This week, members of the Enlarged Board of Appeal have
published a letter expressing concern about "a clear challenge
to the judicial independence of the Boards of Appeal" and a
leading German practitioner has written to a member of the
Administrative Council voicing his concerns about judicial
independence and "the EPO’s worldwide
strikes and demonstrations organised by the SUEPO union started
on November 20 and are due to continue until December 19
claims the action, taking place in Munich and The Hague, is
designed to protect the rule of law, freedom of association and
honest negotiation of reforms. Additional demos have been
organised in support of two colleagues facing disciplinary
But, speaking to Managing IP, EPO President Benoit
Battistelli described the concerns as exaggerated and denied
there is a crisis at the Office. He added that the
Office’s productivity has improved since last
Both of the letters released this week arise from an
incident on December 3 where a member of the Boards of Appeal
was escorted out of the Office by the investigation unit, which
reports to Battistelli. A "house ban" was imposed on him and
his computer was confiscated.
letter to the Administrative Council published on the IPKat
blog, 35 members of the Enlarged Board of Appeal say that
only the Council can decide to suspend an employee in these
circumstances, and the president can merely propose such a
"This specific distribution of roles is
part of the concept of separation of powers and the
independence of the Board members as enshrined in Article 23
"This specific distribution of roles is part of the concept
of separation of powers and the independence of the Board
members as enshrined in Article 23 EPC. However, in the present
case, the President decided in lieu of the Administrative
Council, for which no provision appears to exist," they
They add that the confiscation of the computer could give
the investigation unit access to confidential information
regarding cases without "proper, legally sound guarantees".
The signatories say they are "deeply concerned about this
conduct" and that the actions "appear to be a clear challenge
to the judicial independence of the Boards of Appeal".
They urge the Administrative Council to ensure the
independence of the Boards by placing "a clear limitation on
the executive power".
In a separate email to Germany’s representative
on the Administrative Council (Christoph Ernst), Tilman
Müller-Stoy of Bardehle Pagenberg in Munich says he is
"deeply concerned about the judicial independence at the EPO
and about the EPO’s worldwide reputation". The
email is reproduced, in English, on the
FOSS Patents blog.
"We have now reached a point where it is
necessary for a public discussion to start".
As well as addressing the situation of the Board member
described above, Müller-Stoy also voices concern about the
President "de facto" controlling reappointment of members of
the Board. "The personal independence, the indispensable
requirement of an also critical examination of administrative
decisions, cannot be guaranteed under such conditions," he
Speaking to Managing IP, Müller-Stoy said he had
decided to write the email because "we have now reached a point
where it is necessary for a public discussion to start". He has
not yet received a reply.
"The initial and overriding point is that I’m
really concerned about what’s happening at the
EPO. All users of the system need a functioning EPO," he said.
"There is the question of the separation of powers. It is
important that judges – though they are called members
of the Boards of Appeal – must be not influenced by
reasons other than the facts and legal status of the case in
making their decisions."
to Managing IP today, Battistelli (left) said the problems
aired this week had been exaggerated: "There is no crisis at
He added: "What we have is we are about to implement
important reforms and this creates some tensions … There
is resistance to change, as has always been the case at the
EPO. A minority of persons are afraid of change and express
Among the reforms proposed, and approved unanimously by the
Administrative Council, is a move to pay based on performance
rather than seniority. Battistelli said this was typical of the
way salaries are calculated in many countries and institutions
and was "appropriate for the 21st century".
Battistelli said that the first strike in the current wave,
on November 20, saw 36% of the Office’s staff walk
out, but that yesterday only 5% of staff were on strike for
either a half day or a full day.
Regarding the Board of Appeal member referred to in the
letters, Battistelli said there was an "ongoing
investigation" that he could not comment on. But he added
that there had been a preliminary investigation regarding
"serious misconduct" involving "disseminating defamatory and
"My duty is to preserve the reputation of
the EPO and its staff members."
This resulted in sufficient evidence to warrant the
temporary removal of the Board member, pending a decision by
the Council, he added. "My duty is to preserve the reputation
of the EPO and its staff members … The person involved
has the right to defend himself and we will see what the result
More generally, he said: "There are specific rules to
preserve full independence of the Boards. These are to assure
independence in specific cases, not to guarantee full immunity
to each member."
He also said he had no regrets about the reforms he has
undertaken at the Office, and would not be changing tack: "Why
should we change anything? The results are there and the policy
is supported by the Council. Our continuing efficiency and
quality policy is favourably received by the users."
Managing IP also contacted Administrative Council Chair
Jesper Kongstad and asked him to comment, but has not yet
received a response. It is likely he is travelling to Munich
Administrative Council includes representatives of all EPC
member states, as well as the president, board of auditors,
staff committee and observers. It is meeting on Wednesday and
Thursday this week.