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Overlap between executive and judicial power at the European Patent Office

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Overlap between executive and judicial power at the European Patent Office

An appeal brought before the Enlarged Board of Appeal (EBoA) at the European Patent Office (EPO) cited bias on the part of the EBoA’s chairman. The chairman in question is also the Vice-President of Directorate-General 3 (DG3) – which is responsible for all the boards of appeal (BoAs) – as well as being a member of the EPO’s Management Committee.

Since 1985, it has in fact been standard practice for the Vice-President of DG3 to also serve as the chairman of the EBoA.

In the aforementioned case, the Board of Appeal (BoA) had not granted permission for the decision to be referred to the EBoA, as it has been given the task of reducing the number of appeal proceedings. This instruction emanated in part from the Vice-President of DG3. In a provisional decision of the EBoA, this bias was acknowledged in the presence of a representative of the chairman (R19/12).

Fundamental problem
However, neither this decision nor putting an end to the occupancy of a management committee position by the Vice-President of DG3 will resolve the fundamental problem – namely, that the BoAs are part of the EPO and, as such, decide on their own administrative acts. The problem of the lack of separation of powers can only be solved by splitting off the BoAs as independent authorities. Germany did this in 1950 when it established the Federal Patent Court. For a pan-European solution, the 38 Member States must agree to an amendment to the European Patent Convention. Although agreement was originally reached on this within the EPO back in 2004, the conference of Member States that had been planned to decide the matter never took place.

Constitutional complaints
This issue also has ramifications at the national level: a number of constitutional complaints are currently pending at the Dutch, British and German appeal courts relating to the lack of judicial review. Spain, meanwhile, has brought an appeal challenging the Unitary Patent of the Court of Justice of the European Union (C-146/13), citing as one of its objections the lack of judicial review of decisions by the EPO.

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