Art. 23 1/15, Art. 23 2/15 and Art. 23 1/16

Art. 23 1/15

Submitted 31 June 2015
Decided 17 September 2015
Full case name Administrative Council v. Respondent
Case number Art. 23 1/15 (G 2301/15)
Chamber Enlarged Board of Appeal
Language of Proceedings English
Ruling
Request for a proposal of removal from Office: "Article 12a(5) RPEBA requires that the request under Article 12a(1) RPEBA specify individual incidents and the evidence for them, and give reasons why they constitute a serious ground within the meaning of Article 23(1) EPC."
Court composition
President
I. Beckedorf
Judges
K. Klett · A. Dimitrova · M.-B. Tardo-Dino · E. Dufresne · U. Oswald · H. Meinders
Art. 23 2/15

Submitted 26 October 2015
Decided 11 February 2016
Full case name Administrative Council v. Respondent
Case number Art. 23 2/15
Chamber Enlarged Board of Appeal
Language of Proceedings English
Ruling
Request for a proposal of removal from Office: "Case terminated by withdrawal of the request from the Administrative Council. Reimbursement of all respondent's procedural costs proposed, as well as publication"
Court composition
President
M.-B. Tardo-Dino
Judges
K. Klett · A. Dimitrova · E. Dufresne · R. Moufang · U. Oswald · H. Meinders
Art. 23 1/16

Submitted 11 February 2016
Decided 14 June 2016
Full case name Administrative Council v. Respondent
Case number Art. 23 1/16
Chamber Enlarged Board of Appeal
Language of Proceedings English
Ruling
Request for a proposal of removal from Office: "Decision not to propose removal from office after threat by president of the European Patent Office to the Enlarged Board of Appeal; which the Administrative Council did not sufficiently distance itself of."
Court composition
President
M.-B. Tardo-Dino
Judges
E. Liiv · A. Dimitrova · I. Beckedorf · D Rogers · U. Oswald · H. Meinders

Art. 23 1/15 (also referred to as G 2301/15),[1] Art. 23 2/15 and Art. 23 1/16 are three related cases decided by the Enlarged Board of Appeal of the European Patent Office concerning the removal from office of a member of the Boards of Appeal, who had been previously suspended by the Administrative Council of the European Patent Organisation. According to Article 23(1) EPC, members of the Boards of Appeal may only be removed from office by the Administrative Council on a proposal from the Enlarged Board of Appeal. Two cases were successively initiated by the Administrative Council, but the Enlarged Board eventually dismissed both of them.[2][3] In the third case initiated by the Administrative Council, the Enlarged Board decided not to propose the removal from office of the member of the Boards of Appeal.[4]

Background

The European Patent Convention (EPC) is a multilateral treaty instituting the legal system according to which European patents are granted. It contains provisions allowing a party to appeal a decision issued by a first instance department of the European Patent Office (EPO). The appeal procedure is under the responsibility of its Boards of Appeal, which are institutionally independent within the EPO. According to Robin Jacob, the members of the Boards of Appeal are "judges in all but name".[5]

The members of the Boards of Appeal are appointed by the Administrative Council of the European Patent Organisation on a proposal from the President of the European Patent Office (EPO).[6] The Administrative Council exercises disciplinary authority over the Board members and, during their five-year term, the Board members may only be removed from office "if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect."[7] The Administrative Council is also the appointing and disciplinary authority for the President of the EPO.[8]

Precursory events

EPO headquarters in Munich, Germany

On 3 December 2014, a Board of Appeal member "was escorted out of the [European Patent] Office by [EPO's] investigation unit," and Benoît Battistelli, president of the EPO, imposed a "house ban" on the Board member.[9][notes 1] In reaction, a number of members of the Enlarged Board of Appeal, the highest body of the EPO judiciary, wrote to the Administrative Council to express their concerns over this move, regarded as challenging the judicial independence of the Boards of Appeal.[9][10][11][12][13] Battistelli stated that he acted "in accordance with the rules at all times" and that he was "absolutely committed to the independence of the [EPO's] judiciary".[14]

The Administrative Council of the European Patent Organisation then suspended the Board member.[notes 2] The decision was taken at the Administrative Council's meeting held on 10 and 11 December 2014 in Munich, Germany. The suspension is unique in the history of the EPO.[15] The Board member was originally suspended until 31 March 2015, for alleged misconduct "[a]s a precautionary and conservative measure" pending an investigation of the matter.[10][11][15] According to the French newspaper Les Échos, the Board member is accused of having launched a smear campaign against Željko Topić, one of the Vice-Presidents of the EPO.[16] The suspended Board member's name has not been made public. According to the German magazine JUVE, he is a member of Board 3.5.05.[12]

After the suspension of the Board Member, the Rules of Procedure of the Enlarged Board of Appeal (RPEBA) were amended by decision of 25 March 2015 (CA/D 3/15) to implement a procedure for Article 23(1) proceedings,[17] and to fill a legislative lacuna in that respect.[18] A new Article 12a RPEBA provides for that the Administrative Council or the Vice President of EPO in charge of the Boards of Appeal may request that the Enlarged Board of Appeal make a proposal to the Administrative Council for the removal from office of a Board member.[17]

Proceedings and decisions

June–September 2015: first case (Art. 23 1/15)

Following an internal investigation, the Administrative Council requested in June 2015 the Enlarged Board of Appeal to make a proposal for the removal from office of the Board member, pursuant to Article 23(1) EPC and Article 12a of the Rules of Procedure of the Enlarged Board of Appeal.[19][20] This is the first dismissal procedure instituted against a member of the Boards of Appeal in the history of the European Patent Office.[20]

In that first case, which received the case number "Art. 23 1/15" (also referred to as "G 2301/15"),[1] the Administrative Council sent data which it said were sufficient evidence. In its decision issued in September 2015, the Enlarged Board indicated that the Council however failed to make a statement regarding the facts which should lead to removal from office, or give arguments why the evidence should lead to removal. The Enlarged Board thus dismissed the case. Namely, the Administrative Council's request for a proposal that the Board member be removed from office was rejected as inadmissible.[2][21]

October 2015–February 2016: second case (Art. 23 2/15)

A second case, which received the case number "Art. 23 2/15", was then initiated on 26 October 2015 and subsequently withdrawn by the Administrative Council. The Enlarged Board thus dismissed the case. It also ordered publication of the decision and proposed reimbursement of legal costs by the defendant.[3]

February–June 2016: third case (Art. 23 1/16)

A third case, which received case number "Art. 23 1/16", contained a redrafted request from the Administrative Council asking for a proposal for the removal of the Board member. During first non-public oral proceedings held on 10 to 12 May 2016, the Enlarged Board of Appeal held that the Administrative Council's request was formally admissible for discussion as to its merits, unlike the first request filed in case Art. 23 1/15. The Enlarged Board also decided that public oral proceedings would be held in June 2016, in order to discuss the merits of the case. However, shortly before the scheduled oral proceedings, the Enlarged Board received a letter from the president of the EPO, who is not a party to the proceedings, indicating that he considered the planned public oral hearing and the hearing of witnesses from the Office as "unlawful". Following this intervention from the president of the EPO, the Enlarged Board considered that it could only proceed further with the proceedings if the chairman of the Administrative Council (the "petitioner" that started the proceedings, and appointing authority of the president) distanced himself from the letter. The Administrative Council replied, but the Enlarged Board deemed that the Administrative Council did not do so satisfactory. The Board thus decided not to request removal from office of the defendant, without deciding on the substantive allegations made against the suspended member.[4][22][23][24][25][26]

Reception

In October 2015, Siegfried Broß, a former judge of the German Federal Constitutional Court and the Patent Division of the Federal Court of Justice, expressed the opinion that the procedure followed by the President and the Administrative Council did not comply with the rule of law and had been conducted in a manner comparable to criminal proceedings, and that confidentiality requirements had not been adhered to. He furthermore criticized the role of EPO's internal investigation unit.[27] EPO Vice-President Raimund Lutz strongly rejected these criticisms, stating that the disciplinary proceedings against the Board member were conducted by the EPO and the Administrative Council in accordance with the EPC provisions.[28]

Notes

  1. ↑ According to the Enlarged Board in its decision Art. 23 1/16, Summary of Facts and Submissions, point VI, the President of the EPO also ordered the suspension of the Board member on 3 December 2014.
  2. ↑ The Enlarged Board regards the Administrative Council's move on 11 December 2014 as a decision "to confirm the suspension of [the Board member]" (decision Art. 23 1/16, Summary of Facts and Submissions, point VII).

References

  1. 1 2 "G 2301/15 (Request for a proposal of removal from office) of 17.9.2015". European Patent Organisation (December 10, 2015 Google cache copy by Techrights). 9 December 2015. Retrieved 2 June 2016.
  2. 1 2 "Case Art. 23 1/15". Enlarged Board of Appeal. Retrieved 16 May 2016.
  3. 1 2 "Case Art. 23 2/15". Enlarged Board of Appeal. Retrieved 16 May 2016.
  4. 1 2 "Case Art. 23 1/16". Enlarged Board of Appeal. Retrieved 23 May 2016.
  5. ↑ Sir Robin Jacob, National Courts and the EPO Litigation System, GRUR Int. 2008, Vol. 8–9, pages 658–662, referring to what he said in Lenzing's Appn. [1997] RPC 245 at p. 277 and repeated in Unilin v. Berry [2007] EWCA Civ. 364. See also Leith, P, "Judicial and Administrative Roles: the patent appellate system in a European Context", Intellectual Property Quarterly, Issue 1, 2001.
  6. ↑ Article 11(3) EPC
  7. ↑ Article 23(1) EPC
  8. ↑ Article 10(1) EPC, Article 11(1) EPC
  9. 1 2 Nurton, James (9 December 2014). "Is the EPO in crisis?". Managing Intellectual Property. Retrieved 13 December 2014.
  10. 1 2 Klos, Mathieu (12 December 2014). "Skandal im EPA: Verwaltungsrat stärkt Präsident Battistelli den Rücken" [Scandal at the EPO: Administrative Council backs President Battistelli]. JUVE (in German). JUVE. Retrieved 13 December 2014.
  11. 1 2 "Administrative Council backs latest EPO suspension". World Intellectual Property Review (WIPR). 12 December 2014. Retrieved 13 December 2014.
  12. 1 2 Klos, Mathieu (9 December 2014). "Skandal im EPA: Druck auf Präsidenten wächst nach Hausverbot für Richter" [Scandal at the EPO: Pressure on the President is increasing after exclusion order for judge]. JUVE (in German). JUVE. Retrieved 13 December 2014.
  13. ↑ Merpel (8 December 2014). "Breaking News: Enlarged Board appeals - direct to the Administrative Council". IPKat. Retrieved 13 December 2014.; Merpel (10 December 2014). "Leading European IP Judges join the chorus of condemnation". IPKat. Retrieved 13 December 2014.; Merpel (11 December 2014). "Six more judges criticise Battistelli's actions". IPKat. Retrieved 13 December 2014.
  14. ↑ Wild, Joff (12 December 2014). "EPO president defends his actions and achievements in the face of mounting criticism". IAM. Globe White Page Ltd. Retrieved 13 December 2014.
  15. 1 2 Council Secretariat (of the Administrative Council of the European Patent Organisation) (12 December 2014). "Communique on decisions taken by the Administrative Council at its 142nd meeting concerning senior employees and appointments and reappointments to the Boards of Appeal". European Patent Office. Retrieved 13 December 2014.
  16. ↑ Madelin, Thibaut (12 December 2014). "Tensions à l'Office européen des brevets" [Tensions at the European Patent Office]. Les Échos (in French). Retrieved 13 December 2014.
  17. 1 2 "III.1 - Decision of the Administrative Council of 25 March 2015 approving amendments to the Rules of Procedure of the Enlarged Board of Appeal of the European Patent Office (CA/D 3/15)". EPO. Retrieved 16 May 2016.
  18. ↑ Merpel (13 March 2015). "REVEALED - the Administrative Council prepares procedure for removal from office of members of the Boards of Appeal". IPKat. Retrieved 3 June 2016.
  19. ↑ "145th meeting of the Administrative Council of the European Patent Organisation (Munich, 14-15 October 2015)". Munich: European Patent Office. 15 October 2015. Retrieved 18 October 2015.
  20. 1 2 Geimer, Christina; Klos, Mathieu (16 October 2015). "EPA: Amtsenthebungsverfahren gegen Mitglied der Beschwerdekammer eingeleitet" [EPO: Dismissal procedure initiated against member of the Boards of Appeal]. JUVE (in German). JUVE. Retrieved 24 October 2015.
  21. ↑ Merpel (20 November 2015). "Read it for yourself: Enlarged Board decision Art 23 1/15". IPKat. Retrieved 2 June 2016.
  22. ↑ Klos, Mathieu (15 June 2016). "Eklat am EPA: Battistelli greift in Amtsenthebungsverfahren ein" [Scandal at the EPO: Battistelli intervenes in dismissal procedure]. JUVE (in German). JUVE. Retrieved 20 November 2016.
  23. ↑ McCarthy, Kieren (15 June 2016). "EPO president caught threatening independent appeal board". The Register. Retrieved 13 November 2016.
  24. ↑ Merpel (23 June 2016). "Enlarged Board publishes decision: EPO President violated judicial independence". IPKat. Retrieved 25 June 2016.
  25. ↑ Behrens, Sonja (28 June 2016). "EPA-Streit: Richter fühlen sich von Amtschef Battistelli bedroht" [EPO dispute: Judges feel threatened by office head Battistelli]. JUVE (in German). JUVE. Retrieved 20 November 2016.
  26. ↑ Bausch, Thorsten (7 November 2016). "The Rule of Law (Rechtsstaat) is Endangered and Needs to be Defended!". Kluwer Patent Blog. Section 4. Retrieved 13 November 2016.
  27. ↑ Geimer, Christina; Klos, Mathieu (29 October 2015). "EPA-Disziplinarverfahren: "Verwaltungsrat und Battistelli handeln ohne rechtliche Grundlage"" [EPO Disciplinary Proceedings: Administrative Council and Battistelli are acting without legal basis]. JUVE (in German). JUVE. Retrieved 25 May 2016.
  28. ↑ Klos, Mathieu (17 November 2015). "EPA-Disziplinarverfahren: Amtsführung weist Kritik von Ex-Verfassungsrichter zurück" [EPO Disciplinary Proceedings: Management of the Office rejects criticisms from former Constitutional Court judge] (in German). JUVE. Retrieved 3 June 2016.

Further reading

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