normal Now, We Plan to Do More In-Depth Series (or Multi-part Stories)
Articles (or series thereof) that contain philosophy are important to us
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 22, 2025
IRC logs for Monday, September 22, 2025
Microsoft Media is Panicking Amid Mass Layoffs Every Month, H-1B Fees, and "Seattle’s Tech Scene in Trouble"
In "late stage Microsoft", copyleft becomes proprietary
The Next Wave of IBM/Red Hat Layoffs Being Discussed Already
Red Hat is sort of disappearing the way Tivoli did
New Techrights Turns 2
Today starts the third year of the SSG-based Techrights