19 February 2015Patents

CIPA calls for better separation of EPO powers

The Chartered Institute of Patent Attorneys (CIPA) has called for a strengthening of the “separation of powers” at the European Patent Office (EPO).

In a letter sent to Jesper Kongstad, who is the chair of the Administrative Council (AC), James Boff, chair of CIPA’s patents committee, said reform is necessary to guarantee the separation of powers between the AC, the EPO and the office’s boards of appeal.

Boff recommended reforms including placing responsibility for the boards of appeal with a director who would report to the AC, and introducing rules concerning “under what circumstances and for what duration” the president can temporarily exclude appeal boards members from the EPO premises without prior agreement from the new director.

In the letter, Boff said the European Patent Convention (EPC) was set up to ensure that the power to discipline boards of appeal members was with the AC, not the president.

The controversy surrounding the boards of appeal and the subject of judicial independence has been bought into “sharp focus” by recent events, Boff said.

Last year Battistelli was criticised by some sections of the EPO’s workforce after he imposed a ‘house ban’ on a member of the office’s Enlarged Board of Appeal following allegations of misconduct.

Battistelli’s decision was backed in December by the AC, which suspended the member. The AC’s decision came despite two separate letters sent to its members by Enlarged Board members, including English judge Lord Justice Floyd. The letters’ authors asked the AC to recognise that Battistelli does not have the authority to ban a board member.

The Enlarged Board, one of more than 20 appeal boards at the office, is supposed to be independent from the EPO in its decision-making and is bound only by the EPC.

In his letter, sent on February 6 but published by CIPA on February 16, Boff requested a stronger separation of powers between an oversight body (the AC), an executive body (the EPO and its president) and a judiciary (the boards of appeal).

His letter said: “CIPA is of the view that amendment to the EPC is necessary to give a secure guarantee of independence [of the boards of appeal].”

The EPO has been hit by a string of controversies as certain staff members have protested against the office’s governance. Two demonstrations have taken place at the office’s Munich headquarters so far this year, while an “incremental” five-week strike was held at the end of last year.

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