A few thoughts on trust and judicial independence
November 3, 2020
In these days and times, we are constantly reminded how important and how endangered seemingly simple concepts are such as truth, facts, science and trust. Hannah Arendt, the famous Jewish German-born American political philosopher, wrote about seventy years ago in her first major work “The Origins of Totalitarism”
The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction (i.e., the reality of experience) and the distinction between true and false (i.e., the standards of thought) no longer exist.
This is why lies from political leaders matter so much: constant lying tends to blur the boundaries between true and false. This is also why accountability based on the principles of an impersonal and impartial justice is so important.
Timothy Snyder, Professor of history at Yale University, and perhaps one of the most insightful and important political thinkers of our times, has neatly summarized it here:
Without trust, we can’t have the rule of law.
Thus, trust in our institutions and in particular trust in an independent judiciary is so fundamental. If we lose this trust, we are literally sawing off the branch all of us are sitting on.
Readers paying attention to the news around the globe will find it easy to think of manyfold examples confirming this simple truth, but as this blog is a patent blog, let us turn back our attention to a popular subject on this blog, the independence of the EPO’s Boards of Appeal, or the lack thereof as some critics claim.
While I have written about this subject a couple of times myself, I would today like to direct our readers’ esteemed attention to two papers of my UK colleague Mike Snodin that were recently published in the CIPA journal (I hope that this link works, just scroll down the page and click to see a full-screen version of the latest edition). Mike’s first article is titled: “G 3/19: A need to improve the perception of independence of the EPO Boards of Appeal?”, and the second “G 3/19: Do flaws in the EBA’s reasoning amplify concerns regarding the perception of independence of the EPO Boards of Appeal?”
So, Mike Snodin has reviewed decision G 3/19 and its background in considerable detail. He is fairly critical about the Enlarged Board’s reasoning on the whole, but the main point he makes is this: Fundamentally, G 3/19 was about the new Rule 28 EPC by which the Administrative Council (AC) “interpreted” Art 53b EPC in a particular way that essentially overturned the Enlarged Board’s opinion in G 2/12 and G 2/13. The referring Board 3.3.04 in T 1063/18 thought that the terms of Art 53b EPC, as understood by the Enlarged Board in its earlier decisions, prevail over any terms of the Implementing Regulations as amended by the AC. The EPO President and the Administrative Council, however, thought that this result cannot stand, and the EPO President offered a President's referral of the case to the Enlarged Board. As Mike Snodin reports, "this proposal received broad and overwhelming support from almost all Contracting States." The referral was therefore made, and resulted in the Enlarged Board essentially overturning its earlier decisions.
Before this background, Mike Snodin wonders whether the members of the Enlarged Board of Appeal were really free to come to any different decision than the one they arrived at. Concerns about the perception of independence of the Enlarged Board were raised based on two undeniable facts: (i) the Administrative Council has disciplinary authority over the members of the Enlarged Board to the extent that they are EPO employees, which most of them are. (ii) EBA members are appointed by the Administrative Council, but only for a five year period, and their re-appointment again depends on the AC’s consent and goodwill.
All of this is a consequence of the unfortunate construction of the European Patent Organization, which has been modeled as an supranational authority with diplomatic immunity, yet with a strong emphasis on its executive function and very tenuous checks and balances. In particular, the quasi-judicial function of the Boards of Appeal in patent disputes has received only little attention. Mike Snodin makes some suggestions at the end of his first paper how to improve the current situation, such as revisiting key proposals from 2004 (see AUTONOMY_BOA_CA_46_04_EN), which almost made it into the EPC but were then delayed and later shelved in the hope of a Community Patent Court soon to come. It will not surprise readers that I wholeheartedly support these proposals. Trust in our institutions and in particular in the independence of the judiciary, of which the EPO Boards of Appeal strive to be a part, is an essential cornerstone of our patent system.
With that, let us return to the bigger picture. As is well known, trust can be quickly destroyed but needs a long time and much effort to be built up. This is why attacks on the independence of the judiciary driven by an "us versus them" mentality or "enemies of the people" ideology are so misplaced and so dangerous. We should act against such ideologies with a firm and optimistic mind, e.g. by voting for politicians that help to build trust in institutions of civility, or - if you are a politician in power - by taking these elementary principles to heart and implement reforms that ascertain both judicial independence itself and the perception thereof. The European Patent Organisation is not the only institution where this would be highly desirable.
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MaxDrei
Thank you, Thorsten. You quote Snyder: Without trust, we can't have the Rule of Law. For we patent attorneys, the Rule of Law is precious, and we should fight for it. So how do we preserve trust? For we patent attorneys, trust in "science" is fundamental to our profession. From time to time, corporate interests try to erode trust in science. In our age of human-induced climate change, this is itself a disaster which has to be resisted. One way to resist is to flag up the work of Harvard Professor Naomi Oreskes (link below) and her current book "Why Trust Science", to anybody willing to listen. Impressive, in the book, is how she solicits views from other academics and then replies to them. Judge for yourself how convincingly she sees off her academic rivals. Perhaps the name Oreskes seems familiar? That would be because of her earlier book from 10 years ago "Merchants of Doubt" about how self-professed "scientists" promulgated corporate views, that there is no connection between smoking and cancer. It is fashionable to deplore the USA. But Oreskes is at Harvard. I salute those who support her research there and wonder whether there is anybody outside the USA who is doing as much to nurture the idea that, at least in science and the law, fact should trump fiction, and that being selective with the facts, making economies with the truth (never mind promulgating an "alternative truth" debases us all and so is something deeply to be deplored. https://en.wikipedia.org/wiki/Naomi_Oreskes
Patent robot
G 2301/16, G 2302/15 and G 2301/15 are a coincidence. G 3/19 is a clue. Will G 4/19 be a proof?
Concerned observer
Thorsten - thank you for drawing attention to this issue. Ever since digesting the reasoning of the opinion in G 3/19, my thought has been: how will the EPO's Administrative Council utilise the power handed to them to essentially force a "dynamic" reinterpretation of pretty much ANY Article of the EPC? G 3/19 makes it clear that the restrictions imposed upon the AC's legislative powers under Article 33(1)(b) EPC do NOT constrain the AC's powers to interpret a provision of the EPC. This leaves two important questions unanswered. Firstly, what are the precise conditions that need to be satisfied in order for a new Implementing Regulation to demonstrate a "new legislative intent" that is capable of overriding even a ruling of the Enlarged Board? The opinion in G 3/19 is very woolly on this point, and so I fear that the bar for the AC could well be quite low. Secondly, which Articles of the EPC might the AC decide to "interpret" by way of new Implementing Regulations? Clearly, the provisions governing exclusions from patentability are on the table. But what about other patentability provisions? Or the right to be heard under Article 113 EPC? I hope that I am wrong to worry, but G 3/19 certainly lays the groundwork for all of this to happen.
Attentive Observer
Thanks to Thorsten and Max Drei for two excellent contributions. When reading the contributions, it reminded me of a joke from a representative I meet at a CEIPI conference a long time ago. What is the difference between a scientist and a lawyer? For a scientist the current flows or it does not flow. For a lawyer the current might flow or might not flow depending on the outcome you wish. That this is perfectly acceptable for a lawyer representing a party, it has deleterious effects when such a stance is adopted by a judge or even a panel of judges. That is exactly what happened in G 3/19! That scientists can also fake results is an acquired fact. Just think of Lomonossov under Stalin. How many people died as consequence of a “scientific” study which was anything but faked to please the dictator in place? If judges are selected in view of their support for some specific views on some societal topic, it is a denial of the independence of the judiciary. It might even pay out in the non-distant future in the US, but it is a clear attack under what is called democracy and separation of powers. The decision G 3/19 is, to put it mildly, a disgrace. When you see how the rapporteur twists and turns to arrive at the decision wished by the AC and the President of the EPO you can but be disgusted. The idea of the “dynamic interpretation” is really flabbergasting. The EBA had in the past a different attitude when it simply did not want to rubber stamp the President’s decision about the effective dismissal of a member of the boards having allegedly misbehaved and who was fired under disregard of the separation of powers. If the EBA would have had the guts of his predecessor he should simply have declared the referral as not admissible. This was what the vast majority of people involved in EPO matters expected. The cynical comment about “increasing the perception of independence of the boards” should have brought about an outcry in the profession. What did one hear from epi: an astounding silence! It is abundantly clear that the boards of appeal at the EPO are by no means independent. The Chairman of the BA can only exercise the powers transferred to him by the president of the EPO. On top of this he might propose a budget, but that budget will be presented to the AC within the overall budget of the EPO, and only the president has the power to present a budget to the AC. Art 12a refers directly to Art 10(2) and Art 46, so there is not even the perception of true independence. Under independence I understand something different. The idea of reappointment, but only if the member has shown a required performance, is just the cherry on the cake. And the criteria for reappointment are not even public! R 12d should be scrapped at once. One does not have been studying at university to realise that the Board are under direct influence of the executive. The situation will not be different at the UPC. And this is not good as exemplified by G 3/19. The only way to force the EPO to provide the boards of appeal the necessary independence can only come from outside. For instance from the German Federal Constitutional Court before which there are no less than four complaints about the lack of independence of the boards of appeal of the EPO. Should something like the UP and the UPC come to light, another push could come from Luxembourg. After all, an opposition before the EPO against a UP is an action touching an asset valid in the EU, and it would be surprising that the CJEU would not have an opinion on the matter. Hope dies last, but all the problems touched upon in the blog should be tackled in a pro-active way. And it does not seem to go that way. Ever heard of Art 4a EPC?
Reta
This issue can obviously be resolved by letting the CJEU decide on these matters of legal interpretation. By making the EUIPO competent to grant EU patents.