Is Carl Josefsson presiding over a kangaroo court?

Summary: EPO's President Benoît Battistelli viciously attacked judges and slandered judges; António Campinos adopts a more 'soft power' approach, but nevertheless the impact is the same

Almost two years have passed since Techrights published the mini-series "EPO Looney Tunes" which explored the "difficult legacy" of Battistelli's Boards of Appeal "reform", in particular the banishment of the Boards to Haar.

That mini-series reported on the referral case G 2/19 in which the Enlarged Board had to deal with the question as to whether or not oral proceedings could lawfully be held in the municipality of Haar adjoining Munich.

As predicted, the Enlarged Board ended up confirming that the holding of oral proceedings in Haar was in compliance with the EPC, thereby effectively rubber-stamping the exile of the Boards from Munich in accordance with controversial scheme conjured up by Battistelli in 2016.

Since then the Enlarged Board under Josefsson's management has cemented its reputation for "legal fudge" and "cakeism", most notably following its decision in case no. G 3/19 in May of last year.

On the surface, case no. G 3/19 was about the rules governing biotech patenting but the decision of the EBA has far more general and wide-reaching legal and political implications which extend beyond any specific field of patenting.

"Hence, the decision of the Enlarged Board in case no. G 3/19 implies that the mechanism for amending the Implementing Rules can now be (mis)used by the Council as a convenient - but legally questionable – means for avoiding the bother of convening a diplomatic conference to revise the Articles of the EPC."According to informed commentators, the doctrine of "dynamic interpretation" on which G€ 3/19 relied, basically opens the door to the EPO's Administrative Council to change the EPC by amending the Implementing Rules.

It should be recalled that - 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.

Hence, the decision of the Enlarged Board in case no. G 3/19 implies that the mechanism for amending the Implementing Rules can now be (mis)used by the Council as a convenient - but legally questionable – means for avoiding the bother of convening a diplomatic conference to revise the Articles of the EPC.

This is because the Enlarged Board has effectively taken the position that the primary law of the EPC can be "dynamically re-interpreted" in the light of amendments to the subordinate Implementing Rules.

"Even IP Kat - which had been more or less neutered by Battistelli from about 2016 onwards - showed visible signs of discomfort at this development..."Such a position is completely at odds with the generally recognised principle of the hierarchy of legal norms - but this is EPOnia we are dealing with here, the realm of "legal anarchy".

Even IP Kat - which had been more or less neutered by Battistelli from about 2016 onwards - showed visible signs of discomfort at this development and warned that "the fudging by the EBA to reach its decision in G3/19 will raise questions as to its functioning as an independent body, free from the political influence of the President and AC."

The Enlarged Board has been back in the news again recently and once again questions are being raised about its compliance with fundamental legal principles such as judicial independence.

"As the date for the hearing approaches it seems like a good time to take a fresh look at the EPO's Enlarged Board of Appeal to get a better idea about what is really going on behind the scenes in this landmark case."This time the case number is G 1/21 (warning: epo.org link) and the IP blogosphere is buzzing with rumours of a "kangaroo court" procedure.

An oral hearing is due to take place on 28 May. [PDF]

As the date for the hearing approaches it seems like a good time to take a fresh look at the EPO's Enlarged Board of Appeal to get a better idea about what is really going on behind the scenes in this landmark case.

Stay tuned for more… ⬆