Appeal Procedure Before The European Patent Office - Independence of The Members of The Boards of Appeal

Independence of The Members of The Boards of Appeal

The members of the Boards of Appeal and of the Enlarged Board of Appeal are appointed by the Administrative Council of the European Patent Organisation on a proposal from the President of the European Patent Office. Moreover, during their five year term, the Board members may only be removed from office under exceptional circumstances.

According to Sir Robin Jacob, the members of the Boards of Appeal are "judges in all but name". They are only bound by the European Patent Convention. They are not bound by any instructions, such as the "Guidelines for Examination in the European Patent Office". They have a duty of independence.

However, since "the boards' administrative and organisational attachment to the EPO which is an administrative authority obscures their judicial nature and is not fully commensurate with their function as a judicial body", there have been calls for creating, within the European Patent Organisation, a third judicial body alongside the Administrative Council and the European Patent Office. This third judicial body would replace the present Boards of Appeal and could be called the "Court of Appeals of the European Patent Organisation" or the "European Court of Patent Appeals". This third body would have his own budget, would have its seat in Munich, Germany and would be supervised "without prejudice to its judicial independence" by the Administrative Council of the EPO. The EPO has also proposed that the members of the Boards of Appeal should be appointed for lifetime, "with grounds for termination exhaustively regulated in the EPC". These changes would however need to be approved by a new Diplomatic Conference.

According to some experts, the calls to improve the institutional independence of the Boards of Appeal have not received so far the appropriate consideration by the Administrative Council of the European Patent Organisation.