According to an unconfirmed report on the usually-reliable IPKat blog, European Patent Office (EPO) President Benoît Battistelli has submitted a further proposal for reform of the EPO’s Boards of Appeal. The alleged proposals are not yet publicly available, but if the report on IPKat is correct, Battistelli proposes a sharp increase in the EPO’s official Appeal fees, from a current level of €1880 to a projected level of €7350 by 2021.
The EPO’s Boards of Appeal are responsible for hearing appeals against decisions taken by the EPO’s departments of first instance, such as the Examining Division and the Opposition Division. Although unsuccessful Opponents retain the option of revocation proceedings before the national courts of EPO member states, the Boards of Appeal represent the only available route of appeal for patent applicants who wish to contest the refusal of their patent application, or for patent proprietors who wish to challenge the revocation of their patent during an opposition. If the Appeal fee is hiked as proposed this will be unwelcome news to many users of the EPO system, who rely on the Boards to act as a further level of “quality control” to ensure that important patent applications or patents are not incorrectly refused or revoked. A fee increase of this magnitude would, in particular, seem at odds with the EPO’s often-professed aim to be sensitive to the needs and financial constraints of small businesses.
These new proposals for reform of the Boards of Appeal are the latest chapter in a long-running saga concerning the internal organisation and governance of the EPO. The full details of the ongoing, increasingly acrimonious, internal EPO disputes are beyond the scope of this post but have been widely reported elsewhere, such as on IPKat. In brief, it is widely accepted that the Boards of Appeal need to be reformed to ensure that they are fully independent from the EPO’s management, in order to avoid accusations of partiality in their decisions. There is also a severe and growing backlog of Appeal cases, with many files lying dormant for three years or longer before any action is taken, and a method needs to be found to address this. However, reaching agreement on the details of any reform to address these points seems to be far from simple.
Ostensibly, the fee hike is supposed to improve the financial independence of the Boards from the EPO. However, as noted elsewhere, this seems to do little to address other, more pressing concerns about the relationship between the Boards and the EPO management structure which could leave the Boards open to accusations of undue political influence. One may be forgiven for wondering whether the proposed fee increase is, in fact, rather a crude way of cutting down on the backlog by simply making Appeals less financially attractive rather than by streamlining the Appeal procedure or simply recruiting more Board members.
It is worth noting that a previous reform proposal from the President came in for severe criticism after being laid open for public comments, with many respondents noting that it conflated the questions of efficiency and independence, appeared fixated on relocating the Boards away from their current location in Munich for no readily-discernible reason, and potentially decreased, rather than increased, the managerial independence of the Boards. The Boards themselves complained that they had not been consulted at all. That proposal was rejected at a meeting of the Administrative Council (the EPO’s governing body) in March 2016 and the President was instructed to return to the next meeting with a revised proposal.
The next Administrative Council meeting is scheduled for the end of this month, and so many users of the EPO will, no doubt, be watching to see whether this latest proposal is also thrown out.