EARLIER TODAY we published one particular part of the Minutes referred to herein. The Minutes of the Administrative Council's meeting at the EPO form the basis of the discussion and outcome, which is usually so abbreviated that it's rendered quite useless (further sanitised when published in the public site rather than the Intranet).
FROM THE MINUTES OF THE AC JUNE 2016 MEETING
DAY 1:
On Day 1 of the meeting document CA/43/16 (Reform of the Boards of Appeal) was discussed. It has four parts: A (Structural Reform of the BOA), B (Career of Members and Chairmen of the BOA), C (Location of the Boards of Appeal), D (New Fee Policy for Appeals), and E (Conflict of Interest Rules).
The President started by explaining that transferring powers would mean revising the EPC, so “the only possible solution was a delegation of powers” to the new BOA President. He stated that there were two issues: the perception of independence and the boards’ efficiency. He added that “careers on the boards would be governed by special new rules reflecting the need to make board members aware that their career depended also on how they performed their duties”. Regarding the boards’ location he “remained convinced that a separation from the rest of the Office would increase the perception of the boards’ independence. But in view of the objections raised he was now proposing that although the boards would move to a separate building they would stay in Munich”. Also important was the boards’ rate of cost coverage, and he proposed that “the boards should aim at 20 to 25% cost coverage”.
SECTION A: STRUCTURAL REFORM OF THE BOA
The Croatian delegation was the only delegation that thought that a reform “should cover all aspects, not just independence”. It stated that “the President was always being attacked for various reasons, but to its knowledge he had never been accused of trying to interfere in any of the boards’ cases or decisions”. It added that “some people suspected the President of wanting to interfere in how the boards functioned and took their decisions, but this was completely unfounded and absurd.” The Bulgarian delegation thought that “the boards’ independence had been clearly shown by the disciplinary proceedings exercising the Council for over two years now, with the Enlarged Board so far refusing to take a substantial decision on the matter and give the disciplinary ruling requested by the Council”.
The Irish delegation “noted concerns expressed in some documents about the possibility of the President being able to withdraw his delegation of powers and that the consequence of the delegation being withdrawn is that the independence is withdrawn”. The French delegation agreed, stating that “revocation should not be possible without the Council’s consent”. The Swedish delegation said that “the EPO President should not be able to revoke his delegation of powers solely at his own initiative”. The Austrian, Swiss, German, Slovakian, Icelandic, Danish and UK delegations agreed.
SECTION B: CAREER OF MEMBERS AND CHAIRMAN OF THE BOA
The Irish delegation was “concerned about the proposals which introduce a performance-related system which appears contrary to the exercise of judicial functions”. The Italian delegation said that “(re) appointment of board members and chairman should be exclusively a matter for the boards’ President: the EPO President should have nothing to do with them”. The Netherlands delegation said that “the Office’s proposal that reappointment should in future depend on a board member’s performance could only be detrimental to independence”.
SECTION C: LOCATION OF THE BOARDS OF APPEAL
The Swiss delegation “suggests leaving them where they are”. The Irish delegation stated that “even a relocation within Munich would give rise to unnecessary expense”. The Swedish delegation considered that “the boards’ location had little to do with their independence, and the cost of any move also had to be taken into consideration”. The Austrian delegation said that “as far as relocating the boards was concerned, those most immediately affected, i.e. BOA members and users, would have to agree”. The Netherlands delegation stated that “there was no point relocating the boards”, because “this would merely waste money”. The Czech delegation said that “if the majority was in favour of a move, it would oppose it”.
SECTION D: NEW FEE POLICY FOR APPEALS
The Irish delegation was “strongly opposed to any increase in appeal fees at the present time and was appalled at the original proposal for a fivefold fee increase which would be tantamount to a barrier to justice”. The Italian delegation said that “cost coverage had no direct bearing on the boards’ independence”. The German delegation said that “the fees issue had nothing to do with the boards’ independence.” It thought that “the Office’s proposals here were completely unacceptable”.
SECTION E: CONFLICT OF INTEREST RULES
The French delegation said that “any former board member or other EPO employee temporarily refused permission to undertake paid work would have to receive appropriate financial compensation”. The German delegation said it would be necessary to “provide at least for financial compensation”. The Polish, Swedish and Austrian delegations agreed. The UK delegation said that the measures proposed “had caused surprise and even concern among UK user circles”. The Danish delegation “could not support at all” the proposal.
The President said that the proposed reform was “a package, to be approved or rejected as such. The post-service integrity measures were an integral part of that package”.
DAY 2:
On Day 2 an amended document, CA/43/16 Rev. 1 was presented. Amended were in particular Parts A (more information about “delegation of powers”), D (“new fee policy” changed to “better cost coverage”) and E (now only limited to the BOA).
The Swedish delegation was “not 100% satisfied” but “was prepared to accept it if its effects were reviewed in three years’ time”. The French delegation and the epi representative agreed. The Austrian delegation said that “increasing the fees should be the very last resort”. The Irish delegation remained convinced that the proposals in Section D “had nothing at all to do with the boards’ independence”. The Slovakian delegation agreed that “the measures in Section D had no bearing on the boards’ independence”. The Netherlands delegation said that Section D had to be deleted, and its vote would depend on that.
The President said that he was not 100% happy either, but this was a compromise.
CA/43/16 Rev. 1 was approved, with the Netherlands voting against, and Hungary and Italy abstaining.
The Council also said the reform and its effects should be reviewed in a few years’ time.
Comments
Anton_P
2016-10-26 08:27:52
I could not spot it in your otherwise excellent review of the council hearing.
Dr. Roy Schestowitz
2016-10-26 08:56:14
Anton_P
2016-10-26 13:01:41
An inventor applicant who has had his application rejected thus has to pay $1,025 to have the matter considered by the appeal board with an oral hearing, much less than the current EPO appeal fee. Inter partes gets expensive but still only costs $6,100 max.