The members elected to the AMBA Committee in the general assembly of 27 January 2021 have agreed on the following composition of the Committee:

According to our statute, the purpose of AMBA is to monitor and safeguard the independence of the members of the boards of appeal. Independence is a quality that is at the very heart of what constitutes a judge. This quality is not in the interest of the judge, but in the interest of the parties and in the interest of the rule of law.

Judicial independence should be fostered and safeguarded by appropriate legal and factual measures. But what is required for a proper functioning of an independent judiciary? Also, judicial independence requires more than the right external circumstances. The internal functioning of the judicial body and the attitude of the individual judge are as important.

We have asked a number of speakers to give us their view on judicial independence. The first speaker was Tamara Trotman, chair of “Rechters voor Rechters” (Judges for Judges), and judge in the court of appeal of The Hague. Rechters voor Rechters is an association of Dutch judges that is internationally active in supporting judicial independence. Tamara Trotman spoke to us in a video conference on 29 April 2022.

In 2021, the Boards settled 2 938 cases with action, which represents a productivity increase of 11.1% over 2020. In addition to settling cases in an efficient and timely manner, the Boards always strive to uphold the highest standards of quality.

Annual Report 2021

At its 169th meeting, held on 14 and 15 December 2021, the Administrative Council approved the "Code of Conduct for Members of the Boards of Appeal and of the Enlarged Board of Appeal", as proposed in document CA/68/21.

EPO President António Campinos and President of the Boards of Appeal Carl Josefsson have made a joint proposal to the EPO's member states to relocate the Boards of Appeal from the Munich district of Haar to the city centre.

The following document provides an overview of the actions initiated against Mr. C, a former member of the Boards of Appeal:

Chronology

Despite the temporary disruption of oral proceedings due to the COVID-19 pandemic, the Boards of Appeal reduced in 2020 the number of pending cases by 10.3% and the time for settling 90% of cases by five months.

Annual Report 2020

During its 160th meeting, the Council unanimously approved the revised Rules of procedure of the Boards of Appeal, which had previously been adopted by the Boards of Appeal Committee.

Decision and Travaux Prep:

CA/D 5/19 Corr. 1

CA/D 3/19

During the 159th Council meeting, the President of the Boards of Appeal, Carl JOSEFSSON informed the Council in the context of his annual management report about the successful implementation of the structural reform of the Boards of Appeal.

The Council commented very positively on the report and staff performance.

The Council unanimously approved an extension in space of the lease agreement for building 8inOne in the location of the Boards of Appeal in Haar.

In its 150th meeting, the Administrative Council appointed Mr Carl Josefsson (SE) as President of the Boards of Appeals.

Mr Josefsson has been Senior Judge of Appeal at the Svea Court of Appeal since 2013. He holds the same position in the new Patent and Market Court of Appeal, which, in September 2016, became the specialised court for, inter alia, patent disputes. He is expected to take up his duties on 1 March 2017.

The AMBA Committee congratulates Mr Josefsson on his appointment and welcomes him as the future President of the Boards of Appeals.

The function of President of the Boards of Appeal was created by a decision of the Administrative Council in June 2016, replacing the function of Vice President of Directorate-General Appeals, whose term ended on 30 November 2016. For the interim period, the President of the Office has delegated the administrative competences of the Vice President to Mr Gunnar Eliasson, who is the longest-serving Chairman in the Boards of Appeal; chairmanship of the Enlarged Board of Appeal is set out in its Rules of Procedure and Business Distribution Scheme.

A number of issues need to be tackled in the near future and the AMBA Committee is looking forward to working with the newly appointed President of the Boards of Appeal in particular in respect of maintaining the Boards’ independence.

21 December 2016

At the end of November 2016, AMBA has 138 members and thus represents 95,2% of all members and chairmen of the Boards of Appeal.

The AMBA Committee and others have previously provided the members of the Administrative Council (AC) and of the Boards of Appeal Committee (BoAC) with detailed information concerning specific problems with the current proposal to move the Boards of Appeals to the 8inOne building.

The following resolution was formulated, in order to inform the AC and the BoAC about the general view of those most directly concerned by the removal. AMBA members were invited to express their opinion on the resolution.

126 members supported the resolution (94,7% of the participating members).

No member disapproved of the resolution.

Seven members expressly abstained.

Thus, the resolution sets out the unanimous position of the members of AMBA concerning the current proposal.

2 December 2016

In its 149th meeting, the Administrative Council appointed the members of the Boards of Appeal Committee. The representatives of the Council are Ms P García-Escudero Márquez (ES), Mr R Grossenbacher (CH) and Ms B Ionescu (RO) (in alphabetical order). Those of the judiciary are Bacher J (DE), Birss J (UK), and Stenvik J (NO).

Ms García-Escudero Márquez is Director General of the Spanish Patent and Trademark Office.

Mr Grossenbacher was Director of the Swiss Federal Institute of Intellectual Property. He has served as the Chairman of the Administrative Council of the EPO and is currently its Honorary Chairman.

Ms Ionescu is Director General of the Romanian State Office for Inventions and Trademarks.

Bacher J has served at the German Federal Court of Justice since 2009 and sits on the Tenth Civil Panel. He participated in the 2016 AMBA Panel Discussion on Judicial Independence.

Birss J, before his elevation to the High Court, was involved in the extensive reform of the UK Patent County Court, the predecessor of the Intellectual Property Enterprise Court.

Stenvik J served in the Norwegian Board of Appeal for Industrial Property Rights and as an external member of the Enlarged Board of Appeal of the EPO.

These appointments, and especially those of such eminent and experienced judges, are particularly welcome now. Much of the structure creating and maintaining the Boards’ independence and autonomy remains to be determined; and the transitional period, already difficult, will become particularly challenging at the end of November, when the term of the present Chair of the Enlarged Board ends, but the first President of the Boards of Appeal will not have been appointed.

13 November 2016

At its 148th meeting of 29 and 30 June 2016, the Administrative Council adopted a series of measures, subsequently published as council documents CA/D 5/16, 6/16, 7/16, and 8/16. The corresponding structural reform of the Boards of Appeal (see CA/D 6/16 and 7/16) came into effect the following day.

As a result of these measures, the Boards of Appeal are no longer constituted within a Directorate General (DG3) of the European Patent Office under the direction of a Vice President but are organised as a separate unit, the Boards of Appeal Unit (“BoAU”) within the European Patent Office, under the direction of the President of the Boards of Appeal. Thus the present Vice President DG3, Mr van der Eijk, is no longer in charge of a Directorate General. He remains, however, Chairman of the Enlarged Board of Appeal.

According to Rule 12(a)(1), second sentence, EPC, the Chairman of the Enlarged Board of Appeal “shall act as President of the Boards of Appeal.” However, under Rule 12(a)(1), third sentence, EPC, the President of the Boards of Appeal shall be appointed by the Administrative Council on a joint proposal made by the Boards of Appeal Committee (BoAC) and the President of the European Patent Office. The BoAC has not yet been constituted, and so there has been no such appointment. Moreover, the President of the European Patent Office has not delegated any function or power to the President of the Boards of Appeal (see Rule 12a(2), first sentence, EPC).

The present situation seems to be that the Boards of Appeal are now constituted within the BoAU, that the post of President of the Boards of Appeal is not yet occupied, that Mr van der Eijk is acting President of the Boards of Appeal, but that no power has been delegated to him. Thus, the President of the European Patent Office can be seen as exercising direct control over the Boards of Appeal.

This direct control may influence not only the daily work of the BoAU, but also decisions that have far-reaching consequences on the perception of independence and efficiency of the Boards of Appeal, such as those concerning the budgetary framework of the BoAU or its location.

AMBA considers that this situation does serious harm to the perception of independence of the Boards of Appeal and starkly contrasts with the stated aims of the reform. It is to be hoped that the current situation is anomalous and that the anomaly will be removed forthwith.

11 August 2016

On 30 June, the Administrative Council adopted the reforms in “CA/43/16 Rev.1”. The concerns expressed by AMBA, the Presidium and others, most recently the IP Federation and CIPA, apply, for the most part, to this reform just as the previous proposals.

The reform appears to improve the independence of the BoA vis à vis the President of the Office in some respects:

• The delegation of administrative tasks to the President of the BoA is more formal than the previous customary arrangement. That it can be withdrawn only in exceptional circumstances and with the involvement of the Administrative Council, is to be welcomed.
• The delegation attributes to the President of the BoA (and thus also to the Chair of the EBoA) the proposal of the budget of the BoA and the initiative of disciplinary proceedings against BoA members.
• The foreseen new function of the President of the BoA has more limited administrative responsibilities than the present VP3 and, thus, any possible involvement of the former in general management committees of the EPO appears implicitly excluded: this fact would of course prevent the situation that led to the finding in R 19/12.

However, the reform also contains measures that reduce the independence of the BoA and falls way short of what should and could have been achieved:

• Instead of safeguarding members’ security of tenure, the link between re-appointment and performance evaluation and the goodwill of the President of the BoA ends the customary re-appointment by default and, thus, effectively limits the security of tenure to 5 years. This may be seen as licensing the exercise of pressure on individual members.
• Despite talk of a “consensus with the Administrative Council”, the reform document states the glaring weakness that the President of the Office retains his power to propose the candidate for Chairman of the EBoA, who will become the President of the BoA.
• Instead of increasing the autonomy of the BoA, the removal of the Presidium and the EBoA roles even in adopting rules of procedure goes in the opposite direction and is a further means of applying undue pressure.
• Instead of a providing a career system appropriate to a judicial body, the link between grade and performance evaluation for the Technical and Legal members may result in substantial differences in remuneration for members doing essentially the same work. This sort of substantial monetary reward for productivity is unknown in Member States (two or three do have a very small fraction of judges’ salary dependent on appraisal, and they are strongly criticised for it by the CCEJ).

Finally, other measures in the reform appear either at odds with the EPC or to improve only marginally the independence of the BoA for far too high costs:

• The delegation of the power to make proposals for appointment as members (Art. 11(3) EPC) to the President of the BoA, (i.e. a function within and under the complete control of the AC) means the Administrative Council is the sole organ involved in this key judicial function. This appears to be at odds with the prescription of Article 11(3) itself.
• Similarly, the adoption of Rules of Procedure is now fully under the control of the AC, whereas Article 23 EPC (which significantly is entitled “Independence of the members of the Boards”) clearly states that the Administrative Council’s role is one of giving or withholding its approval.
• Finally, the aspects of the reform associated with the aim of improving the efficiency of the BoA are based on an erroneous assessment of quality and quantity of their work. It must first be asked why substantial extra expenditure is planned to provide an unnecessary separate building, rather than to ensuring appropriate staffing levels.

Much depends on the how the BoAC and the President of the BoA choose to act. This could lead either to an increase in independence, or the opposite. For 40 years, the President of the Office and the Vice President of DG3 have enjoyed broad discretionary powers. The BoAC and the President of the BoA have similar powers, and their decisions could lead to problems similar to those underlying R19/12. The reform, rather than transferring the problem, should rather have set new guarantees in the written text of the law (albeit secondary law).

15 July 2016

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AMBA comprises almost all members of the Boards of Appeal of the European Patent Office.

The purpose of the Association is to monitor issues of relevance for the judicial functions of the members of the boards of appeal, especially with a view to safeguarding their independence and promoting their self-government as members of a judiciary, and to gather its members for deliberations on questions of common interest, in order that they will be heard in bodies deciding or making proposals of relevance for these functions.

This website is designed to achieve those aims by:
Highlighting aspects of independence of the judiciary, and
Filling a gap in the information available about the Boards of Appeal.

We welcome any error reports and suggestions for improvement at the webmaster´s address.