The Haar in the Soup
March 1, 2019
Not much time for blogging today, but yet another referral to the Enlarged Board may deserve our attention. TBA 3.5.03 referred the following questions to the Enlarged Board, of which question 3 may have the greatest Impact:
1. Ist im Beschwerdeverfahren das Recht auf Durchführung einer mündlichen Verhandlung gemäß Artikel 116 EPÜ eingeschränkt, wenn die Beschwerde auf den ersten Blick unzulässig ist?2. Wenn die Antwort auf Frage 1 ja ist, ist eine Beschwerde gegen den Patenterteilungsbeschluss in diesem Sinne auf den ersten Blick unzulässig, die ein Dritter im Sinne von Artikel 115 EPÜ eingelegt und damit gerechtfertigt hat, dass im Rahmen des EPÜ kein alternativer Rechtsbehelf gegen eine Entscheidung der Prüfungsabteilung gegeben ist, seine Einwendungen betreffend die angebliche Verletzung von Artikel 84 EPÜ nicht zu berücksichtigen?
3. Wenn die Antwort auf eine der ersten beiden Fragen nein ist, kann die Kammer ohne Verletzung von Artikel 116 EPÜ die mündliche Verhandlung in Haar durchführen, wenn die Beschwerdeführerin diesen Standort als nicht EPÜ-konform gerügt und eine Verlegung der Verhandlung nach München beantragt hat?
In English:
(1) In appeal proceedings, is the right to an oral hearing under Article 116 EPC restricted if the appeal is prima facie inadmissible?(2) If the answer to Question 1 is in the affirmative, is an appeal against the decision granting a patent prima facie inadmissible in this sense, which Appeal has been filed by a third party within the meaning of Article 115 EPC and which has been substantiated by arguing that there is no alternative remedy under the EPC against a decision of the Examining Division not to take into account the third party's objections concerning the alleged violation of Article 84 EPC?
(3) If the answer to one of the first two questions is no, can the Board hold oral proceedings in Haar without violating Article 116 EPC, if the appellant complains that this location is not in conformity with the EPC and requests that the oral proceedings be moved to Munich?
In the Board's view, a referral of the question of the right venue of the oral proceedings (Referral Question 3) to the Enlarged Board of Appeal appears necessary according to Article 112 (1)a) EPC, since the question is of fundamental importance for a large number of appeal proceedings, answering it serves to ensure a uniform application of the law, and the Board considers that a decision on this matter is necessary.
The deciding Board placed much reliance on earlier decisions T 1012/03 and T 689/05, according to which the right to be heard in oral proceedings includes, as a subset of the right to be heard, not only the right to be heard at all, but also the right to be able to present the arguments in the right venue. The right venue is not automatically the seat of the European Patent Organisation referred to in Article 6 (1) EPC, but regularly the venue referred to in Article 6(2) EPC, at which the department responsible for the proceedings within the meaning of Article 15 EPC of the European Patent Convention is located, provided that the venue of the department must be compatible with the European Patent Convention. (T 1012/03, reasons no. 41 et seq.; T 689/05, Reasons no. 5.3).
In the referrings Board's view, the decision on the question will essentially depend on whether the President of the European Patent Office or the Administrative Council of the European Patent Organization, who empowered the President to rent the new office building and thus approved the relocation of the Boards of Appeal in the municipality of Haar, either had the power to relocate departments of the Office within the meaning of Article 15 EPC also outside the locations mentioned in the EPC (Art 6(2)) including the Centralisation Protocol (Section I(3)a)), or whether Article 6(2) of the EPC is to be interpreted as meaning that "Munich" is not the city of that name, but rather the greater Munich area. The referring Board clearly favours a strict Interpretation of "Munich".
The Board added that it is unaware of the exact reasoning, by which the President in 2016 expressed the view that a relocation of the Boards of Appeal in a place outside Munich's city limits are in accordance with the EPC; it has therefore not yet formed an own final opinion on this question, but apparently found it sufficiently debatable and relevant so as to refer it to the Enlarged Board.
In my own view, this is quite an interesting and remarkable development. I have always queried why the Boards had to move out of the Isar building at all and never believed the official excuse that this might help to increase the appearance of the Boards' independence. Anyway, the hearing rooms are still there, but do not seem to be used much. Will the Boards return one day? Stay tuned!
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A friend of the EPO and of the BA
As far as staff regulations of the EPO are concerned, staff members ought to reside at their place of duty. Haar used to be among a list of towns around Munich in which staff member may reside without infringing their duty of residence in Munich at large. A similar list of towns used to exist for The Hague, Berlin or Vienna. And here we come again to the topic of the independence of the Boards of Appeal. There are ways to look at the way there is a lack of independence: 1) Members of the BA are primarily staff member of the EPO. In spite of being appointed by the AC, members of the BA remain under the authority of the President in administrative matters. It is because the then president of the EPO considered that he has administrative authority over any staff member of the EPO, be it a member of the BA, that he barred a member of the latter from entering the premises of the EPO, be it in Haar, Munich or anywhere. The separation of powers was the last of his worries, but it is something that he ought to have respected. 2) Transfer of the BA to Haar. With this mind set it cannot be a surprise that he decided as a retaliation measure to ban the BA outside the main building and to send them in exile to Haar. The AC was his diligent helper. It is a summit of cynicism to claim that this move was there to increase the appearance of the Boards’ independence. It is here that the new referral finds its place. In the past there was talk to send the BA to various places outside Munich, e.g. Warsaw, but the EPC did not appear to provide for the necessary legal basis. A town outside Munich is prima facie also outside any legal basis, as explained by the referring BA. 3) The structure of the BA and their budget. The President of the BA is appointed by the AC on a joint proposal made by the BAC and the president of the EPO. So the president will never agree to forward a candidature he disapproves. The President of the BA manages the BA and, to this end, have the necessary functions and powers delegated to him by the president of the European Patent Office. What if the president removes the delegation of powers? That the president of the EPO will provide the President of the BA with the necessary resources, as set out in the adopted budget is non-committing. What if the president of the EPO is of the opinion that the budget requested by the President of the BA does not have the approval of the president of the EPO. We seem to have arrived at a similar situation as that preceding the separation of the Federal Patent Court from the German Patent Office. But history never repeats itself..... All those points and the latest referral show that it is high time that the BA should be considered as a completely autonomous judicial body with a clear distinction between the EPO as such and the BA. The system worked fine as long as no president of the EPO put his nose into the business of the BA. The outcome of all this might not be the legacy the former head of the EPO wanted to leave to history, and it would be good so. Independently of the present referral, it is high time to call a conference of ministers as foreseen in Art 4a in preparation of a diplomatic conference in order to separate the BA from the EPO. There has been in the past a proposal of separation between the BA and the EPO, but it was not accepted by the AC and the member states. It is however not too late to act! Techrights: FINGERS OFF!! Directly or indirectly
Cees Mulder
The only manner to make the Boards of Appeal independent of the EPO, would be to delete Art. 15(f) and (g) EPC and insert them into Art. 6(2) EPC, which will then read as follows: The organs of the Organisation shall be: (a) the European Patent Office; (b) the Boards of Appeal and the Enlarged Board of Appeal; (c) the Administrative Council. This amendment requires a Revision Conference, because this falls outside the competence given to the Administrative Council enshrined in Art. 33(1)(b) EPC. Note that if Art. 6(2) EPC were amended in the proposed manner, many articles and Rules should be rephrased, because the wording “European Patent Office” which now refers to the departments of the first as well as the second instance, would no longer be correct.
Richard Gillespie
As A friend of the EPO noted we seem to have arrived at a similar situation as that preceding the separation of the Federal Patent Court from the German Patent Office - my understanding is this happened after a case in 1959 of the Bundesverwaltungsgericht (Federal Supreme Court for Administrative Matters) that neither the German Patent Office nor its Senat qualified as an independent court under Article 19(4) of the Grundgesetz (German Basic Law) which provides that a person who's rights are infringed by an act of the public authorities is entitled to redress before an independent court. As Cees Mulder noted, the Boards of Appeal as a body is not independent of the EPO. Given the Dr. Stjerna’s constitutional complaint before the Bundesverfassungsgericht (BVerfG) I've two questions: i) As I'm based in Ireland, I can't find anything more than very a brief reference to the 1959 case on the internet - does anyone have more detail on this case and its aftermath? I'm particularly interested in what happened between 1959 and 1961, after the German Patent Office was found not to be independent and before the German Federal Patent Court came into existence. ii) What happens if the BVerG finds that Broads of Appeal of the EPO are not independent? I have no knowledge of German constitutional law - is it possible for German law to tolerate a conflict with the EPC until it is resolved (using the excellent fix suggested by Cees Mulder) or does Germany fall out of the EPC system?