Something is rotten in the state of the EPO
When the drafters of the European Patent Convention conceived of a system whereby the heads of the national patent offices would form an Administrative Council (AC) as a kind of legislature that would exercise oversight over the executive powers of the President, they must have believed they invented a good system. Who could be more disinterested and impartial than the national offices, which were actually competitors of the European Patent Office itself? What the drafters could not have realized, but has now become apparent, it is that the national offices might come to rely financially on the EPO, either in the form of income from renewal fees for patents where the national office has done no examination, or more directly in the form of cooperation and assistance funds.
Recently, the EPO has been beset by problems. A programme of reform has been pushed through which has led to widespread industrial unrest amongst the workforce, and distrust between the examiners and senior management. The problems have been exacerbated by the fact that the only legal recourse for aggrieved EPO employees is the International Labour Organisation, which has an immense backlog (partly caused by the number of EPO grievances) leading to a delay of many years before cases are decided. While there was little dispute that some reform was needed, the pace and character of the reforms, as well as their style of introduction, created a toxic atmosphere, the scale and causes of which were denied by the management, and relatively unrecognized outside of the EPO itself. The relatively generous salaries of EPO examiners led to a lack of sympathy in some quarters. The wider world only noticed the increasingly troubled situation at the EPO when a member of the Boards of Appeal of the EPO was suspended by the President without the prior sanction of the AC, an action that appeared to compromise the judicial independence of the Boards of Appeal. This occurred shortly after a seminal decision of the Enlarged Board of Appeal (EBA), which upheld an objection of suspicion of partiality against its Chairman, on the sole basis of his dual administrative role within the management of the Office. The response of the President, transferring some administrative powers from the EBA Chairman to himself, seemed to make the problem worse rather than better.
The judicial independence of the Boards of Appeal is crucial to the finality of their decisions. If the Boards are not accepted as a judicial instance, a national court could decline to give effect to their judgments on the basis of lack of compliance with European legal norms such as those embodied in Article 6 ECHR (right to fair trial). Before recent events, although national courts had always accepted the judicial character of the Boards, Board members took the view, supported by some commentators, that more autonomy was desirable. However, a proposal to increase the autonomy of the Boards had been shelved by the current administration.
It was clear that action needed to be taken, but new proposals from the President to modify the administrative structure of the Boards seemed to conflate independence with efficiency, and also addressed other matters, such as the management of possible conflicts of interest of Board members, which had never in reality seemed to be a problem. There was more concern with the appearance of independence, such as the physical location of the Boards, than independence itself.
These developments caused the wider IP community in Europe to take an interest in the situation. The EPI, national patent attorney associations, and industry bodies, as well as the Boards themselves, made representations to the President and, when these seemed to fall on deaf ears, to the AC directly. Now, finally, it seems that consideration will be given to an autonomous structure for the Boards. But consideration also needs to be given to the wider governance of the Organisation. The EPO is a transnational body with immunity from jurisdiction and execution (which led to the moniker “Eponia” - a quasi-State). It is free from both direct political control and judicial review. Therefore, the oversight afforded by the AC is the only check of the executive. Can it now be considered that the AC structure is capable of providing resilient governance, when in many cases this may involve biting the hand that feeds them? Something more robust is surely required.
Where does the answer lie? The closest comparable institution is OHIM, which does not provide a model since it is an EU body, and its decisions are subject to two instances of judicial appeal. The EPO represents a unique problem and demands a unique solution, which must now be found.
© The Author(s) (2016). Published by Oxford University Press. All rights reserved.